author: MAXWELL, J.,

text:
    Teresa Darlene JONES, Appellant v. George Herbert MAYO, III, Appellee.
    No. 2009-CA-01131-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      Henry Palmer, Robert James Bresna-han, Meridian, attorneys for appellant.
    Robert R. Marshall, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Teresa Darlene Jones (Darlene) appeals the chancery court’s post-trial determination that her ex-husband, George Herbert Mayo III (Herbert), could satisfy Darlene’s equitable distribution award of $36,488.50 with a portion of his retirement, using a qualified domestic-relations order (QDRO), instead of paying cash. She also appeals the denial of her request for interest on her 2005 award.

¶ 2. At the hearing on Herbert’s motion to reconsider, the chancery court found the omission of a reference to a QDRO in the 2005 divorce judgment was an oversight. The intent of the equitable distribution award was for both Darlene and Herbert to receive an equal share of the martial assets. The marital estate had no cash, and if Herbert were to withdraw $36,488.50 in cash from his retirement, he would lose more than $15,000 in taxes and penalties. Because there were to be no foreseeable tax consequences of the distribution, Herbert’s using a QDRO to transfer $36,488.50 from his retirement to a separate account for Darlene was the only way to achieve the award’s purpose. The chancery court also found, because Herbert had tried to satisfy the award using a QDRO shortly after the divorce judgment was entered, Darlene was not entitled to interest.

¶ 3. Because the chancery court had the authority under Rule 60(a) of the Mississippi Rules of Civil Procedure to clarify its previous divorce judgment and correct any oversight, we find no error and affirm.

FACTS

¶ 4. Darlene and Herbert divorced on January 24, 2005. While they agreed who should keep most of their marital property, they left the issue of equitable distribution to the chancery court. The majority of the marital property was in retirement accounts. Darlene had a state pension worth $23,000, and Herbert had two ERISA-qualifying accounts, worth $82,449 total. All the assets combined totaled $139,637.

¶ 5. Special Chancellor Charles D. Thomas proposed “[dividing this amount equally [so] each party should receive $69,818.50.” He reasoned that “[deducting $33,330.00 in assets [Darlene] is to receive from the agreed value of the personal property already divided would leave her with a deficit of $36,488.50.” Applying the Ferguson factors, he found there were no foreseeable tax consequences of the proposed distribution. The corresponding divorce order awarded Darlene $36,488.50 as a final judgment, bearing interest at a rate of six percent.

¶ 6. To satisfy the judgment against him, in February 2005, Herbert sought to transfer $36,488.50 from one of his retirement accounts to a separate account for Darlene through a QDRO. Darlene refused to execute the QDRO documents, demanding Herbert pay the judgment in cash.

¶ 7. Unable to resolve their dispute, Herbert filed a motion for relief under Rule 60 on May 16, 2005. He sought court authority to satisfy the judgment through his retirement funds, using a QDRO. The motion hearing did not occur until May 2009. In the interim, a new special chancellor, Chancellor Franklin C. McKenzie, had been appointed.

¶ 8. At the May 1 hearing, Chancellor McKenzie determined the 2005 divorce judgment required clarification. Chancellor Thomas, in the January 2005 divorce judgment, had found: (1) there were no foreseeable tax consequences of the distribution; (2) there were no cash assets to divide; (3) Herbert’s only assets available for transfer were his two retirement accounts; and (4) the parties should each take an equal $69,818.50 share of the marital assets. But the order omitted a finding that Herbert’s accounts were ERISA-qual-ifying, only transferrable through a QDRO to avoid immediate tax liability. At the May 2009 hearing, expert testimony revealed Herbert would lose more than $15,000 in taxes and penalties if he transferred $36,488.50 in cash instead of using a QDRO.

¶ 9. Because the intent of the equitable distribution award was for both spouses to take an equal share and avoid immediate tax consequences, the chancellor ordered that Herbert could satisfy the remaining balance of Darlene’s award by transferring money from his retirement to a separate account for Darlene, using a QDRO. Because Herbert had already attempted to satisfy fully the January 2005 judgment using a QDRO in February 2005, Chancellor McKenzie denied Darlene’s request for interest on the balance. Darlene timely appealed Chancellor McKenzie’s June 8, 2009 order.

DISCUSSION

A. Rule 60 Relief

¶ 10. Darlene claims the chancellor erred in allowing Herbert’s Rule 60 motion to be treated as a Rule 59 motion. Because Herbert sought to have the judgment altered or amended, she argues his only remedy was to file a motion under Rule 59(e), which must be filed within ten days of the entry of the judgment. M.R.C.P. 59(e). And because Herbert waited four months to file his motion, she reasons, it should have been dismissed as untimely.

¶ 11. But the chancery court did not alter or amend its 2005 divorce judgment. Instead, under authority provided in Rule 60(a), it clarified an oversight or omission in the 2005 judgment. Rule 60(a) provides that “errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party[.]” M.R.C.P. 60(a). Chancellor McKenzie reasoned that oversight led to the original order omitting the use of a QDRO because a QDRO was the only way to effect the chancellor’s clear intent in the original decision—to avoid tax consequences in the equal distribution of the assets. Although “Rule 60(a) cannot be used to reflect a change in mind by the judge,” it can be used “to correct an order that failed accurately to reflect the judge’s original decision.” Seymour v. Seymour, 869 So.2d 1035, 1036 (¶ 4) (Miss.Ct.App.2004) (citing Edwards v. Roberts, 771 So.2d 378, 386 (¶ 27) (Miss.Ct.App.2000)) (finding chancellor’s clarification of “what his decision in the divorce decree was” fell within scope of Rule 60(a)).

¶ 12. In Seymour, a chancellor, upon hearing the husband’s motion to reconsider the amount of the lump-sum-alimony award, determined his previous award required clarification that the award of “lump sum alimony” was for support, not property distribution. Seymour, 869 So.2d at 1036-37 (¶ 5). Because “Rule 60(a) may be used on the judge’s own motion as a source of authority,” this court found “the chancellor also had the right in responding to Mr. Seymour’s motion, to state that the lump sum alimony was for support.” Id. at 1037 (¶ 6). And because the chancellor stated he was not changing his previous award, this court found the chancellor had the discretion under Rule 60(a) to make that clarification. Id.

¶ 13. Here, upon hearing the parties’ dispute over how the award must be satisfied (by cash or QDRO), the chancellor stated he was not changing the previous order. Instead, he was effecting the intent of the previous award—that the parties share equally without tax consequences— by ordering Herbert to transfer from his retirement account the balance on the judgment using a QDRO. Like the chancellor in Seymour, we find Chancellor McKenzie had the right to correct the oversight in the 2005 award that had led to Darlene and Herbert’s dispute.

¶ 14. Further, we do not find that Chancellor McKenzie’s appointment in 2007 to take over as chancellor in this matter alters Seymour’s application. Darlene argues the law-of-the-case doctrine prevented Chancellor McKenzie, as the subsequently appointed chancellor, from granting Herbert’s post-trial motion. We disagree.

¶ 15. “Under the law of the case doctrine and general principles of comity, a successor judge has the same discretion to reconsider an order as would the first judge, but should not overrule the earlier judge’s order or judgment merely because the later judge might have decided matters differently.” In re Ford Motor Co., 591 F.3d 406, 411 (5th Cir.2009) (citations omitted). At the motion-for-reconsideration hearing, Chancellor McKenzie did not substitute his own judgment but rather found Chancellor Thomas’s award contained an oversight, requiring clarification to effect its intent.

¶ 16. Rule 63(b) authorizes post-trial appointment of judges to perform the duties of a previous judge. M.R.C.P. 63(b). Because Chancellor Thomas, prior to recusal, had the authority under Rule 60(a) to clarify his judgment, Chancellor McKenzie had the same authority.

B. Interest and Attorney’s Fees

¶ 17. Darlene also argues Chancellor McKenzie erroneously denied her request for interest on the outstanding balance of her award. The 2005 divorce judgment expressly stated the award of $36,488.50 was a final judgment, accruing interest at the rate of 6% annually until fully satisfied. We note Herbert’s filing of a Rule 60(b) motion, in itself, did not operate as a stay of the judgment or prevent the accumulation of interest. M.R.C.P. 60(b) & cmt. But the pending motion was not the reason for denying interest.

¶ 18. Instead, the chancellor based his decision not to award interest on the $24,187.62 balance of the judgment because (1) Darlene could have received $36,488.50 in retirement through a QDRO within months of the judgment, and (2) Darlene did not have to share any of the investment loss Herbert has experienced in his retirement accounts since 2005. At the 2009 hearing, Chancellor McKenzie found the evidence proved Herbert had offered to transfer $36,488.50 through a QDRO shortly after the 2005 judgment was entered, but Darlene refused to accept it.

¶ 19. Because Herbert attempted to fully satisfy the judgment soon after its entry but was prevented by Darlene, we find the chancellor did not abuse his discretion in refusing to award Darlene’s request for interest on the balance of her judgment. Cf. Holmes v. Bates, 218 Miss. 233, 236, 67 So.2d 273, 274 (1953) (Attempted tender of full payment by debtor, which was prevented by creditor, stops the running of interest.).

