source: Caselaw Access Project

author: MAXWELL, J., CARLTON, J.,

license: Public Domain

text:
    Robert D. EVANS, Appellant v. Beverly B. EVANS, Appellee Robert D. Evans, Appellant v. Beverly B. Evans, Appellee.
    Nos. 2009-CP-00953-COA, 2009-CP-01442-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    Rehearing Denied Aug. 28, 2011.
    Certiorari Denied Dec. 1, 2011.

      Robert D. Evans, Appellant, pro se.
    Evelyn Tatum Portie, Brandon, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The Washington County Chancery Court granted Robert Evans a downward modification of his child-support payments but ordered him to pay an amount greater than required by the child-support guidelines. While the chancellor’s deviation from these presumptively correct guidelines may be reasonable, his findings of fact are inadequate to support the reduction. Further, because Robert promptly filed a modification action upon his loss of income, the chancellor’s contempt finding and corresponding award of attorney’s fees were improper. The chancellor’s other award of attorney’s fees to Beverly must also be reversed because it lacks sufficient findings and supporting evidence.

¶ 2. We therefore reverse the chancellor’s child-support reduction and remand for the chancellor to make findings regarding the child-support guidelines and deviation criteria. And we reverse and render on the issue of contempt and reverse and remand the chancellor’s assessment of attorney’s fees. Because child-support payments vest as they accrue, we affirm the chancellor’s refusal to relate the modification order back to an earlier date.

FACTS

I. Background,

¶ 3. In December 1998, Beverly and Robert obtained a divorce based on irreconcilable differences. The chancellor incorporated the terms of the parties’ “marital settlement agreement” into his final judgment of divorce. Their agreement called for joint physical and legal custody of the parties’ two children. And it required that Robert pay Beverly $2,000 per month in child support, provide health-insurance coverage for the children, and maintain a life-insurance policy for their benefit.

II. Modification and Contempt Actions

¶ 4. Robert had served as County Attorney for Washington County for twenty years. In early November 2007, he lost his re-election bid. Soon after, on November 14, 2007, Robert filed a motion to modify his child-support payments. It is undisputed that his net loss of income was approximately $3,500 per month.

¶ 5. The chancellor spent five days hearing the matter. On the third day, January 28, 2009, Beverly filed a motion for contempt based on Robert’s failure to comply with child-support provisions in the 1998 divorce judgment. The chancellor then reset the matter and heard evidence over two more days in March 2009.

III. The Chancellor’s Findings

¶ 6. The chancellor ruled from the bench that Robert was not in contempt for accruing arrearages because he was financially incapable of complying with the original child-support decree.

¶ 7. Then, on May 13, 2009, the chancellor entered a written order. The chancellor found a material change in circumstances and decreased Robert’s child-support obligation from $2,000 to $1,000 for a period of six months. He also required that Robert maintain a life-insurance policy for the benefit of his son and provide his son’s automobile and health insurance. He further ordered Robert pay $1,000 for Beverly’s attorney’s fees, even though his order contained no finding regarding Beverly’s inability to pay her own attorney’s fees, nor any finding on the McKee factors. The chancellor’s order neither mentions contempt nor Robert’s liability for arrearag-es.

¶ 8. The chancellor later entered a second written order on July 28, 2009, for the stated purpose of clarifying his prior order. In this second order, the chancellor found Robert in contempt for defaulting on $14,750 in child-support payments. He required Robert pay two installments of $100 each month until this arrearage is paid. Based on the contempt finding, the chancellor awarded Beverly an additional $1,300 in attorney’s fees.

IV.Issues Presented

¶ 9. Robert now appeals arguing the chancellor erred by (1) finding him in contempt, (2) ordering him to pay Beverly’s attorney’s fees, (3) deviating above the child-support-guideline percentages without sufficient findings, and (4) refusing to relate his modification order back to the date of his originally scheduled hearing.

STANDARD OF REVIEW

¶ 10. “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 the chancellor’s, even if we disagree with his findings and would arrive at a different conclusion. Coggin v. Coggin, 837 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).

¶ 11. We conduct a heightened review when a chancellor simply adopts one party’s findings verbatim. City of Jackson v. Presley, 40 So.3d 520, 522 (¶ 10) (Miss.2010). We do so because adopted findings “are not the same as findings independently made by the trial judge after impartially and judiciously sifting through the conflicts and nuances of the trial testimony and exhibits.” Id.

¶ 12. But here we need not apply a heightened review because the chancellor made changes, albeit slight, to Beverly’s proposed findings of fact. Further, the chancellor entered a subsequent order for the stated purpose of clarifying his prior order. This order appears to embody the chancellor’s independent findings, and Robert does not contend otherwise. Therefore, our familiar manifest-error standard applies.

DISCUSSION

I. Contempt

¶ 13. Robert claims that because he promptly petitioned for a reduction in his child-support payments, the chancellor erred by finding him in contempt.

¶ 14. Enforcing compliance with a court order is a matter of civil contempt. Dennis v. Dennis, 824 So.2d 604, 608 (¶ 8) (Miss.2002) (explaining that the primary purpose of a civil contempt order “is to enforce the rights of private party litigants or enforce compliance with a court order”). “An adjudication of contempt is a serious matter and must, in the case of civil contempt, be proven by clear and convincing evidence.” Allred v. Allred, 735 So.2d 1064, 1067 (¶ 10) (Miss.Ct.App.1999) (citing Masonite Corp. v. Int’l Woodworkers of Am., 206 So.2d 171, 180 (Miss.1967)); see also Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994); Shelton v. Shelton, 653 So.2d 283, 286 (Miss.1995). Failure to comply with a court order is prima facie evidence of contempt. McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 724 (¶ 11) (Miss.2004). To rebut a prima facie case of contempt, a defendant must show an “inability to pay, that the default was not willful, that the provision [violated] was ambiguous, or that performance was impossible.” Deborah H. Bell, Bell on Mississippi Family Law § 11.05[l][a] (1st ed.2005).

¶ 15. Parties who are unable to comply with court-ordered child-support payments should promptly petition the chancellor for a reduction of support. Thurman v. Thurman, 559 So.2d 1014, 1016 (Miss.1990). “Where a party promptly files for a modification ... of support based on his inability to pay, a finding of contempt is not proper.” Setser, 644 So.2d at 1216; see also Shelton, 653 So.2d at 286-87; Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990), Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Clower v. Clower, 988 So.2d 441, 445 (¶ 11) (Miss.Ct.App.2008).

¶ 16. Robert suffered a substantial decrease in income after he lost in his reelection bid for county attorney in early November 2007. He had held the position for twenty years. Robert’s net loss of income was approximately $8,500 per month. Based on his financial inability to comply with the original decree, on November 14, 2007, Robert petitioned for a modification of child support. After he began failing to pay the full amount required by the divorce judgment, Beverly filed her contempt action in January 2009.

¶ 17. The following colloquy from the chancellor’s bench ruling on March 17, 2009, shows he found Robert financially unable to meet his child-support obligation:

By the Court: I guess he hopes, as well as ... we do, that things are going to get better. But the law is that he can’t he [sic] held in contempt if he can’t pay.
By the Court: And I was not going to hold him in contempt today.
By [Beverly’s counsel]: I’m sorry to hear that.
By the Court: Well, I don’t think I can, based on the evidenee[.]

But the chancellor apparently later changed his mind. In a written order entered July 28, 2009, the chancellor found Robert in contempt without mentioning his earlier finding of Robert’s inability to pay. The chancellor simply stated, “the Court is of the opinion that [Robert] is in [c]on-tempt of this Court for his failure to pay the sum of $14,750 in child support as ordered by this Court[.]” Other than citing Robert’s failure to make payments, the chancellor offered no other basis for holding him in contempt.

¶ 18. We find the chancellor erred in his contempt ruling. Because Robert promptly filed for a reduction in child-support payments when his financial circumstances changed, the contempt finding was improper. See, e.g., Setser, 644 So.2d at 1216. To be clear though, Robert’s prompt filing of the modification action only precludes a finding of contempt. It does not excuse arrearages. See Thurman, 559 So.2d at 1016-17; Cumberland, 564 So.2d at 847. Robert is still liable for vested child-support payments, as discussed further below.

¶ 19. The dissent relies on speculation and matters outside the record to find, as Beverly suggests on appeal, that the chancellor properly held Robert in contempt based on his actions prior to the November 2007 election. Yet the record shows that the chancellor on June 14, 2008, dismissed Beverly’s previous contempt action. Though she later filed another contempt petition on January 28, 2009, it concerned Robert’s alleged nonpayment of child support since January 2008. Beverly made clear several times during the hearing that she only sought to hold Robert in contempt for his nonpayment from January 2008 forward, and that is apparently what the chancellor did. In fact, Beverly’s attorney admitted that Robert “was caught up” with his support payments in December 2007. There is simply no record support that the chancellor relied on Robert’s actions prior to the November 2007 election when finding him in contempt.

¶ 20. For these reasons, we reverse and render the chancellor’s contempt finding.

II. Attorney’s Fees

¶ 21. The chancellor first awarded Beverly $1,000 in attorney’s fees incurred in the modification action. He later awarded Beverly an additional $1,300 in attorney’s fees based on his finding that Robert was in contempt. We will address the separate awards in turn.

A. Modification Matter

¶ 22. The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). We are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (¶29) (Miss.1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (¶ 26) (Miss.Ct.App.2000). When awarding attorney’s fees, chancellors are instructed to make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (¶ 13) (Miss.1999). And chancellors should apply the McKee factors in determining the proper amount of the award:

[A] sum sufficient to secure [a] competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

McKee, 418 So.2d at 767 (internal citation omitted).

