author: ISHEE, J., for the Court:

text:
    Anthony Joseph CUCCIA, Appellant v. Julie Anne (Reavy) CUCCIA, Appellee.
    No. 2010-CA-00083-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Oct. 11, 2011.

      Jerry Wesley Hisaw, Southaven, Rachael Emily Putnam, attorneys for appellant.
    Joy W. Graves, Charles E. Winfield, attorneys for appellee.
    BEFORE LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J., for the Court:

¶ 1. In December 2007, Anthony (Tony) Joseph Cuccia moved out of the marital home he shared with Julie Anne Cuccia in Hernando, Mississippi. The Cuccias then began the legal process of dissolving their eleven-year marriage in the DeSoto County Chancery Court. Approximately two years later, the chancery court granted the divorce based on irreconcilable differences. The chancery court also issued a final order awarding Julie Anne sole custody of the Cuccias’ two children, subject to standard visitation rights granted to Tony. The chancery court concluded that Tony’s bonus he had received at work after the Cuccias’ separation was marital property and ordered Tony to pay Julie Anne half of the bonus. The chancery court further determined that a residence purchased by Julie Anne post-separation but acquired with and paid for, in part, by Tony’s temporary support payments, was Julie Anne’s separate property. Additionally, acreage owned by Tony and Julie Anne, as well as Tony’s parents, was determined to be marital property. The chancery court awarded the parties’ interest in the property to Tony and ordered him to pay Julie Anne one-half of the value of the parties’ interest in the property. After assessing the parties’ fiscal conditions and the marital estate, the chancery court also ordered Tony to pay Julie Anne $2,000 a month in alimony for forty-eight months. However, at no point in its analysis of the marital estate did the chancery court address the marital debt. Aggrieved, Tony appeals. Finding error, we reverse and render the issues pertaining to child custody and visitation, affirm the issue of the Tennessee acreage’s value and reverse and remand on the remainder of the issues for further proceedings consistent with the findings of this opinion.

FACTS

¶ 2. Tony and Julie Anne were wed in November 1996. During the marriage, they had two children. The elder child was born in 1998, and the younger child was born in 2002. In December 2007, Tony moved out of the Cuccias’ marital residence and filed for divorce in the chancery court shortly thereafter. The case was originally assigned to Chancellor Mitchell M. Lundy Jr., but it was later reassigned to Chancellor Percy L. Lynch-ard Jr.

¶ 3. In March 2008, Tony filed a motion for a temporary restraining order requesting that he be granted sole temporary custody of the parties’ children. In his motion, Tony expressed concerns about the safety of his children in Julie Anne’s residence due to Julie Anne’s housing over thirty-six dogs, including Rottweilers and pit bulls, on the property and in the residence. Chancellor Lundy granted Tony sole custody of the children for approximately two weeks, until a hearing on the matter could take place.

¶ 4. At the hearing, Julie Anne testified that she ran a dog boarding and training business as well as a dog rescue operation on the marital property and in the residence. She testified at the time that she was housing thirty-six dogs on the property and in the residence. The menagerie included numerous Rottweilers and pit bulls. Furthermore, on one occasion, the record indicates that a Rottweiler on the property engaged in a fight with another Rottweiler at the residence, wherein the instigating dog brutally attacked the other animal with such viciousness that the dog was eventually euthanized for safety purposes.

¶ 5. Subsequently, the chancery court entered a temporary order granting Tony and Julie Anne joint legal and physical custody.: In the order; the chancery court granted Tony custody of the children three weekends per month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, as well as- every Tuesday evening from 4:00 p.m. until 8:00 p.m. The chancery court also enjoined Julie Anne from allowing more than three dogs to run loose or occupy any portion of the marital residence utilized by the family and the children. No dogs were allowed in the house weighing more than thirty pounds. However, Julie Anne was allowed to continue boarding animals of any number and any size in the garage portion of the residence, as long as the animals were penned or caged and separated from the rest of the home. The chancery court further allowed Julie Anne to continue boarding animals outside the house without restriction. The chancery court also ordered Tony to pay Julie Anne $500 a month in temporary support in addition to paying all mortgage payments, property insurance, property taxes, utilities, and for one tank of gas per week.

¶ 6. Approximately three months later, Chancellor Lundy recused himself, and the case was reassigned to Chancellor Lynch-ard. Five days after the reassignment, Julie Anne requested a modification of Chancellor Lundy’s temporary order. Julie Anne’s requests included the following: an upward modification of temporary support; a reduction of Tony’s visitation to two weekends a month; removal of all restrictions regarding the number and weight of dogs allowed in the residence; an order requiring Tony to pay for all uncovered medical expenses; an order requiring Tony to pay all work-related bonus income he received into a trust; and an order requiring Tony to pay any money received by him regarding a then-existing personal lawsuit on file into a trust.

¶ 7. In response, the chancery court ordered Tony to place all bonus money he received into a trust, such that proper division of the money could be determined during the divorce proceedings. The chancery court also ordered Tony to pay Julie Anne $1,000 from the recent sale of a family tractor and $2,000 to aid in expenses she would incur when she moved from the marital home after the home was sold. The chancery court set a hearing regarding Julie Anne’s remaining issues.

¶ 8. At the August 27, 2008 hearing on Julie Anne’s remaining issues, the chancery court increased Julie Anne’s temporary support from $500 a month to $8,750 a month, and the court ordered Tony to pay Julie Anne’s attorneys’ fees in the amount of $832.50. The chancery court also ordered Tony to maintain health insurance on the children and Julie Anne, and the court further directed that any costs not covered by insurance should be divided equally between the parties. Finally, the chancery court stated that any provisions from the temporary order that were not addressed in the court’s August 27, 2008 order were to remain in full effect.

¶ 9. Sometime after the hearing and after the sale of the Cuecias’ marital home was final and the proceeds divided, Julie Anne applied for a loan to purchase a new home. The record reflects that on the loan application, Julie Anne asserted that her monthly income was between $8,750 and $6,500 a month. Julie Anne also acknowledged on the loan application that she was self-employed through her dog boarding and training business, and she stated that her monthly business expenses were approximately $1,700. The loan application does not include any reference to the $3,750 a month Tony was paying Julie Anne in temporary support. Accordingly, Julie Anne qualified for a $200,000 mortgage based solely on income she claimed to earn from her business. As such, Julie Anne purchased a home and subsequently moved herself and her children into the home.

¶ 10. Approximately two months after the hearing, Julie Anne petitioned the chancery court to hold Tony in contempt of court for failing to deposit into a trust a bonus check in the amount of $43,360, which Tony had received from work in July 2008. The chancery court granted Julie Anne’s motion and ordered Tony to deposit the money and pay Julie Anne’s attorneys’ fees in the amount of $1,500 for litigation of the matter. The record reflects that Tony’s bonus was based upon his company’s performance, and not upon his personal performance. The record also reflects that Tony historically paid off marital debt with bonuses he received from work, and he did so again with the money he received in July 2008. Included in the payments were part of the Cuccias’ children’s school tuition, mortgage debt on the marital residence, and other marital expenses. Because Tony had already paid the bonus money toward marital debt, he applied for and was granted several loans in order to comply with the chancery court’s order that he place the $43,360 into a trust.

¶ 11. Thereafter, Tony filed a motion for contempt with the chancery court concerning Julie Anne’s parenting of the parties’ children. Tony alleged that Julie Anne was withholding pertinent information regarding the children from Tony and was making important unilateral decisions about the children without consulting Tony. Tony later filed an amended motion for contempt to include the fact that Julie Anne was violating the chancery court’s temporary order restricting the number and weight of dogs allowed in the marital residence by housing numerous Rottweilers and pit bulls in the home.

¶ 12. Furthermore, Tony alleged that Julie Anne’s responsibilities with the dogs located on the marital property was causing her to neglect the children. Specifically, Tony pointed out that one of the children was failing first grade due to Julie Anne’s neglect in adequately addressing the child’s academic needs and ensuring that the child arrived at school on time. Tony also asserted that Julie Anne was not properly tending to the children’s medical needs. Tony provided information indicating that one of the Cuccias’ children suffered from asthma and that Julie Anne had unilaterally decided to cease filling the child’s prescription medication, unbeknownst to Tony. Tony also offered documentation to the chancery court that the asthmatic child had not been taken in for follow-up appointments, as prescribed by the child’s doctor, and that until Tony’s recent cure of the problem, neither child had been provided a recommended annual wellness checkup in some time.