¶ 20. Darlene further argues it was error for the chancellor (1) not to cite Herbert in contempt for failing to timely satisfy the judgment and (2) not to award Darlene attorney’s fees. Although she requested and was denied attorney’s fees at the 2005 divorce hearing, she did not revive this request at the 2009 reconsideration hearing. We find her argument is not proper for appeal because Darlene neither moved for a citation of contempt nor notified Herbert she was seeking attorney’s fees. See Vincent v. Griffin, 872 So.2d 676, 678 (¶ 6) (Miss.2004) (Due process requires one receive adequate notice of contempt charge and a meaningful opportunity to defend oneself before being ordered to pay attorney’s fees.).

¶ 21. Even were her claims for contempt and attorney’s fees proper, they would fail. We review civil-contempt decisions for manifest error. Dennis v. Dennis, 824 So.2d 604, 608 (¶¶7-8) (Miss.2002) (Contempt is civil when the primary purpose is to enforce the rights of private parties or compliance with a court order.). We review the denial of attorney’s fees for abuse of discretion. Woodell v. Parker, 860 So.2d 781, 790 (¶ 33) (Miss.2003) (citations omitted) (reviewing award of attorney’s fees in domestic cases for abuse of discretion); Seghini v. Seghini, 42 So.3d 635, 643 (¶ 31) (Miss.Ct.App.2010) (reviewing award of attorney’s fees based on finding of contempt for abuse of discretion); see also Day v. Day, 28 So.3d 672, 677 (¶ ¶ 22-23) (Miss.Ct.App.2010) (finding no abuse of discretion in denying party’s request for attorney’s fees, even when other party was found in contempt). Because the chancellor found Herbert attempted to satisfy the judgment in 2005, he did not commit manifest error by failing on his own initiative to cite Herbert for contempt for failing to comply with the order. And because the chancellor found Darlene’s refusal to execute a QDRO prevented her judgment from being satisfied, we find he did not abuse his discretion in denying Darlene’s request for attorney’s fees.

CONCLUSION

¶ 22. The chancery court had the discretion, under Rule 60(a), to clarify that Herbert may satisfy the judgment through his retirement funds using a QDRO. Therefore, we affirm the grant of Herbert’s Rule 60 motion ordering Herbert to pay the balance of the judgment, $24,187.62, without interest and attorney’s fees, using a QDRO.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES AND ISHEE, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS AND ROBERTS, JJ., NOT PARTICIPATING.

      . The rest of the assets were equity in personal vehicles, jewelry, and other personal property, including furniture and household items. The sale of the marital home and division of its equity was not included in the equitable distribution.

      . In June 2007, Herbert had requested the chancellors in Lauderdale County’s judicial district (District 12) recuse themselves. Herbert based his motion on Darlene's employment at the Lauderdale County Justice Court and her subsequent marriage to a local attorney.

      . The expert also testified if Darlene received $36,488.50 through a QDRO, should she withdraw the money early, the taxes and penalties would leave her with $20,799 cash.

      . The hearing also revealed Herbert had allowed Darlene to keep $12,300.88, the amount of equity he was entitled to after selling the marital home. Chancellor McKenzie credited Herbert this amount, leaving $24,187162 to be transferred.

      . In general, to prevent the running of interest while a Rule 60(b) motion is pending, a separate motion under Rule 62(b) must be filed. M.R.C.P. 62(b); see Franklin v. BSL, Inc., 987 So.2d 1050, 1052 (¶ 11) (Miss.Ct.App.2008) (Motion for relief did not stay running of deadlines for payment in consent judgment.).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Thomas STURDAVANT, Appellant v. Regina STURDAVANT, Appellee.
    No. 2009-CA-01855-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      Deborah J. Gambrell, Carol Leatrice Jones, Hattiesburg, attorneys for appellant.
    S. Christopher Farris, attorney for ap-pellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thomas and Regina Sturdavant were granted an irreconcilable-differences divorce in the Lamar County Chancery Court. The couple agreed on a property-settlement agreement, alimony payments, and child-custody arrangements, which were incorporated into the final decree for divorce. The chancellor granted Regina’s subsequent petition to modify and increase Thomas’s child-support and periodic-alimony payments. Thomas contends that the chancellor erred in modifying the periodic-alimony requirement and child-support requirement in his and Regina’s judgment of divorce. Finding no abuse of discretion, we affirm the chancellor’s judgment.

FACTS

¶ 2. Thomas and Regina entered into marriage on May 19, 1990. Thomas worked as a physician at a private clinic, and Regina worked as a registered nurse. The marriage produced two children, Ma-lik, born on October 17, 1997, and Maya, born on November 1, 2004.

¶ 3. Regina and Thomas filed for divorce on the ground of irreconcilable differences, and on May 20, 2008, the Lamar County Chancery Court entered the judgment of divorce. The chancellor incorporated the issues of child custody, child support, and the property-settlement agreement into the judgment. Pursuant to the judgment, the chancellor ordered Thomas to pay $25,000 to Regina for her portion of the equity in the marital home. The judgment also mandated that Thomas pay $1,000 per month in child support for the couple’s two children and $500 per month in periodic alimony.

¶ 4. The chancellor outlined the judgment upon the backdrop of various events, including the recusal of the initial chancellor. The record reflects that Thomas first hired James K. Dukes Sr. to represent him in the divorce proceedings. Thomas later fired Dukes and hired new counsel, Ed Pittman Jr., who was running for chancellor against the presiding chancellor, the Honorable Sebe Dale Jr. As a result, Judge Dale recused himself from presiding over the divorce proceedings. The Honorable Johnny L. Williams was then assigned as the chancellor and proceeded to preside over the case. While the divorce was pending, Thomas quit paying the mortgage on the marital home, and the bank foreclosed upon the house. Thomas also filed for bankruptcy during the divorce proceedings.

¶ 5. Shortly after the judgment of divorce, Thomas closed his clinic and joined the staff at Gulfport Memorial Hospital. On February 10, 2009, Regina filed a petition to cite Thomas for contempt and for modification asserting, among other things, Thomas’s failure to fulfill his child-support obligation in a timely manner as a ground for contempt. Regina further asserted that the financial needs of the children had increased, and Thomas had failed to fulfill his obligation with respect to providing child care while she worked. Regina also claimed that Thomas’s income had substantially increased since the divorce due to his new employment.

¶ 6. On October 7, 2009, the chancellor held a hearing on Regina’s petition for contempt and modification. The chancellor subsequently dismissed the contempt action, but he found that Thomas’s annual income had increased from $37,000 to $240,000. The chancellor proceeded to modify and increase Thomas’s child-support obligation to $1,800 per month, and he increased Thomas’s periodic-alimony obligation to $1,200 per month. The chancellor entered a judgment, incorporating his bench opinion, on November 2, 2009.

¶ 7. Thomas now appeals, arguing that the chancellor erred in modifying and increasing the child support and periodic alimony.

STANDARD OF REVIEW

¶ 8. The Mississippi Supreme Court has made it clear that the “scope of review in domestic relations matters is limited .... ” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994). On appeal, this Court will not disturb a chancellor’s findings of fact which are supported by substantial evidence unless the chancellor was manifestly wrong or clearly erroneous. Dix v. Dix, 941 So.2d 913, 915 (¶ 12) (Miss.Ct.App.2006). However, as to matters of law, this Court applies a de novo standard of review, and “if we determine that the chancellor applied an incorrect legal standard, we must reverse.” Id. at 915-16 (¶ 12). Additionally, this Court reviews all of the evidence in a light most favorable to the appellee. Rawson v. Buta, 609 So.2d 426, 429 (Miss.1992).

DISCUSSION

I. Whether the chancellor erred in modifying the periodic-alimony requirement of the parties’ judgment of divorce.

¶ 9. Thomas claims that the chancellor erred in modifying his periodic-alimony payments because Regina failed to show that a material change of circumstances had occurred since the chancellor entered the divorce decree. Thomas contends that a property-settlement agreement may not be modified without either a showing of fraud or a contractual provision allowing modification, and since Regina failed to assert fraud, Thomas claims that the agreement cannot be modified.

¶ 10. The supreme court has established that alimony awards for divorces granted on the ground of irreconcilable differences are subject to modification. Steiner v. Steiner, 788 So.2d 771, 776 (¶ 15) (Miss.2001). Periodic alimony can be modified by increasing, decreasing, or terminating the award; and such modification can occur “only if there has been a material change in the circumstances of one or more of the parties.” Id.; Landrum v. Landrum, 498 So.2d 1229, 1230 (Miss.1986); Austin v. Austin, 766 So.2d 86, 90 (¶ 19) (Miss.Ct.App.2000). The material change must also be “one that could not have been anticipated by the parties at the time of the original decree.” Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990).

¶ 11. When deciding whether to modify an award of periodic alimony, the chancellor must consider the Armstrong factors, “comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” Steiner, 788 So.2d at 776 (¶ 16). Thomas asserts that the chancellor failed to consider all of the Armstrong factors during the modification hearing. He argues that the chancellor found that a material change of circumstances occurred based solely on Thomas’s increased income — only one-half of one Armstrong factor — and thus Thomas claims that the chancellor applied the wrong standard in determining whether to increase the amount of alimony payments to Regina. However, we observe that “the central issue to periodic alimony modification is whether there has been a material change in circumstances subsequent to the decree of divorce and not a balancing of the Armstrong factors[.]” Reid v. Reid, 998 So.2d 1032, 1041 (¶ 23) (Miss.Ct.App.2008).