¶ 23. The chancellor awarded Beverly $1,000 in attorney’s fees in the modification action, but made no finding regarding Beverly’s inability to pay her attorney. Nor did he apply the McKee factors. Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286 (¶ 13). While there is some proof supporting Beverly’s inability to pay, there is also evidence that in October 2008 she acquired $15,500 utilizing her home equity. No proof was presented concerning what Beverly did with these funds. Nor did Beverly testify regarding her ability to pay her attorney.

¶ 24. We also emphasize that the chancellor failed to consider Robert’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss.1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss.2000); see also Bell, at § 12.01[6][b] (explaining that the chancellor should consider the parties’ financial disparity).

¶ 25. In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (¶¶ 13-14) (Miss.Ct.App.1999). While this court has held that a chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (¶ 7) (Miss.Ct.App.2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss.1985). Here, the evidentiary basis supporting the $1,000 award is not clear from the record.

¶ 26. Therefore, we must remand the issue of attorney’s fees for further consideration. On remand, any award of attorney’s fees must be supported with findings concerning Beverly’s inability to pay and the reasonableness of the award under the McKee factors.

B. Contempt Matter

¶ 27. Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993). But here, as already discussed, the chancellor erred by finding Robert in contempt. Since the chancellor based the subsequent award of $1,300 in attorney’s fees solely on an erroneous contempt finding, we reverse and render this award. Moses v. Moses, 879 So.2d 1036, 1041 (¶¶ 21-22) (Miss.2004); Cumberland, 564 So.2d at 845.

III. Deviation from the Guideline Percentages

¶28. The chancellor ordered a downward modification—reducing Robert’s monthly child-support payments from $2,000 to $1,000 due to Robert’s loss of income. But it is undisputed that $1,000 still considerably exceeds the presumptively correct amount under the child-support guidelines. Robert contends the chancellor’s deviation from the support guidelines lacks adequate findings.

¶ 29. Mississippi Code Annotated section 43-19-101(1) (Rev.2009) contains the guidelines for ordering child support. Based on the number of minor children, a certain percentage is applied to the payor’s adjusted gross income (AGI) to determine the proper amount of support. Id. There is a rebuttable presumption the guideline amount is correct both in determining the amount of the initial award and in modifying that award. Id.

¶ 30. To deviate from the presumptively correct amount, the chancellor must make “a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.” Miss.Code Ann. § 43-19-101(2) (Rev.2009). These deviation criteria are:

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

Miss.Code Ann. § 43-19-108(a)-(i) (Rev. 2009).

¶ 31. In deviating from the guidelines, the chancellor made no findings as to Robert’s AGI or the presumptively correct amount based upon the guideline percentages. The chancellor’s May 13 order contains a pronouncement that application of the guidelines would be unjust. Yet he never determined the guideline amount. This court has explained that “[t]he chancellor must apply the guidelines to make the determination that their application would be unjust.” Osborn v. Osborn, 724 So.2d 1121, 1125 (¶ 18) (Miss.Ct.App.1998). While the chancellor’s order perhaps touched on a few of the deviation factors, he made no findings on other important criteria, such as the parties’ total available assets.

¶ 32. The chancellor’s May 13 order contains some authority for imputing income based on earning capacity. Supporting this proposition is our decision in White v. White, 722 So.2d 731, 734 (¶ 21) (Miss.Ct.App.1998) (“We hereby hold that where temporary financial reverses create an unreliable measure for an award of child support, the chancellor may in his discretion predicate an award on reasonable earning capacity.”). But in White, the chancellor made specific findings regarding the child-support payor’s earning capacity. Id. at (¶ 22). Here, it is unclear (1) whether the chancellor deviated from the guidelines on the basis of Robert’s earning capacity, and (2) what monetary amount the chancellor considered Robert’s earning capacity to be.

¶ 33. Beverly alleges Robert made essentially no attempt to get re-elected in November 2007. And she suggests he has made no efforts to find employment since then. She further points to a trip Robert took to Mexico, in early 2009, but Robert’s wife claims to have paid virtually all associated expenses. These considerations may well relate to deviation from the guidelines under the “catch all” factor. However, the fact remains that the chancellor failed to consider some other important criteria, such as Robert’s available assets.

¶ 34. Beverly mentions the equitable principle that “no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity.” Lane v. Lane, 850 So.2d 122, 126 (¶ 11) (Miss.Ct.App.2002). But Beverly has not shown that Robert was financially able to comply with the original child-support decree, yet deliberately chose not to. And we find no specific conduct by Robert that can be characterized as wilful inequity.

¶ 35. There is no dispute that Robert’s monthly income had decreased by approximately $3,500 since he had lost his job as county attorney. Robert’s Rule 8.05 financial disclosure indicates his gross monthly income had been reduced to $1,288. His testimony at the hearing evinced his gross income for 2008 was $14,840, which amounts to a monthly gross income of approximately $1,236.66. Instead of calculating Robert’s AGI, the chancellor found:

By the Court: I’m going to say at this time that your income has been cut at least 50%. So, I’m going to reduce [child-support payments] to $1,000[.]
By Mr. Evans: Well, I don’t understand where the guidelines are. They don’t even come into place.
By the Court: I don’t think the court has to follow guidelines.
By Mr. Evans: They have to look at them. That McGowan case said—
By the Court: Yes, sir, they have to, but this case is such a mess at this time[,] and I think, as I say, your income has probably been reduced at least that much.
By Mr. Evans: Well, Judge, you’re ordering me to pay her more than I’m making, as far as the records show. By the Court: Yes, sir.

Apparently, based on this finding, the chancellor modified Robert’s child-support payments from $2,000 to $1,000. The chancellor also ordered that Robert provide his son’s ear and health insurance, as well as maintain a life-insurance policy with his son as a beneficiary.

¶ 36. The process of weighing evidence and arriving at a proper award “is essentially an exercise in fact-finding, which customarily significantly restrains [the appellate court’s] review.” Gray v. Gray, 745 So.2d 234, 236 (¶ 10) (Miss.1999). But when the chancellor departs from the guidelines due to the special circumstances of the case, “a written finding must appear on the record sufficient to overcome the presumption that such a deviation is inappropriate.” Kilgore v. Fuller, 741 So.2d 351, 354 (¶ 11) (Miss.Ct.App.1999).

¶ 37. On numerous occasions, our courts have reversed child-support awards deviating from the guideline amounts without being supported by adequate findings. Gray, 745 So.2d at 237 (¶ 14) (remand necessary because chancellor deviated above guideline amounts without finding payor’s AGI or applying deviation factors); Clausel v. Clausel, 714 So.2d 265, 267 (¶ 8) (Miss.1998) (remand necessary because chancellor’s upward deviation from guideline amounts not supported by any finding regarding payor’s ability to pay); Dufour v. Dufour, 631 So.2d 192, 194-95 (Miss.1994) (reversal necessary where chancellor made no reference to guidelines and failed to determine payor’s income); Osborn v. Osborn, 724 So.2d 1121, 1124-25 (¶¶ 12-20) (Miss.Ct.App.1998) (reversal required because no findings regarding payor’s AGI). This court’s observation in Kilgore holds true today: “We have found no authority for permitting the support award to be totally unanchored from the guidelines. There can be a deviation, but not a total disregarding of them.” Kilgore, 741 So.2d at 354 (¶ 12). Indeed, the statute containing the guidelines explicitly requires chancellors to make specific findings under the deviation criteria should they deem deviation from the presumptively correct amounts appropriate. Miss. Code Ann. § 43-19-101(2).

¶ 38. While the dissent appears to agree with our analysis that the chancellor’s deviation from the guidelines is not supported by sufficient findings, it goes a step further and finds no material change in circumstances has occurred. Respectfully, that issue is not before us. Beverly has not cross-appealed the chancellor’s determination that a material change occurred. And indeed, the dissent overlooks that it was Beverly’s attorney who drafted the order finding a material change had occurred, which the chancellor adopted almost verbatim. We decline to hold the chancellor in error on an issue that has not been appealed.

¶ 39. Though the chancellor may well be correct that a deviation above the presumptively correct guideline amounts is warranted, he must provide adequate findings to support the deviation. We reverse and remand on this issue with instructions that the chancellor calculate the proper award according to the guidelines and justify any deviation with specific findings.

TV. Relation Back

¶40. Robert argues Beverly engaged in delay tactics in an effort to increase the number of vested child-support payments. He cites Beverly filing a motion for continuance and later filing a motion for contempt, which prompted the court to again reset the matter.

¶ 41. It is well settled that a reduction in support does not relate back to the date of the filing of a modification action. Cumberland, 564 So.2d at 847. “If a modification is granted, the paying party is responsible for any support payments which vest during litigation of the motion for modification.” Setser, 644 So.2d at 1215-16. “[C]hild support payments vest in the child as they accrue.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Child-support payments belong to the child, not to the parent, who only receives the “benefits under a fiduciary duty to hold and use them for the benefit of the child.” Cumberland, 564 So.2d at 847. Once child-support payments vest, “they cannot be modified or forgiven by the courts.” Tanner, 598 So.2d at 786. “Each payment that becomes due and remains unpaid becomes a judgment against the supporting parent.” Id. (citation and quotations omitted).

