author: WALLER, Chief Justice,

text:
    ARCADIA FARMS PARTNERSHIP v. AUDUBON INSURANCE COMPANY.
    No. 2009-CT-00903-SCT.
    Supreme Court of Mississippi.
    Jan. 5, 2012.

      David D. O’Donnell, Oxford, Sidney Ray Hill, III, attorneys for appellant.
    Michael O. Gwin, Louis B. Lanoux, Jackson, attorneys for appellee.
   WALLER, Chief Justice,

for the Court.

¶ 1. A fire destroyed a cotton-picking machine owned by Arcadia Farms Partnership. Though insurance coverage initially was denied, Audubon Insurance Company eventually paid Arcadia $100,000 for the loss. Arcadia then filed suit against Audubon, asserting that Audubon’s failure to submit prompt payment constituted a “bad faith breach of the policy terms, inter alia.” Audubon filed a motion for summary judgment. Audubon asserted that, since Arcadia had been paid on its claim prior to filing suit, Arcadia’s only potential form of compensatory damages would be prejudgment interest. Yet, according to Audubon, Section 75-17-7 of the Mississippi Code prohibits Arcadia from recovering prejudgment interest pri- or to the filing of the complaint. Moreover, Audubon argued that Arcadia had not specifically requested prejudgment interest in its complaint. Thus, Audubon argued that Arcadia’s entire suit must fail; without compensatory damages, Arcadia could not recover punitive damages on its bad-faith claim. The trial court granted summary judgment for Audubon and denied Arcadia’s motion for reconsideration or, in the alternative, motion to amend its complaint to plead specifically for prejudgment interest. The Court of Appeals held that summary judgment was improper. It held that Arcadia could seek prejudgment interest from the date of breach, prior to the filing of the complaint, and that the trial court had abused its discretion in denying Arcadia’s motion to amend. We agree with the Court of Appeals in both respects. We granted certiorari, however, to address some uncertainty in the law surrounding Section 75-17-7. We clarify that, in contract cases, Section 75-17-7 does not restrict prejudgment interest to the post-complaint period; prevailing parties in a breach-of-contract suit may seek interest from the date of breach.

FACTS

¶ 2. The following history is taken, for the most part, from the facts and trial-court proceedings set out in the Court of Appeals’ opinion.

¶ 3. In August 2001, Arcadia purchased three cotton-picking machines from Wade, Inc., a farm-equipment dealer located in Clarksdale, Mississippi. At the time of purchase, Arcadia had a farm-operations insurance policy issued by Audubon. This policy provided coverage for “replacement” equipment and “additional acquired property” equipment. The effective coverage date of the policy was May 7, 2001, to May 7, 2002.

¶4. The Mitchell Company and J.H. Johnson and Company served as Arcadia’s local insurance agents. Wade was to inform The Mitchell Company of Arcadia’s purchases so the equipment would be insured.

¶ 5. On October 16, 2001, one of the new pickers was destroyed by fire. The next day, an Arcadia employee provided the Mitchell Company a list of the newly acquired cotton pickers and mentioned that one of the pickers had been destroyed. The Mitchell Company informed Arcadia that its insurance policy did not cover the pickers because they had not been listed in the schedule of equipment insured under the policy. On October 19, 2001, J.H. Johnson and Company, an insurance broker for the Mitchell Company, learned of the loss. It sent a letter to Audubon stating that Arcadia had been informed that the destroyed picker was not covered, and that Arcadia had said that Wade “should have had this insured,” since the picker had been bought and financed through Wade. It also told Audubon that: “There has been no demand on us as of now[,] and we are sending this for information purposes only.”

¶ 6. In early 2002, Arcadia requested that the Mitchell Company provide it with information about how to file a claim. Arcadia again was told that the destroyed picker was not covered under the policy.

¶ 7. In June 2002, Arcadia filed a complaint for negligence against the Mitchell Company for failure to obtain insurance for the destroyed picker. In October 2003, the Mitchell Company informed Johnson that Arcadia wanted to submit a claim to Audubon for the damaged picker. Following an investigation of the claim, Audubon concluded that the damaged picker was covered under the policy as newly acquired equipment. Thus, on March 23, 2004, Audubon paid Arcadia $100,000 for its loss.

¶ 8. On October 14, 2004, almost seven months after receiving payment from Audubon, Arcadia amended its complaint to join Audubon as a party. Arcadia claimed that the damaged picker had been “replacement” equipment, and, therefore, it should have received “not less than $150,000” under the terms of the policy. Arcadia maintained that Audubon’s failure to remit that amount constituted bad-faith denial of payment. Arcadia further alleged that Audubon had refused to investigate the loss, that it had delayed payment for two and a half years without an arguable basis, and that its agent had fraudulently represented that the damaged picker was not covered under the policy. Based on these allegations, Arcadia asserted claims for bad-faith breach of contract and bad-faith denial. As relief, Arcadia sought “an award of compensatory and punitive damages against Audubon ... in the amount of $3.5 million, together with an award of costs, interest and attorney fees.”

¶ 9. On December 14, 2007, Audubon filed a motion for summary judgment. The trial court conducted a hearing, but neither granted nor denied the motion. Then on September 11, 2008, Audubon filed a Motion to Limit Damages Proof. In that motion, Audubon argued that Arcadia was not entitled to prejudgment interest (1) because such damages had not been properly pleaded or proven, and (2) because Section 75-17-7 of the Mississippi Code allows prejudgment interest only from the date of the filing of the complaint for judgments founded upon a contract that lacks a rate of interest. Alternatively, Audubon requested that Arcadia be limited to the compensatory damages identified in its March 4, 2008, interrogatory response. In that response, Arcadia had stated that it sought compensatory damages in the amount of $61,000, which included two items: (1) the interest on the $100,000 that was wrongfully withheld for three years and (2) attorneys’ fees.

¶ 10. On March 9, 2009, the trial court ruled upon Audubon’s motion for summary judgment and its Motion to Limit Damages Proof. The court denied summary judgment on the basis that genuine issues of material fact existed as to whether Audubon had acted in bad faith and whether its bad faith, if any, warranted punitive damages. But the court partially granted Audubon’s Motion to Limit Damages Proof. It stated that:

As for the claims of prejudgment interest, the Court finds [Arcadia] has failed to specifically plead such damages in its complaint. Further, even if [Arcadia] had specifically pled prejudgment interest, the Court finds that Mississippi] Code Annotated Section] 75-17-7 precludes the recovery of prejudgment interest in this matter.
As for any other compensatory claims [Arcadia] may have, the Court finds that [it] [is] entitled to seek at trial whatever damages [it] can establish to a reasonable degree of certainty....

¶ 11. Shortly thereafter, on March 16, 2009, Audubon filed a second motion for summary judgment. Audubon asserted that, as a result of the court’s limitation of damages in its prior order, Arcadia could neither prove nor recover any damages-it had no compensatory damages, which, consequently, rendered it unable to recover punitive damages as well. Audubon thus claimed that it was entitled to summary judgment as a matter of law.

¶ 12. Days later, on March 26, 2009, Arcadia filed a Motion for Reconsideration or, in the Alternative, Motion for Leave to Amend Complaint. Arcadia asked the court to reconsider its order partially granting Audubon’s Motion to Limit Damages Proof and to allow Arcadia to assert a claim for prejudgment interest from the date of the breach of the contract. Alternatively, it sought leave to amend its complaint to seek prejudgment interest from the date of Audubon’s alleged breach, October 19, 2001.

¶ 13. On April 1, 2009, the trial court conducted a hearing on the two motions. At the conclusion of the hearing, the trial judge stated that “in view of the existing authority ... pre-judgment interest is inappropriate in this case.” Thereafter, the trial court entered a final judgment granting Audubon’s second motion for summary judgment and denying Arcadia’s motion for reconsideration/leave to amend.

¶ 14. Arcadia’s appeal was assigned to the Court of Appeals. Arcadia argued (1) that it should be able to seek prejudgment interest calculated from the date of the alleged breach of the insurance contract and (2) that its complaint contained a demand for prejudgment interest or, alternatively, that it should have been allowed to amend its complaint. The Court of Appeals unanimously held that the trial court had erred in granting summary judgment for Audubon. Arcadia Farms P’ship v. Audubon Ins. Co., 77 So.3d 107 (Miss.Ct. App.2011). It determined that Section 75-17-7 of the Mississippi Code did not prohibit Arcadia from seeking prejudgment interest from the date of the breach of contract. Id. at 112-14. Accordingly, the Court of Appeals found that genuine issues of material fact existed as to whether Arcadia is entitled to prejudgment interest. Id. at 109. Additionally, the court found that, even though Arcadia had not specifically requested prejudgment interest in its complaint, its request for compensatory damages, including interest, was sufficient to put Audubon on notice of the damages being sought. Id. at 114-16. It further found that, to the extent that Arcadia’s complaint lacked a specific request for prejudgment interest, the trial court had abused its discretion by not allowing Arcadia to amend its complaint to include a specific demand. Id. at 115-16.