¶ 12. At the time the original divorce decree was entered in May 2008, Thomas had represented to the chancellor that his income for 2007 was estimated to be $37,252. Thomas also represented to the chancellor that he had filed for bankruptcy at the time of the divorce. However, at the modification hearing, Thomas testified that his yearly income for 2008 amounted to $109,465.64, and his gross monthly income for 2009 amounted to $20,768. Thomas attributed his increase in salary to his new employment at Gulfport Memorial Hospital, a position that he accepted in June 2008, shortly after the chancellor issued the judgment of divorce. In determining whether to modify an award of periodic alimony in the event of a material change in circumstances, the supreme court has held that a chancellor should consider a substantial increase in earnings by one party subsequent to the divorce decree. Bracey v. Bracey, 408 So.2d 1387, 1389 (Miss.1982); Spradling v. Spradling, 362 So.2d 620, 623 (Miss.1978).

¶ 13. During the modification hearing, the chancellor noted that Regina provided evidence that she could barely meet her living expenses based on Thomas’s alimony payments. The chancellor also stated that Regina’s testimony revealed that she had cut back on what she and the children “had been able to do before the divorce in terms of leisure and activities.” The chancellor found that although Regina is employed as a registered nurse and may be able to earn more money if she chose to do so, “the [cjourt is not sure as to how that would impact on her being able to raise the kids because she is able to spend more times with the kids by her work schedule that she currently has.” Based on these findings, and Thomas’s increase in income, the chancellor found that the parties’ circumstances warranted a modification of the alimony payments.

¶ 14. We find that the evidence in the record supports the chancellor’s decision to increase the amount of periodic alimony awarded to Regina based on the substantial increase in Thomas’s income. The record also shows that the chancellor properly weighed the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree. Therefore, we find that the chancellor did not abuse his discretion in increasing the award of periodic alimony to Regina. This issue lacks merit.

II. Whether the chancellor erred in modifying the child-support requirement of the parties’ judgment of divorce.

¶ 15. Next, Thomas argues that the chancellor erred in finding that his increase in income warrants a modification in the child-support payments for Thomas and Regina’s two children. We note that child support can be modified if there has been a “substantial or material change in the circumstances of one or more of the interested parties.” Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991). However, Thomas argues that the chancellor erred in finding that his increase in income constituted a material change in circumstances. Thomas also claims that the evidence presented during the hearing did not demonstrate any increased needs of the children. As stated above, we have established that the findings of the chancellor in this case do not amount to an abuse of discretion; he determined that Thomas’s substantial increase in income indeed constituted a material change in circumstances.

¶ 16. Regina argues, however, that the chancellor erred by failing to increase the child support to an amount based upon twenty percent of Thomas’s income, which would result in a monthly child-support payment of $2,600, instead of the chancellor’s modified award of $1,200 per month, which amounts to less than twenty percent of Thomas’s adjusted gross income. Mississippi Code Annotated section 43-19-101(1) (Rev.2009) provides a rebuttable presumption regarding the modification of child-support awards, and this Court will not affirm a modification of a child-support award that deviates from the statutory guidelines unless the chancellor “overcome[s] the rebuttable presumption ... by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Chesney v. Chesney, 910 So.2d 1057, 1061 (¶ 7) (Miss.2005).

¶ 17. During the hearing, the chancellor acknowledged that section 43-19-101(4) (Rev.2009) mandates that if the adjusted gross income is more than $50,000, “the court shall make a written finding in the record as to whether or not the application of the guidelines established ... is reasonable.” In the present case, the chancellor stated that:

Based on the proof today for child support — it’s been offered as proof that the expenses outside of shelter and food and other normal expenses that go along with that, that the expenses come to $1,042. The court in looking at the income of [Thomas] of $240,000 annually is going to set the child support at $1,800 per month based on the documentation and the proof that the court heard today. Ordinarily if we went the entire [twenty] percent, child support would be $2,600, but the court is going to set it at $1,800.

¶ 18. This Court recognizes that “[i]n cases involving child support, we afford the chancellor considerable discretion, and his findings will not be reversed unless he was manifestly in error or abused his discretion.” Sessums v. Vance, 12 So.3d 1146, 1147 (¶ 3) (Miss.Ct.App.2009) (citation omitted). Here, we find that the chancellor provided the required findings explaining his calculation of expenses and his decision to deviate from the statutory guidelines mandating that the child-support award shall be based upon twenty percent of Thomas’s adjusted gross income for his two children. The record supports Regina’s expenses and the calculations of the chancellor. We find no abuse of discretion in the chancellor’s award. This issue lacks merit.

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

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

      . We note the property-settlement agreement reflected that the chancellor based this child-support award on twenty percent of Thomas’s income, although Thomas testified that at the time of the divorce, his gross annual income only amounted to approximately $37,000.

      . In her petition for modification and contempt, Regina alleges that Thomas had agreed to provide baby-sitting assistance while Regina worked, but she claims that Thomas only fulfilled this obligation one day a week. Regina asserted that she could not financially afford the baby-sitting fees without additional financial assistance from Thomas.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . Neither Thomas’s nor Regina's Rule 8.05 financial statement appears in the record provided to this Court.

      . As previously noted, Regina stated in her petition for contempt and modification, and also testified at the hearing, that Thomas failed to fulfill his baby-sitting obligations for Malik and Maya while Regina worked. Regina testified that not having anyone available to supervise the children, and not having sufficient funds to pay for a babysitter while she worked, impacted her ability to work additional hours.

      . Mississippi Code Annotated section 43-19-101(Rev.2009) establishes that twenty percent of the party's adjusted gross income shall be awarded for the support of two children.


author: LEE, P.J.,

text:
    Robert E. WHITE III, Appellant v. Christopher B. EPPS, Appellee.
    No. 2010-CP-00008-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Robert E. White III, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, Jackson, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Robert E. White III was convicted of manslaughter by a jury in the Jones County Circuit Court. White was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). This Court affirmed his conviction on direct appeal. See White v. State, 796 So.2d 269 (Miss.Ct.App.2001).

¶2. On September 11, 2009, approximately ten years after his conviction, White filed a writ of habeas corpus in the Greene County Circuit Court. Finding that White’s motion was in the nature of a post-conviction proceeding, the Greene County Circuit Court transferred venue to Jones County, where White was convicted. The Jones County Circuit Court determined that White had failed to obtain permission from the Mississippi Supreme Court to file his motion as required by Mississippi Code Annotated section 99-39-7 (Supp.2010). The trial court also noted that White’s motion was filed outside the three-year statute of limitations. See Miss.Code Ann. § 99-39-5(2) (Supp.2010). As such, the trial court denied White’s motion for post-conviction relief.

¶ 3. White now appeals, asserting the following, which we state verbatim: (1) whether the lower court(s) erred by not evaluating the soundness of the judgment as a foundation for a valid commitment order, and (2) whether MDOC holds a valid commitment order.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision to deny the motion was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 5. We first note that White cites to Strickland v. Howell, 654 So.2d 1387 (Miss.1995), to support his assertion that his writ of habeas corpus is not a petition for post-conviction relief and as a result, is not barred by the provisions of the Mississippi Uniform Post-conviction Collateral Relief Act (the Act). See Miss.Code Ann. § 99-39-1 to -29 (Rev.2007). However, Strickland is inapplicable because White’s argument does in fact concern his post-conviction status. White is not claiming that he was never indicted or convicted; rather, White’s arguments concern insufficiency of the indictment and jury instructions. Therefore, the provisions in the Act are applicable in this instance.

¶ 6. Section 99-39-7 requires that a defendant must seek permission from the supreme court before filing a motion for post-conviction relief in the trial court. White failed to do so. We have held that “[tjhis procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000); see also Varnado v. State, 31 So.3d 658, 660 (¶ 8) (Miss.Ct.App.2010). Because White did not have permission from the supreme court, the trial court did not have jurisdiction to hear his motion for post-conviction relief. Therefore, we affirm the trial court’s denial based on its lack of jurisdiction.

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

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


text:
    Harold Z. EUBANKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01922-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Lee Turner, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorneys for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Harold Eubanks pled guilty in the Circuit Court of Pearl River County to one count of felony Driving Under the Influence (DUI) in 1993. Eubanks received a ten-year suspended sentence and was placed on probation for five years. In May 1999, Eubanks filed a petition for expungement, which was granted on June 5, 2009. The order of expungement was later vacated by the circuit court on June 30, 2009. Aggrieved, Eubanks now appeals. Finding no error, we affirm the circuit court’s denial of Eubanks’s motion to expunge.

FACTS

¶2. On September 11, 1992, Eubanks was indicted in Pearl River County on two counts of Felony DUI, one count resulting in the death of Shirley Jo Burge, and the other count involving injuries to C.J. Sanders. On June 21, 1993, Eubanks pled guilty to one count of Felony DUI, and was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC). The circuit court suspended Eubanks’s jail sentence and placed him on supervised probation for a period of five years. In addition, Eubanks was ordered to pay approximately $14,000 in total restitution and court costs. In 1998, Eubanks successfully completed his sentence and received a discharge order from the circuit court.

¶ 3. On May 18, 2009, Eubanks filed a motion to expunge his criminal conviction, which the circuit court granted on June 5, 2009. On June 17, 2009, the Mississippi Department of Public Safety filed a motion to vacate Eubanks’s order of expungement, claiming that Eubanks is ineligible for relief under Mississippi Code Annotated section 99-15-26 (Supp.2010), since he was convicted of a DUI pursuant to the Mississippi Implied Consent Law. On June 30, 2009, the circuit court vacated the order of expungement.