¶ 42. Robert admits the order does not relate back to the date he filed his motion for modification. But he insists the order should relate back to the date of the first hearing on the modification matter. He cites no authority to support this argument. Child-support payments that accrue while the modification action is pending become vested and cannot be forgiven by the courts. Our courts have never carved out his suggested exception, and we decline to do so today. Instead, we reiterate the principle that “[a]ny modification granted will take effect on the date of the judgment granting the modification.” Howard v. Howard, 968 So.2d 961, 977 (¶ 41) (Miss.Ct.App.2007) (citing Cumberland, 564 So.2d at 847).

¶ 43. We find no error in the chancellor’s refusal to have his modification order relate back to an earlier date.

¶ 44. THE JUDGMENT OF THE WASHINGTON COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

Concurring in Part and Dissenting in Part:

¶ 45. I respectfully concur in part and dissent in part with the majority’s opinion.

¶ 46. I concur with the majority’s decision to reverse the chancellor’s findings regarding the child-support modification. I agree the downward modification of child support lacked sufficient on-the-record findings, but I further submit the record reveals a lack of evidence sufficient to constitute an unanticipated material change in circumstances justifying a downward modification in child support from that ordered in the original judicial decree. To support any such finding of a downward modification of child support, jurisprudence recognizes that the burden to prove an unanticipated material change belonged to Robert Evans. See Meeks v. Meeks, 757 So.2d 364, 367 (¶ 11) (Miss.Ct.App.2000) (finding the party seeking modification bears the burden of proving entitlement to the modification, which includes proof on the issue of the unexpected nature to the changes in circumstances); Tedford v. Dempsey, 437 So.2d 410, 418 (Miss.1983) (providing a foreseeable slight change in income fails to constitute an unanticipated material change). See also Miss.Code Ann. § 25-3-9 (Rev.2010) (authorizing the salary for part-time elected county prosecuting attorneys). Therefore, in my view, in addition to finding that insufficient on-the-record findings as to the deviation from the statutory child-support guidelines exist, I find that the chancellor’s downward child-support modification also lacked a sufficient evidentiary basis to support the chancellor’s downward modification.

¶47. Additionally, I dissent from the decision of the majority to reverse the chancellor’s findings as to contempt. We review civil-contempt decisions for manifest error. Dennis v. Dennis, 824 So.2d 604, 608 (¶¶ 7-8) (Miss.2002). Also, in an appeal of a contempt order, we will defer to the chancellor about his view of the witnesses, determination of their credibility, and his review of-exhibits in that context. Doyle v. Doyle, 55 So.3d 1097, 1110 (¶ 44) (Miss.Ct.App.2010). The evidence in this case supports the chancellor’s finding Robert in contempt for his non-compliance from January 2008 and forward, and it certainly supports a finding of contempt in response to Beverly Evans’s recent January 2009 motion for contempt. Additionally, a review of this case as a whole supports the chancellor’s civil-contempt decision providing evidence of credibility and the repeated willfulness of Robert’s actions, and it shows that Robert possessed unclean hands in seeking his modification.

¶ 48. Precedent provides that we will only reverse for manifest error; we are required to affirm the chancellor’s decision of civil-contempt matters if supported by substantial credible evidence. Strain v. Strain, 847 So.2d 276, 278 (¶ 4) (Miss.Ct.App.2003). A review of the record shows substantial evidence to support the chancellor’s findings. With respect to whether Robert possesses clean hands, as necessary to receive the equitable relief that he seeks, the record displays a clear pattern of non-compliance by Robert with his child-support obligations since 2005, predating the loss of his election. See Braw-dy v. Howell, 841 So.2d 1175, 1179-80 (¶¶ 14-19) (Miss.Ct.App.2003) (finding a husband was not entitled to a child-support modification where the husband offered no evidence to show an unanticipated change since the last court order, which was prepared and agreed to by the husband and approved by the court). See also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998) (providing that the clean-hands doctrine prevents a complaining party from obtaining equitable relief when that party is guilty of willful misconduct regarding the matter in issue). The July 28, 2009 findings of fact and conclusions of law, opinion, and order of the chancellor states as follows in pertinent part:

This matter was heard on May 13, 2009 on [Robert’s] (Petitioner’s) Motion to Modify as a result of his failure to be re[-]elected County Attorney of Washington County, Mississippi. Following the testimony supporting [Robert’s] said motion, the Court clarified its former ruling from a March 17, 2009 hearing in part as hereinafter shown and additionally ruled that [Robert] was in contempt for failure to conform to the Court’s original decree or order of divorce dated December 29, 1998[,] but that [Robert] not be sanctioned by incarceration; and the Court reiterated that [Robert’s] child support be reduced from $2,000.00 per month to $1,000.00 per month, as ordered in the March 17, 2009 hearing, to be payable $500.00 on the first day of each month and $500.00 on the 15th day of each month, commencing; April 1, 2009; that Plaintiff was in arrears in the amount of $14,750.00 in his payment of child support, which arrearage was to be paid in monthly installments of $200.00, payable $100.00 on the first day of each on the month and $100.00 on the 15th day of each month, commencing April 1, 2009; and that [Robert] pay to [Beverly’s] attorney the amount of $1,300.00, together with all costs herein of $133.00, and such amounts of attorney[’]s fee and court costs be paid within [sixty] days of said ruling on May 13, 2009; and further, that the reduced amount of $1,000.00 for child support and modified the March 17, 2009 order so that this matter be revisited in six months from May 13, 2009[,] to ascertain if [Robert’s] child support be restored to $2,000.00. Following that hearing[,] the Court, by telephone conference, ordered ore tenus that both parties file proposed findings of facts, conclusions of law[,] and order, although [Beverly’s] attorney had been ordered in the [c]ourtroom on May 13, 2009[,] to prepare such findings, conclusions^] and order for the Court. And now, after both parties have presented to the Court their proposed findings, conclusions and order, the Court hereby makes its findings of fact, conclusions of law[,] and order as follows:
FINDINGS OF FACT
The Court finds that from the testimony that [Robert] is an able bodied person, capable in his position as an attorney at law of many years of practice to earn a good living, and although he has prosecuted criminal cases for many years as [c]ounty [attorney, he is able to and should be able to use such experience to defend criminals as a criminal attorney, and should be given six months in order to hone his skills for such. Further, the Court finds that [Beverly’s] attorney is entitled to and should be paid the sum of $1,300.00 as reasonable attorney’s fee[s] for her services herein, and further, the Court finds that [Robert] should pay all costs herein of $133.00, which fees and costs should be paid within [ninety] days from the date of May 13, 2009. Further, the Court finds that [Robert] shall comply with all other provisions of said [¡Judgment of [d]ivorce dated December 29, 1998, as the same apply to life insurance premiums, medical insurance and school tuition for the minor child, Robert Evans.
OPINION OF THE COURT AND CONCLUSIONS OF LAW
The Court rejects [Robert’s] allegations in his [p]roposed [findings of [f]aets [a]nd [conclusions of [l]aw, except, however, as to his alleged disagreement to [Beverly’s] version of her [proposed [findings of [f]acts and [conclusions of [l]aw as to the amount in arrearage, and the Court is of the opinion that [Robert] is in [c]ontempt of this Court for his failure to pay the sum of $14,750[.00] in child support as ordered by this Court on December 29, 1998, and that his said child support should be reduced from $2,000.00 to $1,000.00, and to be paid in the manner and for the time as set out herein in this Court’s findings herein. Price v. Price, 5 So.3d 1151, [sic] (Miss.2009), Hunt v. Asanov, 975 So.2d 899 (Miss.2008). An award of attorney’s fees in a contempt case is proper and is left to the sound discretion of the [chancellor. ... Pursuant to the findings of this Court, the Court hereby orders as follows, to-wit:
ORDER OF THE COURT
IT IS, THEREFORE, ORDERED AND ADJUDGED that [Robert] is in contempt of this Court for his failure to pay child support in the amount of $14,750.00 as ordered by this Court on December 29, 1998, by paying such amount at the rate of $200.00 per month in installments of $100.00 on the first day of each month and $100.00 on the 15th day of each month, commencing June 1, 2009, but that his child support should be reduced from the sum of $2,000.00 to the sum of $1,000.00 commencing April 1, 2009, for a period of six months from May 13, 2009, at which time the Court would revisit this matter for further consideration.
IT IS FURTHER ORDERED AND ADJUDGED that [Robert] pay unto [Beverly’s] attorney the sum of $1,300.00, as well as, the costs of this court in the amount of $133.00 within [ninety] days from May 13, 2009.

¶49. Also, relevant to the contempt decision was the willfulness of Robert’s actions, which was reflected in the supreme court’s opinion that ruled on a previous attempt to modify the support, wherein the Mississippi Supreme Court found that Robert did not deny unilaterally reducing his child-support payments in 2005. Evans v. Evans, 994 So.2d 765, 769 (¶ 12) (Miss.2008). A further review of the prior proceedings and rulings also reveals that while Robert’s appeal was pending before the supreme court, he had already filed the motion to modify his child support on November 14, 2007. The supreme court, in its 2008 opinion, denied Robert’s request for a child-support modification due to the emancipation of his daughter, and ordered him to comply with the originally decreed child-support award. The record does not contain evidence that Robert ever complied with the supreme court’s prior decision before filing his new modification motion in 2007. Robert, therefore, never purged himself of his unclean hands due to his arrears. Meanwhile, Beverly had also filed another contempt action against Robert in January 2009, arguing that he failed to comply with the court’s original child support decree.