¶ 13. Shortly thereafter, on February 5, 2009, Tony petitioned the chancery court for a modification of custody and temporary support. The record reflects that Tony’s annual pay had been cut by approximately $75,000. Due to his pay decrease, Tony’s annual income approximated $129,000, and he was fiscally unable to maintain the $3,750 in temporary support payments to Julie Anne; the loan payments due on money Tony borrowed to place $43,360 into a trust; other monies paid to cover Julie Anne and the children’s living expenses such as utilities, property insurance, property taxes, medical insurance, the children’s tuition, and certain gas expenses for Julie Anne; and Tony’s own living expenses. Despite an initial hearing date of February 25, 2009, the chancery court ultimately decided against holding a hearing on the matter and instead set the case for trial. Accordingly, Tony’s concerns were not resolved until approximately eight months later, after the August 11, 2009 trial when the chancery court issued its final divorce decree and order on September 21, 2009.

¶ 14. Pursuant to the chancery court’s order, Julie Anne was granted sole physical and legal custody of the two minor children, and Tony’s visitation rights were drastically reduced from the prior temporary order. The chancery court used a standard schedule of visitation rights to allow Tony visitation every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday; three holidays a year from 8:00 a.m. until 6:00 p.m. on the day of the holiday with the exception of Christmas holidays, wherein Tony was granted approximately one week a year; Father’s Day from 9:00 a.m. until 6:00 p.m.; three hours of visitation on each child’s birthday; and three two-week-long visitations during the children’s summer vacation in lieu of any weekend visitation rights during the summer-vacation period. Tony was also ordered to pay Julie Anne child support in the amount of $1,453 a month; the children’s tuition; the children’s health insurance; half of all medical expenses incurred on behalf of the children and not covered by health insurance; and to maintain life insurance on himself of at least $100,000, with the children listed as equal beneficiaries.

¶ 15. Additionally, the chancery court determined that Julie Anne was entitled to half of the money Tony had borrowed and deposited in a trust as a replacement for the bonus money he had received in July 2008 but had used to pay debt accrued during the marriage. The chancery court also concluded that Julie Anne’s new residence was separate property and not a part of the marital estate in any manner. Despite evidence on the record that Tony had paid over $61,000 to Julie Anne in temporary support since the commencement of the divorce and Julie Anne’s averment in her loan application that her self-employment garnered her anywhere between $3,750 a month and $6,500 a month, the chancery court determined that there was a “great disparity in income” between the parties and awarded Julie Anne $2,000 a month for forty-eight months in alimony, for a total of $96,000.

¶ 16. Julie Anne also received half of Tony’s retirement account, certain personal items accumulated during the marriage, the monetary equivalent of half of the value of a camper owned by the parties, and the monetary equivalent of one-half of the parties’ interest in acreage in Tennessee owned by Tony, Julie Anne, and Tony’s parents. In determining the value of the Tennessee property, the chancery court stated that the parties’ interest in the Tennessee property had a net equity of $45,237 and that Julie Anne was entitled to half of that amount. The chancery court declined to offer an explanation of how it reached this conclusion, but stated that its determination was based on amounts garnered from the parties’ agreed-upon appraiser. Nowhere did the chancery court specifically address the property’s debt, nor did the court appear to consider any of the parties’ marital debt in determining the total amount of the marital estate and Julie Anne’s award.

¶ 17. On appeal, Tony asserts the following: (1) the chancery court erred in awarding Julie Anne sole legal and physical custody of the Cuccias’ children; (2) the chancery court erred in only granting Tony standard visitation rights; (3) the chancery court erred in classifying Tony’s work bonus as marital property; (4) the chancery court erred in classifying Julie Anne’s residence as her separate property; (5) the chancery court erred in its valuation of acreage owned by Tony, Julie Anne, and Tony’s parents; (6) the chancery court erred in failing to acknowledge the parties’ marital debt and properly divide such debt; and (7) the chancery court erred in awarding Julie Anne $2,000 a month in alimony for forty-eight months.

STANDARD OF REVIEW

¶ 18. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, especially in domestic-relations cases such as the instant case, “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss.2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)). However, if a chancellor’s decisions are manifestly wrong, unsupported by substantial credible evidence, or based upon the application of an erroneous legal standard, the chancellor’s findings may be set aside on appeal. Id. (citation omitted).

DISCUSSION

I. Custody and Visitation

¶ 19. In his first assignment of error, Tony argues that the chancery court erred in granting Julie Anne sole legal and physical custody. Tony further asserts that the chancery court committed manifest error in reducing Tony’s visitation rights from those granted in the temporary order to more restricted visitation rights under the standard Farese Visitation Schedule. Because these issues are substantially interrelated, we address them together.

¶ 20. The law governing child custody is found in the landmark case of Albright v. Albright, 437 So.2d 1008 (Miss.1983). Albright emphasizes that the “polestar consideration in child custody cases is the best interest and welfare of the child.” Id. at 1005. The following factors were also provided for in Albright and continue to serve as guidelines when determining proper child custody:

[Age,] health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id.

¶21. Although the chancery court’s analysis is very brief and often vague, we agree with the chancery court in its conclusions as to many of the aforementioned factors. However, we find that several of the chancery court’s conclusions and the court’s overall decision is manifestly wrong. The chancery court found that the three factors of “continuity of care,” “best parenting skills,” and “willingness to provide primary childcare” favored Julie Anne and that the remaining factors favored neither party. We disagree.

¶ 22. Regarding “continuity of care,” the chancery court found that Julie Anne had provided primary custodial parenting during the marriage, and the court noted that the children had lived with their mother in the marital residence for approximately three months after the parties’ separation in December 2007. However, the chancery court failed to point out that Tony obtained sole custody of the children for several weeks in early 2008, and from March 2008 until October 2009— over a year and a half — the parties shared joint legal and physical custody of the children.

¶ 23. The Mississippi Supreme Court has shown that the stability and continuity of a child’s home environment between the time of the parents’ separation and the entry of divorce is an important consideration when determining custody. See, e.g., Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997); Law v. Page, 618 So.2d 96, 102 (Miss.1993). Additionally, the record also indicates that Tony took an active role in the children’s lives prior to the separation. Small examples of Tony’s involvement prior to the separation include his role as his son’s soccer coach, his role as his daughter’s “communion sponsor,” and his regular attendance at the children’s extracurricular events. It appears that Tony continues to participate in his children’s lives to the extent possible given his custodial restrictions. Due to Tony’s active role in the children’s lives both before, during, and after the parties’ separation, we cannot find that the factor of “continuity of care” favors either party.

¶ 24. The chancery court further determined that Julie Anne exhibited the best parenting skills due to the same reasoning the chancery court used in concluding that Julie Anne would provide better continuity of care. We disagree with the chancery court’s reasoning for its conclusion that Julie Anne would provide better continuity of care than Tony. Consequently, we also disagree with the chancery court’s finding that Julie Anne retained the best parenting skills. After a complete review of the record, we find that neither party exhibits better parenting skills than the other.

¶ 25. The chancery court’s final determination in favor of Julie Anne concludes that she exhibited more of a willingness to provide primary childcare to the children. The chancery court reasoned:

This factor favors the natural mother inasmuch as the natural mother again exhibited the willingness and in fact the accomplishment of the care of the children. This is particularly true when the natural father left the marital residence and for a period of three months allowed the children to remain in the sole custody of the natural mother. Further, by allowing and consenting to the natural mother to be the joint legal and physical custodian of the children, the natural father affirms the willingness and ability of the natural mother to care for the children. This factor favors the natural mother.

¶ 26. The chancery court’s analysis is flawed for several reasons. First, the record reflects, and the chancery court admitted that “both parties are actively involved in the school and extracurricular activities of the children.” Likewise, the record indicates that Tony was an excellent parent at home as well. Accordingly, to hold that the accomplishments of the parties’ children are the result of Julie Anne’s efforts alone is a misstatement.

¶ 27. Second, while the chancery court notes that Tony allowed his children to live exclusively with Julie Anne for a period of time immediately following the parties’ separation, the court fails to mention that once the chancery court became involved in the parties’ dispute, the court almost immediately granted Tony sole legal and physical custody for a short time before ultimately granting joint custody to both parents. We cannot equate Tony’s willingness to allow his children to live in the home in which they were accustomed to living, and in the temporary care of their natural mother directly after the parties’ separation, to Tony’s unwillingness to care for his children.