¶ 4. On September 10, 2009, Eubanks filed a renewed motion to expunge, which was subsequently denied on September 25, 2009, and the circuit court issued an order on the matter on November 19, 2009. Eu-banks now appeals to this Court, urging the Court to adopt “equitable expungement.”

STANDARD OF REVIEW

¶ 5. On appeal, this Court applies a de novo standard of review when deciding questions of law. Payne v. State, 22 So.3d 367, 368 (¶ 4) (Miss.Ct.App.2009).

DISCUSSION

¶ 6. Eubanks argues that the circuit court erred in failing to utilize its “inherent equitable powers” and adopt “equitable expungement,” which he claims would allow the circuit court to expunge all public records relating to his DUI conviction. Eubanks acknowledges that no statutory basis exists for his requested relief; instead, he employs a policy argument in his brief, urging this Court to reexamine the issue of equitable expungement. Eubanks submits that adoption of the balancing of the equities test, utilized by a majority of federal courts as well as numerous state courts, in granting expungements, would clearly favor him. He asks this Court to create a judicial power of expungement in order to expunge his criminal record, submitting that the public record of his conviction restricts him from sitting for the Alabama Professional Engineers Exam, which consequently prevents him from obtaining full employment as a professional engineer.

117. Despite Eubanks’s plea for this Court to adopt a balancing test or create a judicial power of expungement, we must follow the applicable statutes and precedent in the case before us; thus, we turn to an application of this law to these facts. Mississippi Code Annotated section 99-15-26 (Supp.2010) provides:

(1) In all criminal cases, felony and misdemeanor, other than crimes against the person or a violation of Section 97-11-31, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41 — 29—139(a)(1), except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marijuana; (b) with an offense pertaining to the possession of one (1) kilogram or more of marijuana as provided in Section 41 — 29—139(c)(2)(F) and (G); or (c) with an offense under the Mississippi Implied Consent Law.
(2)(a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment or any combination thereof if the court deems such treatment necessary.
(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of a regimented inmate discipline program.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

(Emphasis added). The Mississippi Supreme Court has held that a circuit coui't lacks the inherent power to order the ex-pungement of criminal records. Caldwell v. State, 564 So.2d 1371, 1373 (Miss.1990); Turner v. State, 876 So.2d 1056, 1059 (¶ 11) (Miss.Ct.App.2004). However, section 99-15-26 grants a circuit or county court the power to expunge a felony conviction pursuant to a guilty plea under certain conditions. Turner, 876 So.2d at 1058 (¶ 7); Caldwell, 564 So.2d at 1373.

¶ 8. The record reflects that Eubanks pled guilty to one count of felony DUI, a conviction which falls within the purview of the Mississippi Implied Consent Law. As previously stated, section 99-15-26 expressly prohibits a person charged with an offense under the Mississippi Implied Consent Law to be eligible for expungement. Therefore, after a careful review of the facts presented along with the provisions of section 99-15-26, we find that the circuit court did not err in denying Eubanks’s petition for expungement. As a result, the circuit court judgment is affirmed.

¶ 9. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Mississippi's Implied Consent law is codified at Mississippi Code Annotated section 63-11-5 (Rev.2004), and states, in pertinent part, that:
      (1) Any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his breath for the purpose of determining alcohol concentration. A person shall give his consent to a chemical test or tests of his breath, blood or urine for the puipose of determining the presence in his body of any other substance which would impair a person’s ability to operate a motor vehicle.


author: MAXWELL, J,

text:
    William D. FULKERSON, Appellant v. Don ODOM, Appellee.
    No. 2009-CA-01848-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      Eric A. Tiebauer Jr., Waynesboro, attorney for appellant.
    William C. Hammack, Meridian, attorney for appellee.
    Before KING, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J,

for the Court:

¶ 1. Don Odom had an affair with William Fulkerson’s wife, which ended in June 2003. Fulkerson first learned of the past affair in November 2006. In November 2007, Fulkerson sued Odom for alienation of affection. The Wayne County Circuit Court granted Odom summary judgment based on Fulkerson’s failure to file suit within three years of the accrual of his claim.

¶ 2. Our de novo review reveals the latest accrual date of Fulkerson’s claim was June 2003, when the affair ended. A November 2006 phone conversation between Odom and Fulkerson’s wife was neither the final accomplishment of the alienation of the vtife’s affections nor evidence of a latent injury or a continuing tort, tolling the statute of limitations. Therefore, we affirm the grant of summary judgment in favor of Odom.

FACTS

¶ 3. Odom admits he had an affair, including a sexual relationship, with Fulker-son’s wife, Paula. At the time, Fulkerson did not know Paula was having an affair and did not experience any change or loss in his marriage relationship. Both Odom and Paula testified they ended the affair by June 2003.

¶ 4. Almost three years later, in early 2006, Fulkerson, who traveled for work, began suspecting something might be wrong in his marriage. He secretly tapped their home phone and recorded a November 2006 phone conversation between Odom and Paula. Odom had called out of concern for a mutual relative by marriage, who had recently gotten into trouble. Toward the end of the conversation, Odom alluded to their past relationship:

Odom: I don’t want to cause no trouble or nothing. I just think about you every once in a while.
Paula: Yeah.
Odom: You know I still got feelings for you.
Paula: Yeah. I still love you too....

Paula then immediately changed the subject to other events concerning her family.

¶ 5. When Fulkerson heard this conversation, he immediately confronted his wife and Odom, who both admitted to the previous affair. Fulkerson moved out of the marital home into a camper on the property. He filed for divorced in May 2007, which was granted in October 2007. In November 2007, he filed a complaint against Odom for alienation of affection.

¶ 6. Odom moved for summary judgment based on the running of the three-year statute of limitations. In support of his motion, Odom denied any contact with Paula after the sexual relationship had ended in 2003 and before he called her in 2006. Fulkerson’s only evidence of arguably wrongful conduct within the three-year-statute-of-limitations period was the November 2006 phone call. Finding the phone call was not sufficient evidence of wrongful conduct to establish an alienation-of-affections claim, the circuit court granted Odom’s motion and dismissed Fulkerson’s complaint.

DISCUSSION

I. Summary-Judgment Review

¶ 7. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (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). In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999) (citation omitted).

¶ 8. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct. App.2009) (citing Grisham, v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

II. Alienation of Affection

¶ 9. To establish a claim for alienation of affection, the plaintiff must prove “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Hancock v. Watson, 962 So.2d 627, 630 (¶ 12) (Miss.Ct.App.2007) (quoting Bland v. Hill, 735 So.2d 414, 417 (¶13) (Miss.1999)). Though alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations. Therefore, we apply the general three-year statute of limitations found in Mississippi Code Annotated section 15 — 1— 49 (Rev.2003). Hancock, 962 So.2d at 631 (¶ 15) (citing Carr v. Carr, 784 So.2d 227, 230 (¶ 8) (Miss.Ct.App.2000)).

¶ 10. The circuit court granted summary judgment in favor of Odom because Fulkerson had failed to present sufficient facts on the following essential issues: (1) whether Fulkerson’s claim accrued within the three-year statutory period prior to November 2007 and (2) whether Fulkerson suffered any loss of affection or consortium during his wife’s affair. On appeal, Fulk-erson argues the facts create jury questions on both issues. Because we find the circuit court correctly found the statute of limitations had run, we affirm the grant of summary judgment without reaching the issue of loss of consortium.

III. When Fulkerson’s Claim Accrued

¶ 11. In Hancock v. Watson, we considered the accrual date for limitations purposes in an alienation-of-affection case. Hancock, 962 So.2d at 631-32 (¶¶ 14-19). The husband, Watson, first learned in 2003 that his wife had an affair with Hancock that ended in 2000. Watson sued Hancock for alienation of affection in 2004, claiming his cause of action accrued in 2003 when he discovered his wife’s affair. On interlocutory appeal, this court rejected Watson’s argument, instead finding:

Under Mississippi law, a claim of alienation of affection accrues when the alienation or loss of affection is finally accomplished. The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated. The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Id. at 631 (¶ 16) (internal citations and quotations omitted). Because Watson’s loss of affection for his wife, once he learned of the affair, was irrelevant for accrual purposes, the case was remanded for further discovery on the date of accrual of the loss of the wife’s affections. Id. at 631-32 (¶ 19).

¶ 12. Based on Hancock, we find Fulk-erson’s personal loss of affection—in reaction to the 2006 phone call and his wife’s later admission of the past affair—is irrelevant for accrual purposes. Instead, our inquiry focuses on discerning when the loss of Fulkerson’s wife’s affections was finally accomplished.

¶ 13. In considering the evidence in'the light most favorable to Fulkerson, we find his claim accrued in June 2003, the last time Odom and Paula participated in the affair. Once they both decided the affair was wrong, Odom stopped pursuing Paula. She then returned to her marriage with Fulkerson, who experienced no loss of consortium for more than three years. The November 2006 phone conversation merely confirms the past accomplishment of the loss of the wife’s affections.

