author: GRIFFIS, P.J.,

text:
    Kenneth Eugene FOX, Sr. a/k/a Kenneth Fox a/k/a Kenneth E. Fox a/k/a Kenneth E. Fox, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00238-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Sept. 17, 2013.

      Kenneth Eugene Fox Sr., pro se.
    Office of the Attorney General by Scott Stuart, W. Glenn Watts, attorneys for ap-pellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kenneth Fox Sr. appeals the circuit court’s denial of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS

¶ 2. Fox’s convictions arose from a history of domestic violence against his ex-girlfriend, Takeda Brack. Brack, Fox, their son, and Brack’s other children lived together at Fox’s home. In August 2008, Fox hit Brack in front of her children. Brack broke up with Fox and moved out of his residence.

¶ 3. On October 31, 2008, Fox followed Brack while she drove from work to an airport parking lot in Tennessee. There, Fox tried to start an argument with her. Fox then punched and kicked Brack. Fox fled the scene by driving through a parking gate. Brack was transported to the hospital by ambulance. Brack’s mother testified that Fox had beaten Brack so badly that she could not recognize her daughter. The record demonstrates the brutality of the assault.

¶ 4. On November 11, 2008, Brack and her brother, Kenneth Coleman, went to a concert in Memphis. Fox knew Brack would be there because he brought the tickets to her that had been mailed to his residence. After the concert, Fox grabbed Brack and asked her about their son and why the police had been searching for him. Brack told Fox to look at her; her eyes still showed evidence of Fox’s assault from eleven days earlier.

¶ 5. Brack drove away, with Coleman in the passenger seat. Fox began to follow Brack’s vehicle. Brack saw a police officer, flagged him down, and told him about Fox’s chase. The officer talked to Fox and then let him go. Later, Brack flagged down a second officer. The second officer told her that there was nothing the police could do, and she should take a different route home to Mississippi.

¶ 6. Brack and Coleman called Brack’s parents and told them what had happened. Fox did not follow Brack and Coleman the entire route home. Instead, he waited for them near Brack’s parents’ driveway. Brack drove into her parents’ driveway. Brack saw lights flash and heard a car skidding. Brack drove into her parents’ front yard and drove around a tree. Brack said that Fox hit her vehicle in front of the house. During this part of the incident, one of the vehicles hit a neighbor’s parked vehicle. It was disputed whether Brack or Fox hit the parked vehicle. Fox continued to pursue Brack and Coleman at a high rate of speed.

¶ 7. The chase proceeded down several streets. At one point, with an eighteen-wheeler coming from the opposite direction, Fox drove up to the passenger side of Brack’s vehicle. Brack said Fox then struck the back of her car. Fox said that when he was following Brack, she slammed on her breaks. He then slammed on his breaks and swerved to try to avoid Brack, and that is when their cars collided. Then, Brack’s vehicle turned and rolled, split a power pole, and came to rest upside down. Brack and Coleman were pinned inside Brack’s vehicle. Brack broke two cervical vertebrae. Coleman suffered a sprained neck, a lacerated face, and lacerated hands. Fox continued to drive and fled to Chicago.

¶ 8. According to Brack, Fox threatened different members of her family on the phone after the wreck. Fox had written a letter to Brack’s ex-husband telling him to be ready to get the kids because Brack was going to die.

¶ 9. Fox testified that he did not intentionally run Brack and Coleman off the road, but that he had operated his vehicle recklessly. Fox testified, “It was my fault.” Fox stated that he fled because he feared a maximum sentence due to his previous convictions.

¶ 10. On September 2, 2009, Fox pled guilty to two counts of aggravated assault and one count of leaving the scene of an accident. On the first count of aggravated assault, Fox was sentenced to serve twenty years. On the second count of aggravated assault, Fox was sentenced to twenty years of post-release supervision, five years reporting and fifteen years non-reporting, to run consecutively to the sentences for the other two counts. For leaving the scene of an accident, Fox was sentenced to serve five years, to be served concurrently with the sentence for the first count of aggravated assault.

¶ 11. On April 4, 2011, Fox filed his lengthy PCCR motion. His motion included numerous exhibits. On August 15, 2011, Fox filed a motion for summary judgment. Fox also filed several motions about the State’s failure to respond and about his opposition to orders that granted the State more time to respond. On January 26, 2012, the circuit court entered an order that denied Fox’s motions for summary judgment and PCCR.

