author: CARLSON, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Ralph BOONE.
    No. 2010-JP-01082-SCT.
    Supreme Court of Mississippi.
    April 28, 2011.

      Darlene D. Ballard, Ayanna B. Butler, attorneys for appellant.
    Wayne Dowdy, Magnolia, áttorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. On August 6, 2009, the Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging Lincoln County Justice Court Judge Ralph Boone with willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such alleged conduct to be actionable pursuant to the provisions of Section 177A of the Mississippi Constitution of 1890, as amended. Judge Boone filed an answer to the formal complaint on September 8, 2009, denying the claims. On April 8, 2010, a three-person committee appointed by the chair of the Commission conducted a hearing in this matter, and at the conclusion thereof, the committee took this matter under advisement. Counsel for the Commission filed Proposed Findings of Fact and Conclusions of Law on May 13, 2010, and Judge Boone filed his Proposed Findings of Fact and Conclusions of Law on June 1, 2010. The committee filed its Findings of Fact and Recommendation on June 11, 2010, in which the committee unanimously recommended to the Commission that Judge Boone be removed from his judicial office and assessed the costs of all proceedings.

¶ 2. On July 6, 2010, the Commission filed with this Court its Findings of Fact, Conclusions of Law, and Recommendation. Specifically, the Commission found that Judge Boone’s conduct violated Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A of the Code of Judicial Conduct, and that such actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as amended. The Commission recommended to the Court that Judge Boone be removed from the office of justice court judge and that he be assessed the costs of all proceedings before the Commission, in the amount of $1,907.05. One of the several allegations of judicial misconduct lodged against Judge Boone was that he had made sexual advances toward a female litigant. As will become apparent, infra, there is not a consensus among the justices of this Court on whether the facts surrounding this alleged sexual conduct with a female litigant have been established by clear and convincing evidence; thus, we are unable to adopt the Commission’s recommendation that Judge Boone be removed from office. We do find that Judge Boone’s conduct violated various canons of our Code of Judicial Conduct, and we impose a ninety-day suspension without pay, a public reprimand, and assessment of costs in the amount of $1,907.05.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. In its formal complaint, the Commission alleged, inter alia, that on the morning of April 15, 2009, Judge Boone presided over the trial of defendant Christina Twaddle. Judge Boone imposed a $239 fine, to be paid no later than 5:00 p.m. the same day. The formal complaint further asserted:

Around noon on April 15, 2009, [Judge Boone] spotted Twaddle at a local gasoline station and inquired as to whether he knew her. Twaddle told him she had appeared before him that very morning in court. He then asked if she would ride with him in his automobile to discuss payment of the fine. Twaddle agreed and left the gasoline station with [Judge Boone].
During the time [Judge Boone] and Twaddle were in his vehicle, [Judge Boone] touched Twaddle on the breast and crotch area. [Judge Boone] told Twaddle that he would “fix her fíne” in exchange for a sexual act. [Judge Boone] drove Twaddle to a local business and asked that she meet him around 3 p.m. [Judge Boone] and Twaddle exchanged telephone numbers and [Judge Boone] left. [Judge Boone] called Twaddle on numerous occasions on the afternoon of April 15, 2009.
On the afternoon of April 15, 2009, Twaddle paid $139.00 to the justice court clerk of Lincoln County, Mississippi after [Judge Boone] sua sponte reduced the amount owed by $100.00.

¶ 4. On these alleged facts, the Commission charged Judge Boone with violations of Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A of the Mississippi Code of Judicial Conduct. The Commission further asserted that Judge Boone’s alleged judicial misconduct was actionable pursuant to the provisions of Section 177A of the Mississippi Constitution of 1890, as amended. The Commission complied with the provisions of Mississippi Commission on Judicial Performance Rule 6C concerning proper notice to Judge Boone, as well as his right to respond pursuant to Rule 6D.

¶ 5. On August 14, 2009, Judge Henry L. Lackey, Chair of the Commission, entered an order appointing a three-person committee, consisting of certain Commission members, to conduct a formal, evidentiary hearing concerning the allegations contained in the formal complaint. Thereafter, Judge Boone filed an answer to the formal complaint, generally denying the allegations in the complaint. Upon the filing of Judge Boone’s response, Judge Lackey entered a scheduling order providing various deadlines for discovery, the filing of motions, as well as a hearing date. On March 16, 2010, Judge H. David Clark, the new chair of the Commission, entered an amended order appointing a three-person committee to conduct an evidentiary hearing on the formal complaint.

¶ 6. The formal hearing was held on April , 8, 2010, Judge Lee J. Howard presiding. Both the Commission and Judge Boone were represented by counsel. In the Commission’s case-in-chief, the following persons testified: (1) Lincoln County Justice Court Judge Ralph Boone; (2) Pike County Justice Court Judge Aubrey P. Rimes; (3) Raymond O. Boutwell, Jr., the attorney who had represented Christina Twaddle at her public drunkenness hearing before Judge Boone; (4) Lincoln County Deputy Justice Court Clerk Melanie Green; (5) Mikell Buckley, Chief Investigator for the Mississippi Commission on Judicial Performance; (6) Christina Twaddle, the complaining witness; (7) Megel Jackson, Twaddle’s godson; and (8) Truett Simmons, Investigator for the District Attorney’s Office in the Fourteenth Circuit Court District, of which Lincoln County is a part. Nolan Jones, Assistant Chief of Police for the City of Brookhaven, was the only witness to testify in Judge Boone’s case-in-chief. Following the hearing, the committee, on a unanimous vote, entered its fourteen-page findings of fact and recommendation for the Commission’s consideration. Thereafter, the Commission entered its fifteen-page findings of fact, conclusions of law and recommendation, stating, inter alia, that “the Commission, based upon clear and convincing evidence, adopts the Committee findings.... ” The Commission’s recommendation stated in pertinent part:

It is a sad day in the judiciary when judges, who have accepted an oath to uphold the law, engage in such conduct as witnessed in this case. [Judge Boonej’s actions have destroyed any positive perception Twaddle or her family may ever have of the judiciary and such behavior cannot be tolerated. Therefore, the Commission by clear and convincing evidence, concludes that [Judge Boone’s] conduct in this case has violated Section 177A of the Mississippi Constitution of 1890, as amended, and that said conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. The panel finds that the only sanction that will restore confidence in the Lincoln County Justice Court is to remove [Judge Boone] from the office of Justice Court Judge, and to assess all costs of this proceedings [sic] in the sum of $1,907.05 against [Judge Boone].

¶ 7. These recommendations are now before this Court.

DISCUSSION

¶ 8. Our state constitution states that this Court has authority to sanction a judge “[o]n recommendation of the commission on judicial performance....” Miss. Const, art. 6, § 177A (1890). This Court’s first opportunity to address this constitutional provision, which was passed by a concurrent resolution of the Legislature in 1979, and ratified by the electorate on November 6, 1979, was in In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743 (Miss.1982). Although we will return to Anderson infra for a more detailed discussion on our mandated responsibilities in considering cases of alleged judicial misconduct, suffice it to state here that this Court stated, for the first time, that in cases coming to us from the Mississippi Commission on Judicial Performance, the Court, in making a “final determination of the appropriate action to be taken in each case,” would “conduct an independent inquiry of the record” and in doing so, this Court would “accord careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.” Id. at 746. But somewhere along the way, post-Anderson, this Court has strayed from the wisdom of Anderson in considering cases coming to us from the Commission. We have even gotten to the point of stating that when acting on a recommendation from the Commission, we will conduct a de novo review of the Commission’s proceedings, “while affording deference to the Commission’s recommendations when the Commission’s findings are based on clear and convincing evidence.” Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss.2008) (citing Miss. Comm’n on Judicial Performance v. Cole, 932 So.2d 9, 10 (Miss. 2006) (other citations omitted)). On the other hand, we have stated that, while this Court does afford considerable deference to the findings of the Commission, “ ‘we are also charged to render an independent judgment.’ ” Thompson, 972 So.2d at 585 (quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1156 (Miss.2004) (other citations omitted)). We stated in Mississippi Commission on Judicial Performance v. Hartzog, 904 So.2d 981, 984 (Miss.2004), that we give “great deference to the findings, based on clear and convincing evidence,. and recommendations of the Mississippi Commission on Judicial Performance.” (Emphasis added.) See also Miss. Comm’n on Judicial Performance v. Peyton, 645 So.2d 954, 956 (Miss.1994); Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993). Finally, unquestionably, we have stated that, in considering the Commission’s recommendations in judicial performance cases, we are the “trier of fact” inasmuch as this Court has “the sole power to impose sanctions in judicial misconduct cases.” Hartzog, 904 So.2d at 984 (citing Peyton, 645 So.2d at 956.)

¶ 9. Additionally, we also have stated that, while we are to look anew at the facts found by the Commission, as well as the Commission’s recommendations as to sanctions, we are permitted to afford deference to the Commission and its recommendations when its findings are undergirded by clear and convincing evidence. In Mississippi Commission on Judicial Performance v. Carr, 990 So.2d 763, 765-66 (Miss.2008), we stated that, “ ‘[wjhile it is true that this Court is the trier of fact in judicial misconduct proceedings and may impose additional sanctions, it nonetheless gives great weight to the findings of the Commission which has had the opportunity to observe the demeanor of the witnesses.’ ” (quoting Miss. Comm’n on Judicial Performance v. Sutton, 985 So.2d 322, 326 (Miss.2008)). See also In re Garner, 466 So.2d 884, 885 (Miss.1985).