A. No Tolling under the Discovery Rule

¶ 14. Because Fulkerson’s discovery of the affair is irrelevant to the question of when his claim accrued, the “discovery rule” cannot be used in these circumstances to delay the accrual Fulk-erson’s claim until 2006, when Fulkerson learned of the past affair. Mississippi Code Annotated section 15-1-49(2) (Rev. 2003) codifies the discovery rule, which delays accrual of actions “which involve latent injury or disease ... until the plaintiff has discovered, or by reasonable diligence should have discovered the injury.” Miss.Code Ann. § 15-1-49(2).

¶ 15. The Mississippi Supreme Court defines “latent injury” as one where the “plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiseoverable nature of the wrongdoing in question or when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (¶ 12) (Miss.2005) (quoting Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (¶18) (Miss.1999)). Although a clandestine affair is a secretive wrongdoing, it is not unrealistic to expect a plaintiff to perceive, at the time of the affair, the resulting harm—the loss of consortium through alienation of the spouse’s affection.

¶ 16. We further emphasize the affair itself is not the harm. Almost twenty years ago, Mississippi abolished the tort of criminal conversation, which presumed a spouse was injured by an affair. Saunders v. Alford, 607 So.2d 1214, 1218-19 (Miss.1992). In contrast, alienation of affection requires loss of affection or consortium, an interest that “is personal to the [husband] and arises out of the marriage relation.” Bland v. Hill, 735 So.2d 414, 418 (¶ 17) (Miss.1999) (citations omitted). Because the injury is the detrimental change in the marriage relationship, it is reasonable for a spouse to discover the change in the marriage as it occurs.

¶ 17. Fulkerson testified he did not notice any changes or loss in his marriage relationship during the time of the affair. He admitted he did not exercise reasonable diligence concerning the state of his marriage but instead traveled often for work and pre-occupied himself with his grandchildren. If he discovered any latent injury in 2006, it was an injury for criminal conversation, which Mississippi no longer legally recognizes.

B. No Tolling under the Continuing-Tort Doctrine

¶ 18. Fulkerson admits the 2006 phone conversation alone is not sufficient evidence to support an alienation-of-affection claim and argues instead the phone conversation is evidence of a continuing tort.

¶ 19. “A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Pierce v. Cook, 992 So.2d 612, 619 (¶ 25) (Miss.2008) (quoting Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 148 (¶ 17) (Miss.1998)). Our supreme court has described these continual acts as “wrongful conduct that is repeated until desisted,” emphasizing it is the repeated conduct, not the repeated injury that tolls the statute of limitations. Id.

¶ 20. The undisputed evidence shows Odom desisted his wrongful conduct by June 2003, cutting off the possibility of a continual tort. A phone call three years later is too remote in time to be significant probative evidence of a genuine issue of whether Odom was in fact continuing his wrongful conduct. Were we to adopt Fulkerson’s position, a person who had an affair with a husband or wife twenty-five years ago would be potentially liable for alienation of affection on the basis of one nostalgic, rekindling phone call — even though the affair had ended decades earlier and his or her spouse experienced no loss of consortium for twenty-five years. Such a result runs contrary to the purpose of our statute of limitations — “to compel the exercise of a right of action within a reasonable time.” Miss. Dept. of Pub. Safety v. Stringer, 748 So.2d 662, 665 (¶ 13) (Miss.1999) (citation omitted) (Statute of limitations “are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected.”).

¶ 21. Three years passed after Odom had ended his admitted wrongful conduct without Fulkerson filing a complaint for alienation of affection or experiencing any loss of consortium due to Odom’s past conduct. Odom’s phone call could no more obviate the statutory bar of section 15-1-49 than the phone call in our hypothetical example. Section 15-1-49(1) required Fulkerson to commence his cause of action “within three (3) years next after the cause of such action accrued and not after.” Miss.Code Ann. § 15-1-49(1) (emphasis added). Thus, section 15-1-49(1) bars his claim.

¶ 22. Because Fulkerson presented no evidence supporting a claim for alienation of affection accruing within the three years before he sued Odom, we affirm the grant of summary judgment in favor of Odom and the dismissal of Fulkerson’s claim.

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

KING, C.J., LEE AND MYERS, PJJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Ronald DESSELLE, Appellant v. Melissa DESSELLE, Appellee.
    No. 2009-CA-00834-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      James R. Hayden, Petal, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Ronald and Melissa Desselle were married in 1998 and separated in 2007. Two children were born of the marriage. Ronald and Melissa were granted an irreconcilable-differences divorce by the Pearl River County Chancery Court on October 13, 2008. Melissa was given physical custody of the couple’s two children, and Ronald was ordered to pay $436 per month in child support.

¶ 2. Ronald now appeals, asserting the following issues: (1) the chancellor erred in awarding Melissa primary custody of the children; (2) the chancellor failed to give sufficient weight and credibility to the court-appointed expert; and (3) the chancellor erred in admitting testimony from two expert witnesses hired by Melissa. Finding no error, we affirm the judgment of the chancellor.

FACTS

¶ 3. Ronald lives in the marital home in Picayune, Mississippi. The couple’s older son, who was six years old, lived with Ronald during the separation. Melissa lives in Violet, Louisiana. The couple’s younger son, who was three years old, lived with Melissa during the separation. Ronald’s sister and father live in Violet, as well as Melissa’s mother and sister. At the time of trial, Melissa had planned to purchase a home two houses down from her sister. Melissa’s sixteen-year-old daughter from a prior marriage lives with her. Ronald has a child from a previous relationship, but he does not maintain contact with this child.

¶4. Ronald testified that the marriage had dissolved mostly due to Melissa’s emotional problems. Melissa felt that the marriage had dissolved because of Ronald’s anger issues. She testified that the marriage ended in August 2007 when she and Ronald had gotten into an argument over the whereabouts of Melissa’s daughter. Melissa stated that Ronald told her to “do him a favor, and go ahead and kill herself.” Melissa testified that she had tried to prevent Ronald from leaving twice, but both times he knocked her down and walked over her. Two days after the argument, Melissa admitted herself to the hospital for depression and panic attacks.

¶ 5. Melissa testified that she had experienced emotional problems after the birth of the couple’s first child. Melissa believed that her stress was partially due to the couple’s home being destroyed in Hurricane Katrina. She testified that the stress of the hurricane coupled with arguments between her and Ronald had caused her to become depressed. She stated that Ronald put her on an unrealistic budget, and she had a difficult time taking care of herself and the children. She also stated that he had told her coworkers she was a drug addict and had cheated on him. At the time of trial, the chancellor noted that Melissa was still receiving some psychological treatment for anxiety and depression, but she had made great strides and was stable.

STANDARD OF REVIEW

¶ 6. 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) (citation omitted).

DISCUSSION

I. ALBRIGHT FACTORS

¶ 7. Ronald argues that the chancellor misapplied the facts when weighing the 'Albright factors.

¶8. In child-custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Albright, the Mississippi Supreme Court set out factors to be used to determine what is in the “best interest” of a child with regard to custody. Id. The Albright factors are: (1) age, health, and sex of the child; (2) a determination of which parent had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

¶ 9. The chancellor found the following five factors to favor neither party: age, health, and sex of the children; continuity of care; parenting skills; employment of the parents and the responsibilities of employment; and emotional ties of the parent and children. The preferences of the children were not considered since neither child was of an appropriate age to state a preference.

¶ 10. The chancellor found that the following four factors favored Melissa: willingness and capacity to provide primary care; the moral fitness of the parents; the home, school, and community record of the children; and other relevant factors. The chancellor considered it significant that Melissa had taken the initiative to seek treatment for her emotional issues. She had also overcome several tragedies in her life while maintaining a job with a substantial salary. Ronald was favored in the following two factors: mental and physical health and age of the parents and stability of the home environment.

¶ 11. Ronald argues that the age and sex of the children, two boys who were ages six and three, should have weighed in his favor. In the past, this Court has given favor to fathers seeking custody of their male children. Parker v. South, 913 So.2d 339, 348 (¶ 29) (Miss.Ct.App.2005). This Court has reasoned that it is implicit that “a young male will need the guidance and care of his father as he matures.... ” Id. However, we also take into account the young age of the children. While the tender-years doctrine has been weakened, it is still a consideration. Lee v. Lee, 798 So.2d 1284, 1289 (¶ 17) (Miss.2001). The tender-years doctrine “essentially states that if the mother of a child of tender years (i.e., early in development) is fit, then she should have custody.” Id. Ronald and Melissa’s youngest child, who was three years of age at the time of trial, would have fallen under the tender-years doctrine. Id. (finding a child two and one-half to three years old to be subject to the tender-years doctrine). We find that the chancellor did not err in finding this factor neutral.

¶ 12. Ronald next argues that the willingness and capacity to provide primary care should have weighed in his favor. He asserts that the chancellor had misstated his work hours, which were 7:30 a.m. until 3:30 p.m. The chancellor' noted that Ronald’s work hours were unclear at the time of trial because he was starting a new job. Melissa’s work hours were from 7:00 a.m. to 3:30 p.m. The chancellor weighed this factor in Melissa’s favor because several family members lived nearby who were willing to help with childcare.

¶ 13. Ronald also argues that the home, school, and community record should have weighed in his favor. He argues that he lives in the country in a good school district and that Melissa lives in a housing project in Louisiana. He felt that he presented a stable environment for the children but that Melissa was erratic and unstable.