STANDARD OF REVIEW

¶ 12. The denial of a motion for PCCR will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, the standard of review is de novo. Brown v. State, 781 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 13. Fox raises fifteen issues on appeal. We address Fox’s issues topically and not in the numerical order used in Fox’s brief.

1. Summary Judgment Motion: Lack of State’s Response and Default Judgment

¶ 14. Fox argues that the circuit court erred when it did not order the State to respond to his motion for summary judgment. Fox also argues that the circuit court erred when it did not order a default judgment against the State for its failure to respond.

¶ 15. A motion for PCCR is classified as a civil, rather than a criminal, action. The Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA) provides for the use of a summary judgment. Mississippi Code Annotated section 99-39-19(2) (Rev.2007) provides: “The court may grant a motion by either party for summary judgment when it appears from the record that there is no genuine issue of material fact and the mov-ant is entitled to [a] judgment as a matter of law.” The Mississippi Rules of Civil Procedure supplement the UPCCRA, and section 99-39-19 “authoriz[es][the] summary judgment procedure found in Rule 56.” Milam v. State, 578 So.2d 272, 273 n. 1 (Miss.1991).

¶ 16. Fox’s argument centers around the part of Mississippi Rule of Civil Procedure 56(e) that provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

¶ 17. Rule 56(e) does “not mandate a grant of summary judgment if there is no response to the summary judgment motion.” Stuckey v. The Provident Bank, 912 So.2d 859, 867 (¶ 15) (Miss.2005). In accordance with Rule 56 and case law, trial judges have “denied summary judgment motions even though the non-moving party failed to respond to the motion. The non-moving party merely failed to respond at his/her peril, and survived the motion anyway.” Stuckey, 912 So.2d at 867 (¶ 15).

¶ 18. Additionally, Fox’s argument ignores the distinction between summary judgment motions in PCCR actions and in ordinary civil actions. PCCR actions generally start with records that include actual evidence that created a genuine issue of material fact. See Turner v. State, 590 So.2d 871, 875 (Miss.1991). Whereas, ordinary civil actions begin with notice pleadings, and summary-judgment motions in such actions have attached affidavits. With motions for summary judgment in PCCR actions, there is evidence already in the record. Here, the evidence in the record included the testimony of Fox, Brack, Coleman, and Brack’s parents.

¶ 19. Fox’s motion for summary judgment was not “made and supported as provided in” Rule 56. The record does not support a finding that there were no genuine issues of material fact and that Fox was entitled to a judgment as a matter of law. The State was not required to respond to the summary-judgment motion.

¶ 20. The circuit court did not err when it did not order the State to respond to Fox’s motion for summary judgment and when it did not order a default judgment against the State for not responding. We find these two issues have no merit.

2. Validity of Indictment

¶ 21. Fox argues that the circuit court erred when it determined the indictment was valid under Mississippi Code Annotated section 99-7-9 (Supp.2012). Fox argues the indictment is invalid because it has a pre-signed, photocopied signature of the circuit clerk; the signature is partially forged; and it is not accompanied by a sworn affidavit of the grand-jury foreman.

¶ 22. We review de novo challenges to the legal sufficiency of an indictment. Beal v. State, 86 So.3d 887, 891 (¶ 9) (Miss.2012). In Brooks v. State, 573 So.2d 1350, 1353-54 (Miss.1990), the PCCR petitioner argued that his indictments were defective because they did not include an affidavit from the grand-jury foreman. This is the same as Fox’s argument. The supreme court held that any defects alleged in the indictments were “technical and non-jurisdictional deficiencies that were waived when [the petitioner] failed to timely raise them in the trial court.” Id. at 1354.

¶ 23. The defects that Fox complains of are procedural in nature and are non-jurisdictional defects. A guilty plea waives all non-jurisdictional defects in an indictment. Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001). With his guilty plea, Fox waived any non-jurisdictional defects in his indictment. Therefore, we find this issue has no merit.

3. Right to Indictment by a Grand Jury

¶ 24. Fox argues that the indictment as framed abrogated his right to indictment by a grand jury and allowed the State to “roam at large” in its theory of the offense. Fox argues that the indictment does not state the specific location of the incident and whether the victims were pedestrians or vehicle occupants. In this argument, Fox implicitly claims he was charged by the State, not the grand jury.

¶ 25. “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to” the appellate court. Branch v. State, 347 So.2d 957, 958 (Miss.1977).