¶ 10. In a nutshell, when a formal complaint is filed against a judge, a three-member committee will be appointed by the Commission to conduct an evidentiary hearing on the formal complaint. At this hearing, the Commission’s representatives and the respondent-judge have the opportunity to call witnesses to give sworn testimony. Exhibits also may be received into evidence. The committee then submits to the full Commission written findings of fact and its recommendation. The Commission is free to adopt, in whole or in part, or to modify or reject, the committee’s findings and recommendation. Eventually, the Commission submits its findings of fact, conclusions of law, and recommendation to this Court, which ultimately renders a decision. Throughout this entire process, which involves a three-person committee, a seven-person Commission, and a nine-justice Mississippi Supreme Court, the three committee members, and only the three committee members, have the opportunity, not only- to hear the testimony of the witnesses, but also to observe the demeanor of the witnesses as they testify.

¶ 11. With this being said, we state today that we are returning to our mandated review as set out in Anderson and as discussed in detail infra. Thus, any language contrary to Anderson adopted by this Court in other cases is expressly overruled. We now return to the facts and Commission proceedings in today’s case.

I. WHETHER JUDGE BOONE’S CONDUCT CONSTITUTES MISCONDUCT IN VIOLATION OF CANONS 1, 2A, 2B, 3B(2), 3B(4), AND 4A OF THE MISSISSIPPI CODE OF JUDICIAL CONDUCT, THUS CAUSING THIS MATTER TO BE ACTIONABLE UNDER SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED.

¶ 12. We set out the facts as revealed in the record as the need arises in our discussion. We begin, however, with the Commission’s findings of fact. These findings of fact are critical to our determination here today, and are thus set out verbatim:

[Judge Boone], in his official capacity as Justice Court Judge, on or about the morning of April 15, 2009, presided over the trial of defendant, Christina Twaddle regarding a charge of public drunk in State of Mississippi v. Christian (sic) Twaddle, Docket 278, Page 582, Lincoln County Justice Court. After hearing testimony, [Judge Boone] found Twaddle guilty and imposed a fine of $100.00 plus costs of $139.00; a total of $239.00. [Judge Boone] told Twaddle and her attorney, Raymond O. Boutwell, Jr., that the sum must be paid no later than 5 p.m. that same day.
Around noon on April 15, 2009, shortly after Twaddle’s trial, [Judge Boone] saw Twaddle at a local gasoline station and inquired as to whether he knew her. Twaddle told him she had appeared before him that morning in court. He then asked if she would ride with him in his automobile to discuss payment of the fine. Twaddle, thinking she could work out payment arrangements, agreed and left the gasoline station with [Judge Boone]. [Judge Boone] now admits that " he and Twaddle left the gasoline station together in his vehicle and he testified that Twaddle stated to him at the Murphy Oil station that “I thank you for reducing my fine.” At the Commission hearing Judge Boone and his clerk, Melanie Green, testified that the reducing of the fine occurred in open court. The recorded telephone conversation cited in [these findings] refutes both their testimony. ■
After being served with the Formal Complaint in this matter by the Commission investigator, Mikell Buckley on August 6, 2009, [Judge Boone] initially denied riding [with] Twaddle in his truck. At that same time he also told Buckley that “he was a Christian and that he allowed the devil to take hold of him.” He also expressed regret about the incident and that “the devil got ahold” of his tongue and “made it wicked” and that he had “never really done anything like this before,” The next morning, at the request of [Judge Boone], Judge Aubrey Rimes, Justice Court Judge in Pike County, called Ms. Buckley with an admission that [Judge Boone] stated to him that he had indeed ridden with Twaddle in his vehicle and wished to straighten out his prior statement to her.
During the time [Judge Boone] and Twaddle were in his vehicle, [Judge Boone] touched Twaddle on the breast and crotch area. [Judge Boone] told Twaddle that he would “fix her fine” in exchange for a sexual act. [Judge Boone] drove Twaddle to Rite-Aid Drug Store and asked that she meet him around 3 o’clock p.m. after he completed his afternoon docket. [Judge Boone] and Twaddle exchanged cellular telephone numbers and [Judge Boone] left. [Judge Boone] called Twaddle on numerous occasions on the afternoon of April 15, 2009 to arrange the meeting and cell phone records were obtained verifying this.
Twaddle was picked up at Rite-Aid Drugs by her godson, Megel Jackson. Twaddle immediately told Jackson what had occurred during her ride with [Judge Boone]. During the Commission hearing, [Judge Boone] says that he only made “a little block” with Twaddle. Both Twaddle and Megel Jackson testified that the ride with Judge Boone lasted 15 to 20 minutes. Twaddle and Jackson then went to the law office of Raymond Boutwell and advised him of the incident regarding [Judge Boone]. Acting on the advice of counsel, Twaddle went to the Lincoln County Sheriffs Department to report the incident. While at the Sheriffs Department, Twaddle’s statement was taken and recorded by the investigator for the Lincoln County District Attorney’s Office, Truett Simmons. The interview began at 3:45 p.m. on April 15, 2009 and concluded at 4:17 p.m. the same day. A copy of the tape was introduced at the hearing in this matter. As a result of the interview, Truett Simmons filed a complaint against [Judge Boone] with the Commission.
On the afternoon of April 15, 2009, Twaddle paid $139.00 to the justice court clerk of Lincoln County, Mississippi after [Judge Boone] sua sponte reduced the amount owed by $100.00.
[Judge Boone] denies touching Twaddle and testified that he only took her riding because she told him that her attorney, Raymond Boutwell, was “out to get him.” [Judge Boone] also testified that he reduced the fine of $100.00 from the total amount owed at the conclusion of the criminal trial in open court at the request of Assistant Police Chief, Nolan Jones. [Judge Boone]’s testimony is refuted by the recorded telephone conversation and by both Twaddle and her attorney, Boutwell. They testified that the amount Twaddle was ordered to pay as a result of her misdemeanor conviction was $239.00. Also, contrary to [Judge Boone]’s testimony and that of his clerk, Melanie Green, [Judge Boone] called Twaddle during her interview with Truett Simmons at around 4 o’clock p.m. and told her that he had “fixed” her fíne and reduced the amount by $100.00. Considering [Judge Boone]’s lack of truthfulness about this issue, as well as his failure to be honest with the Commission investigator when served with the Complaint, supports (sic) this Commission’s finding that [Judge Boone]’s assertions regarding what happened during the ride are not credible. Twaddle immediately reported the incident and took appropriate steps to notify the proper authorities regarding [Judge Boone]’s misconduct.

¶ 13. Based on the record in today’s case, we find that, under Section 177A of the Mississippi Constitution of 1890, as amended, Judge Boone’s actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, and that Judge Boone has violated Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A.

A. Canon 1

¶ 14. Canon 1 states:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.

¶ 15. The Commission found that Judge Boone had violated the “very essence” of Canon 1, because his actions diminished the public’s confidence in the judiciary. See Miss. Comm’n on Judicial Performance v. Brown, 37 So.3d 14, 18-19 (Miss.2010) (violation of Canon 1 based, inter alia, on inappropriate sexual touching); Miss. Comm’n on Judicial Performance v. Spencer, 725 So.2d 171, 177 (Miss.1998) (violation of Canon 1 stemming from ex parte communications).

B. Canon 2A

¶ 16. Canon 2A states:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

¶ 17. The Commission found that Judge Boone’s fondling Twaddle and his request for oral sex in return for a fine reduction violated Canon 2A. Citing the canon’s Comment, the Commission found that Judge Boone “not only created the appearance of impropriety, but actually behaved improperly by assaulting a litigant and attempting to negotiate sexual favors in exchange for [Judge Boone] ‘helping her with her fines.” The Commission concluded by finding that Judge Boone’s actions not only eroded, but “shattered,” the public’s confidence in the judiciary.

¶ 18. Without question, contradictory testimony was presented at Judge Boone’s hearing. The Commission found by clear and convincing evidence that Judge Boone had fondled Twaddle and had requested oral sex in return for reducing Twaddle’s fine. Some of the evidence presented at the hearing revealed that: (1) Judge Boone stated to Investigator Buckley that “he had allowed the devil to take hold of him” and that “the devil got ahold of his tongue and made it wicked;” (2) Judge Boone lied to Buckley about the events of April 15 when Buckley initially presented him with the Commission’s Formal Complaint; and (8) 'Twaddle immediately reported the incident to her attorney and the sheriff. See Miss. Comm’n on Judicial Performance v. Lewis, 913 So.2d 266, 270-71 (Miss.2005).

C. Canon 2B

¶ 19. Canon 2B states:

Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.

¶ 20. Based on Judge Boone’s testimony that he had told Officer Jones that he would reduce Twaddle’s fine in order to help Jones, the Commission found that Judge Boone had violated Canon 2B. Specifically, the Commission found that Judge Boone had “lent the prestige of his office to advance the interests of [Jones] and gave Jones the impression that he was in a special position to influence [Judge Boone].”