¶ 50. With respect to Robert’s actual income, as compared to his capacity to earn income, the law allows the chancellor to impute income to a payor who voluntarily fails to seek work or voluntarily fails to utilize his or her earning capacity and skills. See Selman v. Selman, 722 So.2d 547, 551-55 (¶¶ 14-36) (Miss.1998) (finding that the father’s earning capacity, rather than his actual earnings, should be considered, where the father quit his higher paying job to preach at a monthly salary of $700); Lahmann v. Hallmon, 722 So.2d 614, 621 (Miss.1998) (finding the father voluntarily reduced his income by leaving his construction job to sing two nights per week in a club). With respect to Robert’s earning capacity, a review of the record shows that a hearing occurred in the Chancery Court of Washington County on May 28, 2008, to hear motions for contempt filed by both Beverly and Robert and to hear evidence on Robert’s motion seeking a downward modification of the child support. The record reflects that, at the hearing, Beverly argued that because Robert failed to comply with the chancellor’s previous clear directive ordering him to pay child support, which included the house note obligation, Robert came into court with unclean hands seeking his downward modification. The record further shows that at the close of the hearing, the chancellor denied both Robert’s and Beverly’s contempt motions, and he denied Robert’s request for a downward modification of the child support. The record shows that the chancellor then reset the matter for hearing in September 2008 to consider the matter further, thereby allowing Robert time to obtain another job utilizing his legal skills. The record reveals that, in making this decision, the chancellor found that Robert possessed marketable skills which he had failed to utilize in order to provide financial support for his children, and the chancellor encouraged Robert to utilize his skills as a “professional man and as a lawyer” in order to gain employment.

¶ 51. Following the May 2008 hearing, the record shows that the parties continued to return to court for further proceedings in the continuation of Robert’s request for a downward modification of his child-support obligations, as well as for the chancellor’s assessment of his employment efforts. The record demonstrates that Robert argued, throughout the various hearings, that he suffered a loss of income due to his loss of a re-election bid as county attorney and that Beverly asserted, in response, Robert lacked a desire to be re-elected and failed to invest the effort required for a successful re-election bid. The record further reflects that, throughout the proceedings, the chancellor questioned Robert as to whether he had utilized his twenty years of prosecutorial skills and other legal skills to compensate for the loss of his position as county attorney. The chancellor also questioned Robert as to the expenditures he made during vacations and other things, while failing to improve his income. The record shows that the chancellor noted Robert’s loss of his elected position, and readily acknowledged that the law required him to consider Robert’s earning capacity, rather than his actual income.

¶ 52. With respect to the sufficiency of the on-the-record findings as to the downward modification of child support, we must assess whether sufficient evidence exists in the record to support any such on-the-record findings to downward modification of child support above the statutory guidelines. With respect to the adequacy of the on-the-record findings, and with respect to any existing evidentiary basis to support such findings in order to modify Robert’s child-support obligation herein, the record shows that during cross-examination, Robert admitted that he knew that his defeat for re-election was possible, and he denied saying that he did not want to be re-elected, despite the testimony by the children to the contrary. He also testified that his elected position paid very little for many years and that only recently had the salary increased. The record reveals that the chancellor ultimately provided Robert with a downward modification, reducing his child support obligation from $2,000 to $1,000.

¶ 53. In closing, as to the lack of findings in the record to support a deviation from the child-support guidelines, the majority finds that the chancellor’s on-the-record findings are insufficient to support a deviation from the statutory child-support guidelines in this case. I agree, but I assert that I would also reverse the chancellor’s downward modification due to a lack of evidentiary sufficiency to support such findings to modify due to a failure to show an unanticipated material change in circumstances as a result of the foreseeable loss of his election. The supreme court, in its previous decision in this case, spoke to the issue of an upward modification of previously decreed child support that already exceeded statutory guidelines, and the court explained that such an upward modification required on-the-record findings. Evans, 994 So.2d at 773 (¶ 26). Further, I find no case law requiring on-the-record findings when a chancellor orders a downward modification of an already awarded, and affirmed, child-support obligation that exceeded statutory guidelines.

¶ 54. A review of the evidence in this case reflects that Robert sought this modification with unclean hands, and the record lacks sufficient proof of an unanticipated material change. Robert, therefore, failed to present evidence of the unexpected or expected nature of his change in circumstances. As stated, Robert bore the burden to show his entitlement to the downward modification, and he also bore the burden to show how the loss of an elected part-time position constituted an unanticipated material change. The record shows that Robert testified that he knew at the time of the original decree he could lose the election, and the record shows that Beverly testified that Robert’s loss of a political election was not an unanticipated material change, as Robert displayed no desire or effort to seek re-election. See Weeks v. Weeks, 29 So.3d 80, 90 (¶ 44) (Miss.Ct.App.2009) (citing Tingle, 573 So.2d at 1391) (finding that a material change in the circumstances of the parties warranting a downward modification in child support must be “one that could not have been anticipated by the parties at the time of the original decree.”). Furthermore, I find significance in the supreme court’s acknowledgment, in its prior ruling regarding these parties, that the original decree was a judicially approved negotiated arrangement that was freely and voluntarily entered into by the parties at the time of their divorce. Evans, 994 So.2d at 771 (¶ 18).

¶ 55. In affirming the chancellor’s child-support award of an amount above the statutory guidelines in this case, the supreme court reiterated the principle that on-the-record findings are required if the chancellor determines that it would be unjust or inappropriate to apply the child-support guidelines as set forth in Mississippi Code Annotated section 48-19-101 (Rev.2009). Id. at 772-73 (¶ 26) (citing Miss.Code Ann. § 43-19-108 (Rev.2004)); see also Draper v. Draper, 658 So.2d 866, 869 (Miss.1995). The supreme court then stated that “[cjoncern, however, over whether the chancellor failed to do so here is abated by Evans’s own testimony; in which he claimed that his total child-support expenditures each month throughout the period in question averaged $2,150,” an amount which exceeded his child-support obligations. Evans, 994 So.2d at 773 (¶ 28).

¶ 56. Furthermore, as to my view on the chancellor’s contempt decision and award of attorney’s fees, I dissent from the majority’s decision to reverse the chancellor’s findings as to Robert’s contempt, since the record before us, and the supreme court’s prior opinion regarding these parties, reflect a willfulness in Robert’s failure to comply with court orders and the original decree. I submit that we should affirm the chancellor’s findings as to contempt since the contempt decision is supported by substantial, credible evidence in the record. I further submit that the chancellor acted within his discretion in awarded the attorney’s fees to the prevailing party on the issue of contempt.

      . Because Robert timely appealed two of the chancellor’s orders, we consider them together in this appeal.

      . By the time of this hearing, the parties’ daughter had reached the age of majority.

      . The July 28 order contains the same provision reducing Robert's child-support obligation from $2,000 to $1,000 per month for a six-month period. Like the prior order, it also requires Robert to continue to provide life and medical insurance for his son. Both orders were nunc pro tunc, referencing the dates of bench rulings.

      . If the defaulting party fails to promptly file a modification action, "he will, in response to the citation for contempt be required to make out a clear case of inability.” Thurman, 559 So.2d at 1016.

      . We note that Beverly has not appealed the chancellor’s determination that Robert's election defeat constituted a material change in circumstances, and that issue is not before us.

      . See Issue IV.

      . For example, during the hearing, Beverly’s attorney stated:
      [A]s of January, '08, [Robert] fell behind. We're seeking in our contempt motion— he’s behind going way back to January, 2008. I would contend that he was caught up December, '07, and his contempt of court action starts January, '08, when he was failing to pay and he was under an order to do that[.]

      . An exception to this rule is contempt actions, where attorney’s fees may be properly assessed against the offending party without regard to the recipient’s inability to pay. See Bounds v. Bounds, 935 So.2d 407, 412 (¶¶ 17-19) (Miss.Ct.App.2006). Fees awarded on this basis, though, should not exceed the expense incurred as a result of the contemptuous conduct. Hanshaw v. Hanshaw, 55 So.3d 143, 148 (¶ 17) (Miss.2011).

      . While Beverly’s attorney provided some figures as to her hourly rate during debate over attorney’s fees in the contempt action, she offered nothing to support the $1,000 estimate in the modification case.

      . See Issue I.

      . This court has observed that "there is substantial authority for including all child-related expenses in the determination of whether the guidelines have properly been appliedf.]” Kilgore v. Fuller, 741 So.2d 351, 356 (1117) (Miss.Ct.App.1999) (citing Johnston v. Johnston, 722 So.2d 453, 462 (Miss.1998)).

      . Robert admitted in his testimony that he knew that he could lose his re-election for political office when he entered into the negotiated settlement in this case. Mississippi Code Annotated section 25 — 3—9(2)(h) (Rev. 2010) set the salary of the county prosecuting attorney at $25,000, with $1,000 to defray secretarial costs. The position received a substantial increase, effective October 2004, by statute, tying the salary to the salary amount of the county supervisors.

      . During a previous appeal, the Mississippi Supreme Court affirmed the award of child support in this case that exceeded the statutory guidelines.

      . The majority opinion states that the adequacy of the on-the-record findings in support on the downward child-support modification falls within the reach of our judicial review, but I find the sufficiency of the evidence in support of the downward modification falls beyond our review on appeal. However, any on-the-record findings in support of a child-support award deviating from the statutory guidelines must be supported by sufficient evidence in the record. Otherwise, the findings in the record are just dangling words with no legs to support them. With respect to the required level of sufficient evidence to support a modification in child support, Mississippi jurisprudence clearly provides that a modification of a child-support award must be supported by evidence of a material unanticipated change. Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990).

