author:
BARNES, J.,
      IRVING, P.J.,

text:
    In the Matter of The ESTATE OF Jimmy Dale ROBY, Deceased: Hilda Jane Roby Kelly, Appellant v. Theresa A. ROBY, Mary Phyfer d/b/a SRT Investments, Garon Roby, Shane Roby And Sharon Roby Sargent as Administratrix of The Estate of Jimmy Dale Roby, Deceased, Appellees.
    No. 2010-CA-00639-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.
    Rehearing Denied March 27, 2012.

      Rhett R. Russell, Tupelo, attorney for appellant.
    Theresa A. Roby, pro se.
    David E. Flautt, Oxford, Anthony Rhett Wise, Robert Q. Whitwell, Ashland, attorneys for appellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.

      . Interestingly, a grantor for one of the deeds was Mary Phyfer.

   BARNES, J.,

for the Court:

¶ 1. Hilda Jane Roby Kelly filed a petition for execution with the Monroe County Chancery Court seeking the sale of real property that was owned by Jimmy and Theresa Roby, her deceased ex-husband and his widow, in order to satisfy a judgment of $6,000 that Jimmy owed Hilda. Named as defendants in the petition were Theresa; Theresa’s sister, Mary Phyfer d/b/a SRT Investments; and, in a subsequent amended petition, the estate of Jimmy Roby — Sharon Roby Sargent, Shane Roby, and Garon Roby (“the Roby children” or “the Estate”). In the petition, Hilda claimed her judgment should be treated as a lien against parcels of real property owned by Jimmy and Theresa prior to his death, and which had been conveyed by four deeds to SRT Investments, a company owned by Mary. The deeds were executed by Jimmy and Theresa prior to Hilda’s judgment being awarded; however, the deeds were not recorded until after Jimmy’s death and after Hilda’s enrollment of her judgment.

¶ 2. On Hilda’s “Motion For Default Judgment or In The Alternative Summary Judgment,” the chancery court held that the deeds were void as to Hilda’s judgment since the deeds were recorded subsequent to Hilda’s judgment. However, as Hilda had not executed on her judgment prior to Jimmy’s death, the property passed to Theresa through right of surviv-orship and was not part of Jimmy’s probate estate. The chancellor ordered that any judgment owed to Hilda must be paid from the personal property of Jimmy’s estate and denied Hilda’s motion for summary judgment. Hilda filed a motion to alter judgment, which the chancellor denied, and Hilda now appeals. We affirm the chancellor’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On December 10, 1979, Jimmy and Hilda were divorced in Pontotoc County Chancery Court, and Jimmy was ordered to make child-support payments for the couple’s minor son, Shane Roby. Between June 1, 1995, and April 11, 1998, Jimmy was in arrearage for the child-support payments to Hilda. In the meantime, Jimmy had married Theresa, his fourth wife. Between 1986 and 1995, Jimmy and Theresa had acquired five parcels of real property in Monroe County, Mississippi via four warranty deeds. Two of the deeds vested title in Jimmy and Theresa as joint tenants; the other two as tenants by the entirety; therefore, all four deeds included the right of survivorship. On December 1, 1997, Jimmy and Theresa executed four promissory notes and “Real Estate Deeds of Trust” on this property, which secured a $200,000 indebtedness in favor of SRT Investments, an unincorporated business entity operated by Theresa’s sister, Mary. These deeds of trust were recorded in the Monroe County Chancery Clerk’s land records on February 11, 1998. Theresa later testified that the deeds of trust were executed because Jimmy and Theresa had acquired substantial financial debt, and Mary often provided the couple with monetary assistance.

¶ 4. On March 8, 1999, Jimmy and Theresa executed, but did not record, four warranty deeds which conveyed title of the five parcels of real property to SRT Investments. However, Jimmy and Theresa continued to live on the property. On March 30, 1999, in response to a motion filed by Hilda, Jimmy was found in contempt for failing to pay child support, and Hilda was awarded a judgment for $6,000. Hilda enrolled the judgment in Monroe County on May 28,1999.

¶ 5. On August 4, 2002, Jimmy died without Hilda’s judgment being satisfied. On August 20, 2002, Mary recorded the four March 3, 1999 warranty deeds. Then, on September 13, 2004, two years after Jimmy’s death and five years after the enrollment of her judgment, Hilda petitioned the court for sale of the subject property to satisfy her $6,000 judgment. She named Theresa and Mary d/b/a/ SRT Investments as defendants, claiming that at the time of his death, Jimmy “held ownership interest in and to each of the ... parcels of property.” Hilda filed a motion for default/summary judgment on March 16, 2005. On June 10, 2005, Hilda amended her petition, with permission by the court, to include the Roby children as defendants since they were Jimmy’s heirs-at-law. Again, Hilda claimed that Jimmy “had ownership interest in and to the ... real properties as of his August 4, 2002, demise” and concluded that property should be subject to execution as her “valid lien” had priority over any claim by SRT Investments.

¶ 6. On October 6, 2005, the Roby children joined Hilda’s request to recognize her judgment as a lien. Then, on October 21, 2005, the Roby children opened Jimmy’s estate, appointing Sharon as adminis-tratrix. The Estate filed several petitions for relief against Theresa, alleging improper use or disposal of personal assets contained in Jimmy’s estate. On September 20, 2006, the Estate, again joined by Hilda, filed an objection to Mary’s alleged claim to the real property as a creditor and requested that the March 3, 1999 conveyances be set aside. On October 23, 2009, addressing the various petitions filed by the Estate, the chancellor entered an “Opinion and Judgment of Personal Property of Estate.” In the order, the chancellor entered a judgment against Theresa in favor of the Estate for the value of $113,300, including interest.

¶ 7. On November 3, 2009, the chancery court entered its “Opinion and Judgment on Petition for Writ of Execution and Other Relief,” finding that under Mississippi Code Annotated section 89-5-3 (Rev.1999), “the deeds recorded after the enrollment of Hilda’s judgment against the decedent would be void as to Hilda.” See Miss.Code Ann. § 89-5-3 (stating that a conveyance of land is void to a creditor unless the lien or judgment is recorded with the chancery-court clerk “in the same manner that other conveyances are required to be acknowledged or proved and recorded.”). Further, the chancellor noted that “a creditor may not proceed against the realty of a decedent until the decedent’s personal property is exhausted” and that sufficient estate assets existed to satisfy Hilda’s outstanding judgment. However, “[ajnticipat-ing the personalty of the estate may be insufficient to satisfy the outstanding lien and other creditors,” the chancellor also found that since Jimmy and Theresa were joint tenants with rights of survivorship, the real property in question was “no longer subject to execution by Jimmy’s judgment creditor[.]” As Theresa obtained full title to the property through survivor-ship upon Jimmy’s death, the property did not pass to the estate. The chancery court also noted the Estate’s numerous petitions for relief, including its objection to Mary’s claim as an alleged creditor, were not properly before the court at that time and were not considered in its judgment. The chancellor concluded by noting that the opinion was “not res judicata as to the efficacy of Hilda’s judgment lien nor of the alleged indebtedness due under the deeds in trust in dispute.”