¶ 21. We have held that conduct similar to that of Judge Boone’s violates the Code of Judicial Conduct. Regarding judges’ telephone contacts, we previously have held that it is improper for judges to have contact with those involved in cases before them. Gunn, 614 So.2d at 889; Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736, 744 (Miss.2001). We even have admonished judges that it is improper “merely to listen to another person involved in pending litigation.” Willard, 788 So.2d at 741 (quoting Miss. Comm’n on Judicial Performance v. Chinn, 611 So.2d 849, 852 (Miss.1992)) (emphasis added); see generally Uniform Rule of Procedure for Justice Court 1.05. In the case in which another person initiates the ex parte communication via telephone, we have directed judges to transfer the call to the clerk’s office. Gunn, 614 So.2d at 389. We even have found that a judge’s motive, even if “to accord fairness to the litigant,” does not forgive the wrongfulness of the contact. Miss. Comm’n cm Judicial Performance v. Dodds, 680 So.2d 180, 198 (Miss.1996).

¶22. The conduct in today’s case involves a telephone conversation with Officer Jones, which Jones initiated. Jones was interested in Twaddle becoming a confidential informant and had asked Judge Boone to reduce her fíne in order to gain her trust. Despite Officer Jones’s initiating the conversation and Judge Boone’s claim that he had wanted to help Officer Jones and Twaddle, Judge Boone’s actions still were highly improper. Judge Boone has a duty to follow diligently the Code of Judicial Conduct, and he failed to do so in his conversation with Officer Jones.

¶23. We take this opportunity to remind all judges and law enforcement officials of the impropriety in having any ex parte communications with each other on the merits of pending litigation. Such conduct ultimately might affect a judge’s subsequent decision in open court. Here, it is obvious that Officer Jones’s ex parte communication with Judge Boone before Twaddle’s hearing had an effect on the ultimate outcome, because Judge Boone in fact reduced the amount of Twaddle’s fíne at Jones’s request. Notably, Judge Boone’s clerk testified that the judge often reduced fines at the behest of law enforcement officials:

Q: Now, do you often reduce fines for Nolan Jones?
A: Not necessarily Nolan Jones. But we have in the past helped other officers, other agencies, if they’ve asked us — you know, they had someone coming through if they ask us can you maybe help this person. We do that. It’s not nothing uncommon.
Q: So that happens frequently?
A: Yeah, we do. We try to help when we can.
Q: And would that be a reduction or a suspension of the fine?
A: Yes.

When asked whether “other people ask you for help,” Judge Boone responded equivocally, “No, ma’am, not — you know, it’s some people like — that will ask for court costs, but I consider them case by case.” Moreover, despite Judge Boone’s recognizing that “back in our schooling they say we can’t help with that fine,” he testified clearly that he reduced Twaddle’s fine “because [Officer Jones] asked me to do it.” Judge Boone elaborated, saying:

Right before the court, Nolan Jones asked me to — he knew her. And he asked me if I could help her with the fines on it or whatever I could do to help her. I told him as far as my legal power, all I could do was the county fíne. I could not help with the state assessment or anything like that.

Thus, Judge Boone admitted that he had reduced Twaddle’s fine based solely on Officer Jones’s out-of-court, ex parte request, despite his having had at least some understanding that such conduct was prohibited. In his brief to this Court, Judge Boone “categoncally denies that his conduct is in violation of [Section] 177A of the Mississippi Constitution.” (Emphasis added.) The judge has stubbornly maintained that his actions were entirely proper throughout the proceedings, despite his knowledge to the contrary. We emphasize here that Officer Jones should not have contacted Judge Boone. But when he did, Judge Boone should have firmly refused to discuss Twaddle’s case with Jones.

D. Canon 3B(2)

¶ 24. Canon 3B(2) states:

A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

¶ 25. The Commission found that Judge Boone’s contacts with Officer Jones and his conduct toward Twaddle — specifically requesting fellatio in return for a reduced fine — violated Canon 3B(2).

E. Canon 3B(I)

¶ 26. Canon 3B(4) states:

Judges shall be patient, dignified, and courteous to litigants, jurors, -witnesses, lawyers, and others with whom they deal in their official capacities, and shall require similar conduct of lawyers, and of their staffs, court officials, and others subject to their discretion and control.

¶ 27. The Commission found that Judge Boone’s “indignant acts in taking a litigant for a ride in his vehicle and fondling her while asking for sexual favors in exchange for a fine reduction violates the very nature of this Canon.” See Brotm, 37 So.3d at 18-19; Lewis, 913 So.2d at 271. This Court has noted that most Mississippi citizens will have their only contact with our State’s judicial system through justice court. Because of this, we have held that justice court judges must scrupulously follow the Code of Judicial Conduct. Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 215 (Miss.2006) (citing In re Bailey, 541 So.2d 1036, 1039 (Miss.1989)).

F.Canon M

¶ 28. Canon 4A states:

A. Extra-judicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

¶ 29. The Commission found that there was “an intertwining of judicial vs. extrajudicial activities” in today’s case. Further, the Commission found that Judge Boone’s actions toward Twaddle “cast[s] doubt on his ability to act as a judge, demeans the judicial office and interferes with the proper performance of his judicial duties.”

¶ 30. We return to In re Anderson, 412 So.2d 743 (Miss.1982). Because the Court was addressing for the first time the provisions of Section 177A, the Court considered the experiences of Arizona, California, North Carolina, North Dakota, Oregon, Texas, and West Virginia in order to determine the solemn obligations of this Court in reviewing eases coming from the Mississippi Commission on Judicial Performance. Id. at 745-46. Most, if not all, of these states, had constitutional provisions at least somewhat similar to our Section 177A. Id. at 745. This Court also considered Mississippi Code Section 9-19-1, et seq. (Supp.1981), and Mississippi Commission on Judicial Performance Rules 8D & 10E. Id. at 744-45.

¶ 31. The Court found of significant import the California experience since that state had a constitutional provision “almost identical to our Section 177A.” Id. at 746. This Court then quoted extensively from Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 CaLRptr. 201, 515 P.2d 1 (1973), and announced that the California standard should be adopted by this Court. Id. In the end, this Court pronounced the standard by which it would consider these cases:

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature.
The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in , order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration [to] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.

Id. In essence, since the Court was considering a California constitutional provision “almost identical” to our constitutional provision, the Court followed an approach this Court has taken in the past concerning the “borrowed statute” doctrine. Pope v. Brock, 912 So.2d 935, 938-39 (Miss.2005).

¶ 32. Pursuant to our mandated review under Anderson, after many efforts to at least reach a majority decision on whether the facts surrounding the sexual allegations against Judge Boone toward Christina Twaddle have been established by clear and convincing evidence, the Court is unable to do so. Admittedly, the Court is splintered on this issue. However, Judge Boone’s ex parte communications with Officer Jones and Twaddle, as well as the inappropriate manner in which he handled the fine reduction, run afoul of our judicial canons. The facts surrounding these actions were established by clear and convincing evidence, and form the foundation for our decision in this matter.

¶ 33. In sum, we find that Judge Boone violated Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A of the Judicial Code of Conduct, and that his actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as amended. We now move to consideration of the appropriate sanctions in this case.

II. WHETHER THE JUDICIAL MISCONDUCT WARRANTS REMOVAL FROM OFFICE AND ASSESSMENT OF COSTS IN THE SUM OF $1,907.05.

¶ 34. The Commission has recommended that this Court find Judge Boone violated various canons of our Code of Judicial Conduct and that, under Section 177A of the Mississippi Constitution of 1890, as amended, he should be removed from the office of justice court judge and assessed all of the costs of these proceedings in the amount of $1,907.05. For the reasons discussed below, we respectfully disagree with the Commission’s reeom-mendation and impose, instead, a ninety-day suspension without pay and assessment of costs in the amount of $1,907.05.

¶ 35. The appropriateness of sanctions is weighed based on the following factors: (1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating factors. Gibson, 883 So.2d at 1157. The primary purpose of judicial sanctions is not punishment of the individual but “ ‘to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses.’ ” Miss. Comm’n on Judicial Performance v. Guest, 717 So.2d 325, 329 (Miss.1998) (quoting In re Hamed, 357 N.W.2d 300, 302 (Iowa 1984)). In light of our findings already discussed, we discuss the Gibson factors only as to Judge Boone’s judicial misconduct concerning the ex parte communications with Jones and Twaddle and the improper fine reduction.

A. The Length and Character of Judge Boone’s Public Service

¶ 36. Judge Boone has been a justice court judge for three years. The record reveals no other public service on the part-of Judge Boone.

