author: ISHEE, J.,

text:
    C.F.P. PROPERTIES, INC., Appellant v. ROLEH, INC., Appellee.
    No. 2009-CA-00391-COA.
    Court of Appeals of Mississippi.
    June 15, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied March 17, 2011.
    Susan D. McNamara, Jeffrey P. Hubbard, Charles R. Wilbanks, Jr., Jackson, attorneys for appellant.
    Herbert J. Stelly, Gulfport, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. C.F.P. Properties, Inc. (CFP) appeals the decision of the Chancery Court of Harrison County which granted summary judgment in favor of Roleh, Inc. (Roleh), the owner of a commercial building that was sold and conveyed to CFP after an August 2004 tax sale. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roleh was formed in 1963 and listed its registered agent as T.N. Roberts. Roberts died in 2003. Roleh failed to pay the 2003 property taxes for the commercial property; therefore, on August 30, 2004, the property was sold for unpaid taxes to Maitland Investors (Maitland). Prior to the tax sale, Roleh was the record owner of the commercial building in dispute, and Roberts was still listed as its registered agent even though he had died in 2003. In December 2004, after the sale to Maitland, Roleh was administratively dissolved by the Office of the Mississippi Secretary of State.

¶ 3. Roleh had until 2006 to redeem the taxes from the 2004 tax sale to Maitland. The Harrison County Chancery Clerk’s Office mailed its first notice of the expiration of the redemption period to Roleh on April 28, 2006. The notice, which was mailed to the address Roleh had listed with the secretary of state’s office, was returned marked “Returned to Sender not here.” On July 7, 2006, the clerk published notice of the expiration of the redemption period in the local newspaper. Written notice was again sent to Roleh on July 17, 2006. The notice was returned marked “Box Closed No Forwarding Order on File.”

¶ 4. Between August 30, 2004, and October 13, 2006, Roleh did not pay the delinquent taxes so it could redeem the property; therefore, on October 13, 2006, the Harrison County tax collector executed a conveyance of land sold for taxes, conveying the property to Maitland. The chancery clerk’s office then executed an affidavit stating its efforts to locate the owner. The affidavit was inadvertently dated February 27, 2006, when it should have been dated February 27, 2007; however, there is no record of the affidavit ever being placed in the tax-sale records. According to Virgil Gillespie, who obtained a complete copy of all the documents in the tax-sale records regarding the property, there was no affidavit of diligent search and inquiry or a sheriffs return of process in the file.

¶ 5. After the property was conveyed to Maitland, Maitland then conveyed it to Rebuild America, Inc. (Rebuild), which later conveyed the property to CFP in November 2007.

¶ 6. Roleh was reinstated by the secretary of state’s office in January 2008. Ro-leh then changed its registered agent from Roberts to Nancy Wheeler. In April 2008, Roleh filed a motion to set aside the August 30, 2004, tax sale and conveyance.

¶ 7. The chancex-y clerk’s office executed an affidavit in August 2008 stating that it had reviewed the tax sale and found no clerk’s affidavit detailing the efforts to locate the owner of the property. Two months later, in October 2008, the chancery clerk’s office executed a second affidavit detailing the efforts to locate the owner. Roleh then filed a motion for summary judgment seeking to void the tax sale, which was granted. CFP now appeals to this Court, asserting that the trial court erred in granting summary judgment in favor of Roleh.

STANDARD OF REVIEW

¶ 8. When reviewing the grant or denial of a motion for summary judgment by the chancery court, this Court reviews the record de novo on appeal. Madison v. DeSoto County, 822 So.2d 306, 309 (¶ 15) (Miss.Ct.App.2002).

DISCUSSION

¶ 9. CFP takes issue with the trial court’s grant of summary judgment in favor of Roleh. CFP argues that the chancery clerk’s office gave proper notice of the expiration of the redemption period. CFP also argues that there are genuine issues of a material fact present; that is, different employees of the chancery clerk’s office executed conflicting affidavits, thereby precluding the grant of summary judgment in favor of Roleh.

¶ 10. At the time the conveyance was executed, the tax-sale record lacked both the sheriffs return of process and an affidavit from the chancery clerk detailing the acts of diligent search and inquiry used to determine the correct address of the property owner. Roleh argues that the absence of even one of these required documents renders the conveyance void.

¶ 11. Mississippi Code Annotated section 27-43-3 (Supp.2009) requires that notice be given to property owners of a tax sale before a valid tax deed may be issued to the purchaser of the subject property. Under this statute, service of notice must be made by the sheriff, and notice must also be sent by registered or certified mail. Section 27-43-3 states in pertinent part:

In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as herein-above set out. If personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and — such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record.

Id.

¶ 12. It is undisputed that there is no affidavit regarding the act of diligent search and inquiry. The chancery clerk verified that as of August 28, 2008, there was no affidavit of diligent search and inquiry contained in the tax-sale record. This omission renders the tax deed void.

¶ 13. “In Mississippi, it is public policy to favor and protect landowners from [the sale of their land] for taxes.” Lawrence v. Rankin, 870 So.2d 673, 676 (¶ 13) (Miss.Ct.App.2004). Further, section 27-43-3 “must be given a strict construction, and its requirements fully satisfied.” Id. at (¶ 14). Failure of the chancery clerk to file the requisite affidavits renders a tax deed void. Id.

¶ 14. We find no merit to CFP’s claim and affirm.

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

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


source: Caselaw Access Project

author: MAXWELL, J., GRIFFIS, J., specially CARLTON, J.,

license: Public Domain

text:
    Theresa N. REED and Irene Daniels, Appellants v. Marvin F. FAIR, Appellee.
    No. 2009-CA-01390-COA.
    Court of Appeals of Mississippi.
    Dec: 14, 2010.

      Felecia Perkins, attorney for appellants.
    Renee H. Berry, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This child-custody dispute requires that we determine whether the chancellor applied the correct legal standard. M.T.F. lived with his great-grandmother, Irene Daniels, for twelve years before his father, Marvin Fair, sought custody. The chancellor applied the Albright factors and found awarding custody to Fair was in M.T.F.’s best interest. M.T.F.’s mother, Theresa Reed, argues that because she had “de facto” custody, the chancellor should have applied a modification standard and only awarded custody to Fair upon finding a material change in circumstances adverse to M.T.F.

¶ 2. This court has held that where no prior custody determination has been made, the initial custody standard applies. Because (1) the chancellor appropriately applied the initial custody standard, and (2) the custody award is supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3. Fair and Reed had M.T.F. in 1997. Fair and Reed never married, and M.T.F. has spent virtually his entire life living with Daniels, who is Reed’s grandmother and M.T.F.’s great-grandmother. Fair has paid child support for M.T.F. since 1999.

¶ 4. In June 2009, Michael McIntosh, Jr. (Daniels’s grandson) allegedly molested M.T.F. and two of his male cousins. McIntosh and the three boys lived in Daniels’s home, where the sexual abuse supposedly occurred. When Fair discovered the molestation allegations, he filed a complaint in the Copiah County Chancery Court seeking legal and physical custody of M.T.F. At the time of the hearing, McIntosh had been indicted for the sexual misconduct but not convicted.

¶ 5. The chancellor held a hearing to determine whether Reed or Fair should be awarded custody. He treated the case as an initial custody determination because there was no previous custody order. The chancellor applied the Albright factors and determined that it was in M.T.F.’s best interest for Fair to have legal and physical custody.