        . See Doyle, 55 So.3d at 1110 (¶ 44) (recognizing the chancellor sits as the fact-finder in civil-contempt proceedings, and appellate courts must give the chancellor great discretion upon review of his fact-heavy decision, reversing only upon manifest error).

      . We again note that we review civil-contempt decisions for manifest error. Jones v. Mayo, 53 So.3d 832, 838 (¶ 21) (Miss.Ct.App.2011) (citing Dennis v. Dennis, 824 So.2d 604, 608 (¶¶ 7-8) (Miss.2002)). We also recognize that we review a lower court's denial of attorney’s fees for abuse of discretion. Id.; see also Seghini v. Seghini, 42 So.3d 635, 643 (II31) (Miss.Ct. App.2010) (reviewing an award of attorney’s fees based on a finding of contempt for abuse of discretion).

      . See also 4 Deborah H. Bell, Divorce and Domestic Relations, Encyclopedia of Mississippi Law § 28:23 (Jeffrey Jackson & Mary Miller ed.2001) (providing a review of jurisprudence finding that no modification is allowed under Mississippi law where the payor has unclean hands, and that the party in arrears is not entitled to a downward modification without establishing inability to pay the arrears).

      . A review of the record further reveals that in November 2008, the supreme court affirmed the chancellor’s decision not to downwardly modify Robert’s child-support payments due to his older daughter’s emancipation, but reversed the chancellor’s order requiring that Robert pay more for speculative future college expenses of his son. Evans v. Evans, 994 So.2d 765, 773-74 (¶ 30) (Miss.2008). The court found that Robert's daughter’s emancipation failed to constitute an unanticipated material change. Id. at 771 (¶ 20).

      . The supreme court did not hand down it decision in this case until November 20, 2008.

      . The record shows that the chancellor reviewed the judgment of divorce, which provided that Robert pay $2,000 a month as child support, and noted that on January 1, 2007, the court had ordered Robert to continue to pay $2,000 a month in the manner as provided in the judgment of divorce dated December 29, 1998.

      . The record reflects that the chancellor conveyed that he was to assess Robert's capacity to earn income.

      .At the time of the original decree in this case setting child support, Mississippi Code Annotated section 25-3-9 provided that the county prosecuting attorney’s salary amounted to $25,000, with a $1,000 to defray secretarial costs. The statutory amendments reflect that the salary stayed the same until it increased substantially, effective October 2004, tying the salary to that of the salary amount of the county supervisors.

      . The record shows that Robert did not go door-to-door campaigning and did not seek donations to support his candidacy. The record also indicates that Robert testified that his constituency also changed.

      . While the majority finds that Robert’s failure to be re-elected to his political office resulted in a significant loss of income, I contend that Robert did not lose a large component of his income since in 1998, when the court initially decided the child-support award, Robert received very little compensation for his elected position.

      .The supreme court’s decision provides that, beginning in September 2005, Robert unilaterally decreased the amount of child support that he was paying each month. Evans, 994 So.2d at 768 (¶ 7). While the chancellor ordered Robert to resume paying his originally decreed $2,000 child-support obligation until the emancipation of his son, he failed to do so. Id. Robert, therefore, failed to comply with his child-support obligation, which remained $2,000, until modified by the chancellor on May 13, 2009.

      . I pause to note that I would also affirm the attorney’s fees awarded as a result of the contemptuous conduct.

      . See Jones, 53 So.3d at 837 (¶ 15) (“Under the law of the case doctrine and general principles of comity, a successor judge has the same discretion to reconsider an order as would the first judge, but should not overrule the earlier judge’s order or judgment merely because the later judge might have decided matters differently.”).


author: IRVING, P.J.,

text:
    Dave C. TERRY, Appellant v. MISSISSIPPI DIVISION OF MEDICAID, Appellee.
    No. 2010-SA-00980-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 6, 2011.
    Certiorari Denied Dec. 1, 2011.

      Christopher H. Neyland, Jackson, attorney for appellant.
    Office of the Attorney General by Charles P. Quarterman, Jackson, Nicole G. Litton, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Dave C. Terry’s termination from the Mississippi Division of Medicaid after he was convicted of stalking and simple assault. Terry appealed his termination within the Division; when his termination was affirmed, Terry appealed to the Hinds County Circuit Court, which affirmed the Division’s decision. Feeling aggrieved, Terry appeals and asserts that the Division erred in striking his witness list, that there is insufficient evidence supporting his termination, and that his termination was based on gender discrimination.

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

FACTS

¶ 3. Terry began working for the Division sometime prior to 2004. On July 22, 2004, Terry was convicted of simple assault and stalking after pleading guilty to those charges. Other charges pending against Terry were remanded to his file at that time. In early August 2004, the Division began proceedings to terminate Terry’s employment on the basis of the convictions. After a termination hearing, Dr. Warren Jones, then director of the Division, sent Terry a letter on August 31, 2004, formally terminating Terry’s employment.

¶ 4. On September 13, 2004, Terry filed a notice of appeal with the Mississippi Employee Appeals Board (the EAB). The first hearing before the EAB was scheduled for November 23, 2004. On November 22, 2004, Terry requested and was granted a continuance. His hearing was then scheduled for March 17, 2005. On March 16, 2005, Terry requested and was granted a second continuance. His appeal was then continued until May 12, 2005. Sometime after March 16, 2005, Terry hired new counsel. On May 2, 2005, Terry filed a list of witnesses and subpoena requests in anticipation of his May 12 appeal hearing.

¶ 5. The Division moved to strike Terry’s witness list as having been untimely filed. The EAB hearing officer agreed and struck the list. After Terry filed a motion challenging the timeliness of the Division’s witness list, the Division’s list was also stricken by the hearing officer. Consequently, the only witnesses who were permitted to testify at the hearing were Terry and Rachel Shinard, who testified as the Division’s representative. However, Terry declined to testify or offer any evidence at the hearing.

¶ 6. Shinard testified that Terry was terminated as a result of a Group III violation. According to Shinard, conviction of any misdemeanor or felony is sufficient basis for termination. When asked why a less stringent punishment than termination was not applied to Terry, Shinard testified that there were other offenses and infractions contained in Terry’s personnel file. However, Terry’s file was never introduced into evidence during the hearing.

¶ 7. At the hearing, Terry’s attorney argued that Terry’s conviction had been expunged and, therefore, the Division had no basis for terminating Terry’s employment. No document proving the expungement was ever introduced into evidence, and Terry does not contend on appeal that his termination was improper as a result of any expungement. A certified copy of the judgments of conviction for stalking and simple assault were introduced at the hearing. Terry does not contest the validity of the convictions in his appeal.

118. After the hearing, the hearing officer found that there was a sufficient basis for the termination of Terry’s employment. As stated, Terry appealed that decision to the full EAB, which affirmed the hearing officer’s decision, and then to the circuit court, which affirmed the termination. The circuit court found that Terry’s witness list was filed untimely and that the witnesses would have been of no assistance to Terry, as none of the witnesses could have negated the evidence of Terry’s convictions. Accordingly, the circuit court affirmed the EAB’s decision.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Witness List

¶ 10. Terry contends that his witness list was improperly stricken. Terry argues that due process required that he be allowed to call witnesses on his behalf. Terry also claims that his witness list was timely filed because it was filed more than ten days before the final hearing date.

¶ 11. Mississippi Code Annotated section 25-9-132 (Rev.2010) required the circuit court, in reviewing the EAB’s decision, “to determine if the action of the [EAB][wa]s unlawful for the reason that it was: (a) [n]ot supported by any substantial evidence; (b) [arbitrary or capricious; or (c) [i]n violation of some statutory or constitutional right of the employee.” Other than the above stated reasons, there are no grounds for reversing the decision of the EAB. Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So.2d 1115, 1120 (¶ 11) (Miss.2005) (citation omitted). An appellate court “must often determine whether a circuit court has exceeded its authority in overturning an agency action, and ... proceed[s] aware that ‘a rebutta-ble presumption exists in favor of the action of the agency, and the burden of proof is on the party challenging an agency’s action.’ ” Id. (quoting Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 963 (¶ 13) (Miss.2004)). Ultimately, the EAB’s decision must be based on “substantial evidence.” Id. (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss.2000)).

¶ 12. We note that “[t]he control of discovery is a matter committed .to the sound discretion of the trial judge.” Holland v. Mayfield, 826 So.2d 664, 673 (¶ 37) (Miss.1999) (quoting Broadhead v. Bonita Lakes Mall, 702 So.2d 92, 104 (¶ 44) (Miss.1997)). Here, the hearing officer sat in the position of a trial judge." We find no error with the hearing officer’s conclusion that Terry’s witness list should have been filed at least ten days prior to Terry’s original hearing date. We note that the Division’s witness list was similarly struck as untimely. We should also note that Terry did not make a proffer before the EAB as to what his witnesses would have testified to. In any event, we fail to see how any of these witnesses could refute the fact of Terry’s convictions. Consequently, we find no merit to this contention.

2. Substantial Evidence

¶ 13. Terry next contends that there was insufficient evidence to support his termination. He complains that Shi-nard testified that Terry was terminated, in part, because of “other offenses” in Terry’s personnel file.

¶ 14. It is clear that, under the Division’s personnel rules, Terry or any other Division employee could be terminated upon conviction of a misdemeanor or felony. When Terry pleaded guilty to stalking and simple assault, he was convicted of a misdemeanor or felony. The Division needed no further justification to terminate Terry’s employment. Since Terry’s convictions were sufficient to justify his termination, and he has not contested the validity of his convictions, substantial evidence undergirds the EAB’s decision. Therefore, this contention of error is without merit.