B. Prior Caselaw on Point

¶37. Turning to Judge Boone’s ex parte contacts with Officer Jones, although there is no case directly on point, we find Mississippi Commission on Judicial Performance v. Vess, 10 So.3d 486 (Miss.2009), to be somewhat similar. In Vess, this Court ordered a public reprimand, $2,000 fine, and costs of $100 for a judge who had set aside a guilty verdict after engaging in ex parte communications with the prosecutor and the victim’s family. Id. at 488. See also Sanford, 941 So.2d at 211-12 (justice court judge suspended from office for thirty days for engaging in ex parte communications with sheriff, requesting that sheriff inform arresting officer to be late for court in order to dismiss DUI case for lack of prosecution); Willard, 788 So.2d at 743 (justice court judge removed from office based on thirty-one counts of misconduct, including ex parte communications with law enforcement). Concerning the ex parte communications with Twaddle on the issue of the fine reduction, we have sanctioned judges in the past for similar misconduct. See Miss. Comm’n on Judicial Performance v. Anderson, 32 So.3d 1180 (Miss.2010); Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006). In these two cases, the judges were sanctioned, inter alia, by way of a thirty day suspension from office; however, what makes Judge Boone’s ex parte communications with Twaddle more egregious than those depicted in Anderson and Britton is the fact that Judge Boone allowed Twaddle to ride around in public in his truck for a period of time, and, during the time that Twaddle’s case had yet to be finalized by way of the fine payment. Judge Boone’s actions exhibited a monumental lapse of sound judgment, because an undetermined number of Lincoln County citizens had the occasion to see one of their elected judges riding around town with a female litigant. Certainly the citizenry of Brookhaven and Lincoln County, upon learning of the later fine reduction, at the very least, could infer that Twaddle had received favorable treatment from Judge Boone via the fine reduction as a result of this ex parte communication.

C. Magnitude of the Offense and Harm Suffered

¶ 38. The magnitude of the offenses in today’s case is significant and places the entire judiciary in a negative light. As the Commission found, Judge Boone “also involved another judge and his clerk as well as the Assistant Chief of Police in Brook-haven, Mississippi and made unfounded accusations against Twaddle’s attorney, Raymond Boutwell.”

D. Pattern of Conduct

¶ 39. We need to look no further than the hearing testimony of deputy justice court clerk Melanie Green and Judge Boone, himself, discussed supra, to come to the inescapable conclusion that Judge Boone’s ex parte communications with law enforcement officials exhibit a habitual pattern of conduct which affects our ultimate decision on the appropriate sanction to impose in today’s case.

E. Moral Turpitude

¶ 40. This Court has defined moral turpitude as “actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such action which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158, n. 2. Furthering our discussion of moral turpitude, this Court has stated:

The bottom line of this element is that we must determine whether a judge’s conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropnate motives. If the conduct willfully subverts justice, more punishment is warranted.

Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007) (emphasis added). Even without considering the allegations of sexual conduct, we find from the record that the totality of Judge Boone’s actions, including lying to the Commission investigator, constitutes moral turpitude.

F.Mitigating or Aggravating Circumstances

¶ 41. Although Judge Boone has not admitted his wrongful conduct on the record, he did acknowledge remorse in his statement to Buckley. Buckley testified at the hearing that Judge Boone had expressed regret about the incident.

¶42. The Commission’s recommendation, based for the most part on a finding of Judge Boone’s sexual molestation of Twaddle, was that Judge Boone be removed from office. But, we find, based on the totality of the circumstances revealed in the record before us, that Judge Boone’s actions require the imposition of a ninety-day suspension without pay, a public reprimand, and assessment of costs of this proceeding in the amount of $1,907.05.

CONCLUSION

¶ 43. We are mindful of the many selfless contributions made by the duly appointed members of the Mississippi Commission on Judicial Performance. Not surprisingly, they once again have dutifully performed their mandated responsibilities in this case. Their allegiance to duty in this case, and in all other cases, does not go unnoticed by this Court. In the end, struggle though we do in these cases, as did this Court in Anderson, we likewise must carry out our mandated duties, which we alone can perform. This is our charge. In re Anderson, 412 So.2d at 746. Judge Boone’s actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. Effective upon the date of the issuance of this Court’s mandate, we thus order Judge Ralph Boone to be suspended from the office of justice court judge, post one, Lincoln County, for a period of ninety days without pay; to be publicly reprimanded; and to be assessed costs of the proceedings in the amount of $1,907.05. The public reprimand shall be read in open court by the presiding judge on the first day of the next term of the Circuit Court of Lincoln County in which a jury venire is present, with Judge Boone present.

¶ 44. LINCOLN COUNTY JUSTICE COURT JUDGE RALPH BOONE SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF NINETY (90) DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $1,907.05. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE LINCOLN COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VENIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE BOONE IN ATTENDANCE.

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

      . Once counsel for the Commission had completed her examination of Judge Boone during the Commission's case-in-chief, Judge Boone's counsel informed Judge' Howard that he did not wish to examine Judge Boone at that time, but that he would reserve his right to examine Judge Boone during the respondent’s case-in-chief. However, at the conclusion of Officer Jones's testimony in the respondent’s case-in-chief, Judge Boone’s counsel announced that the respondent would rest; and the Commission's counsel then announced that the Commission had no rebuttal evidence to offer.

      . To include all the facts we find significant to today’s case, we have supplemented the Commission's findings of fact in footnotes.

      . Buckley’s complete statement is as follows:
      Judge Boone was extremely upset. He stated to me immediately that he was a Christian and that he had allowed the devil to take hold of him. Judge Boone also expressed regret about the incident.
      As I said earlier, he was extremely concerned about his reputation and his judgeship, because of the nature of the complaint. As I said, I — throughout the time he was talking, I asked him to — to retain counsel.
      He told me that he did, in fact, call this girl but that he did it because Nolan Jones had told him about her.
      And I said, ‘T don't know what you mean by telling him about you.”
      "Well, I knew about her. And I did call her. I never should have.” He said that — I remember this explicitly — that he — the devil got ahold of his tongue and made it wicked and that — and he began to cry.
      (Emphasis added.)

      .According to Judge Boone, while at the service station, Twaddle had told Judge Boone that her lawyer, Boutwell, who also was Brookhaven Municipal Judge, was “out to get” Judge Boone because Boutwell was aware that Judge Boone was interested in becoming Brookhaven Municipal Judge, thus replacing Boutwell. Again, according to Judge Boone, this was the reason that Twaddle wanted to ride with Judge Boone in his truck — to elaborate on this matter concerning Boutwell and Judge Boone. At the hearing before the Commission (committee). Judge Boone admitted that he was interested in the Brookhaven municipal judgeship because he "need[ed] the extra income to support my family, and my wife is retired.” Interestingly, Boutwell, at the Commission hearing, testified that, just recently, before the hearing, he had learned that Judge Boone, who is not an attorney, was trying to get appointed as Brookhaven Municipal Judge, "[b]ut that’s impossible, because you have to be an attorney to be a municipal judge in Brookhaven because of the number of citizens that we have.”

      . Officer Jones testified at the hearing that he had called Judge Boone on the morning of April 15 and requested that Judge Boone help him with Twaddle because Officer Jones was interested in cultivating her as a confidential informant. Officer Jones testified that Twaddle was with him in his office when he made the phone call to Judge Boone. Twaddle testified that she was not present in Officer Jones’s office, nor was she aware of Jones’s request for help.

      . Two phone conversations between Judge Boone and Twaddle that afternoon are recorded. In their first conversation, Twaddle inquired about her fine. Judge Boone replied, "[W]hy don't you just come by the courthouse and we'II see what we can do with it?” Twaddle then asked whether she needed to do community service. Judge Boone responded, "No, no, we'll see. I’ll have to get with Nolan [Jones] and see what he wants to do with it.... Just holler at me ... and we’ll see if I can't help you out with it.” The dialogue from this first conversation indicates that Judge Boone had not yet modified Twaddle’s fine. During their second conversation, Twaddle asked about the amount she had to pay. Judge Boone said, "I got it fixed for you.” He said he had reduced her fine by "[a] hundred dollars.” He then apparently checked his computer and told her that she would need to pay $139. Considering both conversations together, it is reasonable to infer that Judge Boone had altered Twaddle’s fine at some point between the two phone calls.

      . Boutwell maintained that Judge Boone had imposed a fine in excess of $230 that morning. Boutwell, who serves as a municipal judge, explained that he remembered the amount of Twaddle’s fine because, as a municipal judge, he had imposed fines in similar cases. Boutwell said that $186.50 was a typical fine associated with a case such as Twaddle’s. He specifically recalled being "a little ill” that Twaddle’s fine was more than this.

      . When Buckley initially discussed the matter with Melanie Green, Green told Buckley that Twaddle’s fine was changed in the afternoon. At the hearing, Green contradicted her earlier statement and stated that the fine was changed in the morning, during open court.

      . Rule 1.05 states:
      No person shall undertake to discuss with, or in the presence of, or hearing of the judge, the law or facts or alleged facts of any case then pending in the court, or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith; nor attempt in any manner, except as stated above, to influence the decision of the judge in any manner.

      . It is apparent that this Court struggled mightily with this task, since the mandated review of judicial misconduct cases was foreign to the traditional appellate standards of review such as de novo, abuse of discretion, manifest error and the like, when considering cases appealed from our trial courts.

      . On this point, in Anderson, this Court stated that "[c]ourts in other jurisdictions with constitutional provisions as our own Section 177A have attempted to construe these provisions.” In re Anderson, 412 So.2d at 745.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Loni Marie RUTLAND, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01544-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.
    Rehearing Denied June 29, 2010.

      Phillip Broadhead, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., ISHEE and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Loni Marie Rutland was convicted in the Circuit Court of Franklin County of felonious child abuse. Rutland was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended and ten years to serve.

¶ 2. Rutland now appeals, asserting the following issues: (1) the trial court erred in denying her motion for a judgment notwithstanding the verdict; (2) the verdict is against the overwhelming weight of the evidence; and (8) the trial court erred when it failed to grant a new trial due to juror misconduct. Finding no error, we affirm.