¶ 26. Fox has not presented evidence that the facts in the indictment were not the same as the State’s theory. The indictment stated the date of the incident, the victims, the elements of each count, and the statutes Fox violated. Fox himself discussed the facts at length at his sentencing hearing. In the State’s factual basis for the charges, it stated that Fox drove his vehicle into a vehicle occupied by the victims. At the time of the hearing, Fox did not dispute the information.

¶ 27. Fox likens his indictment to the defective indictment in United States v. Tomasetta, 429 F.2d 978, 979 (1st Cir.1970). Besides the fact that Tomasetta is not binding authority for this Court, the indictment in Tomasetta is dissimilar because it failed to: name the victim, specify the location of the offense, specify how the extortionate threats there were communicated, and allege federal jurisdiction. Fox’s indictment named Brack and Coleman as victims and alleged that Fox had used an automobile to perpetrate the charged crimes.

¶28. If Fox was not informed of the location of the incident and whether the victims were pedestrians, he did not demonstrate any uncertainty as to these facts during his testimony at the sentencing hearing. Additionally, as stated above, Fox waived any non-jurisdictional defects in the indictment when he pled guilty. We find these issues have no merit.

U- Sufficiency of Indictment

¶29. Fox argues that the indictment did not sufficiently inform him of what evidence to be prepared to meet. He argues the indictment did not inform the circuit court of the facts. Fox argues that count three, leaving the scene of an accident, was unconstitutionally vague because it did not state a specific injury and subsection under the applicable statute. Fox also argues that all the counts were unconstitutionally vague because the indictment did not provide information so that Fox could plead double jeopardy.

¶ 30. The Mississippi Supreme Court has held that “when facts constituting a criminal offense may fall within either of two or more statutes or there is substantial doubt as to which applies, the statute imposing the lesser punishment shall be applied.” Bourdeaux v. State, 412 So.2d 241, 243 (Miss.1982). Fox argues that since neither the misdemeanor nor felony subsection of the relevant statute is listed in the indictment, the indictment is vague.

¶ 31. We find it clear from the indictment that Fox was charged with the felony of leaving the scene of the accident and that he was not charged under the misdemeanor subsection of the statute. Like in Pollard v. State, 932 So.2d 82, 89 (¶ 20) (Miss.Ct.App.2006), the inclusion in Fox’s indictment of the phrase “wilfully, unlawfully, and feloniously” made it apparent that Fox was charged under the felony subsection of Mississippi Code Annotated section 63-3-401 (Supp.2012).

¶ 32. Therefore, Fox’s indictment was sufficient and was not vague; his sentence under the felony subsection of the statute was not erroneous. As for the two counts of aggravated assault, the record reflects the indictment contained all the elements of the crimes charged and was not vague. When the elements were read to Fox, Fox did not disagree that he had committed the offenses. Again, Fox’s guilty plea waived all non-jurisdictional defects in his indictment. See Reeder, 783 So.2d at 720 (¶ 36). Accordingly, these issues are without merit.

5. Suppression of Favorable Evidence

¶ 33. Fox argues that the State suppressed favorable material evidence. Specifically, he claims that the State suppressed Brack’s drug and alcohol test results. Fox argues that the evidence does exist. Fox argues a lab report, an “exhibit x,” shows samples were collected to be used for pregnancy tests and other tests relevant to treatment. The record contains no “exhibit x.” Fox argues the result of the proceedings would have been different because of the probability that Brack’s results would have shown that she “was illegally impaired when she wrecked.” Fox also argues that there are differences in investigative reports as to who hit a neighbor’s parked car in the chase.

¶ 34. The record contains a report on Brack with the heading “Alcohol Test Information.” Under “Type,” it states “none.” Under “Status,” it states “none given.” The same information was under the heading “Drug Test Information.” The report does not indicate from where the report originated.

¶ 35. The supreme court has set forth a four-part test to determine whether a Brady violation occurred. Havard v. State, 86 So.3d 896, 900 (¶ 12) (Miss.2012). The defendant must prove:

(a) that the State possessed evidence favorable to the defendant (including impeachment evidence); (b) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Id. (quoting Manning v. State, 929 So.2d 885, 891 (¶ 15) (Miss.2006)).

¶ 36. In Leavitt v. State, 982 So.2d 981, 990 (¶ 36) (Miss.Ct.App.2008), the appellant argued that the prosecution excluded important evidence from discovery in violation of Brady. However, the appellant failed to provide any evidence that the State had failed to disclose the evidence. Id. The appellant also failed to show how the evidence would have affected his decision to plead guilty, other than providing his own bare allegations. Id. Thus, this Court found that the issue was without merit.