¶ 8. Hilda filed a motion to alter or amend the judgment of the chancery court. In her motion, Hilda argued that section 89-5-3 meant that the conveyances are valid and binding from Jimmy and Theresa to Mary d/b/a SRT Investments and do not “adverse[ly] affect” Hilda’s judgment lien. Thus, she claimed Jimmy and Theresa had no ownership of the subject property as of Jimmy’s death; rather, “Mary held title and ownership to the subject real property subject to the judgment lien of Hilda.” In her response to Hilda’s motion, Mary argued that the deeds were void under section 89-5-3, meaning “that none of the joint tenancies terminated and no title passed to Mary Phyfer that would be superior to Hilda’s judgment lien” and that Hilda’s right to execute “no longer existed” after Jimmy’s death. The chancery court, denying Hilda’s motion, aptly noted that Hilda is not a party, heir or subsequent purchaser to the deeds; therefore, the deeds are not valid as to her. Further, even assuming that her judgment did attach, Jimmy conveyed his title; therefore, no interest “remained therein to which Hilda’s judgment could attach[.]” Hilda now appeals. Finding no abuse of discretion in the chancellor’s denial of Hilda’s motion, we affirm the chancery court’s judgment.

STANDARD OF REVIEW

¶ 9. A chancellor’s findings “are subject to an abuse-of-discretion standard on review.” Carlisle v. Allen, 40 So.3d 1252, 1256 (¶ 20) (Miss.2010) (citing Barton v. Barton, 790 So.2d 169, 175 (¶ 17) (Miss.2001)). Unless the chancellor findings are “manifestly wrong, clearly erroneous, or applied the wrong legal standard[,]” they will not be disturbed on appeal. Miller v. Parker McCurley Props., L.L.C., 36 So.3d 1234, 1239 (¶ 9) (Miss.2010) (quoting Powell v. Campbell, 912 So.2d 978, 981 (¶ 8) (Miss.2005)). “Questions of law, however, are reviewed de novo.” Id. (citation omitted).

ANALYSIS

¶ 10. In its opinion resolving the petition for execution, the chancery court determined that the March 3, 1999, conveyances to SRT Investments were void as to Hilda’s judgment since the warranty deeds were not recorded until after Hilda had enrolled her judgment. Section 89-5-3 provides that all conveyances of lands “shall be void as to all creditors ... unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded.” (Emphasis added). See also Austin Clothing Co. v. Posey, 105 Miss. 720, 727, 64 So. 5, 6 (1914) (a conveyance of land “is not valid as against third persons unless it is duly filed for record, in such manner as a mortgage or deed of trust is required to be filed”). However, “as between the parties and their heirs, ... said instruments shall nevertheless be valid and binding.” Miss.Code Ann. 89-5-3 (emphasis added). No one contests the chancellor’s ruling that the deeds were void as to Hilda under section 89-5-3.

¶ 11. The chancellor further found, however, that since the conveyances to SRT Investments were void as to Hilda’s judgment, Jimmy and Theresa still held the property as joint tenants with right of survivorship. The chancellor concluded that since Jimmy’s interest in the property was conveyed immediately to Theresa upon his death, it “would not be subject to post-mortem execution by his judgment creditor[.]” Thus, Theresa obtained full ownership of the realty after Jimmy’s death, and the property would not be part of the probate estate. See Oliver v. Oliver 812 So.2d 1128, 1138 (¶ 39) (Miss.Ct.App.2002) (“Immediately at the death of one joint tenant, the decedent’s interest vests at that time in the other joint tenant(s).”) (quoting Strange v. Strange, 548 So.2d 1323, 1326 (Miss.1989)).

¶ 12. On appeal, Hilda claims that: (1) the conveyances to SRT Investments were fraudulently conveyed and should be considered void as to Hilda under Mississippi Code Annotated section 15-3-3 (1972) and set aside; (2) that her judgment attached by operation of law in 1995 when Jimmy failed to make child-support payments; and (3) since the conveyances to SRT Investments are valid between the parties, the joint tenancy held by Jimmy and Theresa was severed, allowing Hilda’s lien to attach to the property. See Ayers, 417 So.2d at 914 (“[A] joint tenancy may be destroyed by one of the joint tenants conveying his undivided interest.”). In effect, Hilda wants to benefit from a determination that, as it relates to her judgment, the deeds are both void yet simultaneously valid. However, Hilda has not provided this Court with any authority to support such a legal conclusion. Although Hilda has cited the general proposition that an enrolled judgment lien attaches to a property and is subject to a writ of execution, she has not shown how it affects cases involving joint tenants and a judgment that was not executed until after the death of the judgment debtor.

¶ 13. Notwithstanding the chancellor’s findings that the conveyances were void as to Hilda’s judgment, Hilda also contends that the conveyance of deeds to SRT Investments was void as fraudulent and meant to “hinder, delay or defraud Hilda as [Jimmy’s] judgment creditor.” She further contends “that such transactions were not supported by good and sufficient consideration.” To support her claim, Hilda cites to Mississippi Code Annotated section 15-3-3 (Rev.2003), which states in pertinent part:

Every ... conveyance of lands, ... by writing ... had or made and contrived of ... fraud, covin, collusion, or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts ... shall be deemed and taken only as against the person or persons, ... and every of them whose debts, ... or interests by such guileful and covinous devices and practices shall or might be in any wise disturbed, hindered, delayed, or defrauded, to be dearly and utterly void; any pretense, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.

(Emphasis added). “To invalidate fraudulent conveyances, Mississippi] Code Annotated section] 15-3-3 (1972) was enacted to avert debtors from keeping property, accessible to payment of their debts, away from creditors.” Morreale v. Morreale, 646 So.2d 1264, 1268 (Miss.1994) (citing Barbee v. Pigott, 507 So.2d 77, 84 (Miss.1987)).

¶ 14. Mary argues that this issue is waived as Hilda presents it for the first time on appeal, and we agree. We acknowledge that Hilda’s petition for execution requested that, as alternative relief, the deeds be set aside since the “transaction was an attempt to defraud Petitioner as a creditor.” Although this language was not contained in Hilda’s amended petition, it did state that the conveyances to SRT Investments “were conducted with an intent of avoiding the claim of Petitioner as a creditor of Jimmy Dale Roby.” However, the record does not reflect that Hilda provided any authority (e.g., section 15-3-3) to support this claim. Furthermore, she never pursued a ruling on this issue. Fraud was not addressed by the chancellor in her opinion denying the petition for execution, and Hilda failed to present this issue in her motion to alter the judgment. See Moore v. State, 785 So.2d 285, 287 (¶ 7) (Miss.2001) (“Issues unsupported and not argued are abandoned and need not be considered.”) (citation omitted). There is no indication in the record that Hilda provided the chancellor with any authority that the outcome of the proceedings would have been different if the conveyances were deemed fraudulent. Accordingly, we find this issue waived.

¶ 15. Hilda also asserts that “[a] judgment debtor and judgment creditor relationship existed ■ between Jimmy and Hilda from and after June 1, 1995,” the date Jimmy failed to continue making child-support payments. Hilda cites Mississippi Code Annotated section 93 — 11— 71(1) (Supp.2010), which states:

Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments that are then due and owing.

(Emphasis added). Again, there is nothing in the record to reflect that Hilda ever presented this argument to the chancery court. Thus, this issue is waived on appeal. Notwithstanding the procedural bar, this claim is also without merit. The remainder of the statutory provision in subsection (2) states: “Any judgment arising under the provisions of this section shall operate as a lien upon all the property of the judgment debtor, both real and personal, which lien shall be perfected as to third parties without actual notice thereof only upon enrollment on the judgment roll” Miss.Code Ann. § 93-11-71(2) (Supp.2010) (emphasis added); see also Miss.Code Ann. § 11-7-191 (Rev.2004) (“A judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled.”). Hilda did not enroll her judgment until after the deeds to a third party, Mary d/b/a SRT Investments, had been executed; thus, the monthly child support owed by Jimmy did not constitute a lien upon the real property.

