author: GRIFFIS, P.J.,

text:
    Torsha BUCKLEY, Appellant v. Herley R. POUNDS, II and Pearl River Valley Electric Power Association, Appellees.
    No. 2010-CA-01443-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Carlos Eugene Moore and Tangala Lan-iece Hollis, Grenada, attorneys for appellant.
    Leann W. Nealey, Ridgeland, Chynee Allen Bailey and Paul Michael Ellis, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Torsha Buckley appeals the judgment of the Jefferson Davis County Circuit Court awarding her $15,000 in damages for a motor-vehicle accident. She claims the circuit court improperly (1) excluded testimony relating to Dr. Guy T. Vise’s medical evaluation report, (2) excluded her expert’s economic-loss report, (3) failed to issue a sua sponte motion to strike portions of defense counsel’s closing arguments, (4) denied her jury instruction on apportionment of damages, and (5) denied her motion for a judgment notwithstanding the verdict or, alternatively, motion for new trial and motion for additur. We find no error and affirm the judgment of the circuit court.

FACTS

¶ 2. On January 2, 2008, Buckley’s vehicle was stopped at a red light in Prentiss, Mississippi. The back of her car was struck by a vehicle owned by Pearl River Valley Electric Power Association (“EPA”) and driven by Herley R. Pounds, an EPA employee. Buckley filed a complaint alleging she had suffered injuries to her neck and shoulder as a result of the accident. She also claimed EPA was vicariously liable for Pounds’s negligent act. She sought damages for personal injuries including pain and suffering, mental anguish, emotional distress, lost wages; and past, present, and future medical, hospital and/or medically related expenses.

¶ 3. Pounds and EPA (collectively “EPA”) answered the complaint. They admitted liability, but they denied Buckley had suffered any injuries in the accident. Partial summary judgment was granted on liability, leaving only the issue of damages to be determined at trial.

¶ 4. Pounds testified he was traveling at about five miles per hour when he hit Buckley’s car. Officer Terrence Cooley responded to the accident. He testified the only damage to Buckley’s car was a black mark going across her bumper. Buckley testified she was hit hard enough to knock her Bluetooth device off of her ear.

¶ 5. Buckley claimed she could no longer work because she had lost the use of her left arm. She presented evidence of $43,422 in medical expenses, which she argued were a result of this accident. Buckley testified she had worked as a certified nurse’s assistant for three different home-health companies earning from $8 to $13 per hour. She presented expert testimony by Dr. Glenda Glover, an economist, who found Buckley’s future lost income totaled $445,241.

¶ 6. On cross-examination, Buckley admitted she had been unemployed for a year before the accident. She further admitted she had not filed an income tax return since 2004. In her 2004 return, she reported an annual income of $2,340. Records filed with the Social Security Administration showed Buckley’s annual income was $46.40 in 2005, $1,769.30 in 2006, $109 in 2007, and $0 in 2008.

¶ 7. Buckley’s medical records showed she had suffered from fibromyalgia since 1996. She had made some complaints of neck and shoulder pain related to fibro-myalgia before the accident occurred. At the time of the accident, Buckley was taking various medications including Xanax, Valum, Soma, Lortab, Effexor, and Lyrica. She continued to take the same medications after the accident.

¶ 8. Dr. Orhan Ilercil, a neurological surgeon, testified on Buckley’s behalf. He stated an MRI showed Buckley had an arthritic form of degeneration of the spine. When he was asked whether this condition was aggravated or exacerbated by the accident, Dr. Ilercil responded: “Well, provided that there is no contradicting evidence as far as complaints regarding the neck or the arm prior to this motor vehicular accident, then it would be reasonable to say that her complaints of neck and left-sided upper extremity pain would be related to the motor vehicle] accident.”

¶ 9. On cross-examination, EPA’s counsel informed Dr. Ilercil that Buckley had been diagnosed with fibromyalgia years prior to the accident. Dr. Ilercil then stated: “[A]ssuming you have documentation from another doctor with a diagnosis of fibromyalgia, the first thing I would say is I’m not the doctor who made that diagnosis, but that fibromyalgia, in and of itself, can cause all of these symptoms and more.” Dr. Ilercil concluded he could not state with a reasonable degree of medical certainty that the automobile collision proximately caused Buckley’s left arm pain.

¶ 10. Buckley also offered Dr. Howard Katz as an expert witness. He testified Buckley’s MRI showed a mild disc bulge in her upper back, but he stated that he could not prove it was caused by the accident. Regardless, Dr. Katz said the bulge was probably not the cause of Buckley’s pain. He diagnosed her with a left shoulder strain and limited Buckley’s use of her left upper extremity to light-duty work. Dr. Katz said Buckley was capable of returning to work with that limitation.

¶ 11. Dr. David Gandy testified as an expert witness for EPA. He found the disc bulge was caused by long-term degenerative effects, not by the accident. He stated, at most, the accident temporarily exacerbated a preexisting condition. He placed no restrictions on Buckley’s ability to work.

¶ 12. The jury awarded Buckley $15,000 in damages.

ANALYSIS

1. Whether the circuit court improperly excluded testimony regarding the independent medical evaluation report by Dr. Vise, who was deceased at the time of trial.

¶ 13. Dr. Vise was designated as an expert by EPA, and he conducted an independent medical evaluation (“IME”) of Buckley on November 19, 2009, and produced a written report of his findings. Dr. Vise died before trial. EPA then designated Dr. Gandy as their new expert. Dr. Gandy gave a video deposition on July 9, 2010.

¶ 14. Before trial, EPA filed a motion in limine to exclude references to the IME by Dr. Vise, based on questions by Buckley during the video deposition of Dr. Gandy. EPA argued Dr. Vise’s report should not be admitted because it was speculative to assume Dr. Vise’s opinions would remain the same if he were alive and had access to Buckley’s other medical records and diagnostic reports. The record does not contain a response to the motion from Buckley. The circuit court granted the motion.

¶ 15. Dr. Vise was not a treating doctor. Since Dr. Vise’s report was prepared, Buckley has been treated by at least three doctors — Drs. Goel, Uercil and McLeod— and has had two MRIs, a myelogram and a CT scan.

¶ 16. Although Dr. Vise’s report was not admitted into evidence, a copy was attached as an exhibit to Dr. Gandy’s deposition. In the report Dr. Vise noted “[t]he information [Buckley] provided was not consistent with the medical records provided.” Dr. Vise’s report also contained a disclaimer:

The above analysis is based upon the available information at this time, including the history given by the exam-inee, the medical records and tests provided, the results of pain status inventories, and the physical findings. It is assumed that the material provided is correct. If more information becomes available at a later date, an additional report may be required. Such information may or may not change the opinions rendered in this evaluation.

¶ 17. Buckley argues Dr. Vise’s report should not have been excluded because it falls within an exception to the hearsay rule. Buckley cites Hercules, Inc. v. Walters, 434 So.2d 723, 725, 727 (Miss.1983) in which the Mississippi Supreme Court held the circuit court erred by not admitting the report of a deceased doctor into evidence based on findings that the report was hearsay and not reliable or trustworthy. The supreme court found the report fell within an exception to the hearsay rule and that the doctor’s records were trustworthy. See id. at 727. Although Buckley argues the present case “is analogous to Hercules, Inc. v. Walters,” there are significant differences. In Hercules, there was no other information available on the treatment beside the report of the deceased doctor. The appellant in that case sought to have the report admitted. The doctor in Hercules was not an expert hired by the appellee.