¶ 37. Like Leavitt, Fox has not shown that any of the documents he asserts were suppressed even exist. The record displays no alcohol test was performed. When Fox’s counsel asked the State for alcohol and drug test results, the State responded that no such results existed and that the State had provided all the records provided by the hospital. Additionally, Fox has not shown that such a test would be favorable to him. There is no evidence in the record to support that Brack was under the influence of drugs or alcohol to prompt such a test.

¶ 38. Because Fox has failed to establish the first three elements necessary to show a Brady violation, it is unnecessary for this court to opine as to the fourth. Thus, this issue is without merit.

6. Guilty Plea

¶ 39. Fox argues his guilty plea was involuntary and unintelligent. Fox lists this as issue fourteen. Fox bases part of his argument on a letter he sent to the circuit judge after his guilty plea and before sentencing. Fox stated in the letter that he had no malicious intent and did not ram Brack’s vehicle. Fox argues that the circuit court was required to explain the elements of aggravated assault, but the court only asked if counsel had explained the charges.

¶ 40. A guilty plea is enforceable only if entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 176-77 (Miss.1991). A plea is voluntary and intelligent when the defendant knows the elements of the charges against him and the consequences of a guilty plea. See Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). At the plea hearing here, the State read aloud each element of each count.

¶ 41. Great weight may be placed on a defendant’s sworn testimony given at a plea hearing, because “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). A defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005).

¶ 42. Based on our review of the record of the plea hearing, before Fox entered his plea, the circuit court explained that when a defendant enters a guilty plea, he waives certain rights, challenges, and claims that otherwise may have been available to him at a trial. The only evidence offered by Fox in support of his claim that his guilty plea was involuntary was his own unsupported assertions. The plea colloquy demonstrates that Fox’s guilty plea was voluntary and intelligent.

¶43. Fox’s plea petition contradicts Fox’s argument that his guilty plea was involuntary. “The plea petition was not an oral statement in open court, but it was a sworn document presumptively prepared with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). A plea petition is similar to a sworn statement made before the court and may be used to discredit post-plea allegations. Id. In Fox’s plea petition, he swore that he understood the rights given up by him when he pled guilty. He swore, “I offer my plea of ‘guilty’ freely and voluntarily and of my own accord and with full understanding of all matters set forth in the indictment herein.” Additionally, Fox swore, “I submit that all the elements are proven by the true facts.”

¶ 44. Fox’s arguments completely ignore the testimony that he gave when he pled guilty. The prosecutor stated that the State would be able to show that Fox chased the victims and “eventually struck their vehicle at a high rate of speed.” The circuit court asked Fox if he understood and recalled the events that brought about the charges. Fox answered yes. Fox did not have any disagreements with what the State said it could prove. If Fox disagreed, that moment was the time for Fox to say, “I disagree with what the State said.” He did not disagree then.

¶ 45. Accordingly, based on a thorough review of the record, we find that Fox’s guilty plea was entered voluntarily and intelligently. Therefore, we find this issue is without merit.

7. Ineffective Assistance of Counsel

¶ 46. Fox argues that his counsel was ineffective when he: (1) failed to move to quash the indictment; (2) advised Fox to plead guilty despite the fact that counsel failed to inspect the indictment, lacked the knowledge of the law to make proper objections to the indictment, and advised him to plead guilty before having full notice of the nature of the charges; (3) failed to investigate the State’s alleged suppression of favorable evidence; and (4) failed to investigate selective or malicious prosecution.

¶ 47. To prove ineffective assistance of counsel, Fox must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Fox to show both prongs. See McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Fox must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 48. In PCCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995). As this case involves a guilty plea, Fox must show that, but for counsel’s performance, he would have gone to trial, and the outcome would have been different. See Mitchell v. State, 58 So.3d 59, 62 (¶ 14) (Miss.Ct.App.2011). Fox has made no such showing.

¶ 49. Fox offers only his statements that allege the deficiencies of his counsel. Such allegations directly contradict his statements made under oath. Further, Fox failed to show his counsel prejudiced the result of his case. Fox admitted the factual bases for the charges were correct.' Fox testified under oath that he was satisfied with the legal services of his counsel and that he believed his attorney had properly advised him before he pled guilty. Fox has not proven an ineffective-assistance-of-counsel claim as to the advice he received to plead guilty.