¶ 16. Hilda’s main contention is that, since the March 3,1999 conveyances “were valid as to Jimmy and [Mary,]” Jimmy and Theresa “divested their ownership interest” and terminated the joint tenancy, including the right of survivorship. Therefore, she argues that Jimmy conveyed the property to Mary “subject to the right of Hilda as judgment creditor to have the property seized under writ of execution for satisfaction of her judgment. The judgment lien followed the land and not Jimmy to his grave.”

¶ 17. Prior to executing the conveyances to SRT Investments, Jimmy and Theresa held ownership interest in the subject properties either as joint tenants or tenants by the entirety, both with rights of survivorship. As we have briefly noted, both types of estates have the four “unities of time, title, interest, and possession,” but a tenancy by the entirety has a fifth unity of person. Ayers, 417 So.2d at 914. It is a common-law principle that “real property held as tenants by the entireties is exempt from the claims of creditors who do not have joint judgments against the husband and wife.” Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821, 822 (1999) (citing Vasilion v. Vasilion, 192 Va. 735, 66 S.E.2d 599, 602 (1951)). That fifth “unity of marriage ... [means that] [n]either spouse can by separate act make an absolute disposition of property they hold as tenants by the entirety, nor can a judgment lien creditor of one spouse subject that property to the satisfaction of his lien.” Id.; see also Beach Cmty. Bank v. St. Paul Mercury Ins. Co., 635 F.3d 1190, 1198 (11th Cir.2011) (holding that “only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property”). The chancellor also recognized in her opinion on the petition for execution that Mississippi statutory authority states that assets of a debtor do not include “[a]n interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.” Miss.Code Ann. § 15 — 3—101 (b)(iii) (Supp.2010). Accordingly, Hilda never had any possibility of a judgment lien over those particular parcels of property that Jimmy and Theresa held as tenants by the entirety.

¶ 18. Regardless, we agree with the chancellor that any right Hilda had to execute her judgment on the jointly held property ceased to exist upon Jimmy’s death. See Helinski v. Harford Mem’l Hosp., 376 Md. 606, 831 A.2d 40, 47 (Md.Ct.Spec.App.2003) (finding that a “lien must be executed within the lifetime of the judgment debtor in order for the judgment creditor to levy on the property”); E. Shore Bldg. & Loan Corp. v. Bank of Somerset, 253 Md. 525, 253 A.2d 367, 370 (Md.Ct.Spec.App.1969) (holding that if a “judgment creditor does not execute upon the judgment against the judgment debt- or-joint tenant during his life, the entire joint estate is held by the surviving joint tenant ... without any lien of the judgment against the property thus held by them”). The Mississippi Supreme Court has also recognized that a surviving joint tenant takes property clear from claims by a creditor of the deceased tenant. Wallace v. United Miss. Bank, 726 So.2d 578, 584 (¶ 21) (Miss.1998) (discussing personal property).

¶ 19. As stated, Hilda has not provided any authority to support how the conveyances to SRT Investments could be considered void, yet also valid, as to her judgment. The chancellor, in her well-reasoned opinion, returned the parties to the status quo-that is the position they would have been in had the conveyances to Mary d/b/a SRT Investments never occurred. The chancellor explained that the last sentence of section 89-5-3 has no application to Hilda as she was not “the parties and their heirs.” In conducting our own research, we acknowledge that there is a split of authority as to whether a finding of fraud in a conveyance terminates a joint tenancy as an equitable remedy. On the one hand, in Campbell v. Drozdowicz, 243 Wis. 354, 10 N.W.2d 158, 160 (1943), the Wisconsin Supreme Court held that a fraudulent conveyance resulted in “a severance and destruction of the joint tenancy with its right of survivorship between them” which cannot be “re-established or restored by virtue of the subsequent adjudication that the conveyance was fraudulent and void as to creditors so as to entitle them to have it set aside to the extent necessary to satisfy their claims.” Compare Bank of Lexington v. Jones, 456 So.2d 784, 786 (Ala.1984) (stating that “[w]hen a joint tenant participates in activity to defraud his creditor[,] he may not” turn around and shelter from execution the property that is the subject of the fraud as the result would be inequitable) (4-4. decision); with dissent at 787 (Tor-bert, C.J., dissenting) (theory of equitable estoppel not appropriate “because ‘estop-pels are protective only, and are to be invoked as shields and not as offensive weapons, and their operation should be limited to saving harmless, or making whole, the person in whose favor they arise, and they should never be the instruments of gain or profit.’ ”).

¶ 20. On the other hand, in a case similar to the present one, Gilbert Bros. v. Gilbert, 258 Ill.App.3d 395, 196 Ill.Dec. 492, 630 N.E.2d 189 (1994), the Illinois Appellate Court determined that the joint tenancy remained intact, even after a finding of fraud in the conveyance. In Gilbert Bros., the husband, Nick Gilbert, owned a certificate of deposit (CD) with his wife as joint tenants. After an action was filed against Nick by his former company, ownership of the CD was transferred to the Gilberts’ son as trustee. Nick died shortly thereafter. Id., 196 Ill.Dec. 492, 630 N.E.2d at 191. Gilbert Brothers complained the conveyance was fraudulent to escape a potential judgment lien. Although the case was dismissed as the statute of limitations had run, the appellate court noted:

Moreover, apart from the dismissal, the Company’s claim is moot because the Company alleges that Nick, as a joint tenant, fraudulently transferred his interest to the other joint tenant, his wife, and then he died. Assuming the Company was successful on the merits of its claim for fraudulent transfer, the court would reinstate the property as it was at the time prior to the fraudulent transfer. Because Nick’s death occurred prior to any judgment received by the Company, the property would have transferred to the surviving joint tenant at that time of death, extinguishing any rights the Company may have had.

Id., 196 Ill.Dec. 492, 630 N.E.2d at 192-93 (emphasis added); see also Covington v. Murray, 220 Tenn. 265, 416 S.W.2d 761, 764 (1967) (fraudulent conveyance by a husband to his wife did not convert tenancy by the entireties into a tenancy in common; thus, upon the husband’s death, the wife retained fee simple title extinguishing creditor’s lien.); cf. Marine Midland Bank v. Murkoff, 120 A.D.2d 122, 130, 508 N.Y.S.2d 17 (N.Y.App.Div.1986) (“the relief to which a defrauded creditor was entitled in an action to set aside a fraudulent conveyance was limited to that which could have been obtained had there been no conveyance.”).

¶ 21. Mississippi has not addressed the issue of whether a fraudulent conveyance severs a joint tenancy. The statute simply states that fraudulent conveyances are to be considered “clearly and utterly void” as against a creditor. See also Morreale v. Morreale, 646 So.2d 1264 (Miss.1994); Blount v. Blount, 231 Miss. 398, 95 So.2d 545 (1957). Nevertheless, the Mississippi Supreme Court has held that: “Equitable estoppel is a doctrine that is to be applied cautiously. It is to be used as a shield and not a sword.” First Investors Corp. v. Rayner, 738 So.2d 228, 233 (¶ 22) (Miss.1999) (citing Covington County v. Page, 456 So.2d 739, 741 (Miss.1984)); see also Murray, 416 S.W.2d at 764 (“The doctrine of estoppel may be urged to protect a right, but never to create one.”). Hilda’s claims are an attempt to be placed in a better position than she would have been had the conveyances not been executed, which is not the aim of equity. Thus, this Court is compelled to find that, even if the conveyances to SRT Investments were fraudulent, and thereby void as to Hilda’s claim, Jimmy and Theresa still held the property as joint tenants with right of survivorship, as if the conveyances had never occurred.