¶ 6. Reed now appeals, claiming: (1) the chancellor incorrectly applied an initial-custody-determination standard rather than a modification standard, and (2) the chancellor improperly applied the Albright factors.

STANDARD OF REVIEW

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

I. Chancellor’s Refusal to Apply a Modification Standard

¶ 8. Reed primarily argues the chancellor applied the wrong legal standard in awarding custody of M.T.F. As Reed acknowledges, this court has directly answered the specific question before us on previous occasions. She urges us to overrule these cases.

¶ 9. Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So.3d 1254, 1258 (¶¶ 11, 13) (Miss.Ct.App.2010) (quoting Law v. Page, 618 So.2d 96, 101 (Miss.1993)). But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So.2d 167, 172 (¶ 13) (Miss.Ct.App.2001) (Absent other factors, all jurisdictions recognize the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody.) (citing Smith v. Watson, 425 So.2d 1030, 1033 (Miss. 1983)). Here, because Fair has acknowledged M.T.F., he asserts a claim to custody equal to Reed. See Smith, 425 So.2d at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981)) (“upon acknowledging the child as his own, the father has an equal claim ... to the parental and custodial rights of the child”).

¶ 10. While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So.2d 849, 852 (¶ 4) (Miss.Ct.App.2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

¶ 11. In Law, our supreme court held: “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So.2d at 101. Relying on Law, this court has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So.3d at 1258 (¶ 11); Williams v. Stockstill, 990 So.2d 774, 776 (¶7) (Miss.Ct.App.2008); Romans, 939 So.2d at 853 (¶7); C.W.L. v. R.A., 919 So.2d 267, 271 (¶ 10) (Miss.Ct. App.2005); S.B. v. LAW., 793 So.2d 656, 659 (¶¶ 13-14) (Miss.Ct.App.2001). We have also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So.3d at 1257-58 (¶¶ 10, 12-13); Romans, 939 So.2d at 852 (¶ 5).

¶ 12. Reed urges us to find a different legal standard applies because Fair waited longer to seek custody than the petitioners in our past decisions. But to distinguish this case based solely on the length of the delay would require that we establish a benchmark for determining when a “de facto” custody relationship exists, which to date we have refused to do. In Romans— which involved a delay of more than seven years — this court noted its reservations about distinguishing Law based on the timeliness of a parent’s request for custody because: (1) the resulting legal standard would likely be nebulous, and (2) no case law, including our supreme court’s precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So.2d at 853 (¶ 7).

¶ 13. Because we find this reasoning equally applicable today, we decline to create a rule that would make the applicable legal standard for awarding custody solely dependent on whether the length of the delay was, in our estimation, too long or too short. Instead, we follow the supreme court’s instruction in Law that where no previous custody determination has been made, the applicable standard is the child’s best interest under the Albright factors. Even if we were to accept the premise that a modification standard might apply in certain circumstances involving custody of children born out of wedlock, we believe this to be an inappropriate case to confront this issue because neither parent, but rather a third party, Daniels, had primary care of M.T.F. We further emphasize that our holding today in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody in determining the best interest of the child. See Brown, 30 So.3d at 1259 (¶ 16) (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

¶ 14. One of the concurrences deems Reed the de facto custodian of M.T.F. even though M.T.F. has been primarily under his great-grandmother’s (Daniels’s) care the vast majority of his life. We disagree with this conclusion.

¶ 15. It is uncontradicted that M.T.F. lived primarily in Daniels’s home from the time he was born until approximately two months before the custody hearing. Daniels testified M.T.F. has spent most of his life in her home, and Reed often visited, albeit sporadically. But according to M.T.F.’s aunt, whose son had often stayed in Daniels’s home, M.T.F. was present every time she visited the home, yet Reed never was. Daniels claimed she had not charged either parent “one nickel” to clothe, feed, and provide shelter for M.T.F. Though Daniels “encouraged” Reed to spend her child-support money on M.T.F., Daniels indicated that she bore the cost for providing M.T.F.’s basic needs. Given these circumstances, the chancellor did not regard Reed’s contribution to M.T.F.’s care as significant, and certainly did not find Reed to be M.T.F.’s de facto custodian.

¶ 16. We find this sort of fact-based disagreement highlights the difficulty in defining “de-facto custody,” which would be created were we to alter course today.

¶ 17. Based on the facts before us, we find the chancellor applied the correct legal standard.

II. Chancellor’s Albright Analysis

¶ 18. In child-custody cases, the “polestar consideration” is always “the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors are a guide for chancellors in weighing the facts to determine the child’s best interest. An Albright analysis is not, by any means, a mathematical equation. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). And the factors are not meant to be weighed equally in every case. Divers v. Divers, 856 So.2d 370, 376 (¶27) (Miss.Ct.App.2003). In some cases, one or two factors may weigh more heavily and control the custody determination. Id. The supreme court has held that “[a]ll the [Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 19. The Albright factors include: (1) the child’s age, health, and sex; (2) which parent had the continuity of care before the separation; (3) which parent has the best parenting skills; (4) which parent has the willingness and capacity to provide primary child care; (5) each parent’s employment and its responsibilities; (6) each parent’s physical and mental health and age; (7) the emotional ties between the child and each parent; (8) each parent’s moral fitness; (9) the child’s home, school, and community record; (10) the child’s preference, if the child is over twelve years old; (11) the stability of the home environment; and (12) any other relevant equitable factor. Albright, 437 So.2d at 1005; Daniel v. Daniel, 770 So.2d 562, 564 (¶ 6) (Miss.Ct.App.2000) (citing Albright, 437 So.2d at 1005).

¶20. Here, the chancellor made findings of fact and conclusions of law on each Albright factor. The chancellor held that under the totality of the circumstances, legal and physical custody should be awarded to Fair. The chancellor found that no factor favored Reed, while multiple factors favored Fair. The chancellor made the following findings:

A. Age of the Child

¶ 21. The chancellor determined it is preferable for a child M.T.F.’s age, then twelve years old, to be awarded to the parent of the same gender.

B. Sex of the Child

¶22. The chancellor found this factor favored Fair because there is no male father figure in Reed’s home.

C.Health of the Child

¶ 28. The chancellor noted M.T.F. had likely been a sexual-abuse victim. While Reed allowed M.T.F. to determine his own need for counseling, the chancellor found important that Fair had already sought the services of a child psychologist and was prepared to pay any out-of-pocket expenses for M.T.F.’s counseling. The chancellor also found Reed has not adequately provided for M.T.F.’s vision and dental care.

D.Moral Fitness

¶ 24. Reed has a total of four children born out of wedlock and admitted she might be pregnant with her fifth out-of-wedlock child. She voluntarily relinquished custody of M.T.F.’s sister to Fair’s aunt. And she admitted being involved in violent incidents in the past, including a knife fight. The chancellor determined this factor favored Fair.

E.Willingness and Capacity to Provide Primary Care

¶25. The chancellor found this factor favored Fair because he lives in a condominium where M.T.F. can have his own room, while Reed lives in a two-bedroom apartment with “lots of other people.”

F.Catch All

¶26. The chancellor found significant that Reed allowed a third party, Daniels, to care for her child. He reasoned that although Daniels had no ill intentions, three of her great-grandchildren, including M.T.F., were sexually abused by McIntosh in her home. The chancellor emphasized that Reed and Daniels do not want McIntosh to be incarcerated or otherwise punished, but instead favor mental treatment.