¶ 15. We agree with Court of Appeals that the trial court erred in granting summary judgment for Audubon, and that it abused its discretion in denying Arcadia’s motion to amend its complaint. We granted Audubon’s petition for writ of certiora-ri, however, to address this Court’s interpretation of Section 75-17-7 with respect to contract cases. We limit our review to this particular issue. Miss. R.App. P. 17(h).

STANDARD OF REVIEW

¶ 16. We review a trial court’s grant of summary judgment de novo. Sweet v. TCI MS, Inc., 47 So.3d 89, 91 (Miss.2010) (citing In re Estate of Laughter, 23 So.3d 1055, 1060 (Miss.2009)). Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The evidence must be considered in the light most favorable to the party against whom the motion is made. Sweet, 47 So.3d at 91 (citing In re Estate of Laughter, 23 So.3d at 1060).

DISCUSSION

¶ 17. Arcadia argues that if Audubon is found to have violated the contract, i.e., that it wrongfully delayed payment, then Arcadia should be able to seek prejudgment interest from the date of the breach of the contract. Audubon, on the other hand, contends that Section 75-17-7 prohibits prejudgment interest prior to the filing of the complaint unless the contract specifies an interest rate, which is not the case here.

¶ 18. As a general rule, “in actions for a breach of contract of insurance, when the amount which the insured is entitled to under the contract is withheld after payment is due, interest on such amount can be allowed as damages.” State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976). For interest to be allowed, the amount due must have been liquidated when the claim was originally made, or the denial of the claim must have been frivolous or in bad faith. Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 958 (Miss.2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574, 577 (Miss.1998) overruled on other grounds by Upchurch Plumbing, Inc. v. Greenwood Utilities Comm’n, 964 So.2d 1100, 1118 (Miss.2007)); see Bishop, 329 So.2d at 673 (finding that the trial court did not abuse its discretion in awarding prejudgment interest where the insurance company’s actions were arbitrary and not in good faith). Even if the claims are liquidated, interest may be denied where “ ‘there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor.’ ” Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1380 (Miss.1990) abrogated on other grounds by Upchurch Plumbing, Inc., 964 So.2d at 1118; see also Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 286 (Miss.2005) (stating that prejudgment interest is available “only if the money due was liquidated and there was no legitimate dispute that the money was owed”) (citing Simpson, 564 So.2d at 1381).

¶ 19. The purpose of prejudgment interest is not to penalize wrongdoing, but to provide “compensation for the detention of money overdue.” Moeller, 812 So.2d at 958 (quoting Johnson, 730 So.2d at 577). It compensates insureds for the time value of money. In re Guardianship of Duckett, 991 So.2d 1165, 1182 (Miss.2008) (quoting Motion Picture Ass’n of Am. v. Oman, 969 F.2d 1154, 1157 (D.C.Cir.1992)). The decision to award such interest rests within the trial court’s discretion. Moeller, 812 So.2d at 958.

¶ 20. We have stated that Section 75-17-7 governs prejudgment interest. In re Guardianship of Duckett, 991 So.2d at 1180 (citing Am. Fire Prot., Inc. v. Lewis, 653 So.2d 1387, 1392 (Miss.1995)). The Section provides that:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Miss.Code Ann. § 75-17-7 (Rev.2009).

¶ 21. In this case, the insurance contract does not provide a rate of interest. We must decide, in such cases, whether the second sentence of Section 75-17-7 prevents prejudgment interest from accruing prior to the filing of the complaint.

¶ 22. Mississippi has long recognized that prejudgment interest may be awarded from the date of the breach of a contract. Stockett v. Exxon Corp., 312 So.2d 709, 712 (Miss.1975) (citing Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1945)). In Commercial Union Insurance Co. v. Byrne, 248 So.2d 777, 783 (Miss.1971), this Court stated that: “[I]t seems to be clear from what was said in [the foregoing] cases and other cases that where there is a total loss and the valued policy statute comes into play, the insured is entitled to interest from the time the payment is due, provided a proper demand for interest is made. Byrne, 248 So.2d at 783 (emphasis added). Yet, Stockett, Rubel, and Commercial Union predate the current version of Section 75-17-7.

¶ 23. Section 75-17-7 was amended in 1989 to its present form. 1989 Miss. Laws 21, Miss.Code Ann. § 75-17-7 (Rev.2009). Since that time, this Court has maintained that a prevailing party in a breach-of-contract suit is entitled to prejudgment interest from the date of breach. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 971 (Miss.1999). We relied, in part, on Section 75-17-7 in reaching that conclusion. Id. The Court affirmed an award of damages for breach of certain subcontracts, which occurred prior to the filing of the complaint, and found that prejudgment interest was proper from the date of breach. Id. at 957-58, 971, 973.

¶ 24. Section 75-17-7’s effect upon precomplaint prejudgment interest was discussed more recently in In re Guardianship of Duckett, 991 So.2d at 1180-83. In that case, the chancellor awarded prejudgment interest from a date prior to the filing of the complaint. Id. at 1180. We held that the chancellor had erred in calculating prejudgment interest from a date prior to the complaint. Id. at 1180-81. We explained that, “[u]nder Section 75-17-7, if the judgment of the lower court is not based on a contract or note, and the lower court decides to award prejudgment interest at ‘a per annum rate set by [it],’ it may only calculate that interest ‘from a date determined by [the court] to be fair but in no event prior to the filing of the complaint.’ ” In re Guardianship of Duckett, 991 So.2d at 1181 (citing Miss.Code Ann. § 75-17-7 (Rev.2000)). This statement implies that if a judgment is, in fact, based upon a contract, Section 75-17-7’s prohibition of prejudgment interest prior to the complaint does not apply. See In re Guardianship of Duckett, 991 So.2d at 1181 (citing Miss.Code Ann. § 75-17-7 (Rev.2000)). We find this to be the best interpretation of the statute. In contract cases, therefore, Section 75-17-7 does not prohibit a party from seeking prejudgment interest prior to the filing of the complaint.

¶ 25. This Court took a contrary position, however, in a 1995 opinion. In Lewis, a successful plaintiff in a breach-of-contract suit cross-appealed, seeking prejudgment interest. Lewis, 653 So.2d at 1388. This Court found that “[t]he language of the second sentence [of Section 75-17-7] implicitly authorizes the chancellor to allow prejudgment interest from the time [plaintiffs] claim was filed because the document, which was recognized by the jury as a contract, did not designate any interest, yet the amount of damages was certain.” Id. at 1392. The plaintiff, therefore, was allowed prejudgment interest from the date his complaint had been filed. Id.

¶ 26. Two observations stand out from Lewis. First, the primary issue in that case was whether Section 75-17-7 allowed for prejudgment interest at all. See id. at 1391-92. Presiding Justice Dan M. Lee authored a separate opinion in which he disagreed that Section 75-17-7 authorized prejudgment interest in contract cases. Id. at 1392-93 (Lee, P.J., concurring in part). Second, the majority cited a non-contract, workers’ compensation case as support for its award of prejudgment interest from the date of the complaint. Id. at 1392 (citing Smith v. Jackson Constr. Co., 607 So.2d 1119 (Miss.1992)).

¶ 27. Today, we overrule Lewis to the extent that it interpreted Section 75-17-7 as precluding prejudgment interest prior to the filing of the complaint in contract cases.

¶ 28. In sum, we hold that the trial court erred in finding that Section 75-17-7 prohibited Arcadia from seeking prejudgment interest from the date of Audubon’s alleged breach of contract. Arcadia may or may not be entitled to such an award of prejudgment interest, but Section 75-17-7 does not prevent it from pursuing such.

CONCLUSION

¶ 29. Because Section 75-17-7 does not preclude Arcadia from seeking prejudgment interest prior to the filing of its complaint, we affirm the judgment of the Court of Appeals reversing the trial court’s grant of summary judgment in favor of Audubon. Furthermore, we agree with the Court of Appeals that the trial court abused its discretion in denying Arcadia’s motion to amend. Therefore, we affirm the decision of the Court of Appeals and reverse the trial court’s ruling, remanding the case to the Circuit Court of Coahoma County for further proceedings consistent with this opinion.

¶ 30. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED AND REMANDED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Blue Cross & Blue Shield of Mississippi, Inc. v. Maas, 516 So.2d 495, 498 (Miss.1987) (Robertson, J., concurring).

      . Arcadia filed a notice of appeal of the trial court's order granting summary judgment for Audubon. A month later, after a settlement had been reached between Arcadia and The Mitchell Company, the circuit court entered a judgment of dismissal for the Mitchell Company. Out of an abundance of caution, Arcadia filed a second notice of appeal that asserted the same issues raised here.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    ARCADIA FARMS PARTNERSHIP, Appellant v. AUDUBON INSURANCE COMPANY, Appellee.
    No. 2009-CA-00903-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.
    Rehearing Denied June 28, 2011.