¶ 14. Ronald alleges that Melissa is unstable because she suffers from anxiety and depression. Despite Ronald’s arguments that Melissa was a less suitable caretaker due to various medication, there was ample testimony that put Ronald’s parenting into question. Melissa testified that Ronald was overbearing and controlling. Melissa’s daughter corroborated this testimony and also testified that Ronald had made inappropriate advances toward her. As for Melissa’s mental health, Dr. Delsie Bonano, Melissa’s therapist, testified that Melissa was no longer suffering from depression or anxiety. Dr. Bonano opined that Melissa was a good mother and was not a threat to her children. Steve Headrick, the guardian ad litem, also testified that Melissa had no issues that would affect her ability to be a good parent. Regardless, the chancellor still weighed this factor in Ronald’s favor because Melissa was on medication for depression.

¶ 15. Dr. M. Carmen Palazzo, a psychiatrist, testified that she was concerned by Ronald’s behavior when caring for the children, which included leaving the children unattended for long periods of time and buying the children cigarettes. Dr. Palaz-zo testified that Ronald had “difficulty with anger” which had resulted in abusive behavior. Also, there was testimony concerning Ronald’s dating an eighteen-year-old. Melissa’s daughter testified that Ronald sometimes had “girls” over who would spend time in Ronald’s bedroom.

¶ 16. After weighing all the factors, the chancellor found that it was in the children’s best interests for Melissa to have primary custody. Melissa’s depression was taken into consideration, and the chancellor weighed the mental and physical health of the parents in favor of Ronald. We cannot find that the chancellor abused his discretion in finding that Melissa should have primary custody of the children. The findings made by the experts were all consistent. They each found that Melissa was a good mother who had been victimized by an abusive husband, and the abuse had led to her treatment for depression. The chancellor’s findings were supported by substantial evidence. This issue is without merit.

II. EXPERT TESTIMONY

¶ 17. Ronald argues that the chancellor did not give sufficient weight to Dr. John Pat Galloway’s testimony that Ronald was the more stable parent.

¶ 18. Dr. Galloway, a psychologist, was appointed by the chancellor to make a recommendation regarding child custody. Dr. Galloway did not make a definitive recommendation for custody; instead, he stated: “[Ronald] presents himself as the most stable parent[,] and [Melissa] presents herself as the most loving and caring parent.” Dr. Galloway had both positive and negative findings about Ronald and Melissa. Dr. Galloway’s only recommendation was that the children should be placed together. He found that both parents had the best interests of the children at heart. He stated that the deciding factors should be the support system for the children and which school they would attend. Dr. Galloway expressed concern that Ronald lacked a support system. Dr. Galloway stated that the school the oldest child attended “seem[ed] to be the better school,” but “he’s only in the 1st grade, so ... now is the time to move him rather than let him stay for the whole year.”

¶ 19. We cannot find that the chancellor abused his discretion in the weight he gave to the expert’s testimony. While Dr. Galloway stated that Ronald’s home environment was more stable, he did not make a definitive recommendation. He found that either parent would be suitable. The testimony of the other experts was consistent with Dr. Galloway’s testimony. The only expert who made a definitive recommendation was Dr. Palazzo, who recommended that Melissa have primary custody. This issue is without merit.

III. EXPERTS’ RELIANCE ON THE ALBRIGHT FACTORS

¶ 20. Ronald argues that the testimony of both experts hired by Melissa should be excluded because the experts did not perform an Albright analysis before issuing their recommendations. We find this argument without merit as it is the duty of the chancellor, not the expert, to review and weigh the Albright factors. Albright, 437 So.2d at 1005.

¶ 21. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J.,

text:
    Brian Keith RICHMOND, Appellant v. EBI, INC. and Shirley Richmond, Appellees.
    No. 2009-CA-00823-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      Paige Ann McDowell, Christian T. Go-eldner, Southaven, attorneys for appellant.
    Gary P. Snyder, Olive Branch, John Doyle Moore, Ridgeland, attorneys for ap-pellees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Brian Keith Richmond acquired a “first right of refusal” to purchase 82.83 acres of property in DeSoto County, Mississippi. Hernando Green Development, Inc. (HGD) later offered to purchase that property. Despite months of communication volleys between Brian and the lawyer who represented the owners of the property, Brian never agreed to meet HGD’s offered purchase price. HGD later assigned its rights in the purchase and sale agreement to EBI, Inc. EBI followed through with the purchase of a one-half interest in the property. Brian then contracted for the other one-half interest at a purchase price less than EBI’s offer.

¶2. EBI sued Brian in the DeSoto County Chancery Court. After trial, the chancellor awarded EBI a declaratory judgment and held that Brian had waived his right of first refusal. The chancellor also held that EBI’s ownership of its one-half interest was free and clear of any claim by Brian. Furthermore, conditioned on certain events on appeal that do not bear mentioning, the chancellor ordered the owner of the other one-half interest in the property to sell her interest to EBI. Aggrieved, Brian appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Annette C. Herbert died on May 23, 1993. She had a will that was probated. Annette left ten acres of her property (the Herbert property) to her grandson, Brian. Annette also left approximately 83.63 acres (the subject property) in DeSoto County, Mississippi, to her two children, James Lamar Herbert Jr. and Brian’s mother, Shirley Ann Richmond, to “share alike.” However, Annette gave Brian a right of first refusal to purchase the subject property “at the current selling price” if James or Shirley decided to sell either of their one-half interests in the subject property.

¶ 4. In August 2003, James and Coldwell Banker executed a listing agreement to sell his interest in both the subject property and the Herbert property. Shirley executed the same listing agreement for the purpose of selling her interest in the subject property in early December 2003. Shortly after Shirley executed the listing agreement that James had already entered, Shirley and James entered a purchase and sale agreement with HGD. HGD agreed to buy both the Herbert property and the subject property for $1,021,000. The agreement also provided for a closing date of January 20, 2004. An addendum (Addendum # 1) to the purchase and sale agreement stated that HGD’s offer was contingent upon Brian declining to exercise his right of first refusal.

¶ 5. James’s and Shirley’s lawyer, Joel P. Walker, sent Brian a letter notifying him of the pending sale. Walker also requested that Brian exercise his right of first refusal or decline to do so. Walker stated that Brian had “until December 22, 2003, to exercise your right of first refusal to purchase the land for [the exact price that HGD agreed to pay] and show proof of ability to finance by a bank letter.” On December 16, 2003, Brian replied. Brian stated that the “terms and requirements of [Walker’s] letter [were] not acceptable” and that they were not “in compliance with the requirements” of his “first right of refusal.” Brian informed Walker that he required the following documents to make an informed decision:

A copy of the fully executed purchase and sale agreement, fully outlining the purchase price, terms of the sale, and all parties involved in the transaction; and
A copy of the real estate appraisal, performed by a licensed and accredited real estate appraiser; and
A copy of the survey of the property, performed by a licensed surveyor; and
A copy of the current flood plain map, including any and all building restrictions; and
A copy of an environmental impact study, performed by an entity approved by the EPA; and
A full mortgage commitment letter from a licensed, reputable lender indicating that a mortgage covering the purchase price, including all closing costs, prorated property taxes and insurance, less the required down payment is fully approved.
In lieu of the above referenced mortgage commitment, a copy of the buyer’s most recent bank statement, indicating that liquid funds in an amount equal to or greater than the purchase price plus all associated costs, is available and will be acceptable; and
To ensure that the purchase price and terms of the purchase and sale agreement are not changed or altered at a later date, within 24 hours of closing as prescribed by federal law, a copy of the HUD-1 Settlement Statement must be made available for my review.

Three days later, Walker replied to Brian and said, “[n]one of the items you requested ... were furnished or requested by [HGD] and will not be furnished to you.” In response, Brian again requested a copy of the purchase and sale agreement and proof of HGD’s ability to purchase. Brian also stated that he would “pursue this matter through the court” if they continued to “find [them]selves at an impasse.”

¶ 6. On December 22, 2003, Brian communicated with Walker again. Brian noted that he had received a faxed copy of the purchase and sale agreement that he had requested. Brian stated that he doubted the strength of HGD’s offer and that he needed James’s and Shirley’s listing agreement, a “Buyer[’]s Letter of Credit, Addendum # 1, and a “[Ilegible copy of the purchase and sales [sic] agreement.”

¶7. On January 14, 2004, Brian sent another letter to Walker. Brian referenced a January 12th phone call in which he spoke to Walker. The exact nature of that phone call is unclear, but Brian went on to say that he was “ready, willing, and able” to buy the subject property. Nevertheless, Brian did not agree to meet HGD’s price. Instead, he insisted that he be allowed to pay the “purchase price less any and all real estate fees.” The next day, Walker responded. Walker reiterated his and Brian’s communications since early December 2003. Walker also stated that Brian’s right of first refusal had expired. Even so, Walker informed Brian that James and Shirley were -willing to give Brian “one last chance” to buy the subject property for the price HGD had agreed to pay. However, Walker informed Brian that he had until 5:00 p.m. the next day to accept. Walker requested a commitment letter to purchase and proof of Brian’s ability to purchase by a “bona fide bank letter.” Walker further stated that Brian had until January 23, 2004, to close. Finally, Walker told Brian that Shirley had agreed to rebate 6% of her portion of the purchase price, but James would not agree to rebate 6% of his portion of the purchase price.