G.Remaining Factors

¶ 27. Because M.T.F.’s primary caretaker was Daniels, the chancellor found the continuing-care factor to favor neither parent. For this same reason, the chancellor found Reed’s employment responsibilities did not weigh in her favor. Though Reed worked only part time, the chancellor determined her time off was no benefit because Daniels cares for the children. The chancellor also weighed the remaining issues neutrally mainly due to lack of evidence on these factors.

¶28. Reed makes multiple challenges to the chancellor’s Albright findings. First, she argues that the chancellor failed to give adequate weight to Fair’s twelve-year delay in seeking custody.

¶ 29. We have held: “Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.” Brown, 30 So.3d at 1259 (¶ 16). We find the chancellor addressed the important considerations under the continuity-of-care factor. And he observed that Daniels (a third party) had been M.T.F.’s primary caregiver throughout his life. Daniels also provided for M.T.F.’s basic needs, including food, clothing, and a place to live. Further, Reed, like Fair, did not seek custody of M.T.F. during the same twelve-year period but allowed M.T.F. to remain in Daniels’s home under Daniels’s primary care.

¶ 30. Second, Reed argues the chancellor ignored the fact that Fair did not seek custody of his female biological child. Fair disputes he is this child’s biological father, and no testing has been performed to establish his paternity. Even assuming Fair is this child’s father, this fact does not affect our analysis since Reed has never been the primary caretaker of this child. Because Reed voluntarily relinquished custody of the female child to Fair’s aunt, we find it illogical to weigh Fair’s failure to seek custody of the female child in Reed’s favor.

¶ 31. We acknowledge the “strong preference ... for keeping siblings together unless unusual circumstances justify their separation.” Deborah H. Bell, Mississippi Family Law § 5.03[12][a] (2005) (citing Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994)). But by no means is there a per se requirement that siblings not be separated. Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss.1983); C.A.M.F. v. J.B.M., 972 So.2d 656, 661 (¶¶ 21-22) (Miss.Ct.App.2007). In addition to the uncertainty of paternity of the female child, the presumption here would not apply given the unusual circumstances that the siblings have spent the majority of their lives residing with different third parties. It is unclear from the record if they have ever lived together.

¶32. Third, Reed asserts that Fair’s testimony provided the only evidence of M.T.F.’s dental and vision problems. While this may be true, we note Reed elected not to cross-examine Fair on these issues. Nor did she present any contrary evidence. Reed also contends that Fair provided the only evidence of M.T.F.’s sexual abuse, which is simply incorrect. We find in the record where Reed stated that she talked to her son about the abuse. Though her testimony is vague as to the substance of their conversations, she acknowledged that she had made no attempt to secure counseling for M.T.F. after hearing the allegations. She also clearly conveyed her belief that McIntosh deserved treatment rather than jail time for his actions.

¶ 33. We recognize that McIntosh had not been convicted of the molestations at the time of the hearing. But our task is not to consider the weight of the evidence against McIntosh but rather to decide whether the chancellor abused his discretion in determining M.T.F.’s best interest. When the chancellor contemplated this polestar consideration, charges were pending against McIntosh, and Daniels did not seek custody of the children. Therefore, the chancellor focused on determining which parent would be the more capable to provide M.T.F. psychological treatment. It is obvious this issue favored Fair, as the chancellor found. The chancellor also highlighted that Reed favored treatment over incarceration for McIntosh. We find no abuse of discretion in the chancellor’s analysis of these issues.

¶ 34. Finally, Reed argues the chancellor overlooked Fair’s testimony that M.T.F. had performed well in school. In addressing the stability of the home environment, the chancellor held that “there are no issues regarding this factor.” Though the chancellor did not elaborate, this factor apparently favors neither parent because Daniels — not Reed or Fair— provided the home environment in which M.T.F. performed well in school. Thus, we find the chancellor acted within his discretion in deciding this factor did not affect the custody award.

¶ 35. On balance, and considering the totality of the circumstances surrounding the chancellor’s analysis of M.T.F.’s best interest, we are unable to conclude the chancellor manifestly erred in awarding custody to Fail'.

CONCLUSION

¶ 36. The chancellor properly applied the Albright factors rather than the custody-modification standard because no prior custody determination had been made. And the chancellor did not abuse his discretion in weighing the Albright factors. Therefore, the chancellor’s judgment is affirmed.

¶ 37. THE JUDGMENT OF THE CO-PIAH COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. GRIFFIS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION.

GRIFFIS, J., specially

concurring:

¶ 38. Once again, we are faced with the “difficult question that is unique to the relationship between the unmarried parents of children born out of wedlock.” Brown v. Crum, 30 So.3d 1254, 1259 (¶ 21) (Miss.Ct.App.2010) (Griffis, J., Specially Concurring) (citing Romans v. Fulgham, 939 So.2d 849, 854-61 (¶¶ 21-57) (Miss.Ct.App.2006) (Griffis, J., dissenting) and Williams v. Stockstill, 990 So.2d 774, 778-83 (¶¶ 22-49) (Miss.Ct.App.2008) (Griffis, J., dissenting)). I have thoroughly expressed my legal argument in these cases. I will not restate it here.

¶ 39. I am of the opinion that it is error for the chancellor to treat this case as an initial custody determination rather than as a modification of child custody. For the twelve years since his birth, Marvin Fair did not attempt to obtain custody of M.T.F. Indeed, during this time, M.T.F. was left in the custody of his mother, Theresa Reed. When his mother could not provide for him, M.T.F. was sent to live with Irene Daniels. Reed did not object to Daniels providing care and having custody of M.T.F. In fact, in this action, Fair does not contest that Reed has had the primary legal responsibility for the custody and care of M.T.F. Fair further acknowledged Reed’s legal position as M.T.F.’s custodial parent when he paid her child support. Therefore, I see no need for a judicial determination of custody. Indeed, such custody determination was made by the de facto conduct of M.T.F.’s natural parents over the twelve years since M.T.F.’s birth.

¶ 40. I am of the opinion that the chancellor should have viewed Fair’s complaint for custody as a request for modification of custody. As such, “the chancellor’s duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interests of the child, requires a change in custody.” Sanford v. Arinder, 800 So.2d 1267, 1271 (¶ 15) (Miss.Ct.App.2001) (citations omitted). Had the chancellor considered whether there was a material change in circumstances that adversely affected M.T.F., the chancellor would certainly have found more than sufficient evidence to then move to an Albright analysis.

¶ 41. Indeed, the fact that Reed had transferred the primary custodial obligations of M.T.F. to Daniels and that M.T.F. had suffered sexual abuse while in Daniels’s custody was sufficient evidentia-ry proof that there had been a material change in circumstances that had adversely affected M.T.F. Since I find no error in the chancellor’s Albright analysis, I would affirm the chancellor but for different reasons. Therefore, I specially concur.

KING, C.J., JOINS THIS SEPARATE OPINION.

CARLTON, J.,

concurring in result only:

¶ 42. I concur with the result reached by the majority to affirm the judgment of the esteemed chancellor based on the specific facts of this case. However, I submit that there will be custody disputes involving illegitimate children in which the standard for an initial custody determination would be inappropriate. I recognize that historical precedent recognizes that the father of an illegitimate child stands on equal footing with the mother if he has acknowledged the child, and I will faithfully apply this precedent from our high court. I nonetheless respectfully submit that guidance from the Mississippi Supreme Court would aid in understanding what acts sufficiently establish acknowledgment to enable a father to stand upon equal footing with a biological mother in a custody dispute.