FACTS

¶ 3. While in Rutland’s care, Rutland’s seventeen-month-old daughter, A.T., suffered several injuries, including a fractured skull and broken leg. Rutland and A.T. lived with Rutland’s sister, but they also stayed two to three nights a week with Rutland’s boyfriend, Andrew Jones, who lived. with his parents in Franklin County.

¶ 4. According to Rutland and Jones, on August 1, 2006, A.T. fell off a three-foot plastic slide and landed on her head. Later that night, Rutland noticed bruising under A.T.’s eyes. She took A.T. to a local clinic the next morning. A.T. was diagnosed with a sinus infection and prescribed antihistamine. Rutland testified that when they returned home, A.T. was disoriented from the medicine, tripped over a puppy, and struck her head on an end table. Rutland and Jones took A.T. to the hospital, where A.T. saw Dr. Kevin Hubbard. A CAT scan was taken of'A.T.’s head. Rutland and Jones testified that they were told the CAT scan results were blurry, but from what the doctor could tell, the results were normal. Dr. Hubbard instructed Rutland to give A.T. Tylenol for pain and follow up with her doctor the next day. Rutland testified that she did not read the instructions on the discharge papers and did not go to a follow-up appointment.

¶ 5. On August 27, 2006, A.T. was again taken to the hospital after she woke up crying and would not walk on her left leg. Rutland testified she noticed the day before that A.T.’s left ankle was swollen. Rutland attempted to treat the swelling at home with ice packs. An X-ray showed three breaks in A.T.!s left leg and dislocation of her left-ankle joint. A.T. was seen by Dr. Hubbard. Rutland explained the breaks by telling Dr. Hubbard that A.T. would sometimes put her legs through the slats in her crib. Rutland also testified that A.T. had fallen several times while running in the yard at Rutland’s sister’s houses and A.T. possibly injured her leg then. Dr. Hubbard inquired about a large bruise on A.T.’s forehead. Rutland explained that A.T. would sometimes hit her head against the crib. Rutland also stated that A.T. had fallen into the side of an end table.

¶ 6. Unsatisfied with Rutland’s explanations of the injuries, Dr. Hubbard requested a consultation with social services. Rutland became defensive when questioned by social workers and told them that she took care of her child “twenty-four/seven,” and she did not injure A.T.

¶ 7. After the consultation, A.T. was taken to the University of Mississippi Medical Center (UMMC), where Dr. Kevin Keaton performed a full-body CAT scan. The scan revealed fractures on both sides of A.T.’s skull in addition to the fractures to her left leg and the dislocation of her ankle. Surgery was performed on her leg and ankle the next morning. It was determined that the fractures had occurred recently. The Mississippi Department of Human Services sent a sheriffs deputy to inspect Rutland’s home. Photographs were taken of the end table and crib. The sides of the crib where A.T. slept were lined with blankets and pillows.

¶ 8. Rutland was indicted on two counts of felony child abuse. Count I addressed the facial and head injuries, and Count II addressed the injury to A.T.’s leg. The trial court found that insufficient evidence was presented regarding the cause of A.T.’s head injuries and granted a directed verdict in favor of Rutland as to Count I. The jury found Rutland guilty of Count, II.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶ 9. Rutland argues that the trial court erred in failing to grant her motion for a judgment notwithstanding the verdict because the State failed to introduce sufficient evidence at trial to establish that she intentionally abused A.T.

¶ 10. In Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005), the supreme court stated the following regarding the standard of review for sufficiency of the evidence:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

(Quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 11. Mississippi Code Annotated section 97 — 5—39(2)(a) (Rev.2006) states, in part, that:

Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child....

Following this code section, the jury was instructed to return a guilty verdict if it found that Rutland, on or about August 27, 2006, “[ijntentionally whipped, struck or otherwise abused in such manner as to cause serious bodily harm, not in self-defense or in defense of others ... [to A.T.], a child, by causing fractures to the child’s leg....”

¶ 12. Dr. Hubbard, the emergency-room physician on duty on August 27, 2006, testified for the State. Dr. Hubbard testified that A.T. was brought to the hospital because her left foot and ankle were swollen, and she would not walk on it. Rutland told Dr. Hubbard that A.T. had possibly injured the leg two days earlier while running in her sister’s yard, but she had walked on it until the day before the hospital visit. Rutland also told him that A.T. sometimes put her feet through the slats in her crib and could have twisted her leg, but she could offer no definite explanation. Dr. Hubbard testified that none of Rutland’s explanations were plausible. As for breaking her leg in the slats of her crib, Dr. Hubbard testified: “The injury is too severe for that to happen. [It][w]ould be so painful that the child wouldn’t pull [his/her] foot through.” He also stated that Rutland’s statement that A.T. continued to walk on the leg after it was injured was not plausible. He stated: “That would be a non-walking injury. There’s no way ... [she] could walk on that.”

¶ 13. Dr. Hubbard went on to testify that five red flags came up in his examination of A.T. Dr. Hubbard stated that the following factors were signs of child abuse: “the absence of a good history of the injury”; “injuries that could be avoided if they had better care or supervision”; “[h]istory of repeated injury from the same month, previous injury”; “[d]elay in seeking care”; and “the fact the baby was premature.”

¶ 14. Dr. Lawrence Haber, a pediatric orthopedic surgeon at UMMC, also testified for the State. Dr. Haber examined A.T. when she was brought to the pediatric intensive care unit, and he later performed surgery on her leg. Dr. Haber determined that the break was fresh, meaning that it had happened within the past few days to a week. Dr. Haber testified that it would be “almost impossible” for a child to walk with such a severe leg injury. When questioned about the cause of the injury, Dr. Haber stated:

[W]hen you look at that x-ray, it’s suspect to begin with as far as child abuse.... That’s just a violent injury for a child that age. A seventeen-month-old child can’t do that to themselves without a — you know — without a high energy type injury. When I say high energy, I mean fall from ... at least six to eight feet minimum if not higher or a car accident.

When asked if it would be possible for the injury to have occurred in one of the scenarios Rutland described, Dr. Haber responded: “No. I mean, a child can’t do that to themselves.... [Y]ou don’t get that type of injury with a simple fall or a trip.” He stated that the injury was most consistent with a “leg getting caught in something and someone ripping [him/her] through, or someone — you know — swinging the child from that leg. Those sorts of things. If someone drops a child or ... [t]hrow[s] a child.”

¶ 15. Jan Thurman, a social worker, testified for the State. Thurman questioned Rutland at the hospital about A.T.’s injuries. Thurman testified that Rutland became defensive and stated that she would never hurt her child. Thurman asked Rutland if A.T. was ever left with anyone else, and Rutland responded that A.T. was in her care “twenty-four/seven.”

¶ 16. Since no direct evidence of child abuse was presented, the State based its case on circumstantial evidence from A.T.’s treating physicians and two social workers. The jury was instructed that a verdict based on circumstantial evidence “must be so strong as to exclude every other reasonable hypothesis other than that of guilt.” Considering the evidence in the light most favorable to the State, we find the evidence presented was sufficient to show, to the exclusion of every other reasonable hypothesis, that Rutland’s actions resulted in A.T.’s leg injuries. Both doctors testified that the possible scenarios given by Rutland for A.T.’s injuries were not plausible, and Rutland, who maintained that A.T. was constantly under her supervision, offered no other plausible explanation for the injuries. We find that any rational juror could have found beyond a reasonable doubt that all of the elements of felonious child abuse were proven by the State. This issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 17. Rutland next argues that the trial court erred in denying her motion for a new trial because the State failed to present any evidence that she committed the crime charged. Rutland also contends that her case should be reversed and remanded for a new trial due to juror misconduct.

¶ 18. “A motion for a new trial challenges the weight of the evidence.” Beckum v. State, 917 So.2d 808, 812 (¶ 10) (Miss.Ct.App.2005). “When reviewing a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict.” Id. at 818 (¶ 14) (quoting Carr v. State, 774 So.2d 469, 472 (¶ 15) (Miss.Ct.App.2000)). “We must keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses.” Id. (quoting Carr, 774 So.2d at 472 (¶ 15)). “[W]e 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, 895 So.2d at 844 (¶ 18). The appellate court sits as a hypothetical “thirteenth juror.” Id. If, in this position, the Court disagrees with the verdict of the jury, “the proper remedy is to grant a new trial.” Id.

¶ 19. While the jury was not presented with any direct evidence, we find that sufficient circumstantial evidence was presented for the jury to find Rutland guilty of felonious child abuse. Rutland repeatedly stated that A.T. was in her care “twenty-four/seven.” Expert testimony was presented that A.T.’s injury could have only been caused by a high-energy impact. Dr. Hubbard and Dr. Haber testified that Rutland’s explanations of how the injury occurred were not plausible. The doctors also testified that it would be highly unlikely for a child to walk around for two days with such a severe injury. Finally, Dr. Hubbard testified that he saw multiple red flags indicating child abuse.

¶ 20. In situations where the State’s case is based wholly upon circumstantial evidence, the State is required to prove the defendant guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Johnson v. State, 999 So.2d 360, 367 (¶ 29) (Miss.2008). The jury was properly instructed on circumstantial evidence, and we find that the jury’s verdict is supported by the overwhelming weight of the evidence. Therefore, we find that this issue is without merit.