¶ 18. Yet the question of whether testimony regarding Dr. Vise’s report should have been admitted under an exception to the hearsay rule is not properly before this Court. References to the report were excluded by the circuit court on motion filed by EPA. Buckley apparently did not file a response. The order does not state the basis for granting the motion.

¶ 19. Buckley failed to present her assignment of error to the circuit court. Accordingly, she is barred from raising this error on appeal. See Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992).

2. Whether the circuit court erred by initially granting Buckley’s motion to admit evidence but then excluding the previously admitted evidence, resulting in the evidence being marked solely for identification.

¶ 20. Buckley argues the circuit court erred by initially ruling Dr. Glover’s economic-loss report could be introduced into evidence but then, after EPA objected, ruling it was inadmissible. The circuit court found the record would improperly enhance the testimony of Dr. Glover.

¶ 21. The admissibility of evidence is within the discretion of the trial court, and absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Haggerty v. Foster, 838 So.2d 948, 958 (¶ 25) (Miss.2002) (quotation and citations omitted).

¶ 22. Here, Buckley attempted to admit the report and resume of Dr. Glover into evidence during Dr. Glover’s testimony. As a result of an objection raised by EPA, the report and resume were only marked for identification.

¶ 23. In Kroger Co. v. Scott, 809 So.2d 679, 687 (¶ 23) (Miss.Ct.App.2001), this Court stated that “admitting both the incident report as well as the testimony of the author of the report is unnecessary. To admit both would produce cumulative evidence that merely bolsters one or the other.” Similarly, Dr. Glover’s report was cumulative of her testimony.

¶ 24. Buckley suffered no prejudice because Dr. Glover testified at length about her findings in her report. All that was in the report was introduced during Dr. Glover’s testimony. The same would apply to her resume, as Dr. Glover testified about her qualifications. Thus, the information in Dr. Glover’s report was given to the jury.

¶ 25. We find this issue has no merit.

3. Whether the circuit court erred by failing to issue a sua sponte motion to strike portions of defense counsel’s closing arguments.

¶ 26. Buckley argues: “During his closing arguments, counsel for [EPA] claimed that if ... Buckley possessed a pre-existing condition, she was not entitled to any compensation.” According to Buckley, the error is based on these statements made during closing arguments:

It’s not fibromyalgia anymore. Of course she would say that, because she cannot get damages—she cannot get a jury award without blaming it on this. If it were something else that preexisted, she cannot get any money.

¶ 27. No objection was raised by Buckley during the closing argument. Buckley only objected after closing arguments, and after the jury had been sent out for deliberation.

¶28. As the circuit court stated: ‘You should have objected during the closing. By not objecting, you waived it. There’s nothing I can do about it.” A contemporaneous objection must be made during closing arguments or the objection is waived. Trustmark Nat’l Bank v. Jeff Anderson Reg’l Med. Ctr., 792 So.2d 267, 278 (1131) (Miss.Ct.App.2000).

¶ 29. The circuit court also stated:

And you put the Court in the position of not being able to rectify it. The jury’s already been in their deliberation. And obviously, if you have an objection, it needs to be made at the time.... I have no independent recollection of him making that statement. So I have no basis on which to determine whether he did or didn’t make that statement....

¶ 30. As will be noted in the next assignment of error, the circuit judge properly instructed the jury on the applicable law. Any remarks by EPA’s counsel were cured with the jury instructions on the law.

¶31. Thus, this issue is procedurally barred and without merit.

.4. Whether the circuit court improperly denied Buckley’s proposed jury instruction on the apportionment of damages.

¶ 32. Buckley argues the circuit court failed to properly instruct the jury about EPA’s liability for aggravating her preexisting condition. In her brief, Buckley does not state which instruction or instructions were improperly refused or what wording should have been given.

¶ 33. As this Court stated in Roger v. Adcock, 25 So.3d 1105, 1108-09 (¶ 16) (Miss.Ct.App.2010): “When reviewing challenges to jury instructions, this Court will affirm the trial court’s ruling where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” (Quotation and citation omitted).

¶ 34. Instruction 8 stated: “You are instructed that if you find Plaintiff possessed a pre-existing condition, and Defendants aggravated such condition, Defendants bears the responsibility for proportion of the injury or aggravation of the injury they caused.”

¶ 35. The circuit court gave Buckley’s addition to this instruction—“You are instructed that one who injures another who suffers from preexisting condition is liable for the entire damage and no apportion [sic] can be made between the preexisting condition and damages caused by the Defendant ... ”—but this was not included in the written instructions to the jury after the error in this addition’s statement of the law was brought to the attention of the court by EPA.

¶ 36. The written instructions given to the jury properly presented the applicable law of the case. Therefore, this assignment of error is without merit.

5. Whether the circuit court improperly denied Buckley’s motion for a judgment notwithstanding the verdict or, alternatively, motion for new trial and motion for additur.

¶ 37. Mississippi Code Annotated section 11-1-55 (Rev.2002) provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for a new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remitti-tur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remitti-tur.

¶ 38. It is well-settled law that when considering a trial judge’s denial of a motion for additur, this Court’s review is for an abuse of discretion. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (¶ 16) (Miss.Ct.App.2001). “The party seeking the additur bears the burden of proving his injuries, loss of income and other damages.” Maddox v. Muirhead, 738 So.2d 742, 743 (¶ 5) (Miss.1999).

¶ 39. The supreme ' court has held: “Awards set by [a] jury are not merely advisory and generally will not be ‘set aside unless so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Maddox, 738 So.2d at 743 (¶ 5) (quoting Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss. 1992)). The question of the adequacy of damages is one of the most perplexing questions with which reviewing courts struggle. Schoppe v. Applied Chems. Div., Mobley Co., 418 So.2d 833, 836 (Miss.1982) (citing Dickey v. Parham, 295 So.2d 284, 285 (Miss.1974)). Additurs shall never be employed without great caution. Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988).

¶ 40. The circuit judge, quoting Clark v. Viniard, 548 So.2d 987, 991-92 (Miss. 1989), found “[i]n the absence of a specific finding by the circuit judge that the jury was influenced by bias, prejudice or passion, it is error to order a new trial on damages or an additur or remittitur.” The circuit court did not find any bias, prejudice or passion. On the contrary, it found “the jury fulfilled its oath in this matter and returned a verdict in no way shocking to the judicial conscience. The amount of damages awarded to [Buckley] was not inadequate, nor contrary to the overwhelming weight of credible evidence.”

¶ 41. Since liability was admitted, the only question for the jury was whether Buckley’s medical bills and anticipated loss of future income were the result of the accident. Also, since the jury was not asked the basis of its award, it would be difficult or impossible for this Court to determine that issue.

¶ 42. We find no error in the circuit court’s denial of an additur. Accordingly, there is no merit to this assignment of error.

¶ 43. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: FAIR, J., IRVING, P.J.,

license: Public Domain

text:
    David JORDAN, Ronnie Stevenson, Charles E. McCoy, Sr., Tennill Cannon and Carl Palmer, Appellants v. Carolyn McADAMS, Appellee.
    No. 2010-CA-01333-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Willie James Perkins Sr., attorney for appellants.
    A. Lee Abraham Jr., Preston- Rideout, Greenwood, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Carolyn McAdams took office as Mayor of Greenwood, Mississippi, on July 6, 2009. That day she sent a letter to the city attorney, James Littleton, terminating his employment. Mayor McAdams then nominated the firm of Abraham and Ride-out to the position. The Greenwood City Council rejected the nomination in a five-to-two vote, held the next day. Littleton then announced he would serve as city attorney until a replacement was approved by the city council. Littleton continued to act as the city attorney at subsequent city council meetings.