      . Since this case involves allegations of sexual abuse, we have substituted initials in place of the minor's name.

      . All three boys are Daniels's great-grandchildren.

      . Daniels has made no claim for custody in this matter.

      . For a list of the Albright factors, see Issue II of this opinion.

      . Mississippi Code Annotated section 93-9-47 (Rev.2004) recognizes the mother's natural guardianship of her child born out of wedlock, and Mississippi case law historically presumed that the mother of illegitimate children possessed natural custody of the children upon birth. See Illinois Cent. R. Co. v. Sanders, 104 Miss. 257, 61 So. 309, 310 (1913); Smith v. Watson, 425 So.2d 1030, 1033 (Miss. 1983).


author: GRIFFIS, J.,

text:
    WACHOVIA BANK, N.A., Successor in Interest to First Union National Bank, as Indenture Trustee, and Mid-State Trust VII, Appellants v. REBUILD AMERICA, INC., Appellee.
    No. 2009-CA-01703-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Jose Benjamin Simo, W. Stewart Robi-son, McComb, attorneys for appellants.
    Kimberly Pine Turner, attorney for ap-pellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. This case considers whether required statutory notice was provided for a tax sale to mature and a tax deed to be issued.

¶ 2. In 1998, Derrick and Sonja Whitlock executed a deed of trust for the benefit of Jim Walter Homes, Inc. The deed of trust granted a security interest in land that is located in Jones County and owned by the Whitlocks.

¶ 3. Jim Walter Homes assigned its deed of trust to First Union National Bank. First Union was the actual lienholder at all times relevant to this case. However, First Union assigned its deed of trust to Mid-State Trust VII and Wachovia Bank, which were the lienholders at the time this action was filed.

¶ 4. In 2003, the Whitlocks did not pay their 2002 ad valorem property taxes. The land was sold for taxes to Magnolia Investors, LLC. As required by law, the chancery clerk sent the Whitlocks and First Union statutory notice of the tax sale. However, neither the Whitlocks nor First Union exercised the right of redemption. Two years later, in 2005, the tax sale matured, and the chancery clerk issued a tax deed to Magnolia Investors. Magnolia Investors then conveyed title to Rebuild America.

¶ 5. Wachovia Bank and Mid-State filed suit in the Chancery Court of Jones County to set aside the tax sale and subsequent conveyances. Rebuild America, Inc. filed a responsive pleading. The parties agreed to a factual stipulation and submitted the case to the chancellor for a decision. The chancellor identified the issue to be decided as “whether or not the sale for 2002 Jones County ad valorem taxes was void as to the lienholder [Wachovia] ... for lack of proper notice of maturation pursuant to the provisions of Section 27-43-5 of the Mississippi Code ... and/or Rule 6 of the Mississippi Rules of Civil Procedure.” The chancellor entered an order that confirmed the tax sale.

¶ 6. On appeal, Wachovia and Mid-State argue that the chancellor was in error because the required statutory notice was not provided.

¶ 7. The issue presented is whether the tax sale was void because the chancery clerk failed to send the lienholder, First Union, adequate notice. Wacho-via and Mid-State argue that the notice was inadequate because it failed to identify the book, page number, and date the deed of trust was filed in the land records. In response, Rebuild America admits that the notice failed to identify the lien by book, page, and date, but these were simply minor technicalities. The chancellor confirmed the tax sale. The chancellor found that the notice substantially complied with the law and was, therefore, sufficient. This issue presents a question of law; we review questions of law on appeal de novo. Morgan v. West, 812 So.2d 987, 990 (¶ 8) (Miss.2002).

¶ 8. Mississippi Code Annotated section 27-43-5 (Rev. 2010) provides the form of notice to lienholders as follows:

It shall be the duty of the clerk of the chancery court to examine the record of deeds, mortgages and deeds of trust in his office to ascertain the names and addresses of all mortgagees, beneficiaries and holders of vendors liens of all lands sold for taxes; and he shall, within the time fixed by law for notifying owners, send by certified mail with return receipt requested to all such lienors so shown of record the following notice, to-wit:
State of Mississippi, To County of-You will take notice that _ (here describe lands) assessed to, or supposed to be owned by _ was on the _ day of_, 2-, sold to_for the taxes of_ (giving year) upon which you have a lien by virtue of the instrument recorded in this office in _Book_, page_, dated_, and that the title to said land will become absolute in said purchaser unless redemption from said sale be made on or before the _day of May of 2_ This_day of_, 2-Chancery Clerk of _County, Miss.

(Internal quotations omitted).

¶ 9. The chancery clerk’s notice sent to First Union provided:

Notice of Forfeiture to Leinor
No. 35845 2002
First Union National Bank
230 South Tryon Street
Charlotte, NC 28288-1179
You will take notice that [property description] assessed to, or supposed to be owned by Whitlock Derrick M. [partially unreadable] on 8/25/2003 sold to Magnolia Investers [sic] LLC Wachovia Ban [sic] for the taxes [partially unreadable] 2002: upon which you have a lien by virtue of the instrument recorded in this office in Book_, page-, dated_, and that the title to said land will become absolute in said purchaser unless redemption from said sale be made on or before 8/25/2005. Witness by hand and seal of office, the day of 6/15/2005.
[signed by Deputy Chancery Clerk]

¶ 10. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). “Any deviation from the statutorily mandated procedure renders the [tax] sale void.” Roach v. Goebel, 856 So.2d 711, 716 (¶ 29) (Miss.Ct.App.2003) (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)).

¶ 11. In Green Tree Servicing, LLC v. Dukes, 25 So.3d 399, 403-04 (¶¶ 13-15) (Miss.Ct.App.2009), this Court set aside a tax sale because the notice to the lienholder failed to state the book, page, and date within the notice. Id. at (¶ 13). Such is the case here. Even Rebuild America admits that the clerk failed to follow the specific requirements of section 27-43-5. Instead, Rebuild America argues that these were minor technicalities. The chancery clerk’s notice clearly deviated from the statutorily mandated notice. As did the Court in Dukes, we must “reverse and set aside the tax sale as it pertains to any interest in the subject property held by” the lienholder. Dukes, 25 So.3d at 404 (¶15).

¶ 12. Mississippi Code Annotated section 27-43-11 (Rev.2010) requires:

A failure to give the required notice to such lienors shall render the tax title void as to such lienors, and as to them only, and such purchaser shall be entitled to a refund of all such taxes paid the state, county or other taxing district after filing his claim therefor as provided by law.

In SKL Investments, Inc. v. American General Finance, Inc., 22 So.3d 1247, 1250-51 (¶ 11) (Miss. Ct. App.2009), this Court stated that a tax-sale purchaser may elect its remedies. The Court ruled:

In the event that a tax sale is rendered void for improper notice to one lienholder, but not others, the purchaser is faced with two options. The purchaser may opt to retain the property subject to the lien of the improperly-noticed lienholder. Alternatively, the purchaser may opt to file a claim for a refund, thereby relinquishing all rights to the property. Among other variables, the purchaser’s decision will depend on the value of the property, the amount paid for the property, and the amount of the lien on the property.

Id.

¶ 13. Accordingly, on remand, Rebuild America may choose to either retain the property subject to the lien of Wachovia Bank and Mid-State or to relinquish its rights to the property and file a claim for a refund.