¶ 28. Finally, the chancery court referenced the fact that Tony voluntarily consented to joint custody of his children with Julie Anne as evidence that Julie Anne was willing and able to care for the children. Under such reasoning, Julie Anne likewise agreed to joint custody with Tony and, therefore, provided evidence as to Tony’s willingness and ability to care for the children. Nonetheless, a parent’s desire to allow his child the opportunity to enjoy the presence of both parents in the child’s life should not later be used against the parent to support a theory that the parent is unwilling to care for the child. Simply because a parent in a child-custody case does not employ a take-no-prisoners strategy does not mean that the parent should be marked as unwilling to provide primary care for the child.

¶ 29. A review of the record supports Tony’s willingness to be a primary caregiver to his children. Although Tony is not self-employed as is Julie Anne, his job-flexibility is favorable, and he has expressed an unequivocal desire to care for his children. At trial, Tony noted that he has no set work hours and, in fact, often works remotely from home. He is involved in his children’s lives and is familiar with their daily schedules and routines. Notable indications that Tony is willing to serve as a primary caregiver to his children include his petition and receipt of sole custody of his children in 2008; his care of the children under the chancery court’s temporary order, which granted him four out of seven days a week with his children, three out of every four weeks, for approximately a year and seven months; and his testimony at trial wherein he affirmed that he was asking the chancery court to award him sole legal and physical custody of the children. We disagree with the chancery court’s finding that the factor of “willingness to provide primary childcare” favors Julie Anne over Tony. Rather, we find that the factor favors neither party.

¶ 30. Additionally, in reference to the Albright factor of “stability of the home environment,” the chancery court stated that “[a]lthough the mother’s home prior to and immediately following the separation of the parties showed evidence of lack of care and cleanliness, after investigation by the Department of Human Services [ (DHS) ], it was found to be appropriate for the children.” This is blatantly incorrect. At oral argument, counsel for both parties admitted on the record that an investigation by DHS was never completed due to confusion as to Julie Anne’s proper address. Accordingly, any evidence indicating issues of cleanliness and safety at Julie Anne’s residence due to the dozens of dogs living on the property, including breeds with dangerous propensities, and in the house has yet to be negated. Because the chancery court declined to extend the temporary order’s restriction on the number and weight of dogs allowed in the portions of Julie Anne’s house used by the children, we are uncertain as to the current conditions within Julie Anne’s home.

¶ 31. Furthermore, regarding Tony’s parental involvement, the record indicates that after the parties’ separation, Tony took an active, primary role in the children’s health. The record shows that the parties’ daughter suffers from asthma and was prescribed both an inhaler and prescription medication. In his brief, Tony expresses concerns over Julie Anne’s care of their daughter’s asthmatic problems due to Julie Anne’s unilateral decision to discontinue administration of one of the asthma medications. While Julie Anne testified that her daughter’s treating physician did not state that administration of the medication was mandatory, discontinued use of the medication was also not specifically ordered. Furthermore, Julie Anne admitted at trial that she had not taken her daughter to the doctor for an asthmatic follow-up appointment in some time.

¶ 32. The record also reflects that prior to Tony’s taking the children to the doctor, neither child had been to see a doctor for a physical wellness checkup in approximately four years. In response to this allegation, Julie Anne merely references the chancery court’s determination that the children “suffer from no illnesses or disabilities which would require special care for which either party may be more qualified.” However, Julie Anne has yet to explain the extensive time lapse in the children’s receipt of wellness checkups.

¶ 33. We have determined that the chancery court’s Albright analysis was flawed and that the factors of “continuity of care,” “best parenting skills,” and “stability of home environment” favor neither Tony nor Julie Anne, which places both parties on a level playing field with regard to the question of custody. While Julie Anne’s self-employment and role in the children’s lives prior to the parties’ separation support her adequacy as a parent; a thorough review of the record presents us with serious questions as to the safety of the Cuccias’ children at Julie Anne’s residence due to the unrestricted presence of numerous dogs on the property and in the residence. Additionally, the record indicates that prior to the chancery court’s final judgment, Tony played an active parenting role, especially in the area of the children’s health. Tony exhibited excellent parenting skills and the capacity and willingness to care for his children.

¶ 34. Having reviewed all of the evidence in the record and all submissions on appeal, we find that the chancery court committed reversible error in granting Julie Anne sole legal and physical custody of the children. We conclude that the chancery court’s original temporary order was a proper adjudication of the issues. Accordingly, we reverse the chancery court’s final order regarding custody of the parties’ children and render joint legal and physical custody of the children to Tony and Julie Anne. However, we are not in a proper position to determine the specifics of each party’s physical custody time-divisions, including weekly schedules as well as special occasions and vacations. Thus, we charge the chancery court with this determination on remand.

¶ 35. Furthermore, for the safety of the children, we must restrict Julie Anne’s ability to allow dogs of any number and weight to roam loose or occupy any portion of her residence utilized by the parties’ children as living space. We recognize that we are unfamiliar with the layout of Julie Anne’s current residence and the status of her business and rescue organization. As such, we remand this issue for the chancery court to enjoin Julie Anne accordingly.

¶36. As such, we reverse and render the chancery court’s determination as to custody of the parties’ children and grant joint legal and physical custody of the children to Tony and Julie Anne and enjoin Julie Anne as outlined above. We further remand the issues of the parties’ co-parenting schedules and Julie Anne’s enjoinment with respect to the dogs allowed in her residence for determination by the chancery court.

II. Consideration of Marital and Separate Property and Marital Debt

¶ 37. Tony alleges that the chancery court erred in classifying a work bonus he received in July 2008 as marital property because it was received outside of the marriage and was used to pay marital debt. Tony also notes that the chancery court failed to address the parties’ marital debt anywhere in its order. Tony further argues that the court incorrectly classified a residence purchased by Julie Anne after the parties’ separation as her separate property because it was obtained and paid for, at least in part, by Tony’s temporary support payments. We address these issues together.

¶38. The division of property in divorce cases is based upon law handed down through cases such as Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Horn v. Horn, 909 So.2d 1151, 1162 (¶42) (Miss.Ct.App.2005) (citation omitted). In dividing property, a chancery court must first determine which assets are marital property and, therefore, “subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994) (quoting Hemsley, 639 So.2d at 914-15).

¶ 39. In the instant case, Tony received a bonus of approximately $43,460 as a result of his company’s exceptional performance. The record indicates that the bonus was not the result of Tony’s individual efforts or any specific work done by Tony during the marriage. Rather, the bonus was received outside of the marriage for reasons independent of Tony’s doing. Hence, it would appear at the outset that the bonus was improperly classified as marital property.

¶40. However, we have held that a party’s separate assets are considered part of the marital estate when commingled for the use of the family. Id. (citation omitted). Here, Tony testified that he used the bonus money to pay off some of the parties’ marital debt, as he had historically done in years past. In doing so, Tony commingled the funds and made his bonus money subject to the marital estate. Nonetheless, because the funds were used to pay off marital debt — including but not limited to the mortgage on the marital residence and the children’s tuition — Tony should not have been forced to somehow regain that amount and place it into a trust for division in the marital estate.

¶41. Additionally, Tony correctly points out to this Court that the chancery court failed to consider the parties’ marital debt in its analysis and conclusions. Although Tony testified as to the parties’ marital debt and submissions were made to the chancery court regarding this debt, the court did not take the debt into account when it divided up the marital estate. Julie;Anne correctly notes that this Court has previously affirmed a chancellor’s failure to consider marital debt that was sparse in nature. Glass v. Glass, 857 So.2d 786, 789 (¶7) (Miss.Ct.App.2003). Specifically, we held that the chancellor in Glass did not err in declining to consider marital debt because the chancellor was presented with a “lack of reliable information concerning the marital debts.” Id. In the present case, Julie Anne alleges that the marital debt in this case was “sparse” and that failure to consider the indebtedness is not reversible error. We disagree.

¶ 42. The record reflects that the parties accrued marital debt in various form's, including but not limited to credit-card debt, mortgage debt, and amounts owed for their children’s tuition payments. The debt in question was enough to warrant Tony’s historical practice of using his bonus money, most recently an amount in excess of $40,000, to pay off marital debt each year. We find this to be significant and remand the issue of marital debt for consideration in the chancery court’s conclusions.