¶ 2. On July 20, 2009, Mayor McAdams filed a lawsuit against Littleton and 'five of the seven city council members. She sought a declaratory judgment that Little-ton could not hold over as city attorney. McAdams also sought a declaratory judgment that the councilmen had no authority to hire Littleton as city attorney or allow him to represent or advise the city council. Finally, the mayor asked the court to enjoin Littleton from áttending council meetings as the city attorney or otherwise purporting to act in that capacity.

¶ 3. The chancery court held that Little-ton had no authority to hold over, and it enjoined him from continuing to act as city attorney. The judgment against Littleton was ultimately affirmed on appeal by the Mississippi Supreme Court. See Littleton v. McAdams, 60 So.3d 169, 172 (¶ 14) (Miss.2011).

¶4. The chancery court also held that McAdams was not entitled to any relief against the defendant councilmen. The councilmen sought sanctions against Mc-Adams, contending the claims against them were frivolous. They also alleged that McAdams had sued them for the purpose of harassment.

¶ 5. The chancery court took the councilmen’s request for sanctions under advisement. It did not rule until nearly a year later, when the motion was denied. The chancellor found that the suit against the councilmen was “ill-advised” but did not rise to the level of frivolous. The court further found that the complaint was not filed for the purpose of harassment. This appeal followed.

DISCUSSION

1. Timeliness of Motion

¶ 6. As a threshold issue, we must consider McAdams’s contention that the councilmen’s request for sanctions was untimely. The councilmen filed a motion for sanctions more than three months after the chancery court’s order disposing of the substantive claims in the case.

¶ 7. McAdams relies on Russell v. Lewis Grocer Co., 552 So.2d 113, 117 (Miss.1989), where the supreme court held that a motion for sanctions made after the judgment is in effect a motion to amend that judgment. A motion to amend the judgment must be filed within ten days of the entry of the judgment. M.R.C.P. 59(e).

¶ 8. We find Russell inapplicable to this case because the post-order motion was not the councilmen’s first pleading seeking sanctions. A motion for sanctions need not be made for the first time after a judgment has been entered. See, e.g., Collins v. Koppers, Inc., 59 So.3d 582, 587 (¶ 11) (Miss.2011) (Rule 11 sanctions sought in motion for summary judgment). In this case, the councilmen requested sanctions in their answer to the complaint. In its order disposing of the substantive claims, the chancery court expressly took the issue of sanctions under advisement. In Russell, on the other hand, it appears that sanctions were sought for the first time after the final judgment had been entered. We do not find Russell controlling, and we conclude that the issue of sanctions was properly before the chancery court.

2. Sanctions

¶ 9. Turning to the merits of the appeal, we address the eouncilmen’s contention that the chancery court erred in not granting sanctions against McAdams.

¶ 10. Under Mississippi Rule of Civil Procedure 11(b), a trial court may award sanctions against a party or attorney who has filed a pleading that is frivolous or was filed for the purpose of harassment or delay. The Litigation Accountability Act of 1988 provides complementary, overlapping authority to impose sanctions for claims brought “without substantial justification” or “interposed for delay or harassment.” Miss.Code Ann. § 11-55-5 (Rev. 2002); Stevens v. Lake, 615 So.2d 1177, 1183-84 (Miss.1993). “Without substantial justification” means a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § ll-55-3(a) (Rev.2002).

¶ 11. A trial court’s decision regarding the imposition of sanctions is reviewed only for an abuse of discretion. Compere v. St. Dominic Jackson Mem’l Hosp., 71 So.3d 607, 609 (¶ 6) (Miss.2011). Without a clear showing that the lower court abused its discretion, this Court must affirm its judgment.

¶ 12. The councilmen contend both that the suit was frivolous and that it was filed for the purpose of harassment.

A. Frivolity

¶ 13. A claim that is only weak or “light-headed” cannot be sanctioned as frivolous. Estate of McLemore v. McLemore, 63 So.3d 468, 490 (¶ 67) (Miss.2011). Even an argument that is “wrong” or untimely does not necessarily warrant sanctions. See Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 97 (¶ 33) (Miss.2001). Instead, a pleading is frivolous only when, objectively speaking, there was no hope of success at the time it was filed. In re Estate of Smith v. Smith, 69 So.3d 1, 6 (¶ 19) (Miss.2011). In Smith, the supreme court reiterated that a frivolous claim is “one so clearly untenable, or the insufficiency of which is so manifest upon a bare inspection of the pleadings, that the court or judge is able to determine its character without argument or research.” Id. (quoting Germain v. Harwell, 108 Miss. 396, 402, 66 So. 396, 398 (1914)).

¶ 14. The councilmen direct several arguments to this issue. They contend, first and foremost, that the suit against them was frivolous because it did not cite any wrongdoing or seek any relief against them. However, the mayor’s complaint clearly states that it sought a declaratory judgment against the councilmen, as allowed under Rule 57 of the Mississippi Rules of Civil Procedure. A declaratory judgment seeks relief from uncertainty, before wrongdoing has actually occurred. See M.R.C.P. 57 cmt.

¶ 15. Mayor McAdams cites extensively to authorities from other states approving of declaratory-judgment suits to settle disputes between mayors and city councils. We are aware of similar reported Mississippi cases. See, e.g., Tisdale v. Clay, 728 So.2d 1084 (Miss.1998), overruled in part on other grounds by Myers v. City of McComb, 943 So.2d 1, 6 (¶ 19) (Miss.2006); Jordan v. Smith, 669 So.2d 752 (Miss. 1996), likewise overruled on other grounds by Myers, 943 So.2d at 6 (¶ 19). The supreme court also suggested that declaratory judgment may be an appropriate way to resolve disputes between mayors and city councils in Dupree v. Carroll, 967 So.2d 27, 29-30 (¶ 12) (Miss.2007) (comparing the mandamus sought in that case to a declaratory judgment). While none of these Mississippi cases speak directly to the propriety of the declaratory judgment sought in this case, they provide an arguable basis for Mayor McAdams to seek declaratory relief. That is all that is required, as sanctions should not be awarded where a party presents a colorable legal argument. McLemore, 63 So.3d at 490-91 (¶¶ 67-68).

¶ 16. Moreover, there is no question that a genuine dispute existed between the mayor and the defendant councilmen as to Littleton’s right to hold over. Once they were brought into the suit, the councilmen did in fact take the position that Littleton had a right to hold over, going so far as to argue that the City could not function without him. Mayor McAdams also points out that this case is only the latest in a series of disputes involving various aspects of the appointment, confirmation, and potential hold over of the Greenwood City Attorney; it has been the subject of several lawsuits and at least six attorney general opinions over the last two decades. The fact that this suit sought to resolve a matter of public concern weighs against an award of sanctions. See Hill v. Thompson, 564 So.2d 1, 15 (Miss.1989).

¶ 17. The councilmen’s final contention, that McAdams should have sued the entire city council rather than five of the seven members individually, is more difficult. McAdams points out that the two remaining councilmen supported her position and that the other five represent a controlling majority of the council. This is not in dispute. We also note that in at least one reported Mississippi decision, only some of the members of a city board of aldermen were sued, with one member actually joining with the mayor as a plaintiff. See Tisdale, 728 So.2d at 1085 (¶ 1).

¶ 18. Fortunately, we are not called upon to rule on the propriety of the decision to sue the councilmen individually. The issue before us is, instead, whether the suit was frivolous, or more precisely, whether the councilmen have shown that the chancery court abused its discretion in finding that the suit was not frivolous. As the councilmen have failed to cite any authority showing that suing the councilmen individually rendered the suit frivolous, this argument is without merit.