¶ 14. Rebuild America further argues that, should it choose to file a claim for a refund instead of retaining the property, it is entitled to statutory damages pursuant to Mississippi Code Annotated section 27-45-27(1) (Rev. 2010), which provides:

The amount paid by the purchaser of land at any tax sale thereof for taxes, ... and interest on the amount paid by the purchaser at the rate of one and one-half percent ... per month, or any fractional part thereof, and all expenses of the sale and registration, thereof shall be a lien on the land in favor of the purchaser ..., if the taxes for which the land was sold were due, although the sale was illegal on some other ground.

This section does not permit a purchaser to recover damages against a single lien-holder whose lien survived the tax sale because of inadequate notice. SKL Invs., 22 So.3d at 1251 (¶ 13). Therefore, on remand, Rebuild America is entitled to either retain the property subject to the lien or seek a refund pursuant to 27-43-11, nothing more.

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

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


author: LEE, P.J.,

text:
    Chad Gregory POTTS, Appellant v. Felicia Dawn WINDHAM, Appellee.
    No. 2009-CA-01435-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Phil R. Hinton, Corinth, attorney for appellant.
    John A. Ferrell, Booneville, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Chad Gregory Potts and Felicia Dawn Windham were granted a divorce on October 25, 2000, in the Chancery Court of Alcorn County. Felicia was granted custody of the couple’s five-year-old son. Chad was ordered to pay $300 per month in child support and provide medical insurance for the child. Chad was given the right to claim the child as a dependent for tax purposes.

¶ 2. In June 2008, Chad filed a complaint seeking custody of the couple’s son. Felicia filed a counterclaim alleging that Chad was in contempt of court for failure to pay child support and certain medical expenses. Chad admits that he had fallen behind in paying child support, but he contends that as a substitute for child support, he allowed Felicia to claim the child as a dependent on her tax returns. Felicia denied that there was an agreement, but she admitted that she claimed the child as a dependent from 2001 through 2007. An accountant testified that the sum of tax benefits she received was $18,139.

¶ 3. After a trial, the chancellor held Chad in contempt for failure to pay child support. Felicia was awarded $21,469 in past-due child support, plus $874.08 for unpaid medical expenses. Chad’s motion to modify custody was denied, although the chancellor expanded his visitation rights and lowered his monthly child-support obligation.

¶ 4. Chad now appeals, asserting the following issues: (1) the chancellor erred by failing to give him credit for income tax credits claimed by Felicia; (2) the chancellor erred in finding no material change in circumstances adverse to the child’s best interest; and (3) the chancellor erred in not articulating why his request for custody was denied when the child, who was twelve years old, stated that his preference was to live with Chad.

STANDARD OF REVIEW

¶ 5. This Court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002).

DISCUSSION

I. CHILD SUPPORT

¶ 6. Chad argues that the chancellor’s order did not take into consideration that he and Felicia had an extra-judicial agreement whereby Felicia could claim their child as a dependent on her tax returns. Chad argues that the $21,469 in past-due child support he owes should have been offset by Felicia’s $18,139 gain in tax benefits.

¶ 7. In denying Chad’s request for an offset, the chancellor stated that “any adjustment to the child support arrearage ... would be improper and the prayer therefor is denied, in part[,] due to the fact that the alleged agreement was never submitted to the [cjourt for approval pursuant to the case of Wilburn v. Wilburn[,] 991 So.2d 1185 ([Miss.] 2008).”

¶ 8. We find that the chancellor erred in concluding that Chad should not receive an offset. The facts of this case are similar to those presented in Dorr v. Dorr, 797 So.2d 1008 (Miss.Ct.App.2001). In Dorr, Houston Dorr was ordered to pay child support to his former wife, Susanne Dorr. Id. at 1011 (¶ 3). In recognition of this, Houston was given the right to claim the child as a dependent for tax purposes. Id. He failed to make consistent child-support payments from 1985 to 1994. Id. at 1010 (¶ 1). In 1988, Houston relinquished his right to claim the child as a dependent for tax purposes to Susanne. Id. at 1011 (¶ 4). This was done without the chancellor’s knowledge or approval. Id. Susanne claimed the tax exemption from 1988 through 1994 and received a $4,300 tax benefit from doing so. Id. at 1014 (¶ 15). In 1998, Susanne sought to collect all delinquent amounts of the child support owed. Id. at 1011 (¶ 6). This Court found that while the chancellor had no authority to enforce the extra-judicial agreement, the chancellor erred by not giving Houston credit for giving up his right to the exemption. Id. at 1015 (¶ 19). This Court held:

In our view, this financial benefit to [Susanne] for the child’s benefit, though not directly derived from [Houston]’s own income, in equity ought to be considered as a credit towards [Houston’s recurring child support obligations accruing during the same period, much in the same manner that such indirect payments as social security payments to dependent children derived through the efforts of the obligee have been allowed as credit toward child support. See, e.g., Bradley v. Holmes, 561 So.2d 1034, 1035 (Miss.1990).

Id. at 1015 (¶ 19).

¶ 9. In the case at hand, the chancellor stated that she had “considered the equities of the dispute pursuant to Dorr ..., and [found] that even though [Felicia] was in violation of the prior court order, [Chad] suffered no harm and provided no proof of what loss he incurred by her actions.” Chad did not suffer harm from conceding the tax exemption because his income was not enough to benefit from the exemption. The chancellor noted that Chad saved a considerable amount of money by not paying the court-ordered health insurance for the child. Health insurance was provided for the child by Felicia’s new husband, and the benefit of this insurance was not calculated.

¶ 10. We cannot agree that the chancellor correctly considered the equities pursuant to Dorr. In Bryant v. Bryant, 924 So.2d 627, 630 (¶ 7) (Miss.Ct.App.2006), this Court stated:

The law remains firm that court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.

(quoting Varner v. Varner, 588 So.2d 428, 434 (Miss.1991)).

¶ 11. We find that Felicia received a considerable financial benefit by claiming the child as a dependent, and it was error for the chancellor not to give Chad an offset. Whether or not Chad suffered harm by giving up the exemption is irrelevant. This is consistent with this Court’s finding in Dorr, which states: “[Susanne] received a very real financial benefit by virtue of [Houston]’s willingness, no matter what the incentive, to forego his right to claim the child as a dependent for tax purposes and to relinquish that right to her.” Dorr, 797 So.2d at 1014 (¶ 19) (emphasis added). Since Felicia claimed the tax exemption instead of Chad, Chad should have received an offset. However, equity also requires that any credit against delinquent child support granted to Chad should be reduced by the amount which Felicia and her new husband incurred as a result of Chad’s failure to provide the court-ordered health insurance for the minor child. We reverse the chancellor’s order, in part, and remand this case for a calculation of the credit due to Chad, properly accounting for the tax benefit which Felicia received, as well as the costs which she incurred in providing health insurance for the minor child.

II. MATERIAL CHANGE IN CIRCUMSTANCES

III. CHILD’S PREFERENCE

¶ 12. Chad argues that the chancellor erred in finding no material change in circumstances had occurred such that a change of custody should be granted.

¶ 18. The test for custody modification is as follows: “(1) whether there has been a material change in circumstances which adversely affects the welfare of the child and (2) whether the best interest of the child requires a change of custody.” Floyd v. Floyd, 949 So.2d 26, 29 (¶ 10) (Miss.2007) (citing Weigand v. Houghton, 730 So.2d 581, 585 (¶ 15) (Miss.1999)).