¶ 22. Hilda still retains her judgment, which may be executed against the personal property of Jimmy’s estate. Accordingly, we find no abuse of discretion in the chancellor’s denial of Hilda’s petition for execution and motion to the alter judgment as the March 3, 1999 conveyances were void as to Hilda’s judgment. As a result, Jimmy and Theresa held the property as joint tenants or tenants by the entirety with a right of survivorship, with Theresa taking the property free from Hilda’s judgment at Jimmy’s death.

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

LEE, C.J., GRIFFIS, P.J., MYERS, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, P.J.,

dissenting:

¶ 24. On December 1, 1997, Jimmy and Theresa Roby executed four promissory notes and four deeds of trust to secure repayment of a $200,000 indebtedness to SRT Investments (SRT). The deeds of trust were recorded on February 11, 1998, and covered five parcels of land that were owned by Jimmy and Theresa either as joint tenants with the right of survivorship or as tenants by the entirety with right of survivorship. On March 3, 1999, Jimmy and Theresa, via four warranty deeds, conveyed the five parcels of land to SRT. However, SRT did not record the deeds until August 20, 2002, which was sixteen days after Jimmy’s death. In the meantime, on May 28, 1999, Hilda Jane Roby Kelly, Jimmy’s former wife, had enrolled a $6,000 judgment against Jimmy that she had obtained against him for back-due child support.

¶ 25. On September 13, 2004, in an attempt to satisfy her judgment, Hilda petitioned the chancery court for authority to sell the property that had been conveyed to SRT by Jimmy and Theresa. The chancellor denied the petition. In doing so, the chancellor found, on the basis of Mississippi Code Annotated section 89-5-3 (Rev. 1999), that the four warranty deeds from Jimmy and Theresa to SRT were void as to Hilda because, although they were executed by the Robys to SRT prior to Hilda obtaining her judgment against Jimmy, they were not recorded prior to the enrollment of Hilda’s judgment. The chancellor also found that, since the deeds were void as to Hilda, the legal consequence thereof was a reversion of the fee simple title to Jimmy and Theresa. The chancellor then concluded that when Jimmy died without Hilda having executed on her judgment, her lien was extinguished, because Jimmy’s interest had passed to Theresa by virtue of the right-of-survivorship clause in the deeds. The majority finds no error in the chancellor’s ruling. With respect, I disagree; therefore, I dissent.

¶ 26. Section 89-5-3 reads in pertinent part as follows:

All bargains and sales, and all other conveyances whatsoever of lands ... shall be void as to all creditors ... unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded.... But as between the parties and their heirs, ... said instruments shall nevertheless be valid and binding.

(Emphasis added). The parties to the March 3, 1999 deeds were Jimmy, Theresa, and SRT. Therefore, it is clear, from a proper interpretation of section 89-5-3, that title to the five parcels of land described in the deeds was conveyed or transferred to SRT, but subject to Hilda’s judgment lien. This is so because, as to Hilda, the transaction was void, meaning, legally, it was as if no transaction had occurred between Jimmy, Theresa, and SRT. If no transaction, recognizable by the law, had occurred at the point in time when Hilda enrolled her judgment, it stands to reason that her judgment lien attached when title to the property, as mandated by section 89-5-3, was still in the hands of Jimmy and Theresa. While a proper interpretation of section 89-5-3 may appear, at first blush, to present a conundrum, it really does not. I acknowledge, however, that it creates a legal fiction that prohibits recognition, to a limited degree, of an instrument, yet, at the same time, mandates full legal recognition of the instrument just rejected. Consequently, the majority, in my humble opinion, misinterprets section 89-5-3 as requiring that the conveyances from Jimmy and Theresa to SRT be deemed void not only to them, but to all the world. The plain language of the statute refutes such a construction, because under section 89-5-3, any unrecorded instrument remains a valid and binding instrument between the parties.

¶ 27. Although I find that the chancellor erred in finding that title to the property did not transfer to SRT as a result of the four warranty deeds given to it by Jimmy and Theresa, the analysis does not end there. Prior to Hilda’s judgment lien being filed, Jimmy and Theresa had given SRT four deeds of trust securing a $200,000 indebtedness. No question, these deeds of trust enjoyed priority status over Hilda’s judgment lien. Therefore, before we can resolve the issue of whether the chancellor erred in not granting Hilda’s petition for authority to sell the property to satisfy her judgment lien, we have to first decide whether the 1997 deeds of trust are valid and binding and, if so, whether the indebtedness secured by them has been paid off. In my judgment, the record is insufficient to make that determination. Therefore, I would reverse and remand this case to the chancery court for the express purpose of determining whether the 1997 deeds of trust created valid liens against the property. If the finding is that they were valid instruments at the time of their execution, then the chancellor should determine whether the March 3, 1999 conveyances constituted an equitable foreclosure of the 1997 deeds of trust. See Tulane Hardwood Lumber Co. v. Perry, 226 Miss. 492, 84 So.2d 519 (1956); Moses v. Ehrlich, 217 Miss. 341, 64 So.2d 352 (1953). If the chancellor finds that an equitable foreclosure of the 1997 deeds of trust occurred as result of the 1999 warranty deeds to SRT from Jimmy and Theresa, then the chancellor shall determine the amount of the outstanding indebtedness at the time of the foreclosure, as well as the value of the property. If the value of the properties exceeds the outstanding indebtedness, then the chancellor shall allow Hilda to execute upon the properties to satisfy her judgment lien.

¶ 28. For the reasons presented, I dissent.

      . Although listed as an appellee, Theresa Roby is not actively participating in this appeal. The chancery court entered a judgment against Theresa on October 23, 2009, (see further detail below), ordering her to pay $113,300 to the Estate for Jimmy’s personal property that she had sold. In a letter to this Court, Theresa stated that she had filed Chapter 7 bankruptcy, discharging the judgment owed to the Estate and "also any potential foreclosure deficiency owed Mary Phyfer[J” There are now only two appellees that are participating in this appeal: Mary Phyfer and the children of Jimmy Roby representing the estate.

      . A thorough discussion of the difference between joint tenancy and tenants by the entire-ties is contained in Ayers v. Petro, 417 So.2d 912, 914 (Miss.1982), which states that both estates have the common "unities of time, title, interest, and possession ... but in an estate by entirety there is an additional unity, namely, that of person.... The seizin of the tenants distinguishes the two estates, and a marked, and perhaps the principal, distinction lies in the possibility of severance and destruction.” While a conveyance by one party of an undivided interest in a joint tenancy severs the estate, "[a]n estate by entirety may exist only in a husband and wife and may not be terminated by the unilateral action of one of them because they take by the entireties and not by moieties.” Id. Further, it has long been held that:
      Joint tenants, by reason of the combination of entirety of interest with the power of transferring in equal shares, are said to be seised per my et per tout, or by the half and the whole, but tenants by the entirety are seised per tout et non per my, and the conveyance by either husband or wife will have no effect against the other if survivor.

        In re McKelway's Estate, 221 N.Y. 15, 116 N.E. 348, 349 (1917).

      . Mary explained that the reason for the delay in recording the deeds was because Jimmy had begged her not to do so, as he hoped to repay his debt to her and possibly reclaim the property.