¶ 19. We find no abuse of discretion in the chancellor’s finding that the suit against the councilmen was not frivolous.

B. Harassment

¶ 20. The councilmen further argue the complaint for declaratory judgment was racially and politically motivated harassment. Trial courts possess the power to impose sanctions upon parties and their attorneys when, in the opinion of the court, the suit filed is filed for the purpose of harassment. . M.R.C.P. 11(b).

¶ 21. McAdams filed her complaint against five of the seven city council members. The five councilmen point out that they are all African-American Democrats, while the two council members who were not sued are white and members of the Republican Party. Although this could support an inference of improper motivations, no other evidence has been presented that this suit was racially or politically motivated. Moreover, McAdams had a rational reason to sue only those five councilmen, as they comprised the majority of the council that opposed her on the issues she sought to have decided in the lawsuit. It is uncontested that the two remaining council members agreed with the mayor that Littleton had no right to hold over.

¶ 22. The mere fact that the five councilmen are African Americans, without anything else, is insufficient proof of a racial motive. The same can be said of the political allegations. After reviewing the record, we find no abuse of discretion in the chancellor’s finding that the suit was not filed for the purpose of harassment.

C. Findings of Fact

¶ 23. The couneilmen have also contended that the chancellor erred in not supporting his opinion with more detailed findings of fact and conclusions of law. We note, first of all, that the chancellor did expressly find that the suit was not frivolous or filed for the purpose of harassment or delay. Additionally, the couneilmen did not file a post-trial motion requesting additional findings of fact and conclusions of law, as allowed by Rule 52 of the Mississippi Rules of Civil Procedure.

¶ 24. In Rule 11 sanctions cases, an appellate court will assume that the trial court made determinations of fact sufficient to support its ruling where no specific finding has been made. Eatman v. City of Moss Point, 809 So.2d 591, 593 (¶ 8) (Miss.2000). When sanctions are awarded pursuant to the Litigation Accountability Act, the statute requires that certain factors be considered to be determine the amount of the sanctions. See Miss.Code Ann. § 11-55-7 (Rev.2002). However, those statutory findings are not required if sanctions are denied, nor are they required where sanctions were awarded pursuant to Rule 11. See id.; River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 197 (Miss.1995).

¶ 25. We find no deficiency in the chancellor’s findings of fact.

CONCLUSION

¶ 26. Rule 11 sanctions should not be awarded where there is a legitimate, well-founded disagreement about the law or facts of a case. We conclude that the chancery court did not abuse its considerable discretion when it denied the councilmen’s request for sanctions.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. ISHEE AND RUSSELL, JJ., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 28. The majority finds that the chancery court did not abuse its discretion when it found that Mayor McAdams’s suit against five members of the Greenwood City Council (City Council) in their individual capacities was not frivolous and declined to award sanctions. Because I believe that the Mayor’s lawsuit against the couneilmen in their individual capacities-but not in their official capacities-was frivolous, I believe the chancery court erred in refusing to award sanctions. Therefore, I dissent. I would reverse the chancery court’s judgment and remand this case for an award of sanctions.

¶ 29. The City of Greenwood (City) operates under the mayor-council form of municipal government. See Littleton, 60 So.3d at 170 (¶ 5). Under this form of municipal government, the governing authorities are vested with the authority to appoint the city attorney. Miss.Code Ann. § 21-15-25 (Rev.2007). The “city council has no authority to appoint.” Jordan, 669 So.2d at 757 (overruled in part on other grounds). Since the city council lacks appointing authority, it is clear that authority rests solely with the mayor. However, “nothing in our statutes or precedents denies the [city] council an advice[-]and[-]consent role in the appointive process.” Jordan, 669 So.2d at 757. The City enacted an ordinance whereby the mayor would appoint the city attorney subject to confirmation by the city council. Id. at 753-54. Mayor McAdams, nominated the law firm of Abraham and Rideout for the position of city attorney. However, by virtue of the previously mentioned city ordinance, Mayor McAdams’s nomination was subject to confirmation by the majority of the City Council.

¶ 30. At its July 7, 2009 meeting, the City Council voted 5-2 to reject Mayor McAdams’s nomination of Abraham and Rideout. In response, Mayor McAdams filed suit against the five councilmen who voted against her nomination. However, Mayor McAdams sued the councilmen only in their individual capacities and not in their official capacities, although she brought the suit in her official capacity as mayor.

¶ 31. The majority asserts:

Fortunately, we are not called upon to rule on the propriety of the decision to sue the councilmen individually. The issue before us is, instead, whether the suit was frivolous, or more precisely, whether the councilmen have shown that the chancery court abused its discretion in finding that the suit was not frivolous. As the councilmen have failed to cite any authority showing that suing the councilmen individually rendered the suit frivolous, this argument is without merit.

Maj. Op. at (¶ 18). The propriety of the Mayor’s decision to sue the councilmen in their individual capacities is the foundational issue that must be decided as a part of reaching the ultimate issue of whether the chancery judge abused his discretion in declining to award sanctions. If the relief sought could not be granted against the councilmen because they were not brought into court in the proper legal posture, how can it be said that the lawsuit was not frivolous? Even if Mayor Mc-Adams had amended her lawsuit to correct the defect, that would not preclude a finding that the lawsuit filed was frivolous. It seems clear to me that when a city councilman casts his vote at a city council meeting to confirm or reject a mayor’s nominee for city attorney, he can only be acting in his official capacity.

¶ 32. A court may impose sanctions against a party or his attorney “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay....” M.R.C.P. Rule 11(b). “A pleading or motion is frivolous within the meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success.” Estate of McLemore, 63 So.3d at 490 (¶ 67) (quoting Tricon Metals & Servs., Inc. v. Topp, 537 So.2d 1331, 1335 (Miss.1989)).

¶ 33. A city ordinance required the City Council to vote on the Mayor’s nominee for city attorney. Therefore, Mayor Mc-Adams’s lawsuit challenged conduct that arose solely out of the councilmen’s official duties. Yet, she failed to sue the five councilmen who voted to reject her nominee in their official capacities. This is not a case of a “weak” or “light-headed” lawsuit. In my view, this lawsuit is frivolous given that Mayor McAdams had “no hope of success” against the councilmen in their individual capacities.

¶ 34. I can think of no reason why Mayor McAdams needed to make anyone other than Littleton a defendant in the lawsuit. She sought to enjoin him from representing the City. In her complaint, the Mayor stated:

Notwithstanding the Mayor’s express termination of Mr. Littleton, at the next [City] Council meeting held on or about July 7, 2009, Mr. Littleton attended and purported to continue to act as the Greenwood City Attorney. He further announced his intention to those assembled and the world at large that, regardless of what the Mayor might prefer, he was going to continue to serve as the Greenwood City [A]attorney unless and until his successor had been appointed by the Mayor and approved by the [City] Council.

The Mayor’s complaint does not allege that the five councilmen, in either their individual or official capacities, did something that impacted or impeded the operation of the municipal government or that they ordered him to continue to serve as city attorney after she had terminated his services. It is of no moment that they might have thought that Littleton was entitled to hold over. Interestingly, Mayor McAdams makes this point in her complaint:

At the same [City] Council meeting (reference is to the meeting where Littleton announced his intentions), the five defendants named above voted to turn down the Mayor’s nomination of the law firm of Abraham [and] Rideout to serve during the upcoming year as the city attorney for the [C]ity of Greenwood and further announced they were satisfied with Defendant Littleton and, at a minimum, implied by their silence that as a holdover he could continue to serve until his successor had been appointed by the Mayor and approved by the [City] Council.