¶ 14. As evidence of a material change in circumstances adverse to the child’s best interest, Chad alleged that Felicia and her new husband argued in front of the child; Felicia used curse words in front of the child; Felicia’s husband criticized the child; and two occasions of physical violence had occurred between Felicia and her husband. The chancellor found that these “isolated incidents” were insufficient to warrant a modification of custody. In addition, the chancellor noted that in Chad’s testimony under cross-examination, Chad admitted that he could not demonstrate any adverse effect of Felicia’s custody. Chad has not shown a material change in circumstances, and there was no indication that a change in custody was necessary to serve the child’s best interest. Riley v. Doerner, 677 So.2d 740, 744-45 (Miss.1996).

¶ 15. Chad next argues that the chancellor failed to consider the child’s preference despite the child being of a sufficient age to state a preference. A child’s preference of where to live is a factor to be considered in determining child custody. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). However, an analysis under Albright was not reached because no material change in circumstances was found. Despite Chad’s argument that the chancellor ignored the child’s age and preference, the chancellor clearly recognized these factors when increasing Chad’s visitation. This issue is without merit.

¶ 16. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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


author: IRVING, J„

text:
    Mitchel Russ HOWELL, Appellant v. Betty Lea Howell TURNAGE, Appellee.
    No. 2009-CA-01509-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      W. Brady Kellems, Brookhaven, Cheli K. Durr, attorneys for appellant.
    Betty Lea Howell Turnage, appellee, pro se.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J„

for the Court:

¶ 1. Mitchel Howell sought modification of his child-support obligation to his son, Hayden. Hayden initially lived with his mother, Betty Howell Turnage. However, in August 2008, Hayden left Betty’s home and moved into Mitchel’s home. Specifically, Mitchel sought reimbursement for child-support payments made on Hayden’s behalf after Hayden left Betty’s home and began working full time. The Lawrence County Chancery Court found that Hayden was emancipated as of April 2009 and refused to credit Mitchel for child-support payments made on Hayden’s behalf after Hayden left Betty’s home in August 2008. Additionally, the chancery court placed a restriction on Mitchel’s visitation with the Howells’ teenaged daughter, Hannah, that prohibited overnight visits when non-related third parties of the opposite sex were also spending the night. Feeling aggrieved, Mitchel appeals and asserts that the chancellor erred: (1) in failing to credit him for child-support payments made on Hayden’s behalf after Hayden left Betty’s home and started working full time, and (2) in restricting his overnight visitation with his daughter when non-related third parties of the opposite sex are present.

¶2. Because the undisputed testimony showed that Hayden moved out of Betty’s home and into Mitchel’s home in August 2008 and there was no evidence that Mitchel’s girlfriend’s presence adversely affected Hannah, we reverse and render the judgment of the chancery court and remand this case for a determination of Mitchel’s credit for child-support payments made on Hayden’s behalf after August 2008.

FACTS

¶ 3. Mitchel and Betty were married in September 1989 in Lawrence County, Mississippi. On July 19, 2004, the’ chancery court granted the couple a divorce on the ground of irreconcilable differences. The Howells had two minor children at the time of the divorce: Hayden, born September 2, 1990, and Hannah, born October 22, 1994. Betty was granted physical and legal custody of the children. Mitchel was to have regular visitation with the children as agreed upon by the parties. Additionally, Mitchel was to pay $2,000 per month for support of his minor children. However, Betty was obligated to use a portion of the $2,000 to pay the mortgage note on the marital home. On October 24, 2005, after a reduction in his income, Mitchel filed a petition to modify his support obligation. On November 26, 2007, the chancery court entered an agreed order of modification that reduced Mitchel’s obligation to $1,850 per month.

¶ 4. On December 19, 2008, Mitchel filed another petition for modification. Mitchel sought reimbursement for the child support that he had paid on Hayden’s behalf since Hayden left Betty’s home in August 2008. Mitchel alleged that Hayden had been emancipated.

¶ 5. As stated, in August 2008, Hayden, left his mother’s home to live with his father full time. Hayden also began working full time in September 2008. Since then, Hayden has been responsible for all of his personal expenses with the exception of housing and food, which Mitchel provides. During the time that Hayden lived with Mitchel, he continued to make child-support payments on behalf of both Hayden and Hannah.

¶ 6. The chancellor found that Hayden had been emancipated and suspended Mitchel’s support obligation in relation to Hayden. However, the chancellor determined that Hayden’s emancipation was effective as of April 2009, not September 2008. As such, the chancellor found that Mitchel was not entitled to reimbursement or credit for child-support payments made on Hayden’s behalf prior to April 2009.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. Our review of domestic-relations cases is limited to the “substantial evidence/manifest error rule.” R.K. v. J.K., 946 So.2d 764, 772 (¶ 17) (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59 (¶ 12) (Miss.1998)). As such, “[an appellate] court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Id. (citing Mizell, 708 So.2d at 59 (¶ 18)).

1. Child-Support Credit

¶ 9. Mitchel argues that the evidence at trial supports that Hayden left his mother’s home and moved in with Mitchel in August 2008 and was fully emancipated in September 2008. Therefore, he contends that he is entitled to a credit for child-support payments made on Hayden’s behalf after Hayden moved in with him and became emancipated.

¶ 10. Mississippi Code Annotated section 93 — 11—65(8)(a) (Supp.2010) provides that:

The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child[-]support judgment, emancipation shall occur when the child:
(i) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony[.]

Additionally, the Mississippi Supreme Court has made it clear that “a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise.” Dep’t of Human Servs. v. Fillingane, 761 So.2d 869, 871 (¶8) (Miss.2000) (citing Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989)).

¶ 11. Hayden testified that he began living with his father full time in August 2008. Hayden further testified that he began working full time in September 2008 and that other than food and housing, which his father provided, he supported himself. Betty acknowledged in her testimony that Hayden moved in with his father in August 2008 and began working on a full-time basis in September 2008. Betty further testified that Mitchel continued to pay child support in the full amount of $1,850 even after Hayden had left her home. Despite Hayden’s undisputed testimony, the chancellor determined that Hayden was emancipated as of April 2009 and that Mitchel was not entitled to a credit for the child-support payments made on Hayden’s behalf.

¶ 12. Our supreme court has previously credited a father for child-support payments made on behalf of a child who had left the mother’s home and moved in with him. Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). The Alexander court reasoned that allowing the mother to continue to receive child-support payments for a child who no longer lived with her would constitute unjust enrichment. Id.

¶ 13. Our supreme court has also permitted a credit for child-support payments made after a child’s emancipation. See Fillingane, 761 So.2d at 872 (¶ 13); Sumrail v. Munguia, 757 So.2d 279, 284 (¶ 28) (Miss.2000). In Sumrall, the father argued that the chancery court erred when it failed to reduce retroactively his child-support payments to the date his son entered college. Sumrall, 757 So.2d at 284 (¶ 26). Our supreme court agreed and ordered a retroactive modification, which gave the father credit for child-support payments made after his son entered college. Id. at (¶ 28). In Fillingane, our supreme court re-affirmed its position in Sumrall and upheld a chancellor’s decision to credit a father’s child-support arrearage in light of his daughters’ emancipation. Fillingane, 761 So.2d at 872 (¶ 13). Furthermore, our supreme court has stated that non-custodial parents should be allowed to prove that they should receive credit for child-support payments made from “the point in time where the changes occurred. ...” Sumrail, 757 So.2d at 284 (¶ 27) (emphasis added).