¶ 8. Brian replied the next day. Brian told Walker that he was ready to purchase, but the deadlines were unreasonable. Brian requested a survey of the property, the listing agreement, and the buyer’s letter of credit. Brian also reiterated that he objected to paying a real-estate commission.

¶ 9. Walker next contacted Brian on January 20, 2004. Walker told Brian that his right of first refusal had expired. Three days later, Brian informed Walker that he intended to “proceed with legal action.” He also repeated his offer to purchase the subject property at a price lower than the one HGD had agreed to pay.

¶ 10. On January 27, 2004, Brian contacted Walker again. Brian also sent Walker a purchase and sale agreement by which he offered to buy “the entire 92.83 acres” for the agreed-upon price “less all real estate commission to any of the parties involved.” Three days later, Walker contacted Brian and told him that James would be out of the country until February 27th. Walker requested that Brian extend the deadline of his offer. Additionally, Walker told Brian that he did not have a copy of the listing agreement, but he had been told that the commission rate was 6% to be divided between the buyer’s agent and the sellers’s agent.

¶ 11. The next week, Brian again requested a copy of the listing agreement and a property survey. Walker replied the next day and told Brian that he did not have a copy of either document. A few days later, Walker forwarded a copy of the listing agreement to Brian. The listing agreement confirmed Walker’s earlier statement that the commission rate was 6%. On February 29, 2004, Brian informed Walker that his “original offer of $900,000 without documentation of the prior information requested is still in effect until midnight” on March 2, 2004.

¶ 12. However, Walker later contacted Brian and informed him that James had rejected Brian’s offer. One week after he had rejected Brian’s offer, James conveyed his one-half interest in the subject property to EBI for $459,923-the equivalent of one-half of the agreed-upon purchase price. In April 2004, Shirley and Brian entered a purchase and sale agreement by which she agreed to sell her one-half interest in the subject property to an entity called Herbert Plantation, Inc. for approximately $80,000 less than the price EBI had agreed to pay.

¶ 18. In February 2005, EBI sued Brian. EBI sought a declaratory judgment that Brian had waived his right of first refusal to meet EBI’s purchase price. Additionally, EBI requested that any interest James or Shirley had in the subject property be determined to be “held free and clear of any lien, encumbrance, or cloud on title, related to the ... first right of refusal.” EBI later amended its complaint and requested that the chancellor order Shirley to perform according to the purchase and sale agreement and convey her one-half interest in the subject property to EBI for the agreed-upon purchase price. Finally, EBI sought damages for dirt that Brian sold off of the subject property after EBI had purchased James’s one-half interest. Brian filed an answer, a counterclaim, and a cross-claim against James. On February 11, 2009, the parties went to trial. After the three-day trial, the chancellor requested proposed findings of facts and conclusions of law.

¶ 14. On March 23, 2009, the chancellor entered his opinion. The chancellor found that Brian had never agreed to purchase the subject property at the agreed-upon purchase price. Accordingly, the chancellor concluded that Brian had waived his right of first refusal. The chancellor awarded EBI a declaratory judgment finding that Brian had waived his right of first refusal. The chancellor also awarded EBI a permanent injunction prohibiting Brian from raising any claim to any part of the subject property and prohibiting Brian from disrupting or interfering with EBI’s purchase of Shirley’s one-half share of the subject property. Additionally, the chancellor granted EBI’s request for specific performance by Shirley, requiring that she convey title to her one-half interest in the subject property. Finally, the chancellor awarded EBI a judgment of $2,950 to compensate EBI for dirt that Brian had allowed W.A. Sanders to remove from the subject property after James had conveyed his one-half interest in the subject property to EBI. Aggrieved, Brian appeals.

STANDARD OF REVIEW

¶ 15. The Mississippi Supreme Court has held:

We employ a limited standard of review when reviewing the decision of a chancellor. The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. The standard of review employed by this Court for review of a chancellor’s decision is abuse of discretion. However, for questions of law, the standard of review is de novo.

Creely v. Hosemann, 910 So.2d 512, 516 (¶ 11) (Miss.2005) (citation omitted).

ANALYSIS

¶ 16. Brian argues that his right of first refusal was never triggered. According to Brian, HGD’s offer was invalid because it was not from a properly identified third party. Brian also argues that EBI was not a valid purchaser because it was not an “approved assignee.” However, Brian did not raise those arguments during the trial. “Failure to raise an issue in a trial court causes operation of a procedural bar on appeal.” Birrages v. Illinois Cent. R.R. Co., 950 So.2d 188, 194 (¶ 18) (Miss.Ct.App.2006). Consequently, Brian is procedurally barred from raising those arguments on appeal.

¶ 17. “A ‘right of first refusal’ is a conditional option empowering its holder with a preferential right to purchase property on the same terms offered by or to a bona fide purchaser.” 77 Am.Jur.2d Vendor and Purchaser § 34 (2007). “The right of first refusal necessarily requires that the holder be bound by the exact price set and offered by the third party because without such a rule the holder could impede the marketability of the property. 77 Am.Jur.2d Vendor and Purchaser § 35 (2007). In December 2003, Walker gave Brian notice that James and Shirley had received an offer to purchase the subject property. It was then Brian’s obligation to either exercise his option to meet the offer by purchasing the subject property at the “current selling price”— the amount that HGD had offered — or elect not to purchase the subject property at HGD’s price. “[I]t is incumbent upon an optionee to exercise the option in the manner provided in the contract, and unless such requirements are waived, his failure to do so, or his attempt to exercise it in another manner, does not operate to form a binding contract of sale.” Graham v. Anderson, 397 So.2d 71, 72 (Miss.1981) (citing Robinson v. Martel Enters., Inc., 337 So.2d 698 (Miss.1976)).

¶ 18.' “Where nothing in the option limits the way notice of exercise of the option is to be conveyed, anything that amounts to manifestation of the optionee’s determination to accept is sufficient.” 77 Am.Jur.2d Vendor and Purchaser § 42 (2007). Nothing in Annette’s will referenced the manner in which Brian must accept. Written notice certainly would have qualified as acceptance. “[Wjritten notice to the seller of intent of the option holder to exercise an option has the effect of an acceptance, converting the option into an enforceable bilateral contract.” Creely, 910 So.2d at 519 (¶ 29). During the volleys of communication that transpired, Brian never indicated that he intended to meet the offered purchase price. Instead, he attempted to negotiate a more favorable deal at a lower price. Acceptance of an option to buy real property must be absolute and unconditional without modifying the initial terms or imposing new terms. 77 Am.Jur.2d Vendor and Purchaser § 43 (2007). The following circumstances will result in a finding that an optionee has declined to exercise his or her option:

If the optionee attaches conditions to his ... acceptance or notice of his ... election to buy which are not warranted by the terms of the option, such a response amounts to a rejection of the option unless the acceptance is in the first instance unconditional, and the additional term is a mere request for a departure from the terms of the option as to the time and place of completing the transaction ....

Id. Despite numerous opportunities to meet the offered purchase price over the course of the next few months, Brian never did so. Instead, he offered substantially less than the offered purchase price. “[AJttempts to prepare an acceptable deed and to negotiate missing or unclear terms” do not necessarily rise to the level of counteroffers. Creely, 910 So.2d at 521 (¶ 37). Nevertheless, adamant refusal to meet the offered purchase price and protracted attempts to secure a significantly lower purchase price amount to Brian’s failure to exercise his rights according to the terms of the right of first refusal.

¶ 19. Furthermore, Brian’s waiver was not required to be in writing. Although modification of an agreement that falls under the statute of frauds must be in writing, a waiver is not required to be in writing. Canizaro v. Mobile Commc’ns Corp. of Am., 655 So.2d 25, 30 (Miss.1995). We, therefore, find no merit to Brian’s argument on appeal.

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Although the document that provided for Brian’s "first right of refusal” referred to it as such, we will use the more commonly accepted description, "right of first refusal.”

      . Brian later borrowed money and secured the repayment of that loan with a Deed of Trust on 9.2 acres of the property. Brian also borrowed money and secured the repayment with a Deed of Trust on a house that was located on 1.5 acres, which was also part of the land that Annette devised to him. The 9.2 acres consisted of two tracts: one with 1.77 acres and the other containing 7.43 acres. In 2002, the Deed of Trust on the 9.2 acres was foreclosed. Brian claimed that he bought the promissory note and foreclosed on his own property to circumvent his obligations to the Mississippi State Tax Commission. James later purchased the 9.2 acres from the lender. According to Brian, James was supposed to be a straw buyer. At trial, Brian still considered James a "snake in the grass.”

      . Brian was listed as the president of Herbert Plantation.

      . During the trial, Brian's testimony indicated that he did not trust anyone involved with the discussions. Brian testified: "I don’t believe my mother ... she can be manipulated.” Brian also testified that Walker, who died before the trial, was “old and he can’t remember s-.” Brian further testified that he was “judgment proof,” and he would "go after [his] mother hook, line, and sinker just as fast as [he would] anybody else.”


text:
    Tara WILSON, Appellant v. Kelly Don WILSON, Appellee.
    No. 2009-CA-01910-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.