¶ 50. Fox argues his counsel was ineffective when he did not move to quash the indictment. However, as previously discussed, Fox’s indictment was sufficient and was not vague. Thus, Fox’s counsel was not deficient in not moving to quash the indictment. Additionally, even if the indictment had been defective, it would have been curable by amendment. See Brandau v. State, 662 So.2d 1051, 1054 (Miss.1995). Again, a guilty plea waives all non-jurisdictional defects in the indictment. See Reeder, 783 So.2d at 720 (¶ 36). Even if we assumed Fox’s counsel erred in not moving to quash the indictment, Fox has not shown prejudice. Thus, this issue has no merit.

¶ 51. Fox argues his counsel failed to investigate selective or malicious prosecution and failed to investigate the State’s alleged suppression of favorable evidence. For failure to investigate to be ineffective assistance of counsel, Fox “must state with particularity what the investigation would have revealed and ... how it would have altered the outcome.” Triplett v. State, 840 So.2d 727, 731 (¶ 11) (Miss.Ct.App.2002).

¶52. Prosecutors have wide discretion in their decisions of what actions to prosecute. Hansen v. State, 592 So.2d 114, 143 (Miss.1991). With selective prosecution, Fox carries the burden of showing that he was arbitrarily or unconstitutionally targeted. See id. A selective-prosecution claim is an independent assertion of misconduct by a prosecutor and “not a defense on the merits to the criminal charge itself.” United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). There must be clear evidence to rebut the presumption that the prosecutor acted lawfully. Id. at 464, 116 S.Ct. 1480. Fox has failed to meet this burden or to show how an investigation into the prosecutor’s alleged selective prosecution would have altered the outcome of his case. This issue has no merit.

¶ 53. Fox claims his counsel did not investigate Brack’s alleged alcohol and drug tests from the hospital. However, the record demonstrates that Fox’s counsel wrote to the prosecutor on August 6, 2009:

In reviewing Ms. Brack’s medical records from the Regional Medical Center, no records were produced regarding alcohol and/or drug screens. I have never seen records from The Med in which these results were not provided. Please confirm that the records you provided are the complete records from The Med. Please contact me if you have any questions.

The State responded that no such drug and alcohol screen existed. Also, Fox admitted in his PCCR petition that his counsel had informed him of this fact. As previously discussed, there is no evidence in the record that the results ever existed. Fox has not shown that his counsel’s pursuit of the results was deficient performance or that he was prejudiced. Accordingly, this issue is without merit.

¶ 54. Because this Court finds that all fifteen of the issues Fox raises on appeal are without merit, we affirm the circuit court’s denial of Fox’s PCCR motion.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

CARLTON, J., CONCURS IN RESULT ONLY.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: MAXWELL, J„

license: Public Domain

text:
    Randolph MAY and Martha Gene May, Appellants v. ADIRONDACK TIMBER I, LLC, Appellee.
    No. 2012-CA-00748-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 26, 2013.

      Alfred L. Felder, McComb, attorney for appellants.
    Michael Scott Jones, Powell G. Ogletree, Jr., Ridgeland, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J„

for the Court:

¶ 1. Mississippi statutory law permits a person to petition for a private road across someone else’s property “when necessary for ingress and egress.” Following statutory procedures, Adirondack Timber I, LLC, obtained an easement for a private road across Randolph May and Martha Gene May’s property. Because we find Adirondack met its burden to show the private road across the Mays’ property was necessary to gain permanent access to its landlocked property, we affirm the judgment granting Adirondack the easement.

¶ 2. We cannot, however, affirm the grant of Adirondack’s request for Rule 11 sanctions. The Mays’ post-judgment motion, which challenged the legal correctness of the judgment that condemned a portion of their property, while unsuccessful, was not frivolous. Because it was an abuse of discretion to impose sanctions on the Mays for filing this motion, we reverse and render the judgment awarding Adirondack $200 as sanctions.

Background

¶ 3. Adirondack owns real property in Lincoln County, Mississippi, with mature timber that it plans to harvest. But the property is landlocked. To the immediate west of Adirondack’s property is the Canadian National Railroad, which refused to permit Adirondack a permanent crossing. And to the north are creeks. The eastern boundary is the Bogue Chitto River. Determining the only reasonable access to its property was from the south, Adirondack attempted to obtain an easement from the landowners to the south for a private road immediately east of the railroad that would run parallel to the railroad till it reached Carruth Drive, an existing public road with a permanent railroad crossing.