3. Civil-Rights Violation

¶ 15. Terry next complains that his termination was illegally based on his gender. His sole reasoning is that Shi-nard testified during the hearing that Terry “worked in an office full of women.” Terry provides no other evidence that his termination was based on his gender. Therefore, he has failed to provide sufficient evidence to show that his termination was based on gender discrimination. Shi-nard merely provided information regarding the office in which Terry had worked. No further discussion was held during the hearing regarding Terry’s gender. In fact, there is nothing to suggest that the issue of any alleged gender discrimination was raised prior to Terry’s appeal of his termination. Furthermore, as already discussed, Terry’s convictions were sufficient reasons for the Division to terminate his employment.

¶ 16. This contention of error is also without merit.

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

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

      . Although we have not found a definitive statement in the record regarding when Teriy began his employment with the Division, the receipt indicating that he had received a copy of the employee handbook was signed on February 1, 2001.


author: CARLTON, J.,

text:
    In the Matter of the Last Will and Testament and Estate of J. Wesley COOPER, Deceased: Janice C. Cooper, Appellant v. Carolyn C. Guido, Appellee.
    No. 2010-CA-01253-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Rehearing Denied Sept. 6, 2011.
    Certiorari Denied Dec. 1, 2011.
    Rick D. Patt, Jackson, attorney for appellant.

      W. Bruce Lewis, Natchez, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Following a hearing on the issue of whether an antenuptial agreement precluded a challenge to a will or deed executed after marriage, the Chancery Court of Adams County granted summary judgment in favor of Carolyn C. Guido, the proponent of the antenuptial agreement’s validity. Janice C. Cooper, the contestant of the will, filed a motion to set aside the judgment, which was subsequently denied by the chancellor. Aggrieved, Janice, now appeals, arguing that the chancellor erred in finding that the antenuptial agreement at issue was a valid and binding contract which operated to preclude any challenge to a will or deed executed by her spouse after marriage. Finding no error, we affirm.

FACTS

¶ 2. Janice and J. Wesley Cooper were married on February 27, 1998. On the morning of the wedding, the couple entered into an antenuptial agreement which provided in pertinent part:

It is the intention of each of the parties hereto that each party waives, releases, and relinquishes any right or claim of any kind, character or nature whatsover, which either may have or shall have in and to the estate, property, assets, or effects of the other, including but not limited to each party’s Separate Property set forth herein, under any present or future law of this State except as otherwise specifically provided in this agreement; and each of the parties hereto agrees to refrain from any action or proceeding that may tend to void or nullify to any extent or in any particular the terms of any such Will of the other; and forever waives, releases, and relinquishes any right or claim which he or she now has or may have or shall have, pursuant to the provisions of the laws of the State of Mississippi, as said laws may exist now or hereafter, to elect to take in contravention of the terms of any Will of the other, including any Last Will now executed or which may be executed hereafter, or any disposition of property made by the other during his or her lifetime.

¶ 3. Sometime during the marriage, the couple separated; and on December 13, 2007, Wesley executed a new will that devised all of his property to his daughters, Carolyn and Deborah. Then, on August 7, 2008, Wesley executed a deed, conveying ownership of his home to Carolyn and Deborah. Shortly thereafter, Wesley died.

¶ 4. Following Wesley’s death, Carolyn filed a petition to probate Wesley’s will in the Adams County Chancery Court. The chancellor entered a judgment admitting the will to probate and ordered the issuance of the letters testamentary to Carolyn. Janice then filed a petition contesting the will, wherein she claimed, among other things, that Wesley’s will was the result of Carolyn and Deborah’s undue influence and was executed by Wesley at a time when he was of unsound mind. Carolyn responded by seeking a dismissal of Janice’s petition for will contest due to a no-contest provision in the antenuptial agreement signed by Janice and Wesley on February 27,1998, and requesting that because Janice had waived all of her homestead rights in the home upon entering into the antenuptial agreement, the home be sold and the proceeds be divided as follows: one-half to Janice, one-fourth to Carolyn, and one-fourth to Deborah. Janice then filed a “Renunciation of Will,” a “Motion to Void Deed of Gift,” and a motion to strike the antenuptial agreement.

¶ 5. Carolyn then moved for summary judgment, requesting that the chancellor dismiss the will contest petition, the renunciation of the will, and the motion to void the deed with prejudice because no issue of disputed material fact existed. After a hearing on the motion, the chancellor entered an order granting summary judgment in favor of Carolyn. Janice then filed a motion to set aside the summary judgment. After a hearing, the chancellor denied the motion. Janice now appeals.

STANDARD OF REVIEW

¶ 6. When considering a lower court’s grant or denial of summary judgment, this Court employs a de novo standard of review and examines all of the evidentiary matters before it, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Lawrence v. Lawrence, 956 So.2d 251, 255 (¶ 11) (Miss.Ct.App.2006) (citing McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶ 9) (Miss.2002)). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is enti-tied to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor.” Id. at 255-56 (¶ 11) (internal citation omitted). If one party swears to one version of the matter at issue and another claims the opposite, then issues of fact exist sufficient to require denial of a motion for summary judgment. Id. at 256 (¶ 11).

DISCUSSION

¶ 7. Janice argues that the chancellor erred in granting summary judgment in favor of Carolyn after finding that the antenuptial agreement was a valid and enforceable contract which precluded her challenge of the will and deed executed by Wesley. Janice asserts that the antenup-tial agreement is procedurally unconscionable since the facts are clear that she entered into the antenuptial agreement while under duress and without the benefit of or opportunity to obtain proper legal counsel. Janice also alleges that the ante-nuptial agreement fails as substantively unconscionable because the agreement constitutes an invalid contract of adhesion drafted unilaterally by Wesley, the dominant party, and then presented to her, the weaker party, on a “take-it-or-leave-it” basis without a real opportunity to bargain about its terms. See East Ford, Inc. v. Taylor, 826 So.2d 709, 716 (¶ 20) (Miss.2002). Janice further contends that even if the document is found to be a valid and enforceable agreement, this Court should hold that such no-contest provisions in antenuptial agreements are void as against public policy or, alternatively, face heightened scrutiny.

¶ 8. In response, Carolyn argues that Janice voluntarily entered into a clear and unambiguous antenuptial agreement that included a no-contest provision, which prevented her from contesting or renouncing Wesley’s will, and it prevented her from challenging any disposition of property executed by Wesley during his lifetime. Carolyn contends that the antenuptial agreement was not procedurally unconscionable since Janice and Wesley had discussed Wesley’s intentions of entering into an antenuptial agreement prior to the day that the couple entered into the agreement, and Janice provided Wesley with information regarding her financial assets and debts to include in the drafting of the agreement prior to their wedding day. Further, Carolyn claims that, even though Janice possessed separate counsel at the time that she entered into the agreement, there is no requirement that parties be represented by independent counsel in order to have a valid antenuptial agreement. See Mabus v. Mabus, 890 So.2d 806, 821 (¶ 63) (Miss.2003); Ware v. Ware, 7 So.3d 271, 277 (¶ 20) (Miss.Ct.App.2008). Carolyn also contends that Janice is bound by the contents of the antenuptial agreement, regardless of Janice’s claim to the contrary that she did not read the agreement. See Ware, 7 So.3d at 277 (¶ 20) (quoting Oaks v. Sellers, 953 So.2d 1077, 1082 (¶17) (Miss.2007) (“[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.”)).

¶ 9. This Court has held on several occasions that “[a]n antenuptial agreement is enforceable just as any other contract.” Long v. Long, 928 So.2d 1001, 1003 (¶ 13) (Miss.Ct.App.2006) (citing Mabus, 890 So.2d at 818 (¶ 53)). The law requires antenuptial agreements to be fair in the execution, and the law imposes a duty of disclosure upon the parties entering into these agreements. Id. (citing Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995)). However, “[i]t is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 328 (Miss.1988) (quoting Transcon. Gas v. State Oil and Gas Bd., 457 So.2d 1298, 1322 (Miss.1984), reversed on other grounds, 474 U.S. 409, 106 S.Ct. 709, 88 L.Ed.2d 732 (1986)). Furthermore, this Court notes that the right to contest a will may be contracted away, as long as the terms of the contract are clear as to its purpose and intent, and sufficient consideration is present. Robert Weems, Mississippi Practice Series: Wills and Administration of Estates in Mississippi § 8:22 (3rd ed. 2003). See Power v. Scott, 837 So.2d 202, 206 (¶ 11) (Miss.Ct.App.2002) (finding that the testator’s ex-husband who had entered into a property-settlement agreement wherein each spouse waived and relinquished any right to receive a share of the other’s estate did not meet the definition of an “interested party” so as to be able to contest the testator’s will).