III. JUROR MISCONDUCT

¶ 21. After the jury had been deliberating for approximately fifty minutes, the jury submitted a note to the trial court asking the following question: “Is negligence the same thing as abuse?” The trial judge determined that it was not proper for the court to answer the question. The trial judge wrote a note to the jury that stated: “You must rely on the Court’s instructions on the law already given to you. Please continue with your deliberations.” The jury returned a guilty verdict approximately twenty-five minutes later.

¶ 22. After the trial, Rutland filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. In that motion, Rutland alleged that it had come to her attention that a juror had looked up the words “neglect” and “abuse” in the dictionary at the conclusion of the first day of trial. The juror shared the definitions with the rest of the jury the following day. After the jurors heard the definitions, they determined that “neglect” and “abuse” had the same meaning. Rut-land argues that a new trial should be granted because the jury failed to follow the trial court’s instruction to rely only on the instructions of law already given.

¶ 23. In response to Rutland’s claim of juror misconduct, the State interviewed one of the jurors regarding whether or not dictionary definitions were discussed by the jurors. The juror stated that one of the jurors did look up the definitions of “abuse” and “neglect” and brought the definitions into the jury room. The State argues that the use of standard dictionary definitions did not prejudice Rutland; therefore, the motion for a new trial should be denied.

¶ 24. Rutland argues this case is analogous to Collins v. State, 701 So.2d 791, 797 (¶ 22) (Miss.1997), where Anthony Collins’s murder conviction was reversed and remanded for a new trial after the trial court gave the jury a Black’s Law Dictionary in response to the jury’s request for a legal definition. The supreme court stated that when a jury is presented with an extraneous influence, “we require that the party seeking the relief show prejudice.” Id. at 795 (¶ 14). However, “[a]ny material sent into the jury room by the judge carries with it the imprimatur of authority and rises almost to the level of a jury instruction.” Id. Therefore, when the trial judge is the one who presents an outside source to the jury, “a presumption is raised that prejudice flows from the injection of such an extraneous influence.” Id. at 796 (¶ 20). The supreme court went on to find that:

The action of a trial judge in giving instructions to a jury or sending evidence to a jury for consideration is substantially and qualitatively distinct from the jury’s improper use of law books discovered in the jury room or an extraneous influence injected by an outside party and requires a more stringent standard.

Id.

¶25. We find that this case is distinguishable from Collins. First, the definitions were not presented to the jury by the trial court; thus, the more stringent standard in Collins is not applicable. Second, the supreme court has held that “there is a difference between a standard dictionary and a law dictionary in that a standard dictionary is less likely to improperly instruct a jury on the laws of the State of Mississippi.” Wilcher v. State, 863 So.2d 719, 772 (¶ 206) (Miss.2003).

¶ 26. We cannot find that any prejudice resulted from the jury reading the definitions. In its order denying the motion for a new trial, the trial court found nothing inherently prejudicial about the dictionary definitions of “abuse” and “neglect.” The trial court noted that “jurors do not deliberate and decide cases in a vacuum.... The dictionary definition of the two words is clearly something within the collective intelligence and common knowledge of any jury.” We agree with the trial court. Rutland has not shown that she was prejudiced by the jury hearing the definitions of the two words. This issue is without merit.

¶ 27. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT OF CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED AND TEN YEARS TO SERVE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . In order to protect the identity of the minor child, this Court has substituted initials in place of the child’s name.


author: KING, C.J.,

text:
    Wayne SCARBOROUGH, Appellant v. CITY OF PETAL, Mississippi, Appellee.
    No. 2009-CA-01431-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2010.
    Rehearing Denied May 3, 2011.

      Orvis A. Shiyou Jr., Hattiesburg, attorney for appellant.
    Thomas W. Tyner, Hattiesburg, Julie Hawkins, attorneys for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. The Forrest County Circuit Court granted summary judgment in favor of the City of Petal, Mississippi (City) and dismissed Wayne Scarborough’s action with prejudice. Wayne Scarborough appeals, arguing the following assignments of error: (1) the circuit court erred in finding that the City did not have to give actual notice of its intent to demolish a dilapidated property, and (2) the circuit court erred in finding that Wayne Scarborough’s suit was time-barred under Mississippi Code Annotated section 11-51-75 (Rev.2002). Because the circuit court erred in finding that Wayne Scarborough received actual notice from the City of its intent to demolish the dilapidated building, we reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion.

FACTS

¶ 2. Wayne Scarborough, co-owner of a parcel of real property located at 415 West Central Avenue, Petal, Forrest County, Mississippi, filed a complaint on September 4, 2007, against the City for failure to give him notice before demolishing the building belonging to Wayne Scarborough and his father, Percy Scarborough.

¶ 3. On February 21, 2000, Wesley Hughes, Assistant City Inspector for the City, by certified letter directed to Percy Scarborough informed him that the building located at 415 West Central Avenue, Petal presented a public health and safety hazard to the community, and it should be removed. That letter indicated that Percy Scarborough had thirty days from receipt of the letter to remove the violation. The certified receipt indicated that Percy Scarborough signed for the letter on February 25, 2000. On March 14, 2000, Hughes signed an affidavit before the municipal court clerk stating that Percy Scarborough had purposely and willfully failed to comply with city zoning ordinances by allowing trash and junk to accumulate, causing unsanitary conditions at the aforementioned location. The record fails to indicate any immediate action taken by the Scarbor-oughs or the City following the February 25, 2000, letter.

¶ 4. On November 26, 2004, the building was damaged by arson. At the time of the fire, the building was not insured, and the owners did not repair the building after the fire.

¶ 5. On July 18, 2005, John Thomsen, Code Enforcement Officer for the City, filed a statement indicating that he had spoken with Percy Scarborough and Wayne Scarborough on two separate occasions within the month of May 2005. Thomsen stated that on May 16, 2005, “he spoke with Wayne [Scarborough] and advised him of the violation of Petal City Ordinance 1979 (42-A2).” Thomsen stated that Wayne Scarborough said he “would talk to his father about it and get back with [him].” Thomsen also stated that on May 24, 2005, “he spoke with Percy [Scarborough] about the violation as well as hand-delivered a letter to him, advising him of the violation.” The letter advised Percy Scarborough that he had ten days from receipt of the letter to remedy the violation.

¶ 6. In a letter to the City dated July 19, 2005, Percy Scarborough stated his intent to begin demolishing the dilapidated building. Percy Scarborough stated that the project would begin soon and would be completed within 120 days from the date of the letter.

¶7. On January 18, 2006, a letter addressed to Percy Scarborough from Thom-sen dated January 17, 2006, was hand-delivered to Percy Scarborough. The letter directed Percy Scarborough to remove the building or have it brought up to code. The letter also stated that if Percy Scarborough elected not to remedy the violation, the City would exercise its rights under Mississippi Code Annotated section 21-19-11 (Rev.2007), the “cleaning of private property” statute, to remedy the violation and assess the cost of cleanup to Percy Scarborough.

¶ 8. On March 7, 2006, a letter from Hughes was sent to city council members notifying them to consider the aforementioned property for final abatement. On March 23, 2006, Carl L. Scott, Mayor of the City, informed Percy Scarborough by letter of his right to appear before the Mayor and Board of Alderman on April 18, 2006, to contest the City’s intent to demolish the property as a public health and safety hazard to the community. The City adopted a resolution declaring the property as a menace to the public health and safety of the community. The building was demolished by the City on June 7, 2006.-

¶ 9. Wayne Scarborough filed a complaint against the City on August 3, 2007, for the demolition of the building without properly notifying him of the adjudication hearing and the City’s intent to demolish the building. The City filed a motion for summary judgment arguing that from the years 2000 through 2006, both Percy Scarborough and Wayne Scarborough, co-owners of the real property, were individually provided notice of the numerous violations of city ordinances regarding the property’s state of disrepair, and they were both given adequate notice of the April 18, 2006, hearing by serving notice upon Percy Scarborough.

¶ 10. Wayne Scarborough filed an affidavit stating that he never received any correspondence or notices regarding the subject property from the City and that he had never given Percy Scarborough any authority to accept service of process on his behalf. The circuit court granted summary judgment and dismissed the action with prejudice. Wayne Scarborough timely filed his notice of appeal.

ANALYSIS

I. Whether the circuit court erred by finding that the City did not have to give actual notice to Wayne.

¶ 11. Wayne Scarborough contends that the City violated his due-process rights because the City never provided him notice of the hearing that resulted in the demolition of the building. Wayne Scarborough argues that none of the notices mailed to Percy Scarborough bore his name or address, nor were any of the mailings ever delivered to him by mail or personal service. Additionally, Wayne Scarborough asserts that he never gave Percy Scarborough authority to accept service of process on his behalf as co-owner of the subject property.

¶ 12. The City argues that Wayne Scarborough received actual notice of the April 18, 2006, hearing on March 26, 2006, from Percy Scarborough and also from the City’s resolution prior to the demolition. The City claims that Wayne Scarborough had random conversations with city officials over the course of several years regarding the subject property.