The councilmen’s announcement that they were satisfied with Littleton’s service did not equate to an order directing him to continue to serve. At most, it simply indicated that they saw no need for changing attorneys, although they recognized the Mayor’s right to make a change, subject to their right of confirmation of whomever she nominated. Also, the fact that the councilmen voted to reject the Mayor’s choice for city attorney was nothing more than a proper exercise of their legislative power.

¶ 35. Perhaps the best indication of Mayor McAdams’s purpose for bringing the lawsuit was revealed by one of her attorneys during the hearing on her complaint:

If this Court does what I think it should do, and says there is no city attorney, what that is going to force these two branches of government to do is compromise toward the middle. If you leave somebody in office that one branch of government clearly wants and the other one doesn’t, there is simply no motivation to try to compromise.

When the attorney’s statement is properly parsed, one can come to only one conclusion: Mayor McAdams’s motivation for bringing the lawsuit against the councilmen was to harass them, force them to yield, and give her the attorney of her choice. Again, I reiterate that Littleton could have been enjoined from acting as city attorney without making the councilmen defendants in the action.

¶ 36. Based on the above, the chancery court erred in refusing to award sanctions. As such, I dissent.

      . The minutes from the City Council’s meeting are not included in the record before this Court. However, the manner in which the councilmen voted is not in dispute.


author: IRVING, P.J.,

text:
      Barry LOVE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02068-COA.
    Court of Appeals of Mississippi.
    April 17, 2012.
    Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorneys for appel-lee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On November 10, 2010, a jury convicted Barry Love of capital murder for the death of Jessie Earl Hill. Additionally, the jury convicted Love of two counts of aggravated assault and conspiracy to commit armed robbery. The Grenada County Circuit Court sentenced Love to life without eligibility for parole or probation for capital murder, twenty years for each count of aggravated assault, and five years for conspiracy. The sentences were ordered to run concurrently and to be served in the custody of the Mississippi Department of Corrections.

¶ 2. On November 18, 2010, Love filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Love appeals and argues that he was entitled to a jury instruction on duress and that he received ineffective assistance of counsel.

¶ 3. Finding no error, we affirm.

FACTS

¶4. On November 14, 2008, brothers Ricky, Jessie, and Jimmy Hill, gathered at their shop with a group of friends, which included Jimmy Cook Jr. and Donnie El-more, to cook, drink, and play dice. At some point, Ricky and Jimmy heard a knock on the door. When they opened the door, no one was there. John Holt, who was sitting in his truck outside the shop, told them that he had seen four men with guns standing at the door; however, the four men, later identified as Love, Robert Landfair, Detrius Roberson, and Justin James, were, at that point, hiding on the other side of Ricky’s truck, which was parked nearby.

¶ 5. As Ricky and Jimmy walked toward the truck, James stepped from behind the truck and told Ricky to get on his knees because they were “fibrin to rob” them. James told Ricky to crawl back toward the shop. When Jimmy heard James threaten Ricky, he ran back inside the shop, and Love chased him. Once inside the shop, Love allegedly fired his gun in the air three or four times. Roberson and Land-fair then entered the shop and demanded money from those inside. Ricky testified that, once he made it back to the shop, he heard ten or fifteen more shots but could not recall who was shooting. Afterward, Jessie was found dead with a gunshot wound to his chest. A bullet had grazed Cook on his side and Elmore was shot in the leg. The four men left the scene without taking any money.

¶ 6. At trial, Love testified that Roberson asked him to go with him to the Hill brothers’ shop to get some money from Ricky Walker, who was at the shop. Love explained that he found out that an armed robbery had been planned once Roberson handed him a gun and a red t-shirt to cover his face. Love testified that he only participated in the armed robbery because he was in fear for his life. He stated that he believed that if he had tried to back out of the robbery, the other three men would have killed him.

¶7. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Duress Instruction

¶ 8. Love argues that he was entitled to a jury instruction on duress. When confronted with issues concerning jury instructions, an appellate court’s “primary concern is that ‘the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it.’” Banyard v. State, 47 So.3d 676, 681 (¶ 11) (Miss.2010) (quoting Young v. Guild, 7 So.3d 251, 259 (¶24) (Miss. 2009)). A defendant is entitled to jury instructions that support his theory of the case, even when the evidence supporting his theory is “weak, inconsistent, or of doubtful credibility.” Id. at (¶ 12) (citing Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). Evidence supporting the defendant’s theory of the case may even arise from the his own testimony. Id.

¶ 9. Love testified that he was acting under duress while participating in the armed robbery. The only mention of duress occurred during Love’s testimony. However, Love’s testimony alone was sufficient to support his theory of the case; therefore, he was entitled to a jury instruction on duress.

¶ 10. Generally, an appellate court will not hold a circuit court in error for issues not presented to it for ruling. Moffett v. State, 49 So.3d 1073, 1114 (¶ 139) (Miss.2010). Despite Love’s attorney’s failure to request an instruction on duress, our review of the jury instructions given reveals that duress was adequately addressed. The State offered and the circuit court granted an instruction stating that Love had to “deliberately associate himself ... with the crime” and that he had to “voluntarily participate in [the crime’s] commission.” This jury instruction, although lacking the word “duress,” adequately covered the issue of duress, thus presenting Love’s theory of the case to the jury. As such, this issue is without merit.

2. Ineffective Assistance of Counsel

¶ 11. Love’s ineffective-assistance-of-counsel claim rests on his trial counsel’s failure to request a jury instruction on duress. However, as discussed above, Love’s theory of the case was presented to the jury through other instructions. Therefore, Love’s ineffective-assistance-of-counsel claim is without merit.

¶ 12. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT ELIGIBILITY OF PAROLE OR PROBATION; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT IV, CONSPIRACY, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.

      . Because the murder occurred during the commission of a robbery, Love was charged with capital murder pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2011), which provides:
      (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

      e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or non-consensual unnatural intercourse with mankind, or in any attempt to commit such felonies[J


author: MAXWELL, J.,

text:
    Sarah DAVIS, Appellant v. Jason STEVENS, Appellee.
    No. 2010-CA-01400-COA.
    Court of Appeals of Mississippi.
    April 17, 2012.

      Wendy C. Hollingsworth, attorney for appellant.
    Jennifer Sekul Harris, Ocean Springs, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Sarah Davis appeals the Harrison County Chancery Court’s award of physical custody of her six-year-old daughter, Amy Stevens, to the child’s father, Jason Stevens. She contests several aspects of the chancellor’s Albright analysis, including the determination Davis deliberately made false accusations of sexual abuse against Stevens. Finding no manifest error in the chancellor’s judgment, we affirm.

FACTS

¶ 2. Davis and Stevens dated for several years but never married. The two had one child together but separated when the child, Amy, was approximately ten months old. Soon after the separation, Davis filed a paternity suit against Stevens. Stevens admitted paternity but counterclaimed for legal and physical custody of Amy. The chancellor awarded primary physical custody to Stevens, with the parties having joint legal custody. The chancellor granted visitation to Davis and ordered her to pay child support based on the child-support guidelines. On appeal, Davis challenges the chancellor’s Albright findings.