¶ 10. The record contains the transcript from the hearing on Janice’s motion to set aside the summary judgment. In denying Janice’s motion, the chancellor found as follows:

I cannot find where there was anything procedurally wrong with the [ajntenup-tial [ajgreement. It was certainly voluntarily signed. I heard nothing to indicate that she was forced in any way to sign it and, in fact[,] ... there is an attachment that lists her assets that was attached to [the antenuptial agreement] so certainly that information was done prior to, because it was typed in, and ... that information was provided by her prior to the date the agreement was signed.... It’s undisputed that she signed the agreement. It’s undisputed that she stated in her testimony ... that Mr. Ogden, although he was not a person that she picked herself, I believe [that in] the deposition testimony!,] Mr. Lewis asked her did Mr. Ogden answer every question that she had and she indicated that yes, he did answer every question that she had and I can understand what she’s saying now, that there was a rushed situation, that she did not have an opportunity really to understand what it all meant and so, therefore, I assume she did [not] necessarily have the opportunity to think of every conceivable question that maybe she should have thought of[,] but the fact remains that knowing all of that[,] she did ask some questions apparently and I guess those questions were answered and at the conclusion she initialed a couple of places in the document and signed it. There is nothing before the Court to indicate that it was not voluntary. ... There is nothing before the Court to indicate that it was unconscionable in any way and the fact remains that this was signed in 1998 and apparently, according to the pleadings, according to her sworn deposition testimony, that the first time anything ever came up in Court in regards to [Janice] expressing some problem or concern with the [a]greement is once the estate was opened and she filed some pleadings at that time indicating that she should not be held to the [a]greement[,] but from a legal standpoint[,] the Court has no choice ... but to find that it was a valid [a]ntenuptial [a]greement, that there was nothing procedurally wrong with the execution of it.

¶ 11. Upon a thorough review of the record, no genuine issue of material fact exists as to Janice’s claims that the ante-nuptial agreement was both procedurally and substantively unconscionable, or that she had entered into the agreement involuntarily. The record reveals, contrary to Janice’s claims, that Janice voluntarily entered into an unambiguous, binding ante-nuptial agreement where she waived, released, and relinquished any right or claim to Wesley’s estate and waived the right to take in contravention of the terms of Wesley’s will or any other disposition of property made by Wesley during his lifetime. Therefore, we affirm the chancellor’s order of summary judgment in favor of Carolyn. This issue lacks merit.

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

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

      . Carolyn brings this suit individually and as executrix of the estate at issue.

      . At the time of the marriage and thereafter, Wesley had two daughters from a prior marriage, Carolyn and Deborah Lynn Cooper Hill.

      . Specifically, Janice alleges that on the morning of her wedding day, she and Wesley went to his lawyer’s office where she was presented with an eleven-page document entitled "Antenuptial Agreement.” Janice argues that she did not have time to read the entire document, as she only had fifteen minutes to sign the agreement due to her being anxious about getting married that afternoon. Janice further claims that while she did have a separate attorney in the office that answered her questions, he did not go over the document's provisions with her, and she did not receive a bill from him for his services.


author: IRVING, P. J.,

text:
    Willie Ray LAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00633-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Rehearing Denied Sept. 6, 2011.
    Certiorari Denied Dec. 1, 2011.

      Willie Ray Lay, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   IRVING, P. J.,

for the Court:

¶ 1. In January 2000, Willie Ray Lay was indicted for capital murder with burglary as the predicate offense. In March 2000, Lay pleaded guilty in the Scott County Circuit Court to reduced charges of simple murder and burglary of a dwelling. Lay was sentenced to life in the custody of the Mississippi Department of Corrections for the murder and to twenty-five years for the burglary, with the burglary sentence to run consecutively to the murder sentence. More than nine years later, in May 2009, Lay filed a motion for post-conviction relief in the circuit court, alleging that his burglary conviction is illegal. The circuit court summarily dismissed the motion as untimely and as a successive writ. Lay now appeals and asserts that the circuit court erred in dismissing his motion.

¶ 2. We find that Lay’s sentence is not illegal. Consequently, we affirm the circuit court’s judgment.

FACTS

¶ 3. Lay’s indictment for capital murder states:

WILLIE RAY LAY ... did willfully, unlawfully, feloniously, without authority of law and with deliberate design to effect the death of the person killed, or of any human being, did kill and murder one Peggy Prestage, a human being, while he, the said Willie Ray Lay, was then and there engaged in the commission of the felony crime of burglary, to-wit: breaking and entering the dwelling house of Willie Prestage and Peggy Prestage with the intent to steal, contrary to and in violation of Section 97-3-19(2)(e), Mississippi] Code of 1972, as amended[.]

(Emphasis added). Lay eventually pleaded guilty to simple murder and to burglary, although his indictment was never amended.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. The circuit court dismissed Lay’s motion due to several procedural bars, including the motion’s untimeliness and its status as a successive writ. Generally, a movant has three years in which to file a motion for post-conviction relief after entering a plea of guilty. Miss.Code Ann. § 99-39-5(2) (Supp.2010). Movants are also prohibited from filing successive writs challenging their convictions. Miss. Code Ann. § 99-39-23(6) (Supp.2010). However, “errors affecting fundamental constitutional rights are excepted” from procedural bars, such as the three-year time limit and the prohibition against successive writs. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). An illegal sentence is an error affecting a fundamental constitutional right. See id. at 507-08 (¶¶ 12-14); Kennedy v. State, 732 So.2d 184, 186-87 (¶ 8) (Miss.1999); Ivy v. State, 731 So.2d 601, 603 (¶¶ 13-14) (Miss.1999).

¶ 6. The State argues the following regarding the sufficiency of Lay’s indictment:

Lay also claims that his guilty plea was not knowingly, voluntarily, and intelligently given. Lay claims that this is so because he was allowed to plead guilty to charges for which he was not indicted. However, it is entirely permissible to allows [sic] a defendant who has been indicted for a greater offense to enter of [sic] plea of guilty to a lesser or related offense. Young v. State, 797 So.2d 239, 242 (¶ 5) (Miss.Ct.App.2001); U.R.C.C.C.P. 8.04(B)(2).

The State is correct that a defendant can enter a plea of guilty to a lesser-included offense; however, the question is whether burglary is a lesser-included offense of capital murder as charged in Lay’s indictment. We find that the Mississippi Supreme Court’s decision in Meeks v. State, 604 So.2d 748 (Miss.1992) is dispositive of this issue.

¶ 7. In Meeks, Alvin Meeks was charged with capital murder and kidnapping, among other charges. In order to facilitate our discussion, we quote those charges from Meeks’s indictment:

COUNT I: did wilfully, unlawfully, and feloniously, and with deliberate design kill and murder Linda Meeks, a human being while he, the said Alvin J. Meeks, was engaged in the felony crime of kidnapping, in violation of Mississippi Code Annotated, Section 97 — 3—19(2)(e);
COUNT II: in said County and State on the 7th day of August, A.D., 1988[,] did wilfully, unlawfully[,] and feloniously[,] without lawful authority kidnap, or forcibly seize and confine Tana Renee Meeks against her will, in violation of Mississippi Code Annotated, Section 97-3-53 (Supplement 1987)[.]

Id. at 750. Meeks was convicted of both capital murder and kidnapping. Id. On appeal, he argued that his convictions constituted double jeopardy. Id. Our supreme court examined whether the convictions violated the prohibition against double jeopardy and concluded that kidnapping was, in fact, a lesser-included offense of capital murder, as charged in Meeks’s indictment. Id. at 749. In so finding, the court stated the following:

We begin with the traditional homage to Blockburger, our most durable gloss on double jeopardy jurisprudence. See Blockburger v. United States, 284 U.S. 299, 303, 52 S.Ct. 180,181[-82], 76 L.Ed. 306 (1932). Blockburger arose in the context of multiple punishments imposed for a single offense. It accepts that legislatures, federal there but state as well, are free to define crimes and prescribe punishments. See Upshaw v. State, 350 So.2d 1358, 1360 (Miss.1977); Gabriel v. Brame, 200 Miss. 767, 773, 28 So.2d 581, 582 (1947). It holds, however, that the courts may not impose for one de jure offense more than lawfully the prescribed punishment. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The Blockburger rule has particular application in the lesser[-]included offense context. If an individual is charged with two offenses, and all of the elements of one are included within and are a part of a second greater offense, Blockburger intervenes. It charges that we compare statutory offenses, as indicted, and see whether each requires proof of a fact which the other does not. The several prosecutions for capital murder and the burglary of Linda Meeks’[s] home and the assault on Christopher Meeks pass muster under this standard. See Brock v. State, 530 So.2d 146, 149-50 (Miss.1988); Hughes v. State, 401 So.2d 1100, 1102[—05] (Miss.1981). On the other hand, where no further evidence is needed to establish the lesser offense, once the prosecution has proved the greater offense, punishment for the lesser is barred. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309; Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715, 724 (1980). Put another way, the defendant may be convicted and punished for one of those offenses — the greater or the lesser included — but not both. See Grady v. Corbin, 495 U.S. 508, 517-18, 110 S.Ct. 2084, 2091-92, 109 L.Ed.2d 548, 562 (1990); Illinois v. Vitale, 447 U.S. 410, 419-20, 100 S.Ct. 2260, 2266-67, 65 L.Ed.2d 228, 237-38 (1980); Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); Harrelson v. State, 569 So.2d 295, 296-97 (Miss.1990).
All of this fits the present point quite nicely. Here the [Legislature has prescribed death or life imprisonment, as the jury may determine, as the punishment for the murder/kidnapping variant of capital murder. Miss.Code Ann. § 97-3-21 (Supp.1988). The jury gave life. Blockburger on its face pretermits an additional thirty years [] imprisonment for the self-same kidnapping. Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). The Count I/Section 97-3-19(2)(e) charge of capital murder effectively put Meeks in jeopardy for kidnapping Tana Renee Meeks. We say this in the sense that the kidnapping was a constituent element of the capital [~]murder charge. The Count II/Section 97-3-53 charge of kidnapping called for proof of the same kidnapping of Tana Renee Meeks. To be sure, Count I calls for more, proof of the kidnapping-plus, but nothing in Count II required that the prosecution prove a fact not necessary to Count I. Conceptually [,] Count Il/kidnapping is a garden [-Ivariety lesser [-]included of fense to Count I/capital murder and may not be separately punished, simultaneously or consecutively.