¶ 4. Adirondack’s immediate southern neighbors in Lincoln County were amenable to this plan and deeded an easement across their property, down to the Pike County line. But the Mays, who own the property from the county line to Carruth Drive, refused to grant an easement. So Adirondack utilized the procedures of Mississippi Code Annotated section 65-7-201 (Rev.2012) and petitioned the Pike County Special Court of Eminent Domain for a private road across the Mays’ property. The county court judge, sitting as special eminent domain judge, found Adirondack met the statutory requirements and granted a 50-foot-wide easement for a private road, for which Adirondack would pay the Mays $4,000.

¶ 5. The Mays then filed a Rule 59 motion for a new trial or, alternatively, to alter or amend the judgment. See M.R.C.P. 59(a), (e). Adirondack responded by asking for Rule 11 sanctions, arguing the Mays’ post-trial motion was frivolous. See M.R.C.P. 11. The judge denied the Mays’ post-trial motion and granted Adirondack’s request for sanctions, requiring the Mays to pay Adirondack $200 in attorney’s fees.

¶ 6. The Mays appeal both the grant of the easement for the private road and the sanctions imposed.

Discussion

¶ 7. We affirm the special eminent domain judge’s grant of an easement for a private road. While, on one hand, the statute required Adirondack to show more than the mere convenience of having a private road across the Mays’ property to Carruth Drive, on the other hand, Adirondack did not have to show there was no other possible way to get to its property. We find the judge properly found that Adirondack met its statutory burden to show the private road was reasonably necessary to enter and leave its landlocked property.

¶ 8. But we reverse the award of sanctions. While Rule 11 sanctions are within the sound discretion of the trial court, we find the judge abused this discretion when he held the Mays’ post-trial motion was frivolous and, thus, sanctionable.

I. Grant of Private-Road Easement

¶9. As the petitioner, Adirondack had the burden to show the private road across the Mays’ property is “necessary for ingress and egress” to its property. Miss.Code Ann. § 65-7-201; see also Alpaugh v. Moore, 568 So.2d 291, 295 (Miss.1990) (finding petitioners had met their statutory burden to show necessity). The Mays argue the judge erred in finding Adirondack met this burden.

¶ 10. Because “the right to control and use of one’s property is a sacred right not to be lightly invaded or disturbed,” in order to invade this right and be granted a private road over the Mays’ property, Adirondack had to show “real necessity[,] not just mere convenience.” Hooks v. George Cnty., 748 So.2d 678, 681-82 (¶¶ 15, 21) (Miss.1999). For example, in Hooks, the Mississippi Supreme Court held that the petitioners failed to show a private road across their neighbors’ property was reasonably necessary because the petitioners had already obtained two other easements to their property. Id. at 682-83 (¶¶ 21— 27). And the only reason they petitioned under the statute for a private road was because, unlike their other easements, the road had already been cleared. Because “the private way across [their neighbor’s] property [was] not a necessity but [instead] a mere convenience,” the supreme court held that the petitioners failed to meet their statutory burden. Id. at 682 (¶ 21).

¶ 11. Here, Adirondack has shown that it sought the private road for more than mere convenience. An easement to the south of its property was not merely the most convenient way to enter and exit its property, it was the only feasible way to get to a public road. To the north and east are creeks and a river, and to the west is a railroad, which would not grant Adirondack a permanent crossing.

¶ 12. The Mays assert Adirondack failed to meet its burden because there was evidence the railroad was willing to grant a temporary easement across its tracks, and the Browns, property owners to the west of the railroad, were willing to grant an easement for a road parallel to the railroad to the west that would connect to Carruth Drive. According to the Mays, Adirondack could not show “necessity” because it failed to pursue an easement from willing property owners west of the railroad tracks. But Adirondack did explore this option — and was refused a permanent railroad crossing by Canadian National Railroad to get to the Browns’ property to the west. Thus, it was unreasonable for Adirondack to pursue this option for long-term access to its property.