STANDARD OF REVIEW

¶ 3. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss. Ct.App.2009). We do not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Coggin v. Coggin, 887 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003). When reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

I. Chancellor’s Albright Findings

¶ 4. “In all cases involving child custody ... the polestar consideration is the best interest and welfare of the child.” D.M. v. D.R., 62 So.3d 920, 923 (¶ 11) (Miss.2011). The Albright factors are a guide for chancellors in weighing the facts to determine the child’s best interest. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001) (citing Albright, 437 So.2d at 1005). An Albright analysis is not, by any means, a mathematical equation. Id. And the factors are not meant to be weighed equally in every case. Divers v. Divers, 856 So.2d 370, 376 (¶ 27) (Miss.Ct.App.2003). In some cases, one or two factors may weigh more heavily and control the custody determination. Id. The supreme court has held that “[a]ll the [Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 5. The Albright factors include: (1) the child’s age, health, and sex; (2) which parent had the continuity of care before the separation; (3) parenting skills and the willingness and capacity to provide the primary child care; (4) each parent’s employment and its responsibilities; (5) each parent’s physical and mental health and age; (6) the emotional ties between the child and each parent; (7) each parent’s moral fitness; (8) the child’s home, school, and community record; (9) the child’s preference, if the child is of sufficient age to express a preference by law; (10) the stability of the home environment; and (11) any other equitable factor relevant to the parent-child relationship. Al-bright, 437 So.2d at 1005.

¶ 6. Here, the chancellor made findings of fact and conclusions of law on each Albright factor, finding four of the factors favored Stevens, three favored Davis, and two favored neither party. The chancellor observed the demeanor of both Davis and Stevens as well as Amy’s demeanor with each of her parents. Considering the totality of the circumstances, the chancellor held Stevens should be awarded primary physical custody of Amy.

(1)Age, Health, and Sex of the Child

¶ 7. Finding this factor favored Stevens, the chancellor focused in part on the fact that since a young age Amy has suffered from allergies and other respiratory ailments. He found these health issues were “caused by her exposure to second hand smoke of primarily her mother and[,] now, also her step-father.” The chancellor also addressed Amy’s “repeated vaginal infections brought on by bubble baths,” which he determined Amy “apparently has continued to be given [by Davis] even though physicians have advised against them.” Amy has also suffered from acid reflux and constipation. The chancellor noted Stevens’s testimony that these symptoms subside when she is provided a healthy diet while in his care.

(2)Continuity of Care

¶ 8. The chancellor found this factor favored Davis, pointing out that Davis has cared for Amy “the vast majority of the time” since the parties’ relationship ended when Amy was about ten months old. Since that time, Stevens’s visitation has been “sporadic at best” until recently when court-ordered visitation has occurred on a regular basis.

(3)Parenting Skills/Willingness and Capacity to Provide Primary Care

¶ 9. Concluding this factor favored Stevens, the chancellor emphasized that Davis has taken Amy “to far too many doctors and other health care specialists for non-issues and has failed to care for the real medical and psychological needs of the child.” The chancellor again emphasized the negative impact of Davis’s cigarette smoking around Amy, and that Stevens’s care “dramatically improves” the child’s health.

(⅛) Employment and Employment Responsibilities

¶ 10. The chancellor found this factor favored Davis in part because Stevens’s income is “sporadic and his work is usually out of town,” although Stevens is home each night. Davis works part time at her husband’s family electrical business. Stevens has been paying $300 per month in child support.

(5) Physical and Mental Health and Age of the Parents

¶ 11. The chancellor found this factor slightly favored Stevens. He noted Stevens does not smoke and is in good health. The chancellor also pointed out that Stevens’s spouse, until recently, was a smoker. The chancellor found Davis has smoked cigarettes since Amy was born, despite being advised that quitting this habit would greatly improve her daughter’s health. The chancellor also observed that Davis’s husband smokes cigarettes. Davis suffers from hyperlipidemia and hypertension requiring her to take medication. Further, the chancellor noted Davis’s “tendency towards anorexia,” and that Davis had been diagnosed with “anxiety disorder and mixed personality disorder with dependent features.”

(6) Emotional Ties of Parent and Child

¶ 12. The chancellor found this factor favored Stevens but that both parents have a bond with the child. The chancellor emphasized that Davis had denied Stevens reasonable visitation with Amy until ordered by the court. The chancellor concluded Davis had “wrongfully” and “deliberately” accused Stevens of sexually abusing their child. As a result, [extensive investigations and testing of [Amy] were required costing thousands of dollars of public funds.” Amy “was separated from both parents and exposed to further questioning by experts, as well as being wrongfully denied a relationship with her father.” The chancellor found the investigation “was injurious to [Amy],” and that she “will probably require years of therapy to recover from the experience.” The chancellor commented that the evidence suggests “the child is carrying the burden of her mother’s psychiatric disabilities and is adversely affected by her mother’s insecurities.” The chancellor found that despite Davis’s actions, Stevens has developed a “very strong bond” with his daughter since the court-ordered visitation.

(7)Moral Fitness

¶ 13. Again noting Davis’s false accusations of sexual abuse which were “drawn out over an extended period of time,” the chancellor found this factor favored Stevens.

(8)Home, School, and Community Record of the Child

¶ 14. The chancellor found this factor favored neither party, acknowledging that Amy “is a very bright child who has not yet attended school.”

(9)Preference of the Child

¶ 15. The chancellor found this factor inapplicable due to Amy’s young age.

(10)Stability of Home Environment

¶ 16. The chancellor found this factor favored Davis in part because she “has a longer history of both marriage and a home.”

(11)Other Relevant Factors

¶ 17. Under this factor, the chancellor repeated many of the same observations he had discussed when addressing other factors. The chancellor again emphasized the “false and unsubstantiated claims of sexual abuse against [Stevens].”

II. Davis’s Arguments

¶ 18. Davis takes issue with several aspects of the chancellor’s judgment. She contends the chancellor erroneously found Davis initiated baseless claims of sexual abuse against Stevens and gave this consideration excessive weight. And she makes several factor-specific challenges to the chancellor’s Albright findings. She finally contends the chancellor’s rejection of the guardian ad litem’s recommendation regarding custody was unsupported by adequate findings.

A. Unsubstantiated Allegations of Child Sexual Abuse

¶ 19. Davis’s primary challenge concerns the chancellor’s conclusion that she deliberately falsely accused Stevens of sexually abusing their child.

¶ 20. In explaining how the accusations arose, Davis testified she had taken Amy to a licensed social worker, Kathy Roberts, because Amy was having “emotional issues” with visitation. They met with Roberts approximately four weeks after Stevens’s first overnight visitation with Amy. According to Davis, Amy revealed to Roberts “that she was being abused at her father’s house.” Davis claimed Amy had never mentioned the alleged abuse to her before this interview. When the chancellor questioned Davis as to what the child had reported, Davis testified:

Davis: [Amy] said it was a game, they played the naked butt game. Ms. Roberts was asking her what the game was, and she asked her if she wanted her to show her, and Ms. Roberts said that was okay. And she started taking all of her clothes off in Ms. Kathy Roberts’ office, and she started pointing to her body parts and saying where they were touching her at. ’
The Court: They being?
Davis: Mr. [Stevens] and Ms. [Stevens] ....

Davis testified she and Roberts had questioned Amy “if she was taking a bath, if she was being wiped, or if someone was, you know, anything, and she said no.” Davis testified that Roberts had reported the incident to the Department of Human Services (DHS), and she “mainly let [Roberts] handle it” from there. Davis claimed Amy “continued to tell [Roberts] that she was being abused.” However, Davis offered no further specifics about the abuse the child had allegedly described.

¶ 21. The record shows Davis had taken Amy to several physicians to be examined. It is undisputed that no physical evidence corroborated her allegations of sexual abuse. Davis acknowledged that since the DHS investigation, Amy has not mentioned the alleged abuse. And the record shows Davis’s attorney abandoned the abuse allegation at trial:

Defense counsel: I mean, everybody that’s been involved in this case was aware that the child went for a forensic [interview] and it was part of what caused [the abuse allegations] to be unsolved.
The Court: And I think that in our last hearing your client withdrew her allegation that such had ever occurred.
Defense Counsel: Absolutely.