      . Although Hilda's motion states that Theresa and Mary failed to filed an answer, the record reflects that Theresa filed a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, which alters the thirty-day requirement, and a responsive pleading was not required. Although we cannot determine from the record why Mary filed no responsive pleading, counsel for Mary entered an appearance with the court. As there was further discovery conducted and the motion for default judgment never pursued further by Hilda or ruled on by the court, it is considered to have been abandoned. See Lucas v. Baptist Mem'l Hosp.-N. Miss., Inc., 997 So.2d 226, 231 (¶ 14) (Miss.Ct.App.2008) (A movant has an "affirmative duty” to make sure that his motion is brought to attention of the judge and request a hearing on the motion.)

      .The chancery court had previously conducted two hearings regarding Theresa’s improper disposal of estate assets.

      . The chancellor stated that had Hilda executed on her judgment prior to Jimmy’s death, "a different result might have followed!)]” There was no need for the chancellor to distinguish between the property held as joint tenants and that held as tenants by the entirety as all conveyances granted survivorship rights in Theresa.

      . Mary asserts on appeal that the court’s decision not to consider the petition was because it was untimely, being outside of the statute of limitations.

      . We note that this assertion is contrary to her position in her petition for execution and amended petition — that until his demise in 2002, Jimmy "held ownership interest in and to each” of the parcels of property at issue.

      .We observe that in the order denying Hilda’s motion to alter the judgment, the chancellor ruled that: "This matter is ready for appeal to the Supreme Court of Mississippi should any party elect to do so.” While this language is extremely weak to render a Mississippi Rule of Civil Procedure 54(b) final judgment, we find that we do have jurisdiction and will address the merits.

      . Although the Estate has filed an appellee brief, arguing that the conveyances should be "set aside and held for naught” to allow the Estate to "reach the real property to satisfy” Jimmy's debts, its claims were not addressed by the chancery court in the opinions considered in this appeal. Therefore, this Court has no jurisdiction as to any claims made by the Estate.

      . While section 15-3-3 was in effect at the time of the conveyances at issue, we note that in 2006, the statute was repealed and replaced with Mississippi Code Annotated section 15-3-107 (Supp.2010). The basic intent of the statute, however, remains the same. Section 15-3-107 states that a conveyance is considered fraudulent if the debtor "made the transfer or incurred the obligation with actual intent to hinder, delay or defraud any creditor of the debtor.”

      . It is clear that the purpose of section 89-5-3 is to prevent the kind of havoc that could and would occur in real-estate transactions if one is allowed to take title to real property and not promptly give notice to all the world of the change in ownership by timely recording the title instrument. What occurred in this case depicts with great clarity the havoc that the statute is designed to prevent. Since the grantee of the unrecorded instrument is the one who creates the problem, it is only proper that the law imposes any loss occasioned by the grantee’s dilatoriness upon that person or entity. Here, that person is Mary Phyfer.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Ricky L. HAGGARD, Appellant v. CITY OF JACKSON, Mississippi, Appellee.
    No. 2010-CA-00930-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Feb. 7, 2012.
    Certiorari Denied April 5, 2012.

      Robert N. Norris, Louis H. Watson Jr., Jackson, attorneys for appellant.
    Pieter Teeuwissen, Claire Barker Hawkins, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Ricky L. Haggard was employed by the City of Jackson, Mississippi (the City), through a federal grant program for approximately three years. The grant provided a salary for Haggard’s position of up to $70,000 per year. After his employment was terminated, Haggard filed suit in the Hinds County Circuit Court against the City, alleging that the City owed him approximately $91,000 in retroactive pay because he received less annual salary throughout his employment than the grant’s yearly maximum. Haggard further asserted claims of racial discrimination against the City. Thereafter, the City filed a motion to dismiss, which was granted as to Haggard’s contract claims. However, with regard to the claims of racial discrimination, the circuit court requested that the parties provide the court with information outside of the pleadings for the court’s review. As such, the remainder of the City’s motion to dismiss, concerning the racial-discrimination claims, was converted by the circuit court into a motion for summary judgment. On April 16, 2010, the circuit court granted the City’s motion and entered a judgment dismissing all claims with prejudice. Aggrieved, Haggard appeals. Finding no error, we affirm.

FACTS

¶ 2. In April 2003, Haggard was hired by the City to serve as a project manager for the City’s Metropolitan Medical Response System (MMRS) grant program. The MMRS grant program was a federally funded grant that allotted a maximum annual salary of $70,000 for the project-manager position. The record reflects that during the three years and four months that Haggard was employed as project manager, he was paid less than $70,000 per year. According to Haggard, the provisions of the MMRS grant-program contract provided him eligibility for a raise in September 2003. However, Haggard did not receive a raise at that time, or any time thereafter.

¶ 3. In 2005, the City hired Todd Chandler as fire chief. As fire chief, Chandler was Haggard’s supervisor. Chandler terminated Haggard’s employment in August 2006. Haggard asserts that his termination was based on his' being a black male. He further argues that Chandler, as a white male, made numerous other employment decisions that reflected racial discrimination. The City terminated Chandler’s employment in 2007.

¶ 4. Pursuant to the Mississippi Tort Claims Act (MTCA), Haggard filed a notice of claim against the City in April 2007. On September 5, 2007, Haggard filed suit in the circuit court claiming breach of contract, fraudulent and/or negligent misrepresentation, promissory estoppel, and racial discrimination under 42 U.S.C. §§ 1981 and 1983 (2003).

¶ 5. The City filed a motion to dismiss all claims, which was granted in part and denied in part. The circuit ■ court dismissed Haggard’s breach-of-contract claim. Haggard did not have a written employment agreement with the City. Rather, the terms of his employment were understood by virtue of an implied employment contract or a quasi-contract. The court found that under the MTCA, the City cannot be liable for any breach of an implied contract.

¶ 6. Haggard conceded that his claims of fraudulent or negligent misrepresentation and promissory estoppel should be dismissed. The circuit court then determined that Haggard’s argument that he was a third-party beneficiary to the MMRS grant-program contract between the City and the federal government was not well-taken. Accordingly, the circuit court dismissed all of Haggard’s breach-of-contract claims.

¶ 7. The circuit court then granted the parties forty-five days to provide additional evidence regarding the racial-discrimination claims. Whereas review of a motion to dismiss allows a circuit court to consider only the information contained in the pleadings, analysis of a motion for summary judgment permits a circuit court to study additional information not found in the pleadings. Because the circuit court requested information outside of the pleadings regarding its analysis of the racial-discrimination claims, the court converted the remainder of the City’s motion to dismiss into a motion for summary judgment.

¶ 8. On April 16, 2010, the circuit court reviewed the parties’ supplemental submissions and granted the City’s motion for summary judgment as to Haggard’s remaining racial-discrimination claims. The circuit court determined that because the City is a municipality, it cannot be held liable for any employee violations. The court further found that because Haggard failed to show that the City utilized a specific policy of racial discrimination, Haggard’s claims must rest upon his showing that the City customarily practiced racial discrimination such that it was essentially a municipal policy.

¶ 9. Haggard did not provide any evidence showing the City maintained a policy of practicing racial discrimination other than his own personal affidavits. Accordingly, the circuit court held that Haggard had failed to meet his burden of proof under the law and dismissed the case. Haggard appeals, claiming: (1) the circuit court erred in granting the City’s motion to dismiss as to his breach-of-contract claims; and (2) the circuit court erred in granting the City’s motion for summary judgment as to his racial-discrimination claims. Having found no error, we affirm the circuit court’s judgment.