      David D. O’Donnell, Oxford, Sidney Ray Hill, III, attorneys for appellant.
    Michael 0. Gwin, Louis B. Lanoux, Jackson, attorneys for appellee.
   BARNES, J.,

for the Court:

¶ 1. After a fire destroyed a cotton picker newly purchased by Arcadia Farms Partnership (Arcadia), Arcadia submitted a claim for the loss under its policy with Audubon Insurance Company (Audubon). Although the coverage initially was denied by Arcadia’s insurance agent, The Mitchell Company, Inc., Audubon later paid Arcadia $100,000 for the loss. Arcadia filed a complaint against The Mitchell Company for negligence due to its failure to procure insurance for the cotton pickers in a timely manner. Arcadia subsequently amended its complaint, adding Audubon as a defendant and claiming that the $100,000 reimbursement was not sufficient under the policy, and it alleged that Audubon’s failure to submit prompt payment was a “bad faith breach of the policy terms.” Audubon filed a motion for summary judgment, contending that Arcadia had failed to identify or provide evidence of any compensatory damages (i.e., interest accrued and attorney’s fees) owed by Audubon. The trial court granted the motion for summary judgment and entered a final judgment for Audubon, finding that a compensatory award of prejudgment interest was not “appropriate” based on “existing authority.” Arcadia appeals, claiming that it is entitled to prejudgment interest calculated from the date of the breach of the insurance contract and that, if it is found that Arcadia’s complaint did not contain a demand for prejudgment interest, the trial court should have allowed Arcadia to amend its complaint. Upon review, we find that there is a genuine issue of material fact as to whether Arcadia is entitled to prejudgment interest. Accordingly, the circuit court erred in granting Audubon’s motion for summary judgment. We also find that, to the extent Arcadia’s amended complaint did not contain a specific claim for prejudgment interest, the trial court abused its discretion in denying Arcadia’s motion to amend. We reverse the circuit court’s judgment and remand this case for further proceedings consistent with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 30, 2001, Arcadia purchased three John Deere® cotton pickers, one of which is the subject of this appeal, from Wade, Inc. (Wade), a local farm-equipment dealer. At the time of purchase, Arcadia had a farm-operations insurance policy issued by Audubon. The effective coverage date for this policy was May 7, 2001, through May 7, 2002. The policy provided limited coverage for equipment purchased by Arcadia subsequent to the issuance of the policy. Specifically, there were two pertinent clauses — the first provided coverage for “replacement” equipment, and the second provided coverage for “additional acquired property” equipment.

¶ 3. The Mitchell Company and J.H. Johnson and Company (Johnson) were Arcadia’s local insurance agents. Allegedly, Wade was to inform The Mitchell Company of the purchases so that the equipment would be insured. Arcadia took possession of the subject cotton picker on October 1, 2001. However, a letter from John Deere® Credit notifying The Mitchell Company of the equipment purchase and asking The Mitchell Company to verify insurance on the equipment was not received until October 15, 2001.

¶ 4. On October 16, 2001, one of the new cotton pickers was destroyed by fire. The following day, an Arcadia employee, Taylor Flowers, went to The Mitchell Company’s office to provide a list of the newly acquired cotton pickers, and he mentioned the destruction of one of the pickers. The Mitchell Company informed Arcadia that the insurance policy did not provide coverage as the pickers had not been identified under the schedule of equipment insured under the policy. On October 19, 2001, Johnson, who was an insurance broker for The Mitchell Company, was informed of the loss of the cotton picker. Johnson sent a letter to Audubon, which stated that Arcadia was informed that the subject cotton picker was not covered and that Arcadia had said that Wade “should have had this insured” as it was bought and financed through Wade. Specifically, Johnson told Audubon: “There has been no demand on us as of now[,] and we are sending this for information purposes only.”

¶ 5. In early 2002, Arcadia sent a request to The Mitchell Company regarding the procedure for filing a claim but, again, was told that the subject picker was not covered under the policy. On June 25, 2002, Arcadia filed a complaint for negligence against The Mitchell Company for failure to obtain the insurance for the new equipment as requested. In October 2003, The Mitchell Company informed Johnson that Arcadia wanted a claim submitted to Audubon for the damaged picker. After investigation of the claim, Audubon concluded that the cotton picker was covered under the clause for newly acquired equipment in the policy. As a result, on March 23, 2004, Audubon paid Arcadia $100,000 for its loss per the terms of the policy.

¶ 6. However, on October 14, 2004, Arcadia amended its complaint seeking damages from Audubon as an additional defendant. In the amended complaint, Arcadia claimed that the subject cotton picker was a replacement for a cotton picker listed on the equipment list when the policy was purchased. Thus, Arcadia argued that it should have received “not less than $150,000 for said loss.” The complaint also stated that Audubon’s “silence” surrounding The Mitchell Company’s representation that there was no coverage was a bad-faith breach of the terms of the insurance contract. For this alleged breach, Arcadia requested “an award of compensatory and punitive damages against Audubon ... in the amount of $3.5 million, together with an award of costs, interest and attorneys’ fees.”

¶ 7. After a lengthy and extensive discovery period, Audubon filed a motion for summary judgment on December 14, 2007. After a hearing, the circuit court neither granted nor denied Audubon’s motion. On September 11, 2008, Audubon filed a motion to “Limit Damages Proof,” asking the circuit court to determine that Arcadia was not entitled to prejudgment interest from the date of the initial claim made to The Mitchell Company on October 19, 2001, to the filing of the complaint against Audubon in October 2004. On March 9, 2009, the circuit court granted Audubon’s motion, in part, stating:

As for the claims of prejudgment interest, the Court finds the Plaintiff has failed to specifically plead such damages in its complaint. Further, even if the Plaintiff had specifically pled prejudgment interest, the Court finds that Mississippi] Code Annotated section] 75-17-7 precludes the recovery of prejudgment interest in this matter.

As to other compensatory damages, the circuit court held that Arcadia was “entitled to seek at trial whatever damages [it] can establish to a reasonable degree of eertainty[.]”

¶ 8. Audubon filed a second motion for summary judgment on the ground that, absent the right to recover prejudgment interest, Arcadia had no proof of damages since Audubon had paid Arcadia’s insurance claim prior to the filing of the amended complaint. On March 26, 2009, Arcadia filed a motion for reconsideration or, in the alternative, leave to file an amended complaint to plead for prejudgment interest specifically.

¶ 9. On April 1, 2009, the circuit court held a hearing on the two motions. At the hearing, the circuit judge stated that “in view of the existing authority, ... prejudgment interest is inappropriate in this case.” Accordingly, on May 4, 2009, the circuit court entered a “Final Judgment As To Audubon Insurance Company,” granting Audubon’s second motion for summary judgment and denying Arcadia’s motion for reconsideration/leave to amend. Arcadia filed a notice of appeal of the circuit court’s order. Further, after a settlement was reached between Arcadia and The Mitchell Company, the circuit court entered a judgment of dismissal for The Mitchell Company on June 2, 2009. Arcadia filed a second notice of appeal on June 9, 2009. This appeal concerned the same issues but was filed out of an abundance of caution. The two issues raised on appeal are: (1) whether Arcadia was entitled to prejudgment interest calculated from the date of the breach of the insurance contract and (2) whether Arcadia’s complaint contained a demand for prejudgment interest or, in the alternative, whether Arcadia should have been allowed to amend its complaint. We find that a genuine issue of material fact exists as to whether Arcadia is entitled to prejudgment interest. We further find that Arcadia’s complaint contained an appropriate demand for interest and, alternatively, that the circuit court erred in denying Arcadia’s motion to amend its complaint. Accordingly, we reverse the judgment of the circuit court and remand this case for further proceedings in accordance with this opinion.

STANDARD OF REVIEW

¶ 10. “This Court employs a de novo standard of review of a lower court’s grant or denial of a motion for summary judgment.” Davis v. Paepke, 3 So.3d 131, 136—37 (¶ 17) (Miss.Ct.App.2009) (citing Pratt v. City of Greenville, 918 So.2d 81, 82 (¶ 4) (Miss.Ct.App.2006)). “[I]f the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]” the circuit court shall grant summary judgment for the movant. Id. (citing M.R.C.P. 56(c)). Evidence is “ ‘viewed in the light most favorable to the party against whom the motion has been made,’ and the moving party bears the burden of demonstrating that no genuine issue of fact exists.” Id. (citing Pratt, 918 So.2d at 82-83 (¶ 4)). If no genuine issue of material fact exists, then the movant “is entitled to a judgment as a matter of law.” Id. (citing Pratt, 918 So.2d at 83 (¶ 4)):

I. Whether Arcadia is legally entitled to recover prejudgment interest pursuant to Mississippi Code Annotated section 75-17-7.

¶ 11. Mississippi Code Annotated section 75-17-7 (Rev.2000) states:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate- set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

In April 2009, at the hearing on Arcadia’s motion to reconsider or amend the judgment, the circuit judge stated that “in view of the existing authority ... prejudgment interest is inappropriate.” This holding is in accord with Audubon’s position that section 75-17-7 states prejudgment interest should not be calculated prior to the filing of the complaint. Since the complaint was filed after Arcadia had been compensated for the loss, Audubon contends that Arcadia is not entitled to prejudgment interest. However, Arcadia interprets section 75-17-7 to mean that Arcadia is entitled to prejudgment interest calculated from October 19, 2001, the date it alleges that Audubon breached the insurance contract. This date relates to the date of the letter Johnson sent to Audubon informing them of the loss of the cotton picker.