¶ 13. Our supreme court held in Bond v. City of Moss Point, 240 So.2d 270, 273 (Miss.1970) that “where the property owner, after reasonable notice provided for in an ordinance, fails and refuses to either repair or remove an unsafe and unfit building that constitutes a public nuisance, that the municipality can remove it at the owner’s expense.” The City argues that it gave reasonable notice regarding the ordinance violation, but the owners failed to repair or remove the unsafe building; therefore, by and through its employees, the building was demolished. The City acted pursuant to Mississippi Code Annotated section 21-19-11(1) (Rev.2007), which provides:

The governing authority of any municipality is authorized, on its own motion, or upon the receipt of a petition requesting the municipal authority to so act signed by a majority of the residents residing within four hundred (400) feet of any property or parcel of land alleged to be in need of cleaning, to give notice to the property owner by United States mail, as provided in this section, two (2) weeks before the date of a hearing, or by service of notice as provided in this section by a police officer at least two (2) weeks before the date of a hearing, or if the property owner or his address is unknown, then by two (2) weeks’ notice in a newspaper having a general circulation in the municipality, of a hearing to determine whether the property or land is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community. If, at such hearing, the governing authority shall adjudicate the property or land in its then condition to be a menace to the public health, safety and welfare of the community, the governing authority, if the owner does not do so himself, shall proceed to clean the land, by the use of municipal employees or by contract, by cutting grass and weeds; filling cisterns; removing rubbish, dilapidated fences, outside toilets, dilapidated buildings, personal property, which removal of personal property shall not be subject to the provisions of Section 21-39-21, and other debris; and draining cesspools and standing water therefrom. The governing authority may by resolution adjudicate the actual cost of cleaning the property and may also impose a penalty of One Thousand Five Hundred Dollars ($1,500.00) or fifty percent (50%) of the actual cost, whichever is more. The cost and any penalty may become a civil debt against the property owner, or, at the option of the governing authority, an assessment against the property. The “cost assessed against the property” means either the cost to the municipality of using its own employees to do the work or the cost to the municipality of any contract executed by the municipality to have the work done, and administrative costs and legal costs of the municipality. The action authorized in this subsection (1) shall not be undertaken against any one (1) parcel of land more than six (6) times in any twelve-month period with respect to removing dilapidated buildings, dilapidated fences and outside toilets and no more than twelve (12) times in any twenty-four-month period with respect to cutting grass and weeds and removing rubbish, personal property and other debris on the land, and the expense of cleaning of said property shall not exceed an aggregate amount of Twenty Thousand Dollars ($20,000.00) per year, or the fair market value of the property subsequent to cleaning, whichever is less. The governing authority may assess the same penalty for each time the property or land is cleaned as otherwise provided in this section. The penalty provided herein shall not be assessed against the State of Mississippi upon request for reimbursement under Section 29-1-145, nor shall a municipality clean a parcel owned by the State of Mississippi without first giving notice.

To fulfill the requirements of due process, notice must be given to all owners of the subject property. See In re of Enlargement and Extension of the Mun. Boundaries of the City of Horn Lake v. City of Horn Lake, 822 So.2d 253, 257 (¶ 17) (Miss.2002).

¶ 14. When considering the question of whether Wayne Scarborough received proper notice, we looked to this Court’s holding in Bray v. City of Meridian, 723 So.2d 1200 (Miss.Ct.App.1998). In Bray, the complaint from the City of Meridian, Mississippi, regarding the dilapidated condition of the building located on the subject property and notice of eleven violations as cited by the building inspector, was served by certified mail addressed to the property owners, Samuel Bray and his wife, Dorothy Bray. While the letter was addressed to both of the Brays, it was received and signed for by Dorothy. We held that as the spouse of Samuel and co-owner of the property, Dorothy, by custom and practice, was vested with apparent authority to accept service of process on behalf of Samuel. Bray, 723 So.2d at 1203 (¶ 20) (citing Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992)).

¶ 15. However, Bray is distinguishable from this case. In Bray, the notice was addressed to both co-owners, Samuel and Dorothy. Dorothy was served and, thus, accepted service of process on behalf of Samuel. In this case, all the notices regarding the condition of the property and the hearing were addressed, mailed, and delivered solely to Percy Scarborough. Wayne Scarborough filed an affidavit stating that he never received any correspondence or notice regarding the subject property either by mail or personal process nor had he ever given Percy Scarborough the authority to accept service of process on his behalf. In his affidavit, Wayne Scarborough noted that Percy Scarborough resided at 220 Arkwood Lane, Petal, Mississippi, during the years of 2005 and 2006, while he resided at 320 Garden Lane, Petal, Mississippi, during the same time. The February 21, 2000, notice was addressed to Post Office Box 60, Petal, Mississippi and Percy Scarborough signed for the letter on February 25, 2000. The May 24, 2005, notice was addressed to Percy Scarborough and hand-delivered, but there was no indication as to what address the notice was delivered. The January 17, 2006, notice indicated that it was hand-delivered to Percy Scarborough, but again, there was no indication as to what address. The March 23, 2006, letter from the mayor was addressed to Percy Scarborough at Post Office Box 60, 220 Arkwood Lane, Petal, Mississippi.

¶ 16. In a statement dated July 18, 2005, Thomsen stated that on May 16, 2005, he had spoken with Wayne Scarborough about the condition of the property. Also included in the record was a handwritten statement dated May 15, 2005, from an unidentified person. The handwritten statement stated that this unidentified individual had spoken to Wayne Scarborough regarding the matter. There was no evidence that Wayne Scarborough had ever received the required statutory notice from the City of the alleged violations, hearing, or demolition. Additionally, there was no indication in the record that suggested that Percy Scarborough possessed the authority to accept service of process for Wayne Scarborough.

¶ 17. The City argues that Wayne Scarborough received constructive notice based upon the conversations with Percy Scarborough and random conversations with various city officials. However, Mississippi Code Annotated section 21-19-11(1) clearly requires that notice be given to the property owner by United States mail or by service of notice by a police officer at least two weeks prior to the date of the hearing, and if the property owner’s address is unknown, then two weeks’ notice must be provided by publication in a newspaper having general circulation in the perspective municipality.

¶ 18. Despite the allegations by the City that Wayne Scarborough possessed knowledge of the violations, there is no evidence that Wayne Scarborough received the required statutory notice of the City’s intent to demolition the property.

¶ 19. Accordingly, we reverse the circuit court’s judgment granting summary judgment in favor of the City and remand this case to the circuit court for further proceedings consistent with this opinion.

II. Whether the circuit court erred in its ruling that Wayne’s suit was time-barred under Mississippi Code Annotated section 11-51-75.

¶ 20. Because we find that Wayne Scarborough was not given adequate notice of the hearing and the City’s intentions to demolish the subject property, in which he was co-owner, this issue is moot.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Two notices dated February 21, 2000 and January 17, 2006, addressed to Percy Scarborough stated at the end of the letter that "in the event you do not own the property in question, or if there are joint owners, please advise our office as soon as possible." There was no indication in the record that Percy Scarborough notified the sender of the notice that Wayne Scarborough was a co-owner.


author: ROBERTS, J.,

text:
    Kathryn Martello JENKINS, Appellant v. Johnny M. JENKINS, Appellee.
    No. 2009-CA-01914-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Mark W. Prewitt, Vicksburg, attorney for appellant.
    John W. Christopher, attorney for ap-pellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Johnny M. Jenkins and Kathryn Martello Jenkins agreed to a divorce based on irreconcilable differences. The Madison County Chancery Court’s resolution of two disputed issues are central to this appeal. Kathryn claims the chancellor erred by assigning her the entire balance of the debt from one credit card. Kathryn’s second issue on appeal involves the chancellor’s distribution of Kathryn and Johnny’s jointly owned business. The chancellor found that Kathryn had dissipated marital assets through her gambling losses at' casinos. The chancellor then deducted Kathryn’s dissipation of assets from Kathryn’s share of the business and awarded Kathryn a judgment for that amount. The chancellor ordered Johnny to pay Kathryn in monthly installments. The chancellor further held that Kathryn could assert a lien against the business’s real property or “take any other collection remedies provided by law” if Johnny missed a monthly payment. According to Kathryn, the chancellor erred by restricting her rights as a judgment debtor. After careful consideration, we affirm the chancellor’s judgment as it pertains to allocation of the credit-card debt. However, we reverse that portion of the chancellor’s judgment that operates as a restriction of Kathryn’s rights as a judgment debtor and render that portion of the chancellor’s judgment void.

FACTS AND PROCEDURAL HISTORY

¶ 2. Johnny and Kathryn were married on January 4, 1991. They had two children during their eighteen-year marriage. Johnny initially filed a complaint for a divorce based on habitual cruel and inhuman treatment, and Kathryn reciprocated with a counterclaim for divorce based on three separate fault-based grounds. However, they each later withdrew their fault-based divorce claims and agreed to a divorce based on irreconcilable differences.

¶3. Johnny and Kathryn submitted-the following contested issues to the chancellor: child custody, child support, and equitable distribution of their marital assets and marital debt. The chancellor ultimately awarded physical custody of the children to Johnny, subject to Kathryn’s visitation rights. The chancellor also ordered Kathryn to pay Johnny $326 each month in child support. The chancellor also awarded Kathryn approximately $70,000 from the division of the equity in the marital home.