¶ 13. The supreme court has interpreted the statute’s use of the word “necessary” to mean what is “reasonably necessary and practical” and not what is “absolutely necessary.” Id. (quoting Quinn v. Holly, 244 Miss. 808, 813, 146 So.2d 357, 359 (1962)). In Alpaugh, the supreme court held that the petitioners had met their burden of showing the reasonable necessity of a private way across their neighbors’ property because the petitioners’ property was bound by water on three sides. Alpaugh, 568 So.2d at 295. The petitioners’ neighbors had argued that an absolute necessity standard should apply — asserting that the petitioners “failed to explore the option of building a bridge to their land.” Id. The supreme court rejected this argument, finding such an exploration was “not ... required due to the unreasonableness inherent in such an undertaking.” Id. The court held the petitioners had met their burden by “showing that they ha[d] no other dry access to their land. Id.

¶ 14. As in Alpaugh, the Mays essentially argue that because the judge did not find the private road was “absolute necessity,” the judge failed to make the required finding under the statute. However, Adirondack’s burden was to show there was no other reasonable access to the property other than going through the Mays’ property. The judge found that, because of the creeks to the north, the Bogue Chitto River to the east, and the railroad to the west, the only reasonable option for Adirondack was to enter and leave its property from the south, by building a private road from Adirondack’s property to the established railroad crossing at Carruth Drive. Because we find the special eminent domain judge properly applied section 65-7-201 and supported his finding of reasonable necessity with substantial evidence from the record, we affirm the judgment granting Adirondack an easement for a private road across the Mays’ property.

II. Award of Sanctions

¶ 15. Since we find the judgment granting an easement was proper, we find the denial of the Mays’ motion for a new trial or to alter or amend that judgment was also proper. But we find that to impose sanctions for filing this motion was an abuse of discretion. See Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 196 (Miss.1995) (holding that the imposition of sanctions will only be reversed if the judge abused his discretion).

¶ 16. Rule 11(b) grants a judge the authority to order a party, his attorney, or both to pay the reasonable expenses incurred by the opposite party to defend a motion that, “in the opinion of the [judge], is frivolous or is filed for the purpose of harassment or delay.” M.R.C.P. 11(b). However, a motion is “frivolous,” and thus sanctionable, “only when, objectively speaking, the ... movant has no hope of success.” Leaf River, 661 So.2d at 196-97 (quoting Smith v. Malouf, 597 So.2d 1299, 1303 (Miss.1992)).

¶ 17. The judge found the Mays’ motion had no hope of success because it “presented no new facts or law” but instead “restate[d] the exact same argument made at trial,” which the judge “ha[d] already heard and considered[.]” But the standard is an objective one, not a subjective one. Though subjectively the judge obviously found the Mays had no hope he would change his mind based on the same argument, objectively, we cannot say it is hopeless to ask a judge to change his mind based on the argument he misapplied the law the parties had already presented.

¶ 18. While showing “an intervening change in controlling law” or “the availability of new evidence not previously available” are two ways to succeed on a motion to alter or amend, another way to prevail on a Rule 59(e) motion is to show “the need to correct a clear error of law or to prevent manifest injustice.” Journeay v. Berry, 953 So.2d 1145, 1160 (¶ 51) (Miss.Ct.App.2007) (citing Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004)). So simply pointing out the need to correct clear legal error based on the law and evidence already presented is a non-frivolous use of Rule 59(e). And arguably the Mays thought they were giving the judge an opportunity to correct a misapplication of section 65-7-201’s “necessity” standard, before raising this issue on appeal.

¶ 19. While there may be circumstances where a post-judgment motion raises solely frivolous arguments or is filed only to delay the effect of the judgment, those circumstances are not present here, particularly where the moving party has lost property rights.

¶ 20. We find the judge abused his discretion when he held the Mays’ post-trial motion was frivolous and imposed the $200 sanction. Thus, we reverse and render the award of $200 in sanctions to Adirondack.

¶ 21. THE JUDGMENT OF THE PIKE COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ„ CONCUR.

      . Miss.Code Ann. § 65-7-201 (Rev.2012).

      . See M.R.C.P. 11(b).

      . Adirondack and the Mays stipulated to this amount, which is not at issue on appeal.

      . Under section 65-7-201:
      When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.
      (Emphasis added).