¶ 14. In the present case, the testimony is clear that Hayden had left his mother’s home in August 2008 and had taken full-time employment in September 2008. The chancellor’s election of April 1, 2009 as the date of Hayden’s emancipation is not supported by the evidence and is manifestly wrong. This Court finds that modification of child support should be retroactive to August 2008, the date that Hayden moved in with Mitchel, and that Mitchel should receive a credit for child support paid on Hayden’s behalf from August 2008 on.

£ Visitation Restriction

¶ 15. At the close of the modification hearing, the chancellor voiced concern regarding Hannah’s visiting Mitchel’s home when his girlfriend was also spending the night. Consequently, the chancellor restricted Mitchel’s visitation with his teenaged daughter, Hannah. Specifically, the chancellor prohibited overnight visitation with Hannah “in any dwelling where a member of the opposite sex, to whom [Mitchel] is not related is also spending [the] night.”

¶ 16. The chancellor has broad discretion in determining visitation and imposing restrictions upon it. Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992). However, absent a finding of “actual danger or other substantial detriment to the children,” a chancellor may not restrict a non-custodial parent’s visitation. Id. There was absolutely no evidence in the record that overnight visits in the presence of Mitchel’s girlfriend adversely affected Hannah. Therefore, the chancellor abused his discretion in placing a restriction on Mitchel’s visitation.

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

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


author: PER CURIAM.

text:
    SSC SELMA OPERATING COMPANY, LLC, d/b/a Warren Manor Health & Rehabilitation Center; Bernard Turk; and Sava Senior Care Administrative Services, LLC v. Ethel GORDON, administratrix of the estate of Jimmy Lee Gordon.
    1080396.
    Supreme Court of Alabama.
    Aug. 13, 2010.

      David W. Proctor, Gina Elaine Pearson, and Angela C. Cameron of Johnston Barton Proctor & Rose LLP, Birmingham; and William J. Gamble of Gamble, Gamble & Caíame, LLC, Selma, for appellants.
    J.P. Sawyer of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   PER CURIAM.

SSC Selma Operating Company, LLC, doing business as Warren Manor Health & Rehabilitation Center (“SSC”); Bernard Turk, the administrator of Warren Manor Health & Rehabilitation Center (“Warren Manor”); and Sava Senior Care Administrative Services, LLC (“Sava”), the entity that manages Warren Manor (hereinafter collectively referred to as “the defendants”), appeal from the trial court’s order denying their motion to compel arbitration.

Facts and Procedural History

Jimmy Lee Gordon was admitted to Warren Manor on December 7, 2006. It is undisputed that Ethel Gordon, Mr. Gordon’s wife, signed the following documents on Mr. Gordon’s behalf upon his admittance to Warren Manor: “Authorization Form of Release of Information”; “Advance Directives/Medical Treatment Decisions/Acknowledgment of Receipt”; “Podiatry/Consent to Treat”; and “Consent to Photograph.” The defendants allege that Mrs. Gordon also signed a separate “Agreement for Arbitration” on Mr. Gordon’s behalf. Mrs. Gordon denies that she signed the arbitration agreement.

Mr. Gordon died on December 30, 2006, while a resident of Warren Manor. Following Mr. Gordon’s death, Ethel Gordon, in her capacity as the administratrix of his estate, sued the defendants, alleging “wrongful death — medical malpractice” and “combined and concurring negligence.” Mrs. Gordon demanded a trial by jury in her complaint.

In response to Mrs. Gordon’s complaint, SSC and Turk filed a motion to compel arbitration based on the arbitration agreement they allege Mrs. Gordon signed on Mr. Gordon’s behalf. SSC and Turk attached to their motion a copy of the arbitration agreement purportedly signed by Mrs. Gordon and the affidavit of Turk, the administrator of Warren Manor, stating that the underlying transaction did affect interstate commerce. Turk also states in his affidavit that the

“[^Information in this affidavit is based on my personal knowledge.... Ethel Gordon signed a Dispute Resolution Agreement (‘the Agreement’) during the process of admitting Jimmy Lee Gordon to Warren Manor. Ms. Ethel Gordon executed the agreement as the legal representative of Jimmy Lee Gordon. A true and correct copy of the Agreement is attached [to the motion] as Exhibit B.”

Subsequently, Sava also filed a motion to compel arbitration. Mrs. Gordon filed a response to the defendants’ motions to compel arbitration. Attached to Mrs. Gordon’s response to the motions to compel arbitration was her affidavit, in which she states that she did not sign an arbitration agreement. On October 30, 2008, SSC and Turk filed a reply to Mrs. Gordon’s response. Attached to SSC and Turk’s reply was the affidavit of Richard A. Roper, Ph.D., a certified forensic document examiner, in which Roper opined that the signature on- the arbitration agreement alleged to be Mrs. Gordon’s was “very probably” Mrs. Gordon’s.

On November 3, 2008, the trial court held a hearing on the defendants’ motions to compel arbitration. On that same day, Mrs. Gordon filed a motion to strike Roper’s affidavit testimony, stating in her motion the following reasons for striking Roper’s affidavit:

“1. The affidavit is untimely in that it was filed less than two (2) days prior to the time set for the hearing.[]
“2. There has been no adequate foundation laid for the opinion stated in the affidavit.
“3. The opinions in the affidavit are based upon unauthenticated documents.
“4. The opinions stated in the affidavit are not admissible under En/e [v. United States, 293 F. 1013 (D.C.Cir. 1923),] or the Alabama Rules of Evidence.
“5. The opinions are based upon documents which Richard A. Roper was allowed access to by the Defendants in violation of HIPAA [Health Insurance Portability and Accountability Act].”

On November 10, 2008, the defendants filed an “Opposition to [Mrs. Gordon’s] Motion to Strike” Roper’s affidavit testimony and a “[supplemental reply to [Mrs. Gordon’s] opposition to [the defendants’] motion to compel arbitration.” The defendants attached a second affidavit of Roper’s to their supplemental reply in which Roper explained the term “very probably” as he had used that term in his first affidavit.

On November 10, 2008, the trial court granted Mrs. Gordon’s motion to strike, thereby refusing to consider Roper’s affidavit testimony. The trial court also denied the defendants’ motions to compel arbitration. The trial court did not provide an order explaining the reasoning behind either of its decisions. On December 19, 2008, the defendants filed a notice of appeal to this Court.

On December 22, 2008, while the case was pending on appeal, the defendants filed in the trial court a “Motion to Reconsider,” asking the trial court to reconsider its decisions to grant Mrs. Gordon’s motion to strike and to deny the defendants’ motions to compel arbitration. The trial court held a hearing on the defendants’ motion to reconsider on January 5, 2009. On January 6, 2009, the defendants submitted to the trial court a document entitled “[s]upplemental authority in support of [the defendants’] motion to reconsider.” The supplemental authority included the affidavit testimony of Gail Ezelle, the admissions director of Warren Manor, and exhibits, in an attempt to authenticate the arbitration agreement. On January 7, 2009, the trial court purported to deny the defendants’ motion to reconsider.

Standard of Review

The legal principles guiding this Court’s review of a ruling on a motion to compel arbitration are well settled:

“ ‘This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Corp. v. Silvernett, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).’