Id. at 751-52 (emphasis added).

¶ 8. The same logic applies to Lay’s indictment. The indictment charged Lay with capital murder, with an underlying predicate offense of burglary. The capital murder could not be charged without also charging burglary. Therefore, under the reasoning of Meeks, the burglary as charged in Lay’s indictment, although an element of the crime of capital murder, also constituted a lesser-included offense of his capital-murder charge. We note that Lay’s indictment also clearly put Lay on notice that he was charged with burglary as part of his capital-murder charge, which essentially had two separate lesser-included offenses: simple murder and burglary. As both simple murder and burglary constitute lesser-included offenses of the capital-murder charge in Lay’s indictment, his convictions and sentences for burglary and simple murder are entirely appropriate. His arguments to the contrary are without merit.

¶ 9. Lay also complains about the effectiveness of his counsel, because his counsel allowed him to plead guilty to burglary without being separately indicted. Inasmuch as we have already found that it was appropriate for Lay to plead guilty to burglary without a separate indictment, it necessarily follows that his counsel was not ineffective for allowing him to plead guilty to the lesser charge of burglary without being separately indicted for it. Accordingly, this contention of error is also without merit.

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

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

      . Lay previously filed an appeal from a motion for post-conviction relief, which the Mississippi Supreme Court issued a per curiam affirmance of in 2004.


author: LEE, C.J.,

text:
    Justin Vanques THOMAS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00708-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Denied Dec. 13, 2011.

      John Keith Perry Jr., Walls, for appellant.
    Office of the Attorney General by Scott Stuart, for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Justin Thomas was found guilty in the DeSoto County Circuit Court of manslaughter. He was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections followed by five years of post-release supervision and ordered to pay a $5,000 fine. Thomas filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. His motion was denied by the trial court.

¶ 2. Thomas now appeals, asserting the following issues: (1) the denial of jury instruction D-12 regarding the Castle Doctrine hindered his right to a fair trial, and (2) the verdict is against the overwhelming weight of the evidence. As we find reversible error in regard to issue one, issue two will not be discussed.

FACTS

¶ 3. On March 8, 2008, a fundraising party was being held at the Performing Arts Building in Southaven, Mississippi. After the party, a crowd gathered in the parking lot and a fist fight ensued. Security attempted to stop the fight but could not. Thomas shot a gun in the air, and the attack stopped. The State and defense each called several witnesses who were in the parking lot on the night of the shooting to testify as to the events that followed. Thomas chose not to testify at trial.

¶ 4. Kenetric Randolph testified for the State. He had attended the party and witnessed Thomas shoot a gun in the air during the fight in the parking lot. Randolph testified that he thought Thomas was shooting at him or the young men standing with him. Randolph testified that Thomas immediately ran and got into his car. Randolph and several other men ran after Thomas and tried to open Thomas’s car doors, but Thomas had locked the doors. Randolph testified that Thomas began to reload his gun, and Randolph and the other men ran to the back of the ear. He testified no one was in front of the car. Dexter Harris was to Randolph’s left at the rear of the car. Randolph testified that he then threw a cell phone at the car in an attempt to break the back window. Thomas then rolled down the driver’s side window and fired several shots from his car. Two of the shots hit Harris in the chest and thigh. Harris subsequently died from his wounds. Thomas then drove off. Randolph testified that Thomas could have fled in the car at any time as nothing was blocking the car’s path.

¶ 5. Antonio Jasper testified for the State. He saw Thomas shoot the gun in the air and then the crowd rush toward Thomas’s car. He stated that the people who knew Thomas chased him because they wanted to ask him why he had shot the gun. These people were knocking on the car windows and beating on the trunk. He also went to Thomas’s car. He stated that security was by Thomas’s car asking everyone to leave since Thomas was armed. He did not see anyone standing in front of Thomas’s car blocking him from leaving. Jasper testified that he went back to his car when security told him that the police were on the way. Jasper did not see Thomas shoot Harris.

¶ 6. Justin Buckner testified for the defense. Buckner was attacked in the parking lot of the Performing Arts Building after the party. He stated that he was standing outside after the party waiting on his ride when a group called “TNT” starting hitting and kicking him. Harris was in the group. He was relieved when Thomas shot the gun because he thought the men would have beaten him to death if it had been allowed to continue.

¶ 7. Grady Green testified for the defense. He testified that he and another friend were asked to work as security for the party. He testified that a total of four men worked as security. He was asked to help because he was a friend of the party planner. He was not a trained security guard. He testified that he tried to break up the crowd in the parking lot after the party, but he was unsuccessful. He recognized the crowd as a group called TNT. He estimated there were eighteen to twenty people in the group that jumped Buckner. He testified that Buckner did not do anything to provoke the attack. Green attempted to pull the men off Buckner, but he was unsuccessful. After Thomas had shot into the air, the crowd dispersed, and Green helped Buckner inside the building. Green testified that he was grateful that Thomas had shot the gun because he feared serious harm to Buckner. Green testified that more than ten men rushed Thomas’s car and surrounded it.

¶ 8. Quintarus Robinson also served as security for the party. Robinson was not a trained security guard, but he tried to stop the attack on Buckner. He testified that the only reason the attack stopped was because Thomas had fired a gun in the air. He testified that he was relieved when Thomas shot the gun because the attempts to make the men stop attacking Buckner had failed. He thought that even calling the police would have taken too long. Robinson testified that after the shots were fired, the crowd ran, and he and Green helped Buckner inside the building. Robinson testified that he stayed outside and watched the crowd surround Thomas’s car to the point where Robinson could barely see the car. He estimated the crowd to be twenty to thirty people. Robinson stated that the men were trying to open the car doors, hitting and kicking the car, and throwing things at the windows. He testified that a red car was blocking Thomas’s car. He stated that Thomas “couldn’t just really just turn around like he wanted to, but there was a little space.”

STANDARD OF REVIEW

¶ 9. “It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Newell v. State, 49 So.3d 66, 78 (¶ 20) (Miss.2010). “[T]he instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Rubenstein v. State, 941 So.2d 735, 785 (¶ 224) (Miss. 2006)). Further, “a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.” Giles v. State, 650 So.2d 846, 849 (Miss.1995).

DISCUSSION

¶ 10. Thomas argues that the trial court erred in refusing jury instruction D-12, which states:

The killing of Dexter Harris by the act, procurement or omission of Justin Van-ques Thomas, shall be justifiable if committed by Justin Thomas in resisting any attempt unlawfully to kill Justin Thomas or to commit any felony upon Justin Thomas, or upon any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which Justin Thomas was found.

¶ 11. This instruction tracks the language of Mississippi Code Annotated section 97-3-15(3) (Rev.2006), also known as the “Castle Doctrine”:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity....

¶ 12. The trial court found the instruction was not warranted for two reasons: (1) Thomas retreated to his vehicle after firing a weapon on someone else’s property, and (2) the trial judge thought Thomas’s defense was covered by the self-defense jury instruction. Thomas argues that the trial judge abused his discretion in denying this instruction because it hindered his ability to present his defense.

¶ 13. In order to find that jury instruction D-12 should have been given, we must first find that it had a factual basis in the evidence. To allege a factual basis under the Castle Doctrine, proof of the following two prongs from section 97-3-15 must be presented:

First, under subsection (4), if the defendant is in a place where he had a right to be, is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has no duty to retreat before using defensive force. Miss.Code Ann. § 97-3-15(4) (Rev.2006). And second, if the jury finds that any of the circumstances in subsection (3) are satisfied, the defendant who uses such defensive force is presumed to have reasonably feared imminent death or great bodily harm or the commission of a felony upon him. Miss.Code Ann. § 97-3-15(3) (Rev.2006).

Newell, 49 So.3d at 74 (¶ 22).

¶ 14. Thomas was in a parking lot where he had a right to be when the incident occurred. A question arises as to whether Thomas could be considered the immediate provoker and aggressor since he fired a gun in the air. However, we find that a fact question is presented for the jury as to whether or not the attack on Thomas once he entered his car started a separate chain of events. “When serious doubt exists as to whether an instruction should be included, the doubt should be resolved in favor of the accused.” Id. at 74 (¶ 20) (quoting Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss.2009)). We find serious doubt under the facts of this case. Thomas was entitled to a jury instruction that properly covered his theory of defense under the Castle Doctrine.

¶ 15. Next, we must determine whether the proposed instruction was covered elsewhere in the jury instructions. The State argues that the proposed Castle-Doctrine instruction was covered by the self-defense instruction. Jury instruction 11, the self-defense instruction, states:

The Court instructs the Jury that to make a Murder justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm; and, in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the Defendant acts.

Instruction 16 further instructs the jury on self-defense: “It has always been the law in this State that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing.”

¶ 16. We agree with Thomas that these instructions do not adequately present his theory of defense. Although the self-defense instruction is similar, it does not specifically address the commission of a felony against Thomas in his vehicle or whether the crowd was attempting to remove Thomas unlawfully from the vehicle against his will to cause him harm.

¶ 17. We find that jury instruction D-12 correctly stated the law and had a foundation in the evidence. We also find that it was not covered elsewhere in the instructions. Accordingly, we must reverse the judgment of conviction and sentence and remand this case for a new trial.

¶ 18. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

GRIFFIS, P.J., MYERS, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. IRVING, P.J., BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.