      . This case involved a bench trial, not a jury trial, so this is not a case where a post-trial motion was necessary to preserve challenges to the sufficiency and weight of the evidence.


author: ROBERTS, J.,

text:
    Willie H. JONES II, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-00964-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Willie H. Jones II, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On May 28, 2010, Willie. H. Jones II was terminated from his employment as a teacher in the Hinds County School District (District). Jones subsequently filed for unemployment benefits; however, after an investigation, the Mississippi Department of Employment Security (MDES) denied Jones unemployment benefits because Jones was terminated due to misconduct. Jones appealed this decision to an administrative- judge (AJ), who affirmed the MDES’s decision to deny Jones unemployment benefits. Jones again appealed to the MDES Board of Review, which also affirmed the AJ’s findings of fact and conclusions of law. Jones then appealed this decision to the Hinds County Circuit Court. The circuit court affirmed the denial of Jones’s unemployment benefits. Finding no error, we affirm the circuit court’s judgment affirming the Board’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jones was employed by the District as an educator from July 31, 2006, until his termination on May 28, 2010. On May 7, 2010, Jones received a written notice that he had been placed on a teacher-improvement plan to improve his communication skills. Jones was also informed that he was to begin the improvement plan immediately, even though it was close to the end of the school year. Jones vehemently disagreed with his placement on the improvement plan, and informed Cindy Gibson, the Teacher Quality Assurance Administrator, that he would not comply with the improvement plan. She told him that he would need to speak to the District’s superintendent, Dr. Stephen Handley. Jones contacted Dr. Handley, who instructed him to make a good-faith effort to comply with the improvement plan, and that at the end of the current school year, which was approximately two more weeks, Dr. Handley would reevaluate the need for Jones to stay on the improvement plan. Dr. Handley also informed Jones that the failure to comply with the improvement plan could result in termination of his employment.

¶ 3. Jones refused to comply with any portion of the improvement plan, and allegedly filed a grievance with the Hinds County School Board (Board) on May 14, 2010. As a result of Jones’s refusal to complete any portion of the improvement plan, Jones’s employment as an educator for the District was terminated on May 28, 2010. Jones appealed his termination to the Board, and a hearing was held before the Board on June 25, 2010. The Board issued its decision upholding Jones’s termination on August 12, 2010.

¶ 4. Jones applied for unemployment benefits on July 26, 2010. Following an investigation, the MDES determined Jones was terminated for misconduct, specifically for his refusal to comply with the improvement plan as requested. Jones appealed the MDES’s determination to an AJ. A de novo hearing was conducted before the AJ on September 23, 2010. The AJ heard testimony from Jones, Dr. Handley, and Gibson, and reviewed a variety of documents submitted by the parties. The AJ affirmed the denial of Jones’s unemployment benefits due to his misconduct in failing to comply with the improvement plan.

¶ 5. Jones appealed the AJ’s findings to the Board of Review. The Board of Review adopted the AJ’s findings of fact and conclusions of law, and it affirmed the decision to deny Jones unemployment benefits. On December 3, 2010, Jones appealed to the circuit court. The circuit court affirmed the denial of unemployment benefits. It is from this decision that Jones bases his current appeal. On appeal, he raises the following issues, which we quote:

I. Whether the finding of the [AJ] was based on fraudulent, created, and seemingly defamating [sic] late information provided by the [District and the Board].
II. Whether the [AJ] wronged [sic] in her interpretation of the law that [Jones’s] official grievance submit-tal [sic] to the secretary of the [Board], on May 14, 2010[,] did not negate the process of continuing any plan until heard before the [Board] as according to Mississippi Code of 1972-Grievance Procedures-Licensed Personnel.
III. Whether [Jones] was place on a[n improvement plan] with nineteen other [e]ducators by the principal and did not [complete] any portion of said [improvement plan], with all others completing their plans.
IV. Whether [the AJ] based her finding of the facts clearly and solely on the information submitted to MDES prior to the hearing and testimony given during the hearing according to the rules of evidence that governs a “de novo” hearing.
V. Whether during the “de novo” hearing, were witnesses of the [District] allowed to be in the same room during each otherf’s] testimony and coached on their responses even after being warned by the [AJ], especially during the testimony of [Gibson].
VI. Whether [Jones] received adequate notice by MDES that Judge Gary Holmes Jr. was removed or replaced as the presiding [j]udge in this matter.

STANDARD OF REVIEW

¶ 6. An appellate court reviews the circuit court’s judgment to affirm the Board of Review’s decision utilizing the abuse of discretion standard. Miss. Dep’t of Emp’t Sec. v. Clark, 13 So.3d 866, 870 (¶ 8) (Miss.Ct.App.2009) (citing Howell v. Miss. Emp’t Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). The MDES’s findings should not be disturbed unless they are: (1) not supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the claimant’s constitutional rights. Allen v. Miss. Emp’t Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994) (citations omitted).

ANALYSIS

¶ 7. While Jones submits a variety of arguments, we note that he did