“United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala.2003). Furthermore:

“ ‘ “A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”

‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).’

“Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala.2002).”

Cartwright v. Maitland, 30 So.3d 405, 408-09 (Ala.2009).

Discussion

Initially, we note that the defendants’ motion to reconsider, which appears to be, in substance, a Rule 59(e) Ala. R. Civ. P., motion to alter, amend, or vacate the judgment, was untimely. This Court held in George v. Sims 888 So.2d 1224, 1227 (Ala.2004):

“Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors. See Rule 59(e) and Rule 60, Ala. R. Civ. P.; Cornelius v. Green, 477 So.2d 1363, 1365 (Ala.1985) (holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment); Dickerson v. Dickerson, 885 So.2d 160, 166 (Ala.Civ. App.2003) (holding that, absent a timely postjudgment motion, the trial court has no jurisdiction to alter, amend, or vacate a final judgment); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So.2d 28, 29 (Ala.Civ.App. 1994) (‘It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors.’).”

Therefore, the trial court’s ruling purporting to deny the defendants’ motion to alter, amend, or vacate is a nullity and has no bearing on this appeal. Consequently, this Court cannot consider any of the evi-dentiary material attached to the defendants’ motion to alter, amend, or vacate, because that material was not before the trial court when it entered its judgment denying the defendants’ motions to compel arbitration or when the defendants filed their notice of appeal.

In reviewing the trial court’s judgment denying the defendants’ motions to compel arbitration, we must first determine whether an arbitration agreement existed between SSC and Mrs. Gordon. As set forth above, the defendants must first satisfy their burden to provide substantial evidence that a contract between SSC and Mrs. Gordon calling for arbitration existed.

In response to Mrs. Gordon’s complaint, SSC and Turk filed their motion to compel arbitration and attached to the motion a copy of an “Agreement for Arbitration” allegedly signed by Mrs. Gordon and Turk’s affidavit stating that, based on his personal knowledge, the copy of the arbitration agreement was a “true and correct copy.” Mrs. Gordon specifically argues for the first time on appeal that the arbitration agreement was not properly authenticated and that it should not have been admitted into evidence in the trial court.

A motion to compel arbitration is analogous to a motion for a summary judgment, Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999); thus, the rules governing the admission of affidavits supporting or opposing a motion for a summary judgment as stated in Rule 56(e), Ala. R. Civ. P., apply to affidavits supporting or opposing a motion to compel arbitration. See TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999) (“A motion to compel arbitration is analogous to a motion for a summary judgment.”). Concerning affidavits and exhibits offered in support of or in opposition to a motion for a summary judgment, this Court has stated:

“Rule 56(e), Ala. R. Civ. P., generally requires that ‘[s]worn or certified copies’ of documents referred to in an affidavit offered supporting or opposing a motion for a summary judgment be attached to the affidavit. However, if an affidavit or the documents attached to an affidavit fail to comply with this rule, the opposing party must object to the admissibility of the affidavit or the document and move to strike. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312-13 (Ala.2001) (noting that a party must object to evidence submitted in support of a motion for a summary judgment that does not comply with Rule 56(e), Ala. R. Civ. P.); Chatham v. CSX Transp., Inc., 613 So.2d 341, 344 (Ala.1993) (‘A party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence.’).”

Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 4-5 (Ala.2007) (footnote and emphasis omitted); see also Ex parte Unitrin, Inc., 920 So.2d 557, 560 (Ala.2005) (citing Berry Mountain Mining Co. v. American Res. Ins. Co., 541 So.2d 4 (Ala.1989), for the proposition that “defendants’ failure to move to strike unauthenticated documents attached to plaintiffs motion for a summary judgment waived any objections to the trial court’s reliance on those documents”).

Mrs. Gordon raises many arguments on appeal concerning the admissibility of the arbitration agreement, none of which she raised in the trial court. In Mrs. Gordon’s “response to [the defendants’] motion to compel arbitration” filed with the trial court, Mrs. Gordon argued that she did not sign the arbitration agreement, but she did not argue that the copy of the arbitration agreement attached to the motion was not admissible. Mrs. Gordon also made a general allegation in her motion to strike Roper’s affidavit that Roper based his analysis on “unauthenticated documents.” However, Mrs. Gordon did not specify which documents she was alleging were unauthenticated. A thorough review of the record does not reveal that Mrs. Gordon specifically objected to the admissibility of the copy of the arbitration agreement attached to SSC and Turk’s motion to compel arbitration. Moreover, even if Mrs. Gordon had objected to the admissibility of the copy of the arbitration agreement, it is undisputed that Mrs. Gordon did not file a motion to strike the arbitration agreement. Therefore, we will consider the evidence.

In order to satisfy their burden of proof, the defendants must present evidence that a contract calling for arbitration exists and that the “contract evidences a transaction affecting interstate commerce.” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (citing Tran-South Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999)). The arbitration agreement itself constituted substantial evidence that a contract calling for arbitration existed between SSC and Mrs. Gordon. Mrs. Gordon concedes in her appellate brief before this Court that SSC “[is] engaged in interstate commerce.” (Mrs. Gordon’s appellate brief, at 25 n. 9.) Thus, the defendants satisfied their burden of proof.

Once the defendants satisfied their burden of producing substantial evidence that an arbitration agreement exists, the burden then shifted to Mrs. Gordon to produce sufficient evidence to create a genuine issue of material fact as to whether the arbitration agreement is valid. This Court stated in Ex parte Meadows, 782 So.2d 277, 280 (Ala.2000):

“ ‘ “To make a genuine issue entitling the [party seeking to avoid arbitration] to a trial by jury [on the arbitra-bility question], an unequivocal denial that the agreement had been made [is] needed, and some evidence should [be] produced to substantiate the denial.” ’
“[Chastain v. Robinson-Humsphrey Co., 957 F.2d 851, 854 (11th Cir.1992) ] (quoting T & R Enters., v. Continental Grain Co., 613 F.2d 1272, 1278 (5th Cir.1980)).”

In the present case, Mrs. Gordon filed a response to the defendants’ motions to compel arbitration and attached to the response her affidavit, in which she denied that she had signed an arbitration agreement with SSC. Under Meadows, Mrs. Gordon’s affidavit constitutes sufficient evidence that the arbitration agreement did not exist. Therefore, a genuine issue of material fact has been raised concerning the existence of the arbitration agreement. “If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.” Ex parte Caver, 742 So.2d at 172 n. 4.

Based on Mrs. Gordon’s demand in her complaint for a trial by jury, the issue whether an arbitration agreement existed between SSC and Mrs. Gordon should have been tried before a jury. See Rule 39(a), Ala. R. Civ. P. However, the trial court denied the defendants’ motions to compel arbitration without submitting the issue to a jury. Therefore, the trial court’s order denying the defendants’ motions to compel is reversed, and the case is remanded for a jury trial to determine whether an arbitration agreement existed between SSC and Mrs. Gordon.

The defendants also raise arguments concerning the trial court’s order granting Mrs. Gordon’s motion to strike Roper’s affidavit testimony. This issue is moot in light of our decision to reverse the trial court’s order and remand the case for a jury trial to determine whether an arbitration agreement exists.

Conclusion

Based on the foregoing, we reverse the trial court’s order and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . We note that November 3, 2008, was a Monday; Mrs. Gordon was obviously referring to two business days.