In addition to withdrawing the abuse allegation, Davis also testified: “[A]s of right now I don’t feel that [Stevens] will harm our child in the future.” Notably, Davis did not call the social worker, Roberts— the only other person who allegedly heard the child’s allegations of abuse — as a witness.

¶ 22. Davis insists that even if no abuse occurred, she did not facilitate Roberts’s reporting the allegations to DHS. According to Davis, Roberts formed her own decision to report' the incident based on her interviews with the child. However, Davis decided against calling Roberts as a witness. And from the record, we are unable to find manifest error in the chancellor’s determination that Davis permitted the unfounded allegations of sexual abuse to continue for an extended period of time — approximately two months — subjecting the young child to the trauma of numerous interviews and examinations. There is record support for the chancellor’s finding that Davis perpetuated the allegations of sexual abuse despite having essentially no evidence that any abuse had occurred. As the chancellor reasoned, the invasive investigation — including Amy’s fourteen-day removal to a shelter where she was separated from both parents— undoubtedly has taken an emotional toll on the child. It is beyond dispute that as a result of what the chancellor deemed a groundless DHS complaint, Amy was deprived of visitation with her father for approximately two months.

¶ 23. The chancellor considered Davis’s allegations of sexual abuse under the “emotional ties of the parent and child” and “moral fitness” Albright factors. Davis contends these allegations should not have been viewed under the “emotional ties” factor. However, we find no manifest error in the chancellor determining under this factor that despite the false allegations of abuse, Stevens has maintained a strong bond with his daughter. Indeed, it would be quite difficult for the chancellor to consider Stevens’s relationship with his daughter without mentioning the unsubstantiated abuse allegations.

¶ 24. Davis compares this case to Gregory, where this Court found a mother’s sexual-abuse allegations did not support a divorce based on habitual cruel and inhuman treatment. Gregory v. Gregory, 881 So.2d 840, 844 (¶ 17) (Miss.Ct.App.200S) (“What we do not find supported in the record is meaningful evidence that even if the claim [of child sexual abuse] was untrue, that it was a fabrication by [the mother] intended in a cruel and inhuman way to injure her husband.”). But we note that in Gregory, our review focused on whether a fault-based divorce was warranted — an entirely different inquiry than an Albright analysis of the child’s best interest.

¶ 25. Here, the chancellor considered the unsubstantiated allegations of sexual abuse from the proper standpoint of the impact on the child. And we find the chancellor remained within his discretion in concluding Davis’s perpetuation of false allegations of sexual abuse weighed heavily against her under certain Albright factors — including the “moral fitness” and “catch all” factors. We disagree that the chancellor accorded Davis’s actions undue weight in his overall Albright analysis. See Newsom v. Newsom, 557 So.2d 511, 516 (Miss.1990) (custody was properly modified in part because the mother “subjected the children to numerous unwarranted physical and psychological examinations, not for treatment, but for investigation and interrogation.”).

¶ 26. Based on our deferential review, we are unable to discern any manifest error in the chancellor’s factual findings regarding the allegations of child molestation.

B. Factor-Specific Challenges

¶ 27. Davis also alleges a variety of errors relating to specific Albright factors.

1. Age, Health, and Sex of the Child

¶ 28. Amy was several months short of six years old at the time of the hearing. And Davis argues that, based on the child’s young age, the chancellor should have favored her on this factor. Mississippi appellate courts have held a child’s age is “but one factor out of many to be considered in a child custody case.” Gutierrez v. Bucci, 827 So.2d 27, 81 (¶ 17) (Miss.Ct.App.2002) (quoting Blevins v. Bardwell, 784 So.2d 166, 173 (¶25) (Miss. 2001)). This factor generally favors the mother when the child is of “tender years.” Id. But this rule has been whittled down in recent years and is no longer absolute. In Copeland v. Copeland, 904 So.2d 1066, 1070 (¶ 7), 1077 (¶¶ 44-46) (Miss.2004), the supreme court upheld a custody award of an approximately two-year-old boy to his father.

¶ 29. Articulating the current state of the tender-years doctrine, the supreme court explained:

In Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982), this Court noted that if the mother of a child of tender years is fit, then she should be awarded custody. “A child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 [ (¶ 15)] (Miss.1998). However, this doctrine has been weakened in recent years and now is only a presumption to be considered along with the other Albright factors.

Copeland, 904 So.2d at 1075 (¶ 34). And this court has affirmed custody awards to fathers of much younger children. See Kimbrough v. Kimbrough, 76 So.3d 715, 722-23 (¶¶ 37-38), 725 (¶¶ 65-66) (Miss.Ct. App.2011); Montgomery v. Montgomery, 20 So.3d 39, 44-46 (¶¶ 22-26, 38) (Miss.Ct. App.2009) (noting diminished weight of tender-years doctrine and affirming chancellor’s award of five-year-old son to father); Brewer v. Brewer, 919 So.2d 135, 138 (¶¶ 1-2), 140 n. 1 (Miss.Ct.App.2005) (acknowledging tender-years doctrine but affirming award of four-year-old child to father). Here, the chancellor noted that Amy is “precocious” and “bright,” which is consistent with Amy’s testimony. Even assuming Amy is a child of tender years, the chancellor implicitly determined Amy’s age and gender yielded to considerations of the child’s health. We find no manifest error in the chancellor determining under these facts that Davis not only smoked around her child but subjected her to numerous unwarranted examinations, damaging both Amy’s physical and emotional well being.

¶ 30. It is also clear from the chancellor’s overall Albright analysis that he believed Davis took the child to the doctor excessively — particularly in attempting to corroborate her allegations of sexual abuse — which he weighed against Davis. This finding is supported by substantial evidence. We also note that the chancellor’s finding that the child’s “vaginal infections” were caused by Amy being given bubble baths is supported by the guardian ad litem’s report, which was admitted into evidence. Davis does not contend, nor does any evidence support, that this issue has any connection to the alleged sexual abuse.

¶ 31. Davis further claims the chancellor erred by weighing her cigarette smoking against her on the Albright factor concerning the child’s health. Although Davis testified that she no longer smokes around Amy, she admitted that she still smokes cigarettes and did so during her pregnancy with Amy. Davis does not contest the chancellor’s finding that her smoking has caused Amy’s respiratory problems. Stevens does not smoke. And his wife, though a former smoker, testified at the hearing, she had quit the habit a year earlier. There is no evidence she has ever smoked around Amy. We find no manifest error in the chancellor’s findings regarding the child’s health.

2. Parenting Skills/Willingness and Capacity to Provide Primary Care

¶ 32. Regarding this factor, Davis argues the chancellor ignored that she is the “only parent who had demonstrated the willingness to provide primary care of [Amy] for most of her entire lifetime.” While we agree the chancellor should have noted under this particular factor Davis’s willingness to provide primary care of the child, the chancellor clearly addressed these concerns under the “continuity of care” factor, which he ultimately found favored Davis.

¶ 33. Davis cites Watts v. Watts, 854 So.2d 11, 13-15 (¶¶9, 17) (Miss.Ct.App. 2003), where this court found error on this factor and others, and reversed a custody award. However, the special chancellor in Watts also inexplicably found the continuity-of-care factor favored the father despite the mother being the primary physical custodian of the child for an extended period and despite the father’s failure to pay child support since the parties’ separation. Id. at 13 (¶ 8). But here, unlike Watts, (1) Stevens has regularly paid child support since the parties’ separation, and (2) the chancellor’s judgment credited Davis for her period of caring for the child.