¶ 12. “It is a general rule that in actions for a breach of contract of insurance, when the amount which the insured is entitled to under the contract is withheld after payment is due, interest on such amount can be allowed as damages.” State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976). More specifically, “Mississippi recognizes judicial authority to award prejudgment interest to a prevailing party in a breach of contract suit.” Moeller v. Am. Guarantee and Liab. Ins. Co., 812 So.2d 953, 958 (¶ 11) (Miss.2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574, 577 (Miss.1998) (overruled on other grounds)). If when the claim is made, the amount due is liquidated, or “when the denial of a claim is frivolous or in bad faith[,]” prejudgment interest may be allowed. Id. “Prejudgment interest is not imposed as a penalty for wrong doing; it is allowed as compensation for the detention of money overdue.” Id. “Stated another way, ‘prejudgment interest compensates for the time value of money, and thus is often necessary for full compensation.’ ” In re Guardianship of Duckett v. Duckett, 991 So.2d 1165, 1182 (¶ 40) (Miss.2008) (citing Motion Picture Ass’n of Am. v. Oman, 969 F.2d 1154, 1157 (D.C.Cir.1992)). The decision on whether to award prejudgment interest is reviewed under an abuse-of-discretion standard. Moeller, 812 So.2d at 958 (¶ 11).

¶ 13. Arcadia contends that the Mississippi Supreme Court “has made crystal clear” that prejudgment interest should be calculated from the date of the breach of the contract. Arcadia supports its claim citing Duckett, wherein the Mississippi Supreme Court examined Mississippi Code Annotated section 75-17-7 to determine how best to calculate the rate of prejudgment interest. In its analysis, the supreme court noted the distinction between judgments based upon a sale or contract and all other judgments. Duckett, 991 So.2d at 1181 (¶ 34). Arcadia interprets this discussion to mean that, although prejudgment interest on “all other judgments” is not to be calculated before the filing of a complaint, no such restriction applies to judgments based upon a sale or contract.

¶ 14. The language precluding interest from accruing prior to the complaint was not contained in section 75-17-7 until 1989. Prior to the 1989 amendment concerning “other judgments and decrees,” the statute merely stated in pertinent part: “All judgments and decrees founded on any contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments and decrees shall bear interest at the rate of eight percentum (8%) annum.” Miss.Code Ann. § 75-17-7 (1972). The Legislature’s decision to include such language in the second sentence in the 1989 amendment, yet exclude it from the first sentence regarding judgments founded on contracts, certainly favors Arcadia’s position that no such restriction on judgments based on contracts was intended.

¶ 15. Arcadia’s argument that prejudgment interest on a breach of contract case may be awarded from the date of the breach is well-supported by Mississippi case law. The Mississippi Supreme Court, in Commercial Union Insurance Co. v. Byrne, 248 So.2d 777, 783 (Miss.1971), stated: “[I]t seems to be clear from what was said in these cases and other cases that where there is a total loss and the valued policy statute comes into play, the insured is entitled to interest from the time the payment is due, provided a proper demand for interest is made.” (Emphasis added). Even after the 1989 amendment to section 75-17-7, the supreme court continued to hold “that the prevailing party in a breach of contract suit is entitled to have added legal interest on the sum recovered computed from the date of the breach of the contract to the date of the decree.” Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 971 (¶ 53) (Miss.1999) (quoting Stockett v. Exxon Corp., 312 So.2d 709, 712 (Miss.1975)) (emphasis added). Relying on sections 75-17-7 and 75-17-1, the supreme court in Sentinel held that “[t]he trial judge should have awarded ... prejudgment interest on the damages for breach of contract in this case, calculated at 8% per annum from the date of the breach to the date of judgment.” Id. (emphasis added); see also Terex Corp. v. Ingalls Shipbuilding, Inc., 671 So.2d 1316, 1324 (Miss.1996) (an award of prejudgment interest “from the date of the breach of the contract to the date of the lower court decree” was proper based on a finding of bad faith) (emphasis added).

¶ 16. We acknowledge that there is one Mississippi case which supports Audubon’s position. In American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1392 (Miss.1995), the Mississippi Supreme Court made its first interpretation of the 1989 amendment to section 75-17-7 and held that “[t]he language of the second sentence [of section 75-17-7] implicitly authorizes the chancellor to allow prejudgment interest from, the time Lewis’[s] claim was filed because the document, which was recognized by the jury as a contract, did not designate any interest, yet the amount of damages was certain.” (Emphasis added). However, this result of section 75-17-7 was not the approach adopted by the supreme court four years later in Sentinel, which as we have already noted, used both sections 75-17-1 and 75-17-7 to award interest from the date of the breach.

¶ 17. In a more recent case, Estate of Baxter v. Shaw Associates, Inc., 797 So.2d 396, 403 (¶ 30) (Miss.Ct.App.2001), this Court reiterated: “Generally, if prejudgment interest is to be awarded, it dates from the breach of contract.” (Citing Stockett, 312 So.2d at 712) (emphasis added). In discussing the computation of prejudgment interest in that case, we explained the relationship between sections 75-17-1 and 75-17-7 and stated that, although section 75-17-1 does not “refer to prejudgment interest, ... it has nonetheless been relied upon in several [sjupreme [cjourt decisions[, likely] .... because a breach of a contract that causes easily calculable damages is treated as an obligation under the contract for which this interest rate applies.” Id. at 404 (¶ 34). “Therefore, both statutes have been found to address prejudgment interest, one for any interest before judgment going back to the date of the damages, the other for interest after the suit is filed.” Id.

¶ 18. The decision to award prejudgment interest is based on whether compensation is warranted for the detention of money overdue. See Moeller, 812 So.2d at 958 (¶ 11). While we do not make any determination as to whether Arcadia is entitled to prejudgment interest, it is appropriate in certain circumstances, such as those pleaded by Arcadia, to award prejudgment interest from the date of the breach of contract. Therefore, we find that the circuit court erred in granting summary judgment in favor of Audubon, and we reverse the judgment and remand this case for further proceedings in accordance with this opinion.

II. Whether Arcadia should have been allowed leave to amend its complaint to include a demand for prejudgment interest.

¶ 19. Arcadia contends that its amended complaint included a claim for “interest” and, in the alternative, that the circuit court should not have denied its motion for leave to amend the complaint to include a specific claim for prejudgment interest.

¶ 20. Mississippi Rule of Civil Procedure 8(a) states that a claimant must submit “a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled....” In Upchurch Plumbing, Inc. v. Greenwood Utilities Commission, 964 So.2d 1100, 1118 (¶ 45) (Miss.2007), the Mississippi Supreme Court further clarified that Rule 8(a) “require[s] that a party assert a demand for prejudgment interest in the appropriate pleading[.]” See also Miss. Dep’t. of Human Servs. v. McNeel, 10 So.3d 444, 460 (¶ 35) (Miss.2009) (holding that a “party must make a proper demand for the interest in the pleadings” in order to be awarded prejudgment interest) (citing Moeller, 812 So.2d at 958 (¶ 11)). However, the supreme court has acknowledged that the rule “does not require that a party seeking prejudgment interest must plead the specific date on which the prejudgment interest allegedly is due.” Upchurch Plumbing, Inc., 964 So.2d at 1118 (¶ 45).

¶ 21. In Arcadia’s amended complaint filed in 2004, it requested “an award of compensatory and punitive damages against Audubon Insurance Company in the amount of $3.5 million, together with an award of costs, interest and attorneys’ fees.” (Emphasis added). On November 16, 2006, in the “Plaintiffs Responses To Interrogatories Propounded by Defendant Audubon Insurance Company,” Arcadia also responded as follows:

The Plaintiff requests compensatory damages in the full amount of the purchase price of the cotton picker, said amount totaling about $800,000, which would include the replacement cost of the picker. Plaintiff also requests] to be compensated for all interest payments made and other consequential damages incurred, including attorney’s fees, as a result of the Defendant’s failure to pay the covered loss in timely fashion. Additionally, Plaintiff is entitled to interest accrued — and continuing to accrue — on all of the above amounts. Plaintiff also requests punitive damages in the amount of $3,000,000.00.

(Emphasis added). Then, on May 29, 2007, in Arcadia’s second supplemental response to interrogatories, it stated, in part, that:

The Plaintiff claims that it is at a minimum entitled to compensatory damages from Audubon in the amount of $100,000. This number was obtained by calculating interest at 8% per month on the $100,000 that Audubon failed to pay out under the “Additional Acquired Property — Newly Purchased” clause for three (3) years after the loss. Also included in this calculation is the $35,000.00 dollars the Plaintiff had to pay in attorney’s fees to recoup the $100,000.

Finally, in its third supplemental response to Audubon’s interrogatories on March 4, 2008, Arcadia states:

The Plaintiff seeks compensatory damages from Audubon in the amount of $61,000.00. This number consists of two items: 1) the interest owed on the $100,000 that was wrongfully withheld for three (3) years and 2) the attorneys fees Arcadia was forced to pay to recoup the $100,000 paid out under the “Additional Acquired Property — Newly Purchased” clause of the policy.