¶ 4. As for Kathryn and Johnny’s business, KMJ, Inc. d/b/a Automuff Discount Muffler, the chancellor found that, including KMJ’s Jackson, Mississippi, real estate, KMJ had an appraised value of $251,000. The chancellor found that Kathryn had dissipated $50,000 in marital assets through gambling losses. Although the chancellor did not specifically state that Kathryn’s share of KMJ was $165,000, the chancellor held that Kathryn’s dissipation of assets would be offset against Kathryn’s share of KMJ. The chancellor then awarded Kathryn a judgment against Johnny in the amount of $115,000-repre-senting Kathryn’s share of KMJ. The chancellor further stated as follows:

Johnny shall pay Kathryn a minimum of $500 per month until the entire amount is paid in full. If Johnny fails to make the minimum payment any given month, Kathryn may assert a lien against [KMJ’s real property] in Jackson, Mississippi[,] or take any other collection remedies provided by law.

¶ 5. Kathryn filed a motion for reconsideration. Kathryn interpreted the chancellor’s treatment of the KMJ judgment as a restriction of her rights as a judgment debtor. Kathryn filed a motion for “reconsideration, JNOV or new trial.” The chancellor heard Kathryn’s motion and “amend[ed] the [judgment] to reflect that Kathryn ... may immediately assert a vendor’s lien against the real property of KMJ, Inc. located [in] ... Jackson, [Mississippi], The vendor’s lien shall not preclude any other collection remedies available to [Kathryn] under the law should [Johnny] miss a payment.” Aggrieved, Kathryn appeals. We affirm the chancellor’s judgment as it pertains to allocation of the credit-card debt. However, we reverse that portion of the chancellor’s judgment that operates as a restriction of Kathryn’s rights as a judgment debtor and render that portion of the chancellor’s judgment void.

STANDARD OF REVIEW

¶ 6. When reviewing a decision of a chancellor, this Court reviews the chancellor’s factual findings for an abuse of the chancellor’s discretion. Mabus v. Mabus, 890 So.2d 806, 810 (¶ 14) (Miss.2003). We will not disturb the chancellor’s factual findings unless the chancellor was manifestly wrong, clearly erroneous, or the chancellor applied an improper legal standard. Id. However, we review questions of law de novo. McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000).

ANALYSIS

I. CREDIT-CARD DEBT

¶ 7. The chancellor held that Kathryn would be solely responsible for paying the entire $7,312 balance of a Visa credit card. Johnny argues that the chancellor’s decision that Kathryn pay the entire balance of that credit-card debt is part of the chancellor’s overall equitable division of the marital assets and the debts acquired during their marriage. Citing Wells v. Wells, 800 So.2d 1239, 1243 (¶ 7) (Miss.Ct.App.2001), Johnny argues that “equitable distribution does not mean ‘equal distribution.’ ” According to Johnny, the chancellor offset the credit-card debt from other considerations incident to equitable distribution.

¶ 8..Kathryn and Johnny disagreed that the credit-card debt was a marital debt. Johnny testified that he and Kathryn were “getting sued by Trustmark Bank for nonpayment of a credit card debt.” Johnny also testified that he did not “know anything about the credit card” and that he “personally did not have” a Trustmark Visa card. According to Johnny, he did not know that Kathryn had obtained the credit card. Johnny testified that he did not agree to be personally liable for the credit card.

¶ 9. Kathryn testified regarding the credit-card debt as follows:

Q. With regard to the lawsuit for the credit card that has been introduced as an exhibit in this action, you and Johnny have been sued for $7,312.10.
A. This debt was a personal credit card that Johnny and I had, and it wasn’t that much when I left the house.
Q. How would that debt be disposed of?
A. It should be split in half, right down the middle. He’s just as responsible and charged on it like I did.
Q. All right. That was used for what purpose.
A. The credit card. This was a personal credit card. As I recall, he bought me a ring on that credit card. . .
Q. Are you suggesting that if you are successful in negotiating that that you and Johnny split this deb1>—
A. Yes.
Q. —whatever amount it ends up being?
A. Yes. It was ' incurred during our marriage.

¶ 10. Kathryn did not submit any statements or other documentary evidence to demonstrate that the credit-card debt was incurred for expenses that benefitted the marriage. Aside from Kathryn’s testimony that Johnny had purchased a ring with the credit card, there was absolutely no evidence regarding what else was purchased with the credit card. During examination by the chancellor, Kathryn testified that she still owned the ring that was purchased with the credit card. Kathryn also testified that she thought Johnny had paid $2,000 for the ring. The additional balance, totaling more than $5,000, is entirely unmentioned in the record.

¶ 11. “[E]xpenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such upon dissolution of the marriage.” Shoffner v. Shoffner, 909 So.2d 1245, 1251 (¶ 17) (Miss.Ct.App.2005). Even if we assume, for the sake of discussion, that the scant evidence in the record satisfied Kathryn’s burden to prove her assertion that the credit-card debt is a marital debt, that does not end the analysis. The chancellor could have accounted for the decision that Kathryn would be solely responsible for the credit-card debt by providing Kathryn more favorable treatment during the division of KMJ. The chancellor’s judgment can only be interpreted as initially awarding Kathryn $165,000 of the business’s total appraised value of $251,000. In other words, the chancellor awarded Kathryn $165,000 of KMJ’s appraised value and awarded Johnny the remaining value of $86,000. Although the chancellor only awarded Kathryn a judgment of $115,000 for her share of KMJ, it is essential to note that the chancellor deducted Kathryn’s dissipation of $50,000 in marital assets from Kathryn’s share of KMJ. Accordingly, the chancellor could have only awarded Kathryn a final judgment of $115,000 if the chancellor originally awarded Kathryn $165,000 of KMJ’s appraised value of $251,000.

¶ 12. The chancellor’s decision that Kathryn would be solely responsible for the credit-card debt could have been based on the obvious favorable treatment that Kathryn received during the chancellor’s division of KMJ. The Mississippi Supreme Court has held that “there is no automatic right to an equal division of jointly-accumulated property, but rather, the division is left to the discretion of the court.” Draper v. Draper, 627 So.2d 302, 305 (Miss.1993). Considering the chancellor’s equitable distribution, as a whole, we find that the chancellor acted within her discretion when she held that Kathryn was solely responsible for the $7,312 Visa credit-card debt. Accordingly, we find no merit to this issue.

II. KATHRYN’S INTEREST IN KMJ

¶ 13. Kathryn argues that the chancellor abused her discretion when she prohibited Kathryn from collecting on the $115,000 judgment, which represents Kathryn’s equitable interest in KMJ. The chancellor ordered Johnny to pay Kathryn at least $500 per month until he had satisfied the balance of the judgment. According to Kathryn, the chancellor did not have the authority to preclude her from attempting to execute on the judgment in her favor. We agree.

¶ 14. Mississippi Code Annotated section 11-5-81 (Rev.2002) provides that: “Whenever the court shall render an order, judgment, or decree for the payment of money against any ... other party litigant therein, a compliance with such order, judgment or decree may be enforced by process of fieri facias or garnishment.” In Peeples v. Yarbrough, 475 So.2d 1154, 1158-59 (Miss.1985), a chancellor imposed a schedule of payments to satisfy a judgment and further placed conditions on the order that operated as a restriction of the judgment debtor’s right to satisfy the judgment through garnishment proceedings. The chancellor in Peeples did so because the chancellor was of the opinion that requiring the judgment creditor to pay more than the amount set forth in the schedule of payments “would only make the situation worse than it already was.” Id. at 1159. The Mississippi Supreme Court held that the chancellor had abused his discretion in circumventing the judgment debtor’s statutory right pursuant to section 11-5-81 to collect the judgment through garnishment. Id. The Peeples court also recognized that, in Walters v. Walters, 383 So.2d 827, 829 (Miss.1980), the supreme court stated that a “similar prohibition” was unenforceable because “the appellant [was] being denied the right to attempt to collect the judgment through the normal collection processes, that is, writ of garnishment or writ of execution, or even the right to negotiate a mutually satisfactory plan of payment with the ap-pellee.” Peeples, 475 So.2d at 1159. Accordingly, the supreme court “reverse[d] as manifest error that portion of the order relating to the appellant’s right to pursue enforcement of her judgment and ... rendered] the question by voiding that provision.” Peeples, 475 So.2d at 1159. However, the supreme court further held that “[t]he order remains in effect ordering ap-pellee to pay $150.00 current child support and $50.00 toward the arrearage judgment.” Id.

¶ 15. Following the precedent set forth in Peeples, we find that the portion of the chancellor’s order that prohibited Kathryn’s right to execute the judgment awarded by the chancellor operates as a violation of Kathryn’s rights as set forth in section 11-5-81. However, we do not disturb the portion of the chancellor’s order as it relates to the schedule of payments. Stated differently, we are aware of no restriction on the chancellor’s authority to establish a schedule of payments, and Johnny shall not be held in contempt as long as he obeys the chancellor’s order. However, the chancellor did not have the authority to restrict Kathryn’s rights to seek satisfaction of the judgment in the manner reflected in section 11-5-81. We, therefore, “reverse as manifest error that portion of the order relating to [Kathryn’s] right to pursue enforcement of her judgment” and render “the question by voiding that provision.” See Peeples, 475 So.2d at 1159.

¶ 16. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE PARTIES.

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