¶ 43. Finally, the chancery court determined that the residence Julie Anne purchased for herself and the parties’ children after the sale of the marital residence was her separate property. The record reflects that on Julie Anne’s loan application, she listed her monthly income to be between $3,750 and $6,500 a month. This revenue was claimed to have been generated by Julie Anne’s self-employment. Julie Anne failed to note that $3,750 of her monthly income was the result of an award of temporary support from Tony. Julie Anne subsequently qualified for a loan of $200,000 and purchased a home. While Julie Anne did not list Tony’s support payments on the loan, it is clear that she commingled much of the $3,750 a month that Tony paid to her in temporary support in order to acquire the loan and pay her monthly mortgage.

¶ 44. We find the chancery court’s classification of Tony’s bonus, money paid toward marital debt as marital property and Julie Anne’s residence obtained by and paid for in large part by Tony’s temporary support payments as separate property to be conflicting. If the payment of marital debt using funds acquired outside of the marriage results in the funds becoming commingled’ and therefore “marital,” should not the payment for property acquired outside of the marriage using marital funds end in the same result? At the very least, we see fit to deduct payments made by Tony with his bonus money for the reduction of marital debt and his payments of temporary support from any alleged deficit suffered by Julie Anne due to the parties purported monetary inequity. We therefore reverse and remand this issue for reexamination by the chancery court.

III. Tennessee Acreage

¶45. Tony next asserts that the chancery court erred in its award to Julie Anne of the monetary equivalent of one-half interest of acreage located in Tennessee. The property in question constitutes approximately one hundred acres of undeveloped woodland. Several years prior to the divorce proceedings, the land was deeded with joint ownership and rights of survivorship between Tony, Julie Anne, and Tony’s parents. The acreage was purchased for approximately $52,500 in 2001, and no improvements have been made on the land since that time.

¶ 46. Thé chancery court properly classified the acreage as marital property. However, the question arises as to whether the court was manifestly wrong in its valuation of the property and subsequent grant of the monetary equivalent of one-half interest of the property to Julie Anne. The record indicates that at least two appraisals were performed, but one of the initial appraisals was completed on the wrong property. The appraisal used by Tony valued the property at approximately $70,000 in 2009 with approximately $33,900 in mortgage debt, allowing net equity on the property in the amount of approximately $36,100. The appraisal used by Julie Anne totaled approximately $125,000 in 2009 with no mention of mortgage debt.

¶ 47. In the chancery court’s order, the court listed the property’s net equity as to Tony and Julie Anne’s interest in the property at $45,237. The chancery court further noted that the appraiser used by the court had been agreed upon by both parties. However, the chancery court did not explain the specifics of the appraisal used or the amount of debt held on the property. Nonetheless, a simple mathematical calculation indicates that the court utilized the appraisal which valued the property at approximately $125,000, almost three times the amount for which it was purchased in 2001, subtracted the mortgage debt enunciated by Tony of $33,900, and then divided that amount in half to reflect the parties’ interest apart from Tony’s parents’ half-interest in the property’s total net equity.

¶ 48. Although we question the significant increase in value to land, which was never improved upon and which was evaluated during an economic downturn, we cannot say that the chancery court was manifestly wrong in its analysis. The chancery court merely utilized figures given to it by an appraiser who the parties had previously agreed to use. This issue is meritless.

IV. Rehabilitative Alimony

¶ 49. Tony’s final assignment of error references the chancery court’s award of rehabilitative alimony to Julie Anne in the amount of $2,000 a month for forty-eight months. In the chancery court’s opinion, the court stated that it primarily used the case of Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988), in deciding the issue of rehabilitative alimony. While the benchmark case of Cheat- ham was a proper legal standard, the chancery court did not expand upon its analysis of the instant case under Cheat-ham. Instead the chancery court simply stated: “Applying the factors as set forth in Cheatham v. Cheatham, the Court determines that there is a great disparity in the current incomes of the respective parties.”

¶ 50. Although Julie Anne argues that the award of rehabilitative alimony was not meant to be an equalizer between the parties, the chancery court’s brief statement above indicates that the court’s reasoning for awarding alimony was, in fact, to balance out a purported income disparity between Tony and Julie Anne. However, a review of the record indicates that in addition to receiving various personal property, Julie Anne has received the following amounts since the parties’ separation: undisclosed proceeds from the sale of the marital residence; undisclosed amounts prior to the sale of the marital residence in rent, utilities and gas expenses; $1,000 from the sale of a tractor; $2,000 for moving expenses; awards for attorneys’ fees totaling several thousands of dollars; over $61,000 in temporary support; approximately $90,000 in alimony; one-half of Tony’s undisclosed retirement account balance; and $46,102 for Julie Anne’s interest in of the Tennessee acreage, the sale of a camper, and half of Tony’s bonus money acquired in July 2008. This totals well over $200,000.

¶ 51. In addition to the amounts listed above for personal maintenance, Julie Anne receives $1,458 a month in child support, with a total of almost $30,000 paid by Tony since the parties’ divorce. Julie Anne also maintains a private business that generates a varied income. However, Julie Anne testified that her business supported payment of business-related expenses in the amount of approximately $1,700 a month. Julie Anne also noted on her loan application that her monthly income approximated between $3,750 a month and $6,500 a month. Even excluding Tony’s payment of temporary support at the time of Julie Anne’s loan application, it would appear from Julie Anne’s assertions in her application that she generated a maximum of $2,750 a month outside of Tony’s payments to her.

¶ 52. We must also note that Tony’s motion to modify the temporary support award to Julie Anne was never addressed by the chancery court. Tony’s motion was a request for the chancery court to modify his payments to Julie Anne given his $75,000 reduction in income. Tony’s annual salary was lessened to approximately $129,000, and remains so today. However, the chancery court did not address Tony’s drop in salary in its opinion or in the final divorce decree.

¶ 53. Tony asserts that his monthly expenses are too great for him to meet all of his required payments for himself, his children, and Julie Anne. A glance at Tony’s monthly monetary responsibilities reflects numerous expenses including various types of insurance for himself and his children; loan payments based on his replacement of the 2008 bonus money used to pay off marital debt; tuition payments for his children; child support; alimony; and personal expenses such as rent, utilities, food, gas, and car payments. Given Julie Anne’s awards to date, her personal income, and Tony’s cumbersome monthly obligations, we find that the chancery court’s award of alimony was manifestly erroneous. Accordingly, we reverse and remand this issue for reexamination by the chancery court.

CONCLUSION

¶ 54. After a thorough review of the record, we find that the chancery court’s determination as to custody and visitation was manifestly wrong. We reverse and render joint legal and physical custody to Tony and Julie Anne. We remand the issue of a co-parenting schedule as to each party’s division of the time allotted for physical custody for determination by the chancery court. We further find that the chancery court erred in failing to enjoin Julie Anne from allowing an unrestricted number and weight of dogs in the parts of her residence occupied by the parties’ children. We remand this issue for reexamination by the chancery court, as well.

¶ 55. We also find that the award of half of Tony’s bonus money to Julie Anne was manifestly wrong. Although said money was separate property at its receipt, the money was commingled by Tony when he used it to pay off marital debt, as he had historically done for many years during the marriage. However, since the money was used to pay off marital debt, Tony should not have been forced to replace the money and enter it into a trust for division with the marital estate.

¶ 56. Additionally, Julie Anne’s purchase of property outside of the marriage while using marital funds may have been improperly classified as separate property. It is possible for such property to have been deemed marital due to commingling since the funds used to acquire and then pay for the property could be considered, at their core, marital in nature.

¶ 57. Furthermore, the chancery court’s failure to consider the parties’ marital debt anywhere in its analysis was manifestly erroneous given the substantial marital debt acquired by the parties. Therefore, we remand the issues of classification of Tony’s bonus money, classification of Julie Anne’s residence, and consideration of the parties’ marital debt for reassessment by the chancery court.

¶ 58. Additionally, although it is curious that unimproved land would almost triple in value over a period of eight years in the current economy, we cannot find manifest error in the chancery court’s valuation of the parties’ Tennessee acreage. The parties agreed upon the appraiser used to generate the appraisal, and the chancery court adhered to the parties’ wishes. As such, we affirm the chancery court’s valuation of the Tennessee acreage.

¶ 59. Finally, we find manifest error in the chancery court’s award of rehabilitative alimony to Julie Anne. The chancery court based its award on a determination that there was great disparity in the parties’ incomes. However, the court did not expand upon its analysis of the legal considerations for an award of rehabilitative alimony. A review of the record indicates that Julie Anne has received over $200,000 from Tony since the parties’ separation, notwithstanding Tony’s monthly payments of $1,453 in child support. The record further shows that Julie Anne generates income between $1,700 a month and $2,750 a month from her personal business. Finally, the court failed to address Tony’s monthly obligations and his marked salary decrease. As such, we cannot agree with the chancery court’s blanket assertion that Julie Anne is entitled to alimony. We reverse and remand this issue for reassessment by the chancery court.

¶ 60. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

LEE, C.J, GRIFFIS, P.J, MYERS AND BARNES, JJ, CONCUR. ROBERTS AND MAXWELL, JJ, CONCUR IN PART AND IN THE RESULT. CARLTON, J, CONCURS IN RESULT ONLY. IRVING, P.J, AND RUSSELL, J, NOT PARTICIPATING.

      . As stated in Hamilton v. Hamilton, 755 So.2d 528, 530 n. 1 (Miss.Ct.App.1999), "[t]he Farese Visitation Schedule is a model originating from chancery districts in north Mississippi. While the schedule has been referred to [in] Mississippi case law, ... chancellors are vested with the authority to use their discretion in regard to the circumstances of the parties and the nature of the case in fashioning visitation schedules.” (Internal citations omitted).


source: Caselaw Access Project

author: IRVING, P.J., for the Court:

license: Public Domain

text:
    James Eric HARRISON, Appellant/Cross-Appellee. v. Mack WALKER, Stan Varner and Tyson Breeders, Inc., Appellees/Cross-Appellants.
    No. 2009-CA-01851-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.
    Rehearing Denied March 27, 2012.
    Certiorari Denied June 28, 2012.

      David Shoemake, Collins, William Bon-ney Bardwell, attorneys for appellant.
    W. Wayne Drinkwater Jr., Mary Clay Wadlington Morgan, Jackson, attorneys for appellees.
   IRVING, P.J., for the Court:

¶ 1. James Eric Harrison was under contract as a chicken farmer with Tyson Breeders, Inc. In February 2002, due to poor performance by Harrison, Tyson gave Harrison oral notice of termination of its contract with him. On December 17, 2002, Harrison filed suit in the Covington County Circuit Court, alleging breach of contract, breach of the duty of good faith and fair dealing, and fraudulent inducement. On December 20, 2006, Harrison filed a motion for partial summary judgment on the breach-of-eontract claim. The circuit court granted Harrison’s motion, finding that Tyson had failed to give Harrison written notice of termination as required by its contract with him. After a trial, the jury awarded Harrison $22,328 in damages on the breach-of-contract claim and found in favor of Tyson on the issues of breach of the duty of good faith and fair dealing and fraudulent inducement.

¶ 2. Harrison and Tyson filed cross-motions for a judgment notwithstanding the verdict (JNOV). Harrison also filed a motion for a new trial or an additur. The circuit court denied all post-trial motions.

¶ 3. Feeling aggrieved, Harrison appeals and argues that the circuit court erred by admitting evidence of his past farming habits and giving jury instructions D-12 and D-20. Tyson cross-appeals and argues that the circuit court erred in denying its motion for a JNOV.

¶ 4. We affirm the circuit court’s judgment on direct appeal and reverse and remand on cross-appeal.

FACTS

¶ 5. In 1997, Harrison entered into his first breeder-grower contract with Tyson. The contract had a term of five years. As a breeder grower, Harrison was responsible for the production of quality hatching eggs. Tyson would deliver a flock of breeder hens and roosters to Harrison, and he would care for the flock for approximately forty weeks. During that time, Harrison would collect the eggs laid by the hens, and Tyson would pick them up and transport them to a hatchery. At the end of the forty-week period, Tyson would pick up the flock and take it to a plant to be slaughtered for food.

¶ 6. In 1999, Tyson terminated Harrison due to substandard farming practices. Harrison later defaulted on his loan with Oaklawn Financial Corporation (Oaklawn), a subsidiary of Tyson that made loans to Tyson’s chicken farmers. Harrison testified that the loan was secured by his two chicken houses and ten acres of land. Upon default, Oaklawn had the option to foreclose on the property or to take over the farm. Tyson’s complex in Magee, Mississippi, also incurred a charge for the missed loan payments.

¶ 7. In 2000, Tyson rehired Harrison. Harrison testified that Mack Walker, Tyson’s live-production manager, and Stan Varner, Tyson’s breeder-hatchery manager, approached him about resuming his contractual relations as a breeder grower. However, Walker and Varner testified that Harrison approached them and begged them to reinstate his contractual arrangement with Tyson. In any event, Tyson decided to enter into a new contract with Harrison, provided that he made the necessary repairs to his chicken houses and improved his farming practices. On October 5, 2000, Tyson placed a new flock at Harrison’s farm. Harrison’s performance improved with the October 2000 flock, and Tyson placed another flock on Harrison’s farm in September 2001.

¶ 8. In the spring of 2001, Harrison approached Walker about the possibility of reducing the payments on his Oak-lawn loan. Walker explained to Harrison that because he was already in arrears on the loan, his payments could not be reduced. However, Walker gave Harrison the name of a bank that made poultry loans and suggested that Harrison contact the bank about refinancing his loan. Harrison contacted First Financial Bank about refinancing his Oaklawn loan, and the bank requested a letter from Varner explaining the gaps in production at Harrison’s farm. In the letter, Var-ner explained that Harrison had had personal problems and mechanical issues that had affected his performance; however, Harrison had corrected the problems, and Tyson had rehired him as a grower breeder. In June 2001, Harrison refinanced his Oaklawn loan with First Financial Bank; however, Harrison was required to pledge the entirety of his property-forty acres, two chicken houses, and his home-as collateral.

¶ 9. Soon after, Harrison’s production performance began to deteriorate. In November 2001, Varner recommended to Walker that Tyson terminate Harrison’s contract based on poor performance. However, Walker testified that he did not immediately make a decision regarding Harrison. In the interim, Tyson gave all of its farmers, including Harrison, a pay raise. In December 2001, Tyson presented all of its farmers with a new one-year contract that reflected the pay raise, and Harrison signed the contract.

¶ 10. In February 2002, Walker and Varner met with Harrison and gave him oral notice that his contract with Tyson was terminated. However, Tyson did not remove Harrison’s flock until May 2002, and Harrison testified that he was paid during that time. Harrison later defaulted on his loan with First Financial Bank and lost his collateral.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Evidence of Past Farming Habits

¶ 12. Harrison argues that the circuit court erred in admitting evidence of his farming practices prior to his first termination in 1999. Harrison contends that such evidence amounts to improper character evidence in violation of Rule 404 of the Mississippi Rules of Evidence.

¶ 13. A circuit court’s admission or exclusion of evidence is reviewed for abuse of discretion. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 729 (¶ 69) (Miss.2001) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 12) (Miss. 1999)). An appellate court “will not reverse the admission or exclusion of evidence unless the error adversely affects a substantial right of a party.” Id. (citing Floyd, 749 So.2d at 113 (if 12)).

¶ 14. Rule 404(a) provides that “[evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Harrison contends that Tyson introduced evidence of his earlier poor performance as a farmer to prove that he performed poorly after he entered into a new contract with Tyson in 2000. However, Tyson argues that Harrison opened the door to such evidence by introducing evidence of his 1997 contract with Tyson. -Tyson further argues that evidence of Harrison’s prior farming practices was necessary to its defense of Harrison’s bad-faith and fraudulent-inducement claims.

¶ 15. We are not persuaded by Harrison’s argument that evidence of his prior poor performance at Tyson constituted improper character evidence. Instead, we find that such evidence was relevant to Tyson’s defense of Harrison’s claim that it had entered into the contract with him for the sole purpose of convincing him to refinance his defaulted Oaklawn loan with another lender and wipe the loan from its books. Relevant evidence may be deemed inadmissible under Rule 403 of the Mississippi Rules of Evidence where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumula-five evidence.” However, Harrison has failed to show that evidence of his prior performance should be excluded under Rule 403.

¶ 16. Furthermore, we note that Harrison presented evidence regarding his relationship with Tyson prior to his first termination in 1999. In fact, his 1997 contract with Tyson was the first piece of evidence introduced. Harrison also testified regarding his dealings with Tyson under the 1997 contract and solicited testimony from his witnesses regarding that time period. The Mississippi Supreme Court has held that “where a party has introduced evidence on an issue, that party may not complain about the admission of evidence on the same proposition by an opposing party.” DeMyers v. DeMyers, 742 So.2d 1157, 1160 (¶ 7) (Miss.1999) (citations omitted). Because Harrison introduced evidence of his business relations with Tyson that occurred before his first termination, he cannot complain that Tyson introduced its own evidence from the same time period. This issue is without merit.

2. Jury Instructions

¶ 17. Harrison argues that the circuit court erred by granting jury instructions D-12 and D-20 because they improperly limited the amount of damages that Harrison could recover for Tyson’s breach of contract. Specifically, Harrison asserts that these instructions prevented the jury from awarding consequential damages-the loss of his home, chicken houses, and forty acres of land. Generally, the circuit court “has considerable discretion when instructing the jury.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss.2010) (citing Bickham v. Grant, 861 So.2d 299, 301 (¶ 8) (Miss.2003)). When reviewing jury instructions, an appellate court reads the instructions as a whole. Id. (citing Bick-ham, 861 So.2d at 301 (¶ 8)). “Defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly-although not perfectly-announce the applicable primary rules of law.” Id. (quoting Young v. Guild, 7 So.3d 251, 269-260 (¶ 24) (Miss.2009)).

a. Jury Instruction D-12

¶ 18. Instruction D-12 states in pertinent part:

You are instructed that where a contract requires a party to give written notice of termination of the contract, and where the contract does not require that notice be given at any particular time, then if a party fails to provide written notice of termination, the other party is entitled to a reasonable notice of termination. In such a case, it is your duty as jurors to decide the amount of time that would constitute reasonable notice. A party who is not given notice of termination as required by the contract is entitled to damages for the income, if any, he would have earned during the period constituting reasonable notice.
... If you find from a preponderance of the evidence in this case that Mr. Harrison did not receive reasonable notice of termination, then he is entitled to any income he lost that was caused by Tyson’s failure to give notice a reasonable period before termination. Any such income would be the amount that you find he would have earned during the time after he received a reasonable notice of termination.

The December 2001 contract did not contain a specific notice requirement, it only required that notice of termination be given in writing, which Tyson failed to do. Under Tyson’s theory of the case, any damages suffered by Harrison from receiving oral versus written notice should be limited to a period constituting reasonable notice.

¶ 19. The Mississippi Supreme Court has held that where a party to a contract is given inadequate notice of termination, the appropriate measure of damages is the party’s expected income over an appropriate notice period. Fuselier, Ott & McKee, P.A. v. Moeller, 507 So.2d 63, 67 (Miss.1987). In a case applying Mississippi law, the United States Court of Appeals for the Fifth Circuit held that when a contract does not specify a notice period, but requires written notice of termination, the proper measure of damages for failure to give written notice is the plaintiffs net income during a period of time constituting reasonable notice. King v. Exxon Co., U.S.A., 618 F.2d 1111, 1119 (5th Cir.1980). “What constitutes reasonable notice of termination ... is a question to be resolved by the jury, since reasonable notice will vary in accordance with the facts and circumstances of each case.” Id. (citing Hazell Machine Co. v. Shahan, 249 Miss. 301, 318, 161 So.2d 618, 624 (1964)).

¶ 20. Tyson’s theory of the case is reflected in instruction D-12, which represents an accurate statement of Mississippi Law. Therefore, the circuit court did not err in granting the instruction.

b. Jury Instruction D-20

¶ 21. Instruction D-20 states:

You are instructed that damages for breach of contract are intended to give an injured party the benefit of his bargain by awarding him a sum of money that will put him in the same position he would have had if the contract [had] been performed. A party injured by a breach of contract does not have the right to be placed in a better position than he would have occupied had the contract been performed.
You are further instructed that the December 2001 Contract between James Eric Harrison and Tyson Breeders was for a term of one year. Even if you decide to award damages to Mr. Harrison for breach of that contract, you are instructed that any such damages are limited by the one-year term of the contract.

Under Mississippi law:

Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of the bargain by awarding him a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed.

Theobald v. Nosser, 752 So.2d 1036, 1042 (¶22) (Miss.1999) (quoting J.O. Hooker & Sons, Inc. v. Roberts Cabinet Co., 683 So.2d 396, 405 (Miss.1996)).

¶ 22. Harrison signed a one-year contract with Tyson, effective December 31, 2001, to December 31, 2002. The contract had no right of renewal. At trial, Harrison put on evidence of his estimated lost income over a ten-year period. However, under Tyson’s theory of the case, Harrison’s damages from Tyson’s breach of contract should be limited to the income that he would have received for the duration of the one-year contract. Instruction D-20 states Tyson’s theory of the case and is an accurate statement of the law; therefore, the circuit court did not err in granting the instruction.

¶ 23. Finally, we note that despite Harrison’s contention that the above jury instructions precluded the jury from considering consequential damages, the circuit court granted instruction P-17, which states in pertinent part:

If you find for the Plaintiff, Eric Harrison, you should award damages in an amount that will put him in as good of a position as he would have been had Tyson Breeders, Inc. given written notice of termination as required in the 2001 contract.
You can consider the losses incurred and the gains not realized due to Tyson Breeders, Inc. failure if it knew or had reason to foresee at the time the contract was made that failure to fulfill the contract will probably cause such losses and/or damages to the Plaintiff, Eric Harrison.

(Emphasis added). The above instruction gave the jury the opportunity to consider consequential damages, such as the loss of Harrison’s home, his chicken houses, and his forty acres of land, even if, as Harrison contends, instruction D-12 and D-20 did not. Therefore, we find that the jury instructions, when reviewed as a whole, were proper. This issue is without merit.

3. Tyson’s Motion for a JNOV

¶ 24. Tyson argues that the circuit court erred by denying its motion for a JNOV because the jury’s award of $22,328 in damages for Tyson’s breach of contract is not supported by the evidence. “When reviewing the denial of a motion for [a] JNOV, we consider the evidence in the light most favorable to the non-moving party, and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Natchez Elec. & Supply Co. v. Johnson, 968 So.2d 358, 361 (¶ 12) (Miss.2007) (citing Steele v. Inn of Vicksburg, 697 So.2d 373, 376 (Miss. 1997)). An appellate court will not reverse a circuit court’s denial of a JNOV unless the facts “point so overwhelmingly in favor of the party requesting the JNOV that reasonable persons could not have arrived at a contrary verdict....” Id. at 361-62 (¶ 12) (citing Steele, 697 So.2d at 376). Where a verdict is supported by substantial evidence, meaning evidence of “such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions,” an appellate court will affirm the circuit court’s denial of a JNOV. Id. at 362 (¶ 12) (citing Blake v. Clein, 903 So.2d 710, 731 (¶ 61) (Miss.2005)).

a. No Damages

¶ 25. Tyson argues that Harrison suffered no damages by receiving oral notice of termination versus written notice of termination as required by the contract. Whether Harrison suffered damages as a result of Tyson’s breach of contract was a question for the jury. See Causey v. Sanders, 998 So.2d 393, 409 (¶ 54) (Miss. 2008). Based on the evidence presented at trial, the jury found that Tyson was liable to Harrison for damages caused by its breach of contract. As we find no reason to question the jury’s judgment, Tyson’s argument is without merit.

b. Reduced Damages

¶26. Tyson maintains that even if Harrison is entitled to damages following its breach of contract, those damages should be limited to either: (1) lost profits equal to the amount of time remaining under the contract when Tyson picked up Harrison’s last flock in May 2002 or (2) lost profits earned during a period of time that constitutes reasonable notice of termination.

¶ 27. The jury awarded $22,328 in damages, which represented one year of Harrison’s average net income from his farm. “It is primarily the province of the jury to determine the amount of damages to be awarded[,] and the award will normally not ‘be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount[,] and outrageous.’ ” Lewis v. Hiatt, 683 So.2d 937, 941 (Miss.1996) (quoting Harvey v. Wall, 649 So.2d 184,187 (Miss.1995)).

¶ 28. We find considerable support for Tyson’s argument that Harrison’s damages should have been limited. While it is uncontested that Tyson failed to give written notice of termination as required by its contract with Harrison, Tyson’s breach of the contract did not occur until it picked up the chickens in May 2002 and stopped performing under the contract. Applying the reasoning from King, 618 F.2d at 1119, we find that Harrison’s damages for Tyson’s breach of contract should be limited to the period of time constituting reasonable notice of termination. Since Tyson could terminate Harrison’s contract at any time during the contract year by giving him written notice of termination, the contract was essentially an at-will contract.

¶ 29. Consequently, we reverse the judgment of the circuit court awarding Harrison $22,328 in damages and remand this case for a new trial on damages only. During retrial, the jury shall be instructed to award damages for that period of time which would constitute reasonable written notice of termination under a one-year at-will employment contract. The award of damages shall be limited to Harrison’s lost profits during the period of time that the jury determines to be a reasonable-notice period.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. RUSSELL, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Harrison originally filed suit in the Coving-ton County Chancery Court. On interlocutory appeal, the Mississippi Supreme Court determined that the circuit court had exclusive jurisdiction over Harrison’s claims and ordered that the case be transferred to circuit court. Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 234 (¶ 14) (Miss.2006).

      . There is some dispute regarding whether Harrison returned to work for Tyson under the terms of the 1997 contract, which was effective from 1997 to 2002, or whether he returned under an oral agreement.

      . We note that the record does not include the jury-instruction colloquy; therefore, we do not know what objections and arguments were made at trial concerning the challenged instructions.

      . Harrison testified that Tyson continued to pay him until the chickens were removed from his farm in May 2002.


author: BOLIN, Justice.

text:
    EX PARTE JIM WALTER RESOURCES, INC. (In re: Matter of Jim Walter Resources, Inc. v. W. Hardy McCollum, Tuscaloosa County Probate Judge).
    1110067.
    Supreme Court of Alabama.
    Jan. 6, 2012.
    Rehearing Denied March 9, 2012.

      Bruce P. Ely, John D. Watson III, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for petitioner.
    Shannon Clay Staggs of Smith & Staggs, LLP, Tuscaloosa; and Robert M. Spence of Rosen Harwood, P.A., Tuscaloosa, for respondent.
   BOLIN, Justice.

Jim Walter Resources, Inc. (hereinafter “JWR”), seeks a petition for a writ of mandamus directing the Tuscaloosa County Probate Court to record certain filings without the payment of a recording tax imposed pursuant to § 40-22-2, Ala.Code 1975.

Walter Energy, Inc., a publicly traded Alabama corporation, is the parent company of JWR. Walter Energy recently acquired Western Coal Corporation of Canada. As part of this multibillion-dollar acquisition, Walter Energy entered into a credit agreement with Morgan Stanley Senior Funding, Inc., and a consortium of lenders. As part of the credit agreement, Walter Energy’s subsidiaries were required to execute contingent guaranties of Walter Energy’s financing debt in the event of a default by Walter Energy. JWR secured its guaranty of Walter Energy’s financing debt by executing mortgages on its real and leasehold properties in Tuscaloosa County and Jefferson County. Also as part of the credit agreement, JWR, as a subsidiary of Walter Energy, was required to record the mortgages in the probate offices in the counties in which the properties were located.

JWR recorded the mortgages and related Uniform Commercial Code (“UCC”) financing statements in the Jefferson County Probate Court, Birmingham Division. With regard to the mortgage-recordation tax imposed by § 40-22-2, JWR provided the probate office with a letter dated June 7, 2011, from the Alabama Department of Revenue, which provided as follows:

“Please accept this letter as authorization from the Alabama Department of Revenue to record (i) that certain Mortgage, Security Agreement, Assignment of Leases, Rents and Profits, Financing Statement, Fixture Filing and As-Extracted Collateral Filing made by Jim Walter Resources, Inc., as Mortgagor, to Morgan Stanley Senior Funding, Inc., as Collateral Agent, as Mortgagee, covering certain fee interests, (ii) that certain Mortgage,, Security Agreement, Assignment of Leases, Rents and Profits, Financing Statement, Fixture Filing and As-Extracted Collateral Filing made by Jim Walter Resources, Inc., as Mortgagor, to Morgan Stanley Senior Funding, Inc., as Collateral Agent, as Mortgagee, covering certain leasehold interests, and (iii) those certain related UCC financing statements listing Jim Walter Resources, Inc. as ‘Debtor’ and Morgan Stanley Senior Funding, Inc., as Collateral Agent, as ‘Secured Party’, without the payment of the mortgage recording tax which otherwise would be levied in accordance with Section 40-22-2 of the Code of Alabama.
“The mortgages and UCC financing statements are exempt from mortgage recording tax because they do not secure a stated or fixed amount of indebtedness, but rather secure only a contingent repayment obligation of the mortgagor as a guarantor under the terms of a guaranty agreement. Because it is uncertain if or when the mortgagor will be called on to pay the guaranteed obligations, no mortgage tax is due.”

A similar letter was delivered to the Tuscaloosa County Probate Court. However, when JWR sought to record the mortgages and related UCC filings in Tuscaloosa, the Tuscaloosa County Probate Court refused to record the documents unless JWR paid the recordation tax under § 40-22-2.

JWR filed this petition for a writ of mandamus, arguing that it is entitled to mandamus relief because the Tuscaloosa County Probate Court has refused to perform a ministerial act as part of its administrative duties. We note that this Court has jurisdiction to review a petition for a writ of mandamus in matters as to which this Court has appellate jurisdiction. See § 12-3-11, Ala.Code 1975 (“Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction.”). A probate court’s application of the mortgage-recordation-tax statute is within this Court’s jurisdiction because the circuit court’s appellate jurisdiction over probate matters is limited and does not include the taxing issue involved in this case. See § 12-22-21, Ala.Code 1975 (listing probate-court matters over which the circuit court has appellate jurisdiction); Oliver v. Shealey, 67 So.3d 73, 74 (Ala.2011)(holding that appeals from probate court are heard first by this Court if the subject matter is not proper for the appeal to be heard in circuit court and noting that “[a] circuit court’s appellate jurisdiction over an order of a probate court is confined to seven circumstances enumerated in § 12-22-21”).

Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy, and it “will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Monsanto Co., 862 So.2d 695, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 178, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

A writ of mandamus will lie to compel a court to perform ministerial duties. Tanner v. Dobbins, 251 Ala. 392, 395, 37 So.2d 520, 523 (1948).

“ ‘The rules of law applicable to the case are simple and well settled. The writ of mandamus will lie from a superi- or to an inferior or subordinate court, in a proper case, to compel it to hear and decide a controversy of which it has jurisdiction; or, where the cause has been heard, to compel such inferior court to render judgment or enter a decree in the given case. But its use is not warranted to direct what particular judgment shall be rendered in a pending cause, nor is it the proper function of such remedial writ to re-examine, or correct errors in any judgment or decree so rendered. “The rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done; or if it be ministerial, the mandamus will direct the specific act to be performed.” Ex parte Newman, [81] U.S. 152, 14 Wall. 152, 169, 20 L.Ed. 877 [ (1871)]; High on Extr. Rem. §§ 150-152, 266; Ex parte Schmidt, 62 Ala. 252 [ (1878) ]; Ex parte Mahone, 30 Ala. 49 [ (1857) ]. The principle, of course, universally prevails, that in no event will the writ ever be awarded where full and adequate relief can be had by appeal, writ of error, or otherwise.’ ” State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)). In the present case, imposing the recordation tax on a mortgage recorded in a county is part of the administrative duties of the probate judge of the county and, as such, is a ministerial function.

Analysis

Section 40-22-2 provides, in pertinent part:

“No mortgage, deed of trust, contract of conditional sale, or other instrument of like character which is given to secure the payment of any debt which conveys any real or personal property situated within this state or any interest therein or any security agreement or financing statement provided for by the Uniform Commercial Code, except a security agreement or a financing statement relating solely to security interests in accounts, contract rights, or general intangibles, as such terms are defined in the Uniform Commercial Code, and except for the re-recordation of corrected mortgages, deeds, or instruments executed for the purpose of perfecting the title to real or personal property, specifically, but not limited to, corrections of maturity dates thereof, shall be received for record or for filing in the office of any probate judge of this state unless the following privilege or license taxes shall have been paid upon such instrument before the same shall be received for record or for filing....”

Section 40-22-2 imposes a tax on the privilege of recording an instrument “given to secure the payment of any debt.” Nothing in § 40-22-2 provides for a recor-dation tax when the instrument to be recorded secures a contingent guaranty rather than an existing “debt.” “ ‘A guaranty in its technical sense is collateral to, and made independently of, the principal contract which is guaranteed; and the guarantor’s liability is secondary rather than primary or original.’ 38 C.J.S. Guaranty § 2 (1943).” Valley Mining Corp. v. Metro Bank, 383 So.2d 158, 162 (Ala.1980). In other words, the liability of the guarantor of the debt is secondary and comes into existence only upon default by the maker of the note or credit agreement. JWR’s liability is contingent upon Walter Energy’s default in paying pursuant to the credit agreement and does not constitute an existing debt of JWR’s. It is undisputed that the money may or may not become due under the contingent guaranty. Additionally, there is no fixed amount of “any debt” at this point because there has not been a default; therefore, there is no certain amount of indebtedness from which a recordation tax could be computed at the time the documents are presented for re-cordation. Accordingly, the contingent guaranty is not within the scope of § 40-22-2. In 1978, the attorney general issued an opinion, which we find persuasive, on whether mortgage-recordation taxes were due on an instrument given for the purpose of guaranteeing another person’s indebtedness:

“Reference is made to your letter of May 31, 1978, in which you request the opinion of this office as to whether mortgage privilege tax is due upon recordation of a mortgage from First Colony Farms, Inc., to John Hancock Mutual Life Insurance Company.
“From the facts stated in your letter it appears that John Hancock Mutual Life Insurance Company advanced funds to Tyson Carolina, Inc. to enable that corporation to purchase certain real property from First Colony Farms, Inc. To induce John Hancock to make these advances, First Colony guaranteed Tyson’s prompt repayment of 4.5 million dollars of Tyson’s indebtedness to John Hancock and gave a mortgage covering land in Bullock, Macon and Russell Counties to secure prompt performance under its guaranty. Code of Alabama 1975, § 40-22-2 levies a tax upon instruments ‘given to secure the payment of any debt.’ There is no provision contained in this section levying the tax upon an instrument given for the purpose of guaranteeing another person’s indebtedness. If the primary debtor, Tyson Carolina, Inc., properly pays its indebtedness to John Hancock then there will be no obligation on the part of First Colony to do anything. It is obvious that First Colony is merely underwriting Tyson’s debt.
“Under these circumstances it is my opinion that no mortgage [tax] should be collected and that the instrument should be received for record without payment of the tax levied under § 40-22-2, supra.”

Op. Att’y Gen. (June 23, 1978). We understand this opinion to be concerned with the same issue presented in this case, i.e., whether the giving of a mortgage to secure a contingent-guaranty obligation, rather than an actual existing debt, is subject to the tax imposed by § 40-22-2. Although under the facts in the attorney general’s opinion the company guaranteeing the indebtedness of another was unrelated to the debtor company, the rationale applied by the attorney general in that opinion is applicable in the present case. “While an opinion of the attorney general is not binding, it can constitute persuasive authority.” Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344, 1346 (Ala.1997).

The probate judge cites Noonan v. East-West Beltline, Inc., 487 So.2d 237 (Ala.1986), in support of his position that there is no statutory requirement under § 40-22-2 that the debt being secured be the mortgagor’s debt. In Noonan, East-West Beltline, Inc., owned all the outstanding stock in Bel Air Corporation. Bel Air entered into two separate financing transactions with a bank. The first financing transaction involved a revolving-credit agreement. The revolving-credit agreement was an amendment to an existing mortgage between Bel Air and the bank, and, when the revolving-credit agreement was recorded, the probate judge collected the mortgage-recordation tax. Before issuing the revolving-credit agreement, the bank required East-West Beltline to guarantee the indebtedness of Bel Air to the bank secured by the revolving-credit agreement by mortgaging some of its property as additional security for Bel Air’s indebtedness. The probate judge required East-West Beltline to pay the mortgage-recordation tax when it recorded its additional-security mortgage, and East-West Beltline paid the tax under protest. The second financing transaction was for a term loan between Bel Air and the bank and required a mortgage on certain property owned by Bel Air. When the term loan was recorded, the probate judge collected the mortgage-recordation tax. Again, the bank required East-West Belt-line to provide additional security for the bank’s loan to Bel-Air, which East-West Beltline did. The probate judge required East-West Beltline to pay the mortgage-recordation tax when it recorded its additional-security mortgage for the term loan, and East-West Beltline again paid the tax under protest. The circuit court entered a summary judgment in favor of East-West Beltline, holding that East-West Beltline was entitled to a refund of the recordation taxes it had paid under protest.

In its summary-judgment motion, East-West Beltline had argued that the payment of the mortgage-recordation taxes on its two additional-security mortgages was in error because the two additional-security mortgages were exempt under § 40-22-2(4). Noonan. Subsection (4) provides that no recordation tax is required with regard to an instrument if (a) the instrument provides additional or substitute security for an indebtedness; (b) the indebtedness is secured by another instrument previously filed on which the filing taxes provided by law have been paid; and (c) the secured indebtedness remains unchanged in amount and in time of maturity. The probate judge in Noonan had argued that in order for a transaction to fall under the exemption set out § 40-22-2(4), the parties to the transaction must be identical. Because the mortgagor of the additional-security mortgages (East-West Beltline) was different from the mortgagor of the previously recorded instruments (Bel Air), the probate judge required payment of the recordation taxes by East-West Beltline. On appeal, the probate judge argued that § 40-22-2(4) was ambiguous. This Court affirmed the circuit court’s summary judgment, finding that the statute was unambiguous and did not require that the identity of the parties be the same.

Noonan is easily distinguishable from the present case. Noonan addressed whether a recordation tax was due with regard to an amendment providing additional security to a taxed mortgage that came within a specific exception to the mortgage-recordation statute. The Court in Noonan did not address whether a contingent, and as yet undetermined, liability constituted a “debt” subject to the recor-dation tax.

The probate judge cites Sustainable Forests, LLC v. Alabama Department of Revenue, 80 So.Bd 270 (Ala.Civ.App.2011), for the general proposition that recordation taxes are taxes imposed for the privilege of recording an' instrument, and he argues that, in the present case, JWR is seeking to have the instruments recorded in the mortgage records and that the tax thus should apply here. Sustainable Forests involved § 40-22-1, which imposes a recordation tax on deeds and assignments. We agree that, like § 40-22-1, § 40-22-2 is a tax on the privilege of recording an instrument; however, the instrument being recorded must come within the language of the statute in order for the tax to apply.

Last, the probate judge argues that JWR has another adequate remedy — it can pay the tax under protest and seek a refund. Section 40-22-2 provides that the recordation tax is calculated at 15 cents per $100 of “indebtedness” being secured by the instrument being recorded. Here, JWR’s contingent guaranty becomes a “debt” only if and' when Walter Energy defaults on its obligations and then only to the extent of the default. Unless and until Walter Energy defaults, the debt secured by JWR’s instruments has no known amount. The probate judge suggests that he would calculate the recordation tax on JWR’s instruments on the fair market value of the property that is the subject of JWR’s mortgages. However, § 40-22-2 calculates the recordation tax based on a certain debt. Here, JWR’s debt is not yet certain, and the debt is not JWR’s but Walter Energy’s. Although the probate judge must determine the amount of the recordation tax owed, that amount must be based on a “debt,” which would be an ascertainable amount. Moreover, JWR had a letter from the Alabama Department of Revenue that provided that no recordation tax was due. For the purposes of determining whether mandamus relief is proper, we note that requiring JWR to pay a tax the Department of Revenue says is not owed only to then seek a refund from the Department of Revenue would not be another adequate remedy.

Conclusion

Here, JWR’s liability is contingent on the default of Walter Energy, as the signatory to the credit agreement, and JWR’s contingent guaranty does not constitute an unqualified promise to pay Walter Energy’s indebtedness under the credit agreement. In fact, JWR’s “debt” under the guaranty may or may not become due under the credit agreement. That being so, the contingent guaranty is not within the scope of § 40-22-2. Accordingly, we grant the petition and issue the writ. The probate judge of the Tuscaloosa County Probate Court is directed to record the filings at issue without the payment of the recording tax imposed by § 40-22-2, Ala. Code 1975.

PETITION GRANTED; WRIT ISSUED.

WOODALL, MURDOCK, MAIN, and WISE, JJ., concur.

      . A similar letter was addressed to the Bessemer Division of the Jefferson County Probate Court.