DISCUSSION

¶ 10. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted). Summary judgment is proper “if 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.” M.R.C.P. 56(c). Although this Court must view the evidence in the light most favorable to the non-moving party, the party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[W]hen a party[] opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

I. Breach-of-Contract Claims

¶ 11. The MTCA governs the immunity of the state and its political subdivisions, including the City, from liability for torts committed by the state, its political subdivisions, and their employees. Miss.Code Ann. § 11-46-3 (Rev.2002). As such, the MTCA “grants immunity to the state and its political subdivisions for ‘breach of [an] implied term or condition of any warranty or contract.’ ” City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 711 (¶ 38) (Miss.2005) (quoting Miss.Code Ann. § 11-46-3). Here, the record reflects that while Haggard was employed by the City through the MMRS grant program, no written contract existed to outline the parties’ agreement.

¶ 12. The supreme court has held that “the traditional features of an employment contract are (1) consent of the parties, (2) consideration for the service rendered, (3) and control by the employer over the employee.” Levens v. Campbell, 733 So.2d 753, 758 (¶ 15) (Miss.1999) (citation omitted). In the instant case, it is clear that the City and Haggard both consented to Haggard’s employment. The City benefit-ted from Haggard’s services and in return, Haggard received a salary. The record further reflects that the City exercised control over Haggard during his employment. Accordingly, we agree with the circuit court in its finding that Haggard and the City operated under an implied contract.

¶ 13. Haggard does not argue that he was not paid for his services. Rather, he claims he was not paid enough in light of the maximum salary allowed by the MMRS grant program. As such, eligibility for a raise would be an implied condition of the implied contract between Haggard and the City. The MTCA specifically provides that breach of an implied term or condition of any contract does not negate the immunity of the state or its political subdivisions. Miss.Code Ann. § 11-46-3. Hence, as a matter of law, the City cannot be held liable for Haggard’s breach-of-contract claim.

¶ 14. Additionally, Haggard asserted that he was a third-party beneficiary to the contract between the City and the federal government concerning the MMRS grant program. With regard to third-party beneficiaries, the supreme court has held the following:

In order for the third[-]person beneficiary to have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third[-]person beneficiary. This obligation must have a legal duty which connects the beneficiary with the contract. In other words, the right (of action) of the third[-]party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1051 (¶ 25) (Miss.2002) (citation omitted).

¶ 15. Stewart involved a patient at an adult day-care program, a program sponsored, in part, by the Central Mississippi Planning and Development District/Area Agency on Aging (Agency). Id. at 1044 (¶ 4). The patient was injured after stepping off of a bus operated by the City for the purpose of carrying passengers to and from the day-care. Id. at 1044 (¶¶ 4-5). The court determined that the patient was a third-party beneficiary of the transportation contract between the City and the Agency because the contract in question existed to benefit persons, such as the patient in question, who needed transportation to and from the day-care. Id. at 1051 (¶¶ 25-26).

¶ 16. According to Haggard, his employment through the MMRS grant program involved the “managing] and coordinating of] a strategic plan in the event of a terrorist attack involving the use of weapons of mass destruction.” The City asserts that the purpose of the MMRS grant program was “to integrate the local public health and medical resources into the local emergency management plan so as to enhance the community’s ability to respond and manage the health consequences of a nuclear, biological, or chemical terrorist incident.” In either event, the contract between the City and the federal government regarding the funding of the MMRS grant program was negotiated for the benefit of the public. Haggard, as an employee within the MMRS grant program, was not a direct beneficiary. His employment was an indirect consequence of the contract between the City and the federal government.

¶ 17. Therefore, we affirm the circuit court’s judgment dismissing Haggard’s breach-of-contract claims. This issue is meritless.

II. Racial-Discrimination Claims

¶ 18. Haggard argues that the City is liable for racial discrimination under sections 1981 and 1983. Section 1981 allows for equal rights for all persons “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” Section 1983 provides the legal vehicle through which a party may sue for a violation of section 1981.

¶ 19. The United States Supreme Court has specifically held that a state municipality cannot be found liable for an employee’s violation of section 1981 under a theory of respondeat superior. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). In Jett, the Supreme Court determined that Congress intended for section 1983 to be “controlling in the context of damages actions brought against state actors alleging violation of the rights declared in section 1981.” Id. The Supreme Court went on to say that its interpretation granted lawful private action against state actors pursuant to section 1983, but it did not extend to allow suit against state actors via section 1981. Id.

¶ 20. Two years after Jett, Congress amended section 1981 by adding subsection (c), which states that the rights referenced in section 1981 “are protected against impairment by nongovernmental discrimination and impairment under col- or of State law.” The United States Fifth Circuit Court of Appeals subsequently addressed the question of whether the addition of subsection (c) abrogated the Supreme Court’s ruling in Jett regarding liability of state actors under section 1981. Oden v. Oktibbeha County, Miss., 246 F.3d 458, 462-64 (5th Cir.2001). Therein, the Fifth Circuit stated: “Because Congress neither expressed its intent to overrule Jett, nor explicitly created a remedy against state actors in addition to section 1983, we are not willing to deviate from the Supreme Court’s analysis of section 1981 in Jett.” Id. at 464. Accordingly, the relief sought by Haggard under section 1981 was properly dismissed by the circuit court.

¶ 21. Haggard next claims that the City violated section 1983 by “failing to pay [him] the proper salary and benefits as set forth in the grant[,] coupled with [his] removal ... from the position of Project Manager and the subsequent replacement of [him] with a white male.” Haggard further asserts that the acts of former Fire Chief Chandler constituted a “custom and practice” of racially discriminatory actions on the part of the City.

¶ 22. The United State Supreme Court has held that an action under section 1983 against a state actor is valid if the plaintiff shows that the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflictfed] the injury.” Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The City may not be held liable for the actions of its employees unless Haggard can prove that the City adopted a policy or custom of discrimination. In order to do so, Haggard must show the following:

1. A policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under [section] 1988 unless they execute official policy as above defined.

Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002) (citations omitted).

¶23. In support of Haggard’s theory that the City employed a policy or custom of racial discrimination, Haggard merely provided the circuit court with his own pleadings and affidavits reflecting allegedly discriminatory actions of former Fire Chief Chandler. Haggard did not provide the circuit court with any further evidence of Chandler’s purported actions, or evidence of any discriminatory actions on the part of the City or other City employees. Accordingly, Haggard failed to meet his burden of proof in showing that the City, or its employees, operated under a custom or practice of racial discrimination. This issue is without merit.

CONCLUSION

¶ 24. The City provided for Haggard’s employment with funds from the MMRS grant program through an implied contract. Haggard does not claim that the City failed to provide him with the promised payment. Rather, he claims that the City failed to raise his salary to the maximum amount provided for in the MMRS grant program. Accordingly, Haggard asserts breach-of-contract issues which are expressly barred by the MTCA. Furthermore, Haggard’s argument that he was a third-party beneficiary to the contract between the City and the federal government regarding the MMRS grant program fails. Haggard’s employment under the MMRS grant program was an indirect consequence of a plan intended to benefit the general public. Finally, Haggard’s racial-discrimination assertions are meritless. His claim under of section 1981 fails as a matter of law. Additionally, he has not provided sufficient evidence to support an argument under section 1983 that the City exercised a custom or practice of racial discrimination. Accordingly, we affirm the circuit court’s judgment dismissing Haggard’s case with prejudice.

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

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


author: GRIFFIS, P.J.,

text:
    Jessica Michelle (Menard) McLEOD, Appellant v. Anthony Scott McLEOD, Appellee.
    No. 2010-CA-00944-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied March 27, 2012.