3. The Child’s Home, School, and Community Record

¶ 34. Citing many of these same concerns, Davis contends the chancellor erred by failing to find this factor favored her. Davis claims the chancellor discounted that Amy has lived with her, and has been happy in her home environment. She adds that Stevens has recently moved to Wiggins, Mississippi, and Amy has no established home and community record there. The chancellor acknowledged, albeit under no particular Albright factor, that he was “concerned about [Stevens’s] home and job, in that both are new and may not be adequately established at the present time.” But he found: “Those concerns ... pale in comparison to the six (6) year record of [Davis] in disregarding the physical and emotional health of her child.” We find the chancellor remained within his discretion in weighing these competing concerns in determining the child’s best interest.

4. Other Equitable Factors Relating to the Parent Child Relationship

¶ 35. Davis claims the chancellor should have addressed the separation of Amy from her half sibling in his consideration of other relevant equitable considerations. There is no dispute that Amy is close to her half sister, who is Davis’s approximately three-year-old daughter from her current marriage. While the chancellor should have specifically addressed this issue, we have held: “There is no rule that requires chancellors to keep siblings together. There is a preference for keeping siblings together, but the paramount concern is the best interest of the child.” Kimbrough, 76 So.3d at 726 (¶ 64); see also id. at (¶¶ 63, 66) (finding no abuse of discretion in an award of custody that required separation of half-siblings). Separation of siblings is “is only one factor” to be considered in making a custody award. Wells v. Wells, 35 So.3d 1250, 1257 (¶ 28) (Miss.Ct.App.2010). We find this consideration should have been credited to Davis but note the chancellor’s focus on Davis’s continued disregard for Amy’s health and emotional well being was appropriate. We are unable to find manifest error in the chancellor’s overall finding that Stevens was apparently the more favorable alternative to be Amy’s primary custodian.

III. Guardian Ad Litem

¶ 36. Davis also contends the chancellor rejected the opinions of the guardian ad litem (GAL) and, in so doing, made insufficient findings. She particularly complains that based on the GAL’s report, the chancellor should have given her bond with her daughter considerable weight, especially under the “emotional ties of the parent and child” factor.

¶ 37. At a preliminary hearing, the court-appointed GAL, Suzanne Baker-Steele, informed the chancellor that the child had expressed a preference to live with her mother. However, Amy acknowledged that her “daddy loves [her].” The GAL also explained that she “was advised [by] the father and the child both that the mother had been encouraging the child to not like her father, to not love her father.” But still, the GAL advised the chancellor, “I’m afraid that if the Court takes custody from the mother, that you are going to damage the child.” The GAL’s report was admitted into evidence without objection, and neither party called her to testify.

¶ 38. The GAL’s stated purpose for compiling the report was “to ascertain whether [she] thought that the minor child’s interests were best served by visitation with her natural father continuing, based upon the fact that the natural mother of the child had made allegations of sexual abuse against the natural father, after visitation[] had begun.” The GAL ultimately determined that visitation would be in Amy’s best interest and that visitation should “be generous and liberal until such time as [Amy] begins school.”

¶39. The GAL reviewed the records from the investigation by DHS and the Center for the Prevention of Child Abuse. She also reviewed the records of, or spoke to, several physicians who had examined Amy. The GAL found: “There is only one person, Ms. Roberts, who has received any information which could be construed as supporting abuse allegations.” But the GAL did “not believe that [Amy] has been either physically or sexually abused by either parent or step-parent.” The GAL also noted: “I do think that [Amy] has seen and/or heard inappropriate language or actions. I do not know where[ ] this took place, or when.” The GAL’s report further noted Amy’s troubling comments about the “naked butt game,” but the GAL “did not observe that the comments were referring to sexual matters at the time that [Amy] said them, nor could [it be] ascertained] who taught her the words.” However, the GAL expressed her “concerns that [Davis] may have actually encouraged [Amy’s] comments and her behavior, if not taught them to her.”

¶ 40. The report detailed Stevens’s complaints that he was unable to exercise appropriate visitation with Amy at any time prior to court-ordered visitation. Davis required all visits to occur in her mother’s home and for the visits to be supervised-generally by herself or her mother. The GAL observed that “[a]t no point during my observation and interaction [with Amy] did she exhibit any hesitation in approaching [Stevens], which she did repeatedly[.]”

¶ 41. Davis contends the chancellor discounted the GAL’s opinions in conducting his Albright analysis. Davis highlights the GAL’s finding that Amy “is very attached to her mother emotionally, and does, most certainly, suffer from separation anxiety at the time of separation from her mother.”

¶ 42. The Mississippi Supreme Court has explained the chancellor’s broad discretion to evaluate and weigh the opinions of a guardian ad litem:

In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by this Court is not ... whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record support the chancellor’s decision.

Lorenz v. Strait, 987 So.2d 427, 431 (¶ 16) (Miss.2008) (internal citation omitted). Contrary to Davis’s claims, we find it quite apparent that the chancellor considered the GAL’s opinions and indeed incorporated several of her findings and recommendations into his judgment. However, the chancellor disagreed with the GAL’s belief that custody should remain with the mother. The chancellor reasoned:

The Court must ... consider ... the recommendation of the Guardian ad Li-tem that, in spite of all the facts in this case, [Amy’s] bond with her mother is so strong that separation from her mother could possibly do more harm than good. However, more recently the child and her father have developed a very strong bond which in this Court’s opinion is greater than the bond with her mother[.]

The chancellor obviously considered the GAL’s opinion regarding the child’s bond with her mother. Yet he determined after applying the Albright factors that Stevens should have physical custody. This case is distinguishable from the case Davis cites for the notion that the chancellor’s findings are inadequate, see In re L.D.M., 848 So.2d 181, 188 (¶ 5) (Miss.2003), where the youth court did not address the guardian ad litem’s recommendations.

¶ 43. We are restrained from disturbing a chancellor’s resolution of facts, where his or her findings are supported by substantial evidence. The chancellor remained within his discretion in determining Davis’s perpetuation of false allegations of sexual abuse and her apparent disregard for the overall health and well being of the child — among other behavior harming the child — tipped the balance in favor of Stevens having custody. Based on our deferential review, we decline to substitute our judgment for that of the chancellor.

¶ 44. We also reject Davis’s related argument that reversal is required because the chancellor did not include in his judgment a “summary of the qualifications” of the guardian ad litem. See id. (“[T]he youth court should include in its findings of facts and conclusions of law a summary of the guardian ad litem’s reeom-mendations[J”). We find no authority for reversing a chancellor’s custody award based solely on a failure to include a summary of the GAL’s qualifications, and we decline to do so today. We note that Davis neither objected to the admission of the GAL’s report into evidence, nor did she ever challenge the GAL’s qualifications. And even on appeal Davis does not urge the GAL was unqualified. Quite to the contrary, she claims the chancellor erred in failing to adopt the GAL’s opinions regarding her bond with the child. We find no merit to this issue.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Because this case involves allegations of sexual abuse against the father, we have provided fictitious names for the parties and their child.

      . See Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . We note that Stevens admitted he had been late in making payments for five months in the aftermath of Hurricane Katrina because he "had no way of getting any money for myself, for [Davis], or for the child.” Soon after, Stevens paid the arrearages. Davis confirmed that Stevens was "current in child support” as of the custody hearing.

      . As previously stated in Issue II.A, Davis failed to call Roberts to testify.