      David L. Walker, attorney for appellant.
    Elizabeth Paige Williams, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal is taken from the judgment of the DeSoto County Chancery Court in which the chancellor granted Kelly Don Wilson (Wilson) and Tara Wilson a divorce on the ground of irreconcilable differences. Tara does not appeal the grant of divorce, only (1) that the chancellor erred in granting Wilson custody of their child, (2) enforcing only the property-division portion of the property-settlement agreement, and (3) by overruling her motion to exclude the property-settlement agreement from evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 18, 2007, Wilson filed a complaint for divorce against Tara on the grounds of habitual cruel and inhuman treatment and uncondoned adultery or, in the alternative, irreconcilable differences. They had been separated for just over a month. The chancellor granted the divorce on the ground of irreconcilable differences on August 14, 2009. They have one son together born on February 10, 2003. They let the chancery court decide which party should have custody of their child, decide the division of marital property, determine the disposition of their marital home and who should pay the outstanding debts on the home, and determine who should make the guardian ad litem (GAL) payments.

¶ 3. After hearing testimony from several witnesses, including both of the parties, the chancellor considered the Albright factors and awarded full custody of the child to Wilson. The chancellor found the following factors in favor of Wilson: (1) parenting skills and capacity to provide care, (2) physical and mental health of the parents, (8) moral fitness, (4) stability of the home environment, (5) stability of parents’ employment, and (6) other relevant factors: the GAL’s report. The remaining factors were neutral as to either parent. The chancellor found no factor favored Tara. The chancellor did grant Tara visitation.

¶ 4. The chancellor did not award Tara any alimony, and she was not required to pay child support. The couple had previously entered into a property-settlement agreement, which was found to be a binding contract between the parties as to the property-division portion. The court enforced the property-division portion of their agreement giving Wilson sole ownership of the home on Durango Drive and removing Tara’s ownership and equity interest in the property. The chancery court ordered Tara to return or replace all property taken from the home on Durango Drive while she was temporarily permitted to stay there pre trial. Finally, the chancery court ordered Wilson to pay all the GAL’s .fees incurred as a result of the divorce.

¶ 5. From this divorce order, Wilson moved the chancery court to reconsider the visitation, the lack of child support awarded, and the requirement that he pay the full GAL’s fees instead of just his portion of the fees. The chancery court reconsidered only the issue of visitation. Visitation was suspended until Tara and the child receive counseling to repair their relationship.

¶ 6. Tara now appeals raising the following issues:

I. Whether the chancellor was manifestly wrong and/or clearly erroneous in awarding the Appellee permanent custody of the minor child.
II. Whether the chancellor was manifestly wrong and/or clearly erroneous or applied an erroneous legal standard in finding that the parties entered into a property-settlement agreement that was a binding contract and should be enforced as to the property division.
III. Whether the chancellor erred in overruling the Appellant’s objection to the introduction of the property-settlement agreement into evidence.

Finding no error, we affirm.

DISCUSSION

¶ 7. The standard of review in child-custody cases is limited by the substantial evidence/manifest error rule. Wheat v. Koustovalas, 42 So.3d 606, 609 (¶ 6) (Miss.Ct.Ap.2010). A chancellor’s findings in child-custody cases may only be reversed if it is determined that the findings were “manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003).

I. CUSTODY AWARD

¶8. In awarding custody, the polestar consideration is the best interest of the child. In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429 (¶ 18) (Miss.2009). In addition to this consideration, chancellors use the factors found in Albright, 437 So.2d at 1005, to determine which parent should have custody of the child at issue. Tara argues that the chancellor did not properly consider the Albright factors when awarding custody of their child to Wilson; thus, he was manifestly wrong in awarding permanent custody of the child to Wilson. The divorce judgment entered by the chancellor makes clear that the Albright factors were considered when coming to the decision regarding custody. The chancellor listed which factors favored Wilson, found that none favored Tara, and found which factors were neutral as to Wilson or Tara.

¶ 9. In Smith v. Smith, 614 So.2d 394, 397 (Miss.1993), the Mississippi Supreme Court held that if the chancellor properly considered and applied the Albright factors when making the child-custody determination, the appellate court “cannot say [the chancellor] was manifestly wrong” in his determination.

¶ 10. Upon review of the record, we find that there is substantial evidence to support the chancellor’s assessment of the Albright factors and the award of child custody to Wilson. This issue is without merit.

II. PROPERTY SETTLEMENT AGREEMENT

A. Enforceability of the Property-Settlement Agreement

¶ 11. The chancery court may grant a divorce on the ground of irreconcilable differences if both the husband and wife consent to such divorce. Miss.Code Ann. § 93-5-2(1) (Supp.2010). A divorce granted on the ground of irreconcilable differences allows the parties to “provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties....” Miss. Code Ann. § 93-5-2(2) (Supp.2010). This agreement may be incorporated into the divorce judgment if the chancery court finds the agreement’s provisions are adequate and sufficient. Id. Judgments with property settlement agreements may be subject to modification as are other judgments for divorce. Id. However, if the parties do not enter into an agreement that is deemed adequate and sufficient, they may consent to have the chancery court decide the issues on which they cannot agree. Miss.Code Ann. § 93-5-2(3) (Supp.2010).

¶ 12. Wilson and Tara entered into a property-settlement agreement containing several provisions, including provisions regarding disposition of the marital home, child custody, and visitation. The agreement was signed by both parties in the courthouse, in the presence of their lawyers, and with a chancellor available for a hearing. Based on this agreement, the chancellor found that it was an enforceable contract as to the property-division portion, and pursuant to the agreement, the chancellor awarded Wilson the marital home and stripped Tara of all interest and equity in the home. Tara argues that she was under duress when she signed the agreement because she had not had access to her child in more than three months. Further, she states that the agreement is void because the chancellor never found the agreement to be “adequate and sufficient” which is required under Mississippi Code Annotated section 93-5-2(2). In the alternative, Tara argues that the chancellor must enforce the agreement in whole as opposed to just enforcing the property-division provision.

¶ 13. It is well-established in Mississippi law that a property-settlement agreement is a binding contract between the parties. Barton v. Barton, 790 So.2d 169, 172 (¶ 10) (Miss.2001); see also East v. East, 493 So.2d 927, 931-32 (Miss.1986); Crosby v. Peoples Bank of Indianola, 472 So.2d 951, 955 (Miss.1985). These agreements generally become incorporated into the divorce judgment once the chancellor deems the provisions to provide adequately and sufficiently for both parties. Miss. Code Ann. § 93-5-2(2). Once the agreement is incorporated into the judgment, they are not modifiable absent fraud, duress, or a contract provision allowing for modification. Ivison v. Ivison, 762 So.2d 329, 334 (¶ 14) (Miss.2000); Weathersby v. Weathersby, 693 So.2d 1348, 1352 (Miss.1997); Bell v. Bell, 572 So.2d 841, 844 (Miss.1990). However, there are instances, as in the current case, in which the agreement is not made subject to the approval of the chancery court and is not incorporated into the judgment. In these instances, all of the provisions, except those pertaining to spousal support, child support, and child custody retain their contractual nature and are not subject to modification. Stone v. Stone, 385 So.2d 610, 612 (Miss.1980). The supreme court explained in Stone that courts are authorized to modify child support and custody agreements, so even a property settlement agreement containing provisions about support and custody may be modified as to those provisions. Id. However, the provisions regarding property division were not subject to modification due to their contractual nature. Id. This Court also relied on the reasoning in Stone when holding that the provisions in a property settlement agreement pertaining to property are not modifiable. Smith v. Little, 834 So.2d 54, 60 (¶ 20) (Miss.Ct.App.2002).

¶ 14. Since property-settlement agreements are considered contractual, it follows that contract defenses are available to parties. In this case, Tara argues that she was under duress when she signed the property-settlement agreement, and as a result, the agreement should be void. Tara alleges that she had not seen her child in over three months and was told that if she signed, she would be told of his whereabouts. The supreme court has held that duress may be found when the dominant party uses threats to “overpower the will of the other and ... must in fact deprive the other to act to his detriment.” Askew v. Askew, 699 So.2d 515, 518 (¶ 15) (Miss.1997) (citing Libel v. Libel, 5 Kan. App.2d 367, 616 P.2d 306, 308 (1980)). It does not appear that Tara was under duress when she signed the property-settlement agreement. She was in the presence of her own attorney, his advice was readily available to her, and she was told that a chancellor would hold a hearing the same day if the parties wished. These safeguards appear quite adequate to prevent Tara from successfully claiming duress in signing the property-settlement agreement.

¶ 15. This issue is without merit since Tara was not under duress when she signed the agreement and the chancellor did not err by only enforcing the property division provision in the divorce decree.

B. Admission of the Property-Settlement Agreement into Evidence as an Exhibit

¶ 16. Tara’s final argument is that the chancellor erred in admitting the property-settlement agreement into evidence as an exhibit over her objection that it violated Mississippi Rule of Evidence 408. This rule prevents evidence of settlements or offers to settle as proof of either the “validity or invalidity of the claim.” M.R.E. 408 cmt. Since we find that this property-settlement agreement is a binding contract between the parties concerning an agreed equitable division of their marital property, it is not a settlement or an offer to settle. Thus, Rule 408 is not applicable, and this issue is without merit.

1117. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The usual procedure is to refer to a party by his first name but, for clarity, Kelly Wilson is referred to throughout as Wilson.

      . (1) Age, health, and sex of the child; (2) continuity of care prior to the separation; (3) the emotional ties of the parent and child; (4) home, school, and community record of the child; and (5) and age sufficient to state a preference are the remaining Albright factors. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).