      Elliot G. Mestayer, Pascagoula, attorney for appellant.
    Mark V. Knighten, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jessica Michelle Menard McLeod appeals the judgment of the Jackson County Chancery Court that denied her motion for contempt and modification of child support. She claims on appeal that: (1) her ex-husband, Anthony Scott McLeod, is responsible for the payment of one-half of private-school tuition under the terms of the parties’ settlement agreement; (2) the chancellor failed to hold Anthony in contempt for past-due medical expenses; and (3) the chancellor improperly denied an increase in monthly child support. We find that the judgment should be affirmed in part, reversed and rendered in part, and reversed and remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. On July 8, 2005, Jessica and Anthony were granted a divorced based on irreconcilable differences. Their judgment of divorce included an executed child custody, child support, and property-settlement agreement, which gave Jessica sole legal and physical custody of their minor daughter. Anthony was ordered to pay Jessica $350 per month in child support.

¶ 3. Jessica filed a motion for contempt and modification of child support. On February 13, 2009, Anthony was held in contempt for his failure to pay child support, but Jessica’s request for an increase in child support was denied.

¶4. Jessica filed a second motion for contempt and modification on October 15, 2009. This time, she alleged that Anthony was in contempt for harassing the child’s medical providers; for failing to provide complete tax returns; and for failing to pay his share of the child’s medical expenses, educational expenses, and extracurricular activities. Jessica requested, under Mississippi Rule of Civil Procedure Rule 60(b), that the chancellor set aside the order of February 13, 2009, to the extent that it denied an increase in child support because Anthony underestimated his monthly income. Anthony had testified that he made $11.66 per hour when his actual pay rate was $15.57 per hour.

¶ 5. The chancellor found that the term “tuition” as it was used in the parties’ agreement was ambiguous and that it referred to college tuition not private-school tuition. The chancellor held Anthony in contempt on only one issue — his failure to pay a $25 medical bill. Jessica’s request to increase the amount of child support was denied.

STANDARD OF REVIEW

¶ 6. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). Questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000).

ANALYSIS

1. Whether Anthony is responsible for the payment of private-school tuition under the parties’ settlement agreement.

¶ 7. Jessica and Anthony’s property-settlement agreement contained the following paragraph, under the heading “Child Support”:

C. School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extracurricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment. Husband shall pay on August 1 and January 1 of each year, the sum of $150.00 toward! ] the cost of new clothes for the minor child.
¶ 8. Jessica’s motion for contempt alleged that, under this clause of the agreement, Anthony owed Jessica one-half of their daughter’s private-school tuition. Anthony responded that he intended the word “tuition” to refer only to college tuition. He testified that he could not afford to pay private-school tuition. He further stated that the parties had never contemplated that their daughter would attend private school. When the divorce was finalized in 2005, their daughter was enrolled in public school in Mobile, Alabama. She continued to attend public school in Pascagoula, Mississippi, until 2009.

¶ 9. The chancellor noted that “[t]he minor child was attending public school at the time of the parties’ divorce and there was no indication that the child would not continue at public school. Only after the child was bullied did Jessica make the unilateral decision to enroll the child in private school.” Therefore, the chancellor concluded that the word “tuition” was “intended to mean college tuition for the minor child as the parties never contemplated sending the child to private school.”

¶ 10. The chancellor further found that, under the holdings in Southerland v. Southerland, 816 So.2d 1004 (Miss.2002) and Moses v. Moses, 879 So.2d 1043 (Miss.Ct.App.2004), private-school tuition is included in the statutory amount of child support. As Anthony was already paying the statutory amount, the chancellor held that she could not require Anthony to pay over and above that amount of child support to fund the child’s private-school tuition.

¶ 11. In Southerland, the chancellor found that, prior to the divorce, the parties had agreed to enroll their child in private school. Southerland, 816 So.2d at 1005-06 (¶ 8). The chancellor considered the private-school tuition as an extraordinary expense and awarded an amount greater than the statutory amount of child support. Id. The Mississippi Supreme Court held that private-school tuition is included in an award of child support under the statutory guidelines. Id. at 1006 (¶ 11).

¶ 12. Mississippi Code Annotated section 43-19-101(2) (Rev.2009) requires that the statutory amount of child support be awarded “unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in [s]ection 43-19-103.” In Southerland, the supreme court held that the chancellor had failed to make the specific findings required to award an amount of child support over that which the statute allowed. Southerland, 816 So.2d at 1006 (¶ 9). Importantly, the supreme court stated: “While a father’s agreement prior to divorce to send a child to private school may be one legitimate factor to be considered, it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory guidelines.” Id. at 1007 (¶13).

¶ 13. Similarly, in Moses, this Court stated that the father’s agreement to allow the child to attend private school prior to the divorce could not be the sole basis for an award of child support above the statutory amount without further specific findings by the chancellor. Moses, 879 So.2d at 1048-49 (¶¶ 14-15).

¶ 14. Here, the chancellor correctly cited these cases for the proposition that private-school tuition is an ordinary expense included in the statutory amount of child support. However, we find this case is distinguishable from Southerland and Moses. In both of those cases, the award of private-school tuition above the statutory amount of child support was reversed because it was based solely on the father’s agreement to enroll the child in private school prior to the divorce. Here, the agreement regarding tuition was made at the time of the divorce, and it was incorporated into the divorce decree.

¶ 15. Once a settlement agreement is approved by the chancellor and incorporated into the divorce decree, it becomes part of the decree for all legal intents and purposes. Switzer v. Switzer, 460 So.2d 843, 845-46 (Miss.1984). The supreme court has held that “when parties in a divorce proceeding have reached an agreement that a chancery court has approved, we will enforce it, absent fraud or overreaching, and we take a dim view of efforts to modify it just as we do when persons seek relief from improvident contracts.” Ivison v. Ivison, 762 So.2d 329, 334 (¶ 14) (Miss.2000). Thus, we must decide whether the parties’ agreement, which was approved by the chancellor and incorporated into the final divorce decree, encompasses the payment of private-school tuition.

¶ 16. Jessica argues that the chancellor applied an incorrect legal standard by considering parol evidence to conclude that the term “tuition” used in the property-settlement agreement did not apply to private-school tuition, but it was instead intended to refer to college expenses.

¶ 17. Our standard of review for this issue was set forth in Meek v. Warren, 726 So.2d 1292, 1293-94 (¶ 3) (Miss.Ct.App.1998), which states:

Because the resolution must be reached via the interpretation of a divorce judgment, our task is to view the terms of the document, find their legal meaning, and adjudge their enforceability. Webster v. Webster, 566 So.2d 214, 216 (Miss.1990). The familiar manifest error/substantial evidence rules have no application to such questions of law. Id. Consequently, our review is de novo, provided only that we read the entire settlement agreement/divorce judgment and in the best light possible, attributing to its provisions the most coherent and reasonable scheme they may yield. Id. However, we remain cognizant that our authority is circumscribed in that we may not provide through the pretense of interpretation that not directly or impliedly a part of the text we interpret. Id.

The supreme court has also warned that:

[T]he parties are bound by the language of the contract where a contract is unambiguous. The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law. When a contract is clear and unambiguous, this Court is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.

Ivison, 762 So.2d at 335 (¶¶ 16-17) (quotations omitted).

¶ 18. In their divorce judgment, Jessica and Anthony agreed to this provision:

C. School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extracurricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment. Husband shall pay on August 1 and January 1 of each year, the sum of $150.00 toward! ] the cost of new clothes for the minor child.