(Emphasis added).

¶ 22. Arcadia did not specifically request prejudgment interest in its pleadings. However, the purpose of Rule 8 of the Mississippi Rules of Civil Procedure is to “put the opposing party on sufficient notice of the claims and grounds upon which relief is sought.” Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So.2d 974, 980 (¶ 29) (Miss.Ct.App.2007) (citing Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (¶ 11) (Miss.2000)). In Gulf City Seafoods, Inc., this Court found that Oriental Foods’ request for a specified amount of interest “was sufficient to place Gulf City on notice that prejudgment interest was requested in the complaint.” Id. at 980-81 (¶ 29). Thus, “while Oriental did not use the key words, ‘prejudgment interest,’ its request for $5,680.20 in interest met the substance of a pre-judgment interest request.” Id. at 980 (¶ 28).

¶ 23. While it is preferable that parties be specific in their pleadings when it comes to claims for damages, we find Arcadia’s request in its amended complaint for compensatory damages, including interest, was sufficient to put Audubon on notice of the damages sought. Further, Arcadia’s supplemental discovery responses, while not utilizing the specific term “prejudgment interest,” gave Audubon notice that prejudgment interest was sought by Arcadia. Thus, we find that the language in Arcadia’s amended complaint and discovery responses was sufficient to include an award of prejudgment interest.

¶ 24. We find that, to the extent Arcadia’s amended complaint did not specifically request prejudgment interest, the circuit court abused its discretion by not allowing Arcadia to amend its complaint to include a specific demand. “Motions for leave to amend a complaint are at the sound discretion of the [circuit] court.” Hannon v. Regions Bank, 961 So.2d 693, 701 (¶ 28) (Miss.2007) (citing Wal-Mart Super Ctr. v. Long, 852 So.2d 568, 570 (¶ 6) (Miss.2003)). This Court may only reverse the denial of a motion to amend upon a finding that the circuit court abused its discretion. Id. (citing Moeller, 812 So.2d at 961 (¶ 26)). However, a circuit court “should not allow amendment when to do so would prejudice the defendant.” Id. (citation omitted).

¶ 25. In Moeller, 812 So.2d at 962 (¶ 30), the Mississippi Supreme Court found that two motions to amend a complaint to include prejudgment interest— one made at trial and one on appeal to enforce the mandate — should have been granted. The supreme court reasoned:

In the present case it is difficult to ascertain the actual prejudice that American Guarantee would have suffered had Fuselier been allowed to amend their complaint to include a request for prejudgment interest. Neither special chancellor participating in this case presented any insightful reason as to why the motions to amend were denied. This lack of explanation or showing of actual prejudice to American Guarantee, combined with M.R.C.P. 15(a) and the case law relying upon Rule 15(a)’s language stating that leave to amend “shall be freely given when justice so requires,” leaves this Court with little choice but to find an abuse of discretion on the part of both special chancellors. The motion to amend should have been granted.

Id. Likewise, we cannot discern any potential prejudice that would have been suffered by Audubon as a result of granting Arcadia’s motion to amend. Therefore, in accordance with Moeller, we find that the circuit court’s denial of Arcadia’s motion to amend its complaint was an abuse of discretion.

¶ 26. THE JUDGMENT OF THE COAHOMA 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 THE AP-PELLEE.

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

      . We note that the Commercial Union case did not address prejudgment interest in the context of any Mississippi statutory provisions.

      . Mississippi Code Annotated section 75-17-1(1) (Rev.2000) states: “The legal rate of interest on all notes, accounts and contracts shall be eight percent (8%) per annum, calculated according to the actuarial method, but contracts may be made, in writing, for payment of a finance charge as otherwise provided by this section or as otherwise authorized by law.”


text:
    Jamie TRISTE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01163-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Rehearing Denied Sept. 27, 2011.
    Certiorari Denied Jan. 5, 2012.

      Jamie Triste, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. After Jamie Triste pleaded guilty to burglary of a dwelling, the Circuit Court of Itawamba County sentenced her to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with nineteen years suspended and five years of post-release supervision. Triste filed a motion for post-conviction relief, claiming that her twenty-five year sentence was illegal as it exceeded the maximum sentence allowed by law. The circuit court denied Triste’s motion, and she now appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Triste divorced her husband, Daniel Triste, in 2006. The couple had one four-year-old son born of the marriage. In February 2007, Triste gave birth to a daughter, the result of an affair with Daniel’s half-brother. Because Triste and Daniel had been attempting to reconcile their marriage, Daniel persuaded Triste to sign a consent to adopt on February 16, 2007, and give the newborn up for adoption to a couple with whom Daniel was acquainted, Jennifer and Matt Erickson. Triste began to experience severe postpartum depression during the next few months, and she sought treatment through counseling. Triste, regretting her voluntary relinquishment of her parental rights over her daughter, attempted to regain legal custody of the child through letters and inquiries since no formal adoption papers had been filed. However, Triste never instituted any legal action to assist her in this endeavor.

¶ 3. After discussing her distress over the situation, Triste, along with her father and an acquaintance, Amanda Bell, went to the home of the Ericksons on July 21, 2007, with the sole purpose of abducting the baby girl. Bell and Triste’s father illegally entered the front door, and Bell held a gun to Jennifer’s head. The Erick-sons’ other child, a six-year-old boy, began crying and screaming. While this was occurring, Triste came through the back door and abducted the baby. The baby was soon recovered by the authorities and returned to the Ericksons.

¶ 4. On December 20, 2007, Triste was indicted on charges of burglary with intent to assault, kidnapping, assault, and burglary of a dwelling. As part of a plea agreement, Triste pleaded guilty to burglary of a dwelling and kidnapping. The State made no recommendation to the circuit court as to any sentence. On February 23, 2009, the circuit judge sentenced Triste to twenty-five years in the custody of the MDOC for the burglary conviction, with six years to serve, nineteen years suspended, and five years of post-release supervision. A $1,000 fine was also imposed. Although not at issue in this appeal, Triste also received a thirty-year sentence for the kidnapping conviction, which was suspended pending her successful completion of the conditions of her post-release supervision.

¶ 5. Triste filed a motion for post-conviction relief, claiming that the sentence for her burglary conviction exceeded the maximum sentence allowed by statute. On June 14, 2010, the circuit court denied Triste’s motion. We find no merit to Triste’s appeal and affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 6. This Court will not disturb a circuit court’s decision to deny a motion for post-conviction relief unless the “factual findings ... are found to be clearly erroneous.” Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010) (quoting Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). Question of law, however, are review de novo. Id.

I. Whether the sentence for Triste’s burglary conviction exceeded the maximum sentence allowed by law.

¶ 7. Triste claims that the sentence imposed by the circuit court for her conviction of burglary of a dwelling exceeded the maximum sentence allowed by law. Mississippi Code Annotated section 97-17-23 (Rev.2006) states:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

(Emphasis added). Triste asserts that her sentence, which consists of six years to serve, nineteen years suspended, and five years of post-release supervision, is a thirty-year sentence; thus, it exceeds the twenty-five year maximum mandated by the statute.

¶ 8. We find no merit to Triste’s argument. Mississippi Code Annotated section 47-7-34(1) (Rev.2004) provides that “the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.” However, Triste’s sentence merely requires her to spend six years incarcerated and five years on post-release supervision; therefore, her sentence does not violate section 47-7-34(1). In Fluker v. State, 2 So.3d 717, 720 (¶ 9) (Miss.Ct.App.2008), this Court explained that a defendant’s post-release supervision is “inherent” in the years that were suspended “and not separate from it.” Accordingly, Triste’s five years of post-release supervision are not in addition to the nineteen years suspended by the circuit court; rather, they are included in the nineteen years. Accordingly, Triste’s sentence for burglary of a dwelling does not exceed the maximum sentence allowed by law.

II. Whether the circuit court erred in imposing a $1,000 fine.

¶ 9. Triste also contends that the circuit court’s order of a $1,000 fine was not authorized under section 97-17-23. While it is true the burglary statute does not provide for a fine, the circuit court was within its authority to impose a fine under Mississippi Code Annotated section 99-19-32(1) (Rev.2007), which states:

Offenses punishable by imprisonment in the State Penitentiary for more than one (1)year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000.00). Such fine, if imposed, may be in addition to imprisonment or any other punishment or penalty authorized by law.

At Triste’s plea hearing, the State clearly stated that the maximum penalty for burglary of a dwelling “is a term of 25 years and a fine of $10,000. There is a minimum sentence of three years. There’s no minimum fine.” It was also noted that a maximum fine of $10,000 also could be imposed for the kidnapping conviction. Triste told the circuit court that she understood the potential maximum fines. Therefore, Triste was aware prior to the entry of her guilty plea that the circuit court had the authority to impose a fine between $0 and $10,000. This issue is without merit.

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

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


author: GRIFFIS, P.J.,

text:
    Shellie SMULLINS, Appellant v. Bradley Wayne SMULLINS, Appellee.
    No. 2009-CA-00994-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.

      Kimberly Drown Kitchens, Christopher E. Kitchens, Ripley, attorneys for appellant.
    Phillip M. Whitehead, attorney for ap-pellee.
   GRIFFIS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is granted. The Court’s original opinion is withdrawn, and this opinion is substituted in lieu thereof.

¶ 2. Bradley Wayne Smullins filed for a divorce from his wife Shellie Smullins and requested custody of their son, Devinn Smullins. The Chancery Court of Tishom-ingo County granted the divorce and awarded custody of Devinn to Bradley. Shellie raises two issues on appeal: (1) whether the chancellor erred in his analysis of the Albright factors and by awarding custody of Devinn to Bradley and (2) whether the chancellor erred by denying her motion for a new trial or, alternatively, motion for reconsideration in spite of new DNA evidence proving that Bradley is not Devinn’s biological father. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Bradley and Shellie were married on March 26, 2001. At the time of their marriage, Shellie had two daughters from a previous relationship. Eight months later, on November 24, 2001, Shellie gave birth to Devinn.

¶ 4. In March 2008, Shellie left the marital home. Shellie’s two daughters and De-vinn remained with Bradley. On April 8, 2008, Shellie took the children out of school and did not return them to Bradley. The same day, Bradley filed a complaint for divorce based on the ground of adultery, emergency child custody, and other relief.

¶ 5. On April 9, 2008, the chancellor entered an emergency custody order. The chancellor found that it was in the best interests of the children to remain in the primary care and custody of Bradley. The chancellor set a temporary hearing for May 1, 2008.

¶ 6. On April 14, 2008, Shellie filed a motion to set aside the emergency custody order. The same day, the chancellor set the matter for hearing on April 18, 2008; the hearing was later continued.

¶ 7. On April 18, 2008, Shellie filed her answer to the complaint for divorce, child custody, and other relief and her counter-complaint for divorce, child custody, and other relief. Shellie asked for a divorce on the grounds of cruel and inhuman treatment and habitual drunkenness and drug use. As to custody, Shellie asked that Bradley’s request for custody of her daughters be dismissed because he was not their biological father. The chancellor agreed and dismissed Bradley’s request for custody of Shellie’s daughters. Shellie also asked that she be awarded custody of Devinn. This appeal concerns the custody of Devinn.

¶ 8. The trial was held on July 31, 2008, and August 5, 2008. Shellie and Bradley announced that they had agreed to withdraw their fault grounds for divorce and proceed with a divorce based on irreconcilable differences. The issues of custody, visitation, and child support were submitted to the chancellor for a decision.

¶ 9. Shellie testified that she left Bradley because of his drinking and because he urinated in the bed. Shellie testified that everyday when Bradley returned home from work, he drank beer and smoked marijuana outside in the shed. Shellie claimed that Bradley’s addictions prevented him from interacting with the family. When Shellie worked the night shift, Jacie Jones, Shellie’s twelve-year-old daughter, baby-sat the children. Shellie testified that when she took the children away from Bradley in April 2008, they stayed with her friend Brian Hill for a few days. Shel-lie denied having an affair with Hill.

¶ 10. At the time of the hearing, Shellie was renting a house from her brother for $400 per month. Her grandparents lived nearby. However, Shellie stated that she did not ask her grandparents for help because of their age. Shellie testified that Jacie baby-sits while she is working.

¶ 11. Bradley testified that Shellie left him for Hill. Bradley learned about Shel-lie’s affair with Hill by viewing Shellie’s phone records. Bradley testified that Shellie had also had an affair with Chris Banks in 2008. Bradley also testified that Shellie had a profile on an Internet-dating website, which he did not approve. Bradley expressed concern about Shellie having the children around other men. Also, because Shellie had filed for bankruptcy in 2008, Bradley claimed that he was more financially stable than Shellie.

¶ 12. Bradley admitted that he drank six to eight beers per day, and he admitted using marijuana on a daily basis. However, Bradley testified that he never drank or smoked in front of the children, and he claimed that he had been sober ever since he had obtained custody of the children. He stated that he had taken four drug tests over the past year, and all tests results were negative. Bradley stated that when Shellie worked the night shift, he was the primary caretaker for the children: feeding them, bathing them, and taking care of their other needs. Lastly, Bradley testified that he had the ability to take care of Devinn and that his parents, who lived next door to him, were willing to help.

¶ 13. Banks, Shellie’s former boyfriend, testified that he and Shellie had an affair in 2003. Banks stated that he and Shellie had sex on back roads and at friends’ houses. Banks testified that Shellie brought her children to two of his baseball games, and they never did anything inappropriate in front of the children.

¶ 14. Elizabeth Smullins, Bradley’s mother, testified that Bradley normally took care of the children because Shellie worked the night shift. She confirmed that Bradley had not had a drink or smoked marijuana since he had obtained temporary custody of the children. Elizabeth stated that Bradley had not attended a rehabilitation program, but he had sought counseling from his pastor. Elizabeth also voiced her willingness to assist Bradley in Devinn’s care.

¶ 15. Chris Murrah, Bradley’s friend, observed Bradley taking care of the children. Murrah never saw Bradley drink or smoke marijuana in front of the children. Murrah also testified that he had given Bradley urine for a drug test once because Bradley had been smoking marijuana.

¶ 16. Debbie Netherly, Shellie’s mother, testified that she would call to check on the children when Shellie worked the night shift, and it sounded like a circus in the home. Netherly stated that Bradley was always outside in the shed when she called the home. Netherly maintained that whenever she visited Shellie and Bradley’s home, Bradley always had a cup in his hand, and he smelled of beer.

¶ 17. Jacie testified that Shellie would take them to and from school. Jacie stated that in the afternoons, they would go to Bradley’s parents’ house or stay at home alone, where Jacie would look after her siblings. Jacie testified that Bradley would get home from work between 3:00 p.m. and 5:00 p.m., and that he would go to the shed to drink. Jacie maintained that Bradley would not check on them, and he did not spend a lot of time with them. Jacie stated that she was responsible for making dinner and getting the children ready for bed. Sometimes, Bradley would help Jacie make dinner.

¶ 18. On August 8, 2008, the chancellor announced his findings of fact and conclusions of law. The chancellor’s decision comprised approximately fifty pages of the transcript and provided his detailed analysis of the Albright factors that led to his conclusions. The chancellor determined that the parties should be awarded joint legal custody, and Bradley should be awarded sole physical custody of Devinn. The chancellor’s opinion was incorporated in the judgment of divorce that the chancellor executed on September 16, 2008.

¶ 19. On September 26, 2008, Shellie filed her Motion for New Trial or, in the alternative, Motion for Reconsideration. In the motion, Shellie alleged:

III.
[Shellie] would show through testimony and through documentation that Devinn Smullins was conceived prior to the marriage, and that Parties knew of the possibility that [Bradley] was not Devinn’s biological father;
IV.
[Shellie] would show that on August 9, 2008, [Shellie] took the minor child De-vinn Smullins, to a certified lab for the purposes of DNA testing and that the results of the test were sworn and subscribed to on August 15, 2008, that Wen-dle Allen Hunt is the biological father of Devinn Wayne Smullins. A copy of the DNA Test Report is attached hereto as Exhibit “A”;
V.
[Shellie] would further show that she has discussed the results of the test with Mr. Hunt who has expressed an interest and desire to be a father to Devinn and to build a relationship with him;
VI.
[Shellie] would further show that upon a hearing of this matter, Mr. Hunt would testify that he is disturbed to learn that his son is being raised by a second generation alcoholic drug addict;

Shellie asked the chancellor to grant a hearing on the “newly discovered evidence as to the paternity” of Devinn, and she requested that he determine “who is the appropriate person to be the custodial parent,” and to reconsider his findings on the Albright factors.

¶ 20. A hearing on the motion was held on March 12, 2009. Shellie testified that Bradley and she always knew that there was a possibility that Bradley was not Devinn’s biological father. However, Bradley declined to take a DNA test when Devinn was born.

¶ 21. The DNA test results determined that Wendell Hunt was Devinn’s biological father. Hunt testified that he and Shellie were once engaged several years ago, and he was unaware that he had fathered a son by Shellie. Hunt expressed a desire to establish a relationship with Devinn. However, the chancellor prohibited further questions about Hunt’s desire to have visitation with or custody of Devinn.

¶ 22. At the conclusion of the hearing, the chancellor ruled that Shellie had failed to exercise due diligence in bringing this matter to the court’s attention. The chancellor also ruled that he had previously addressed the Albright factors in great length, and that he would not reconsider the issue. Thus, the chancellor denied the post-trial motions. The chancellor entered an order denying the post-trial motions on April 4, 2009. The order was filed on May 8, 2009, and a notice of appeal was filed on June 4, 2009.

ANALYSIS

I. Whether the chancellor erred in denying Shellie’s motion for a new trial.

¶ 23. We begin our analysis with the consideration of whether it was error for the chancellor to deny Shellie’s motion for a new trial. In Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss.1999), the Mississippi Supreme Court established the criteria for a trial court to grant a motion for a new trial based on newly discovered evidence. The supreme court held:

A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met. The motion may not be granted unless (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; (5) the evidence is such that a new trial would probably produce a new result.

Id. (quoting Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir.1975), rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976), cited with approval in Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.1995)).

¶ 24. To prevail, “[a] party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss.1990). “[F]acts implying reasonable diligence must be provided by the movant.” N.L.R.B. v. Jacob E. Decker & Sons, 569 F.2d 357, 363-64 (5th Cir.1978) (citation omitted).

¶25. Here, the chancellor concluded that Shellie had failed to exercise due diligence to discover the “new evidence” and to present the new evidence to the court prior to the entry of a final judgment. We may only reverse the chancellor’s decision to deny the motion for a new trial if we find he abused his discretion. United Servs. Auto. Ass’n v. Lisanby, 47 So.3d 1172, 1176 (¶ 9) (Miss.2010).

¶ 26. It is important to recognize that, prior to the chancellor’s decision and the judgment of divorce, Devinn’s paternity was not an issue that was litigated.

¶ 27. Indeed, Bradley’s initial complaint alleged that Devinn was “born of the marriage.” Shellie’s answer admitted this allegation. In her own counterclaim, Shel-lie asserted that “there was one (1) child born unto the union of this marriage, namely, Devinn Wayne Smullins.” Shellie signed and attached an affidavit that stated “the allegations and charges in said Answer and Counter-Complaint are true and correct.”

¶ 28. The parties agreed to an order that dismissed the fault grounds and asked the chancery court to award a divorce based on the ground of irreconcilable differences. The order consented to place the issues of custody of the minor child, child support, visitation, and related issues before the chancellor for a decision. At the trial, the parties understood and agreed that the custody of Devinn would be decided by the chancellor.

¶ 29. Shellie was examined by both her attorney and Bradley’s attorney. Shellie’s testimony indicated that Bradley was De-vinn’s father. Shellie did not testify, or otherwise imply, that Bradley was not De-vinn’s biological father. Indeed, the trial transcript contains no evidence that could be considered to challenge Bradley’s parentage of Devinn or to raise this as an issue to be litigated.

¶ 30. Based on the pleadings and evidence received at trial, on August 8, 2008, the chancellor ruled:

The court hereby finds that the polestar consideration of this court has to be the best interest of this little boy. Accordingly, this court finds that the joint legal custody of this child is awarded to both the mother and the father, with the primary physical custody of this child being awarded to the father.

(Emphasis added).

¶ 31. The very next day, August 9, 2008, Shellie began a paternity test. Shel-lie and Devinn were tested by the DNA Diagnostics Center on August 9, 2008. Hunt was tested on August 12, 2008. The DNA test report was signed and notarized on August 15, 2008. The report indicated that Hunt was Devinn’s biological father, with a probability of paternity of 99.999996%.

¶ 32. Approximately a month later, on September 16, 2008, the chancellor entered the judgment of divorce, which had been approved as to form by Shellie’s attorney. Then, on September 26, 2008, Shellie filed her motion for a new trial, which for the first time disclosed the DNA Test Report. This was the first time Shellie had challenged Bradley’s parentage of Devinn.

¶ 33. On March 12, 2009, a hearing was held on the motion for a new trial. The chancellor received testimony from Shellie, Hunt, and Bradley. Shellie was asked “what happened.” She responded: “When me and Bradley got married, I was pregnant. I wasn’t sure. I asked Bradley if he wanted to get a test done. He never did. We never followed through.” She also testified that she never knew if Bradley was Devinn’s father.

¶ 34. At the conclusion of the hearing, the chancellor denied the motion and ruled:

The new evidence regarding the paternity of Devinn Wayne Smullins was not discovered until after the trial but was known to [Shellie] prior to the entry of the judgment. Mississippi Rule of Civil Procedure 58 states that, “a judgment shall be effective only when entered.” Therefore, paternity of Devinn Wayne Smullins was known prior to the divorce becoming final but was not disclosed to this court.
Due diligence on the part of the movant to discover the new evidence is required. “A party cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.” [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶ 12) (Miss.Ct.App.2003) (quoting Diaz, 46 F.3d at 496.) ]
[Shellie] states in her motion that “De-vinn Smullins was conceived prior to the marriage and that [the] parties knew of the possibility that [Bradley] was not Devinn’s biological father.” [Bradley] denies any such knowledge in his response, but [Shellie] is now admitting she knew of the possibility at the time of the child’s birth on November 24, 2001, almost seven years before the complaint for divorce was filed and certainly before the judgment for divorce was entered. In the five months during which this divorce action was pending, [Shellie] not only failed to disclose this possibility in any of her pleadings but also failed to disclose at either of the hearings which occurred on July 31, 2008, and August 5, 2008, or when the bench opinion was delivered on August 8, 2008. The fact that the DNA paternity test was initiated by [Shellie] the day after the bench opinion was given further indicates that [Shellie] had information she “failed to investigate” until after the trial. It should also be noted once again that the results of this paternity test were received on August 15, 2008, over a month before the judgment for divorce was entered.
... [Shellie] has failed to provide evidence to this court that she exercised reasonable diligence in bringing this new evidence before the court. Therefore, no further analysis is needed....

¶ 35. Now on appeal, Shellie claims that she was diligent in bringing this “new evidence” before the chancellor. In the motion for new trial, Shellie alleged that “De-vinn Smullins was conceived prior to the marriage, and that Parties knew of the possibility that [Bradley] was not Devinn’s biological father.” In her brief before this Court, Shellie admits that she “knew at [Devinn]’s birth that Bradley could not be the father.” Both of these allegations are clear and emphatic admissions that there was no newly discovered evidence. Indeed, from the beginning of Devinn’s life, Shellie was aware of the fact that Bradley either was not or might not be Devinn’s biological father. Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not De-vinn’s biological father, then that very issue could have be tried to the chancellor and considered in the final judgment. But she failed to do so.

¶ 36. Based on her own admissions and the sworn pleadings filed, we find the chancellor was correct in finding that Shel-lie failed to exercise due diligence to discover the new evidence. Thus, we find the chancellor did not abuse his discretion when he denied Shellie’s Rule 59 motion for a new trial. See M.R.C.P. 59. Therefore, we find no merit to this issue.

II. Whether the chancellor erred in the application of the Albright factors to award custody to Bradley.

¶ 37. Next, we consider whether the chancellor erred when he granted Bradley custody of Devinn. The standard of review for a custody decision requires that we not disturb a chancellor’s decision regarding custody matters unless the chancellor has abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Taylor v. Taylor, 909 So.2d 1280, 1281 (¶ 7) (Miss.Ct.App.2005). The chancellor’s findings of fact will stand as long as they are supported by substantial evidence. Id.

¶ 38. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the supreme court held:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: 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.
Marital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values[,] and lifestyles should not be the sole basis for custody decisions.

¶ 39. Here, the chancellor considered each of the Albright factors in the bench opinion. The chancellor then concluded: “[T]his is a close case. It’s real close.” The judgment for divorce incorporated the bench opinion and amended it to conform to the final judgment. We will discuss each of the Albright factors.

1. Age, Sex, and Health of the Child

¶ 40. At the time of the trial, De-vinn was a six-year-old boy. The chancellor noted that the appellate courts have not determined an exact age at which the tender-years doctrine no longer applies. Thus, the chancellor concluded that Devinn was no longer of tender years and that he could be equally cared for by either parent. The chancellor emphasized the case of Sobieske v. Preslar, 755 So.2d 410 (Miss. 2000), where the father was granted custody of his six-year-old daughter because he had demonstrated the ability to appropriately take care of the children while they were temporarily placed in his custody. The chancellor also cited the principle that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (¶ 15) (Miss.1998). Apparently, the chancellor concluded that Bradley demonstrated the ability to care appropriately for Devinn while De-vinn was temporarily in his care. The chancellor ruled that “this is a male child, he’s six years of age, almost seven, his health is okay, this factor favors his father.”

¶ 41. Shellie argues that the chancellor placed too much emphasis on Bradley’s temporary care of Devinn and ignored the fact that she had taken care of Devinn prior to the parties’ separation. Shellie has cited no authority that compels us to find the chancellor in error on this finding.

2. Continuity of Care Prior to the Separation

¶ 42. The chancellor determined that “this is the one that bothers me here and it’s hard to determine which one is doing— both of them ha[ve] testified that the other one took care of the children.” The chancellor determined that this factor favored Shellie.

3. Best Parenting Skills and Willingness and Capacity to Provide Primary Child Care

¶ 43. The chancellor concluded: “I question both of them on this issue. Where was the caretaker when he was out drinking in the shed? Where was the caretaker when momma was out having sex ... in the back of the car or in somebody else’s house?” Thus, the chancellor was concerned with Bradley’s alcohol use and Shellie’s sexual promiscuity. The chancellor found them both equally deficient in the area of parenting skills.

¶ 44. Shellie argues that the chancellor should have weighed this issue in her favor because Bradley’s alcohol and drug use limited his ability to parent. Shellie claims that there was no evidence that her extramarital affairs had any bearing on her parenting skills. She cites the principle that “marital fault should not be used as a sanction in custody awards.” Brekeen v. Brekeen, 880 So.2d 280, 287 (¶ 20) (Miss. 2004); Albright, 437 So.2d at 1005. She then claims that Bradley’s drug and alcohol use can be very detrimental to his parenting skills. Bradley admitted that he daily drank six to eight beers and smoked marijuana. There was also other testimony that Bradley routinely drank and smoked in the shed, leaving the children inside the home alone.

¶ 45. Bradley testified that he had been sober for one year. There was also other testimony that Bradley cooked, cleaned," and washed clothes.

¶ 46. The chancellor expressed his concern over Shellie’s phone calls to another man, with whom she was alleged to have had an affair, but she claimed was a friend. The chancellor also expressed his concerns about Shellie’s absence from her parental duties while she was involved in this non-marital relationship. Thus, the chancellor’s findings on this factor were not a sanction against an adulterous parent but instead considered the time and attention each parent paid to the children.

¶ 47. In fact, their parenting skills were the subject of much conflicting testimony. They both relied on Jacie, Shellie’s daughter, to assist in their parenting responsibilities. The chancellor expressed his concern on the issue of parenting skills, which this Court shares. However, based on the conflicting evidence, we cannot find that the chancellor committed error when he determined that this issue favored neither parent.

U. The Employment of the Parent and Responsibilities of that Employment

¶ 48. The chancellor concluded that both Shellie and Bradley were hard workers, who provide for their children. The chancellor found that this factor was equal for each parent. Shellie did not challenge this finding.

5. Physical and Mental Health and Age of the Parents

¶ 49. The chancellor found this factor to be equal for each party. The chancellor found that there was no health problem except that Shellie had a prescription for Zoloft for depression. She testified that she had only taken one pill, and it was because she lived with an alcoholic. The chancellor was concerned with Bradley’s use of alcohol and his bed wetting that resulted from excessive drinking. Nevertheless, the chancellor ruled that this factor was equal to both parents.

¶ 50. We are concerned that the chancellor did not further elaborate under this factor about Bradley’s drug use. However, there is sufficient other discussion of Bradley’s drug use that indicates that the chancellor did not believe Bradley’s drug or alcohol use was of such severity that it negatively impacted his physical or mental health. Without more, we cannot say that the chancellor erred in this determination.

6. Emotional Ties of the Parent and Child

¶ 51. The chancellor found that both parents loved Devinn, and this factor was equal to both parents.

¶ 52. Shellie argues that the chancellor should have found this factor in her favor. She claims that Devinn sleeps with her, even though he has his own bed at her home. She also claims that Devinn chose to sit with Shellie during the trial and that she has a loving mother-son relationship.

¶ 53. We disagree and cannot find that the chancellor committed error when he determined that Devinn had strong emotional ties to both parents.

7. Moral Fitness of the Parents

¶ 54. The chancellor determined that this factor “bothers me greatly as to both of them.” The chancellor considered Bradley’s drinking in the shed, his exposure of the children to his “beer drinking,” and his pot smoking. He also considered the testimony that Bradley no longer drinks or smokes pot. The chancellor also considered Shellie’s sexual promiscuity and affairs. The chancellor noted the amount of time she spent on the phone with one of her paramours, and he questioned where the children were when this was going on. The chancellor also commented on Shel-lie’s online profile, “sweetie8549.” The chancellor considered both parties to be “equal on this and totally and greatly deficient.”

¶ 55. Shellie argues that her adultery alone should not disqualify her as the custodial parent. This is true. However, this Albright factor requires the chancellor to consider the moral fitness of the parents. The chancellor was concerned with both Shellie’s and Bradley’s moral fitness. We cannot find that the chancellor committed error when he determined that this issue favored neither parent.

8. The Home, School, and Community Record of the Child

¶ 56. The chancellor found Devinn to be an average student and his school record was pretty good so far. Jacie testified that Bradley helped her with her school work. The chancellor considered this factor equal. Shellie does not challenge this finding.

9. The Preference of the Child

¶ 57. The chancellor determined this factor was not applicable because Devinn was not at the age sufficient to express a preference by law. Shellie does not challenge this finding.

10. Stability of Home Environment and Employment of Each Parent

¶ 58. The chancellor determined that both Bradley and Shellie were employed, and their jobs were stable. The chancellor also determined that Bradley’s home was stable, and Shellie’s home environment was not stable. This finding is challenged by Shellie.

¶ 59. The chancellor’s oral findings are somewhat disjointed. The chancellor mentioned that Shellie left the home, but he stated: “I don’t blame her for leaving, but these children are just being juggled back and forth[,] and Devinn doesn’t know what’s coming or going.” The chancellor also considered the parties’ finances. The chancellor noted that Shellie has filed bankruptcy and signed up for an online dating service. And the chancellor concluded by finding that Bradley’s home was stable, “except for his drinking his beer.” Nevertheless, it appears that the chancellor’s ultimate conclusion was based on the fact that Bradley continued to live in the marital home while Shellie had moved around often.

¶ 60. There are several cases that support the finding that remaining in the marital home is a factor which weighs in favor of the stability of the home environment. In Woodham v. Woodham, 17 So.3d 153, 158 (¶ 17) (Miss.Ct.App.2009), the chancellor found that the stability of the home factor favored the father because “he remained in the marital home and accepted the support offered by his family.” This Court determined that the chancellor’s conclusion on this issue was “supported by substantial evidence.” Id.

¶ 61. We conclude that there was evidence to support the chancellor’s findings as to this factor.

11. Other Factors Relevant to the Parent-Child Relationship

¶ 62. Shellie argues that the chancellor should not have penalized her because her family does not live nearby. She also argues that the chancellor should have favored keeping the children together instead of separating them.

¶ 63. This Court has held: “The presence of extended family is a legitimate factor to support awarding custody to a parent.” Collins, 20 So.3d at 690 (¶ 31). Thus, we find that the chancellor could have legitimately considered this factor in favor of Bradley.

¶ 64. In regard to the chancellor’s separation of the children, “there is no general rule in this state that the best interest[s] of siblings [are] served by keeping them together.” Id. at 691 (¶ 37) (quoting C.W.L. v. R.A., 919 So.2d 267, 273 (¶ 21) (Miss.Ct.App.2005)). However, “while the placement of children with their siblings is not a concern that ‘overrides’ the best interest of the child, our case law makes it clear that keeping siblings together is assumed to be in the best interest of a child, absent a showing that the circumstances in a particular case are to the contrary.” Id. (quoting Owens v. Owens, 950 So.2d 202, 207 (¶ 16) (Miss.Ct.App.2006)).

¶ 65. Here, the chancellor recognized that this was a very close issue. He included a detailed discussion in which he considered whether it would be in the best interest of Devinn to separate him from his half-sisters. The chancellor determined that he believed the best interest of Devinn would be served by doing just that, and the chancellor awarded custody to Bradley. We conclude that the chancellor’s consideration of this factor was proper and was supported by the evidence.

¶ 66. The chancellor repeatedly admitted that this was a very close case. Indeed, it was. In Thurman v. Johnson, 998 So.2d 1026, 1030 (¶ 18) (Miss.Ct.App.2008), this Court held:

We also note that the Albright factors are simply a guide and not a set formula for determining custody as Deborah would suggest. The supreme court has ruled that “[w]hile the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Thus, the fact that Deborah was slightly favored under two factors and Glen was favored under only one factor did not automatically make Deborah the better choice for the custodial parent. We must defer to the decision of the chancellor. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 67. Neither Bradley nor Shellie presented all of the qualities of an ideal parent. However, they are human and are not perfect. Likewise, the chancellor here is not perfect, but he recognized that the case presented a very close question as to which parent should receive physical custody. We too recognize that Bradley and Shellie, though not perfect, loved Devinn very much, and they both desperately wanted to be the custodial parent. Unfortunately, only one could be awarded physical custody. The chancellor decided that Bradley should have that responsibility. We find that the record provides sufficient evidence to support the chancellor’s decision to grant Bradley custody of Devinn. Given our limited standard of review, and the fact that the chancellor’s findings were supported by the record, we cannot say that the chancellor was manifestly wrong or his decision was clearly erroneous. Accordingly, we find that this issue is without merit, and we affirm the chancellor’s judgment.

¶ 68. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMIN-GO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE OPINION. RUSSELL, J„ NOT PARTICIPATING.

      . The supreme court, in Estate of Taylor, 609 So.2d 390, 394 (Miss.1992), held:
      Our law has long presumed a child born during the course of a marriage to have been fathered by the husband. See Herring v. Goodson, 43 Miss. 392 (1870). We have called the presumption of legitimacy as "one of the strongest known to our law.” Karenina By Vronsky v. Presley, 526 So.2d 518, 523 (Miss.1988); Coleman v. Hudson, 396 So.2d 1024, 1026 (Miss.1981); Madden
        v. Madden, 338 So.2d 1000, 1001 (Miss.1976).

      . We do not find the agreed order in the record. However, the chancellor stated the terms of the agreed order at the beginning of the July 31, 2008, hearing, and the attorney for each party agreed on the record that the court’s understanding was correct. The chancellor then asked both Shellie and Bradley if "this is your understanding and you agree to abide by this?” They both answered, "yes, sir.”