¶ 19. The chancellor was incorrect to find that the word “tuition” is ambiguous. The paragraph is entitled “School and Extracurricular Expenses.” It states that the husband and wife are responsible for one-half of “all school and extracurricular expenses incurred by the minor child.” (Emphasis added). It then lists example expenses, including “tuition.” The word “tuition” immediately follows “school uniforms,” which, as Anthony conceded, would not be an expense incurred in college.

¶ 20. We find that the parties agreed to pay for one-half of all of their daughter’s school expenses, including her current private-school tuition. Accordingly, the judgment of the chancellor is reversed, and we render a decision requiring Anthony to pay for one-half of his daughter’s private-school tuition.

2. Whether the chancellor erred by failing to hold Anthony in contempt for past-due medical expenses.

¶ 21. Jessica claimed that Anthony owed her for four past due medical bills: (1) $32.50 to Dr. John Stoudenmire, the minor child’s psychologist; (2) $146.92 to Singing River Hospital; (3) $20 to the Medicine Shoppe; and (4) $25 to Bienville Orthopedics. The chancellor found that Jessica insisted on sending the minor child to Dr. Stoudenmire instead of a therapist within Anthony’s medical-insurance network. Accordingly, the chancellor did not require Anthony to pay Dr. Stoudenmire’s bill. Instead, the chancellor held that Anthony would be responsible for one-half of the bill should Jessica take the minor child to a therapist covered by Anthony’s insurance.

¶ 22. The chancellor found that there was a pending insurance claim in the amount owed Singing River Hospital; therefore, Anthony owed no amount until the claim had been resolved. Anthony presented a check that the chancellor accepted as proof that he paid the $20 owed to the Medicine Shoppe. Anthony testified that he never received the bill for $25 to Bienville Orthopedics. The chancellor found that Anthony owed Jessica the $25 due but that his failure to pay did not amount to wilful and contumacious contempt.

¶ 23. On appeal, Jessica claims that Anthony should be responsible for one-half of the cost to see Dr. Stoudenmire even though he is not covered by Anthony’s insurance. She also claims that she should not have to wait until the pending insurance claim is resolved before receiving Anthony’s payment for Singing River Hospital. She cites the relevant clause of their agreement, which states:

Husband shall provide medical and dental insurance, if available through his place of employment, for the minor child of the parties. Husband and Wife shall each be responsible for one-half (1/2) of all medical, dental, ocular and pharmaceutical expenses of the minor child of the parties not covered by insurance. All such uncovered bills received by the Wife shall be submitted to the Husband for payment within thirty (30) days after receipt of the bills.

¶ 24. By its terms, the agreement requires that Anthony pay half of the uncovered bills received by the wife. Naturally, as the chancellor held, Jessica must wait until the insurance claim has been processed to receive Anthony’s payment so that the parties will know what amount is not covered by insurance.

¶25. Furthermore, the agreement requires Anthony to maintain medical insurance for the minor child, which he has done. Jessica now attempts to disregard Anthony’s insurance coverage and send the minor child to a therapist not covered under Anthony’s policy. The chancellor did not abuse her discretion in finding that Jessica must first take full advantage of the insurance before Anthony should be required to pay one-half of the expense. Accordingly, the chancellor’s decision on this issue is affirmed.

3. Whether the chancellor improperly denied an increase in the amount of monthly child support.

¶ 26. Jessica petitioned the chancellor for a modification in child support due to the increase in the cost of raising the minor child. Jessica claims that the chancellor improperly denied an increase in the amount of monthly child support because Anthony’s adjusted gross income on his 8.05 financial statement did not include his $598 monthly veterans benefit.

¶ 27. Our review of the record reveals that Anthony’s veteran benefit is, in fact, included on his 8.05 financial statement. The issue that remains unclear to us is whether the financial statement reflects Anthony’s current rate of pay from his employer. Because of this uncertainty, we remand this issue to the chancellor to determine whether Anthony’s increase in pay resulted in a change in circumstances necessary to increase the amount of his child support obligation.

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

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

      . Jessica testified that their daughter was being bullied at the public school she attended in Pascagoula, so Jessica transferred her to a private school.


author: MAXWELL, J.,

text:
    Joseph R. TRISTE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00864-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied April 3, 2012.

      Joseph R. Triste, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., Scott Stuart, attorneys for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Joseph R. Triste appeals the Ita-wamba County Circuit Court’s denial of his motion for post-conviction relief (PCR) arguing his sentence was illegal. Finding his sentence was within the statutory maximum and the fine imposed authorized by statute, we affirm.

FACTS

¶ 2. An Itawamba County grand jury returned a four-count indictment against Triste. The indictment set forth one count each of burglary, kidnapping, armed robbery, and conspiracy to commit burglary. On February 13, 2009, Triste pled guilty to burglary (Count I) and kidnapping (Count II). The remaining counts were dismissed. On Count I, the circuit court sentenced Triste to twenty-five years in the custody of the Mississippi Department of Corrections, with seventeen years suspended, followed by five years of post-release supervision. As a condition of the suspended sentence, Triste was ordered to pay a $1,000 fine. On Count II, the circuit court sentenced Triste to thirty years, all suspended.

STANDARD OF REVIEW

¶ 3. In considering the denial of a PCR motion, we review the trial court’s findings of fact for clear error. Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss.2010). When reviewing questions of law, our standard is de novo. Id.

DISCUSSION

¶ 4. Triste challenges only his sentence for burglary. He claims the sentence is illegal because it exceeded the twenty-five-year maximum sentence for burglary, given his five years of post-release supervision. Mississippi Code Annotated section 47-7-34 (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.”

¶ 5. In Brown v. State, 923 So.2d 258 (Miss.Ct.App.2006), we addressed Triste’s exact argument. There, the petitioner, Brown, claimed her sentence, when combined with the term of post-release supervision, exceeded the statutory maximum. Id. at 260 (¶ 5). Brown had pled guilty to manslaughter and was sentenced to twenty years (the statutory maximum) with four years suspended. The court also ordered four years of post-release supervision. We held that the sentence was lawful because the four years of post-release supervision, when added to the sixteen years Brown would be incarcerated, resulted in a twenty-year sentence. Id. This sentence did not exceed the statutory maximum of twenty years.

¶ 6. Triste was sentenced to twenty-five years’ imprisonment. He was ordered to serve eight years, and the circuit judge suspended seventeen years. We note Triste’s five-year period of post-release supervision, when added to the eight-year period of incarceration, is thirteen years. This is well within the twenty-five-year maximum sentence authorized by section 97-17-23(1). We therefore find Triste’s sentence is lawful.

¶ 7. Triste finally contends the circuit court lacked authority to order that he pay a $1,000 fine because the burglary statute does not provide for fines. But he disregards that the circuit court had authority to order the $1,000 fine under Mississippi Code Annotated section 99-19-32(1) (Rev.2007), which provides:

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.

(Emphasis added). Because Triste’s burglary conviction was punishable by more than one year of imprisonment and was not otherwise subject to a fine, the circuit judge had authority to fine him up to $10,000. Cochran v. State, 969 So.2d 119, 122 (¶ 11) (Miss.Ct.App.2007). The statute also specifically authorizes the fine to be imposed in addition to Triste’s imprisonment.

¶ 8. We find no error in the circuit court’s denial of Triste’s PCR motion and affirm.

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

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

      . Other co-defendants were charged in the same indictment.

      . See Miss.Code Ann. § 97-17-23(1) (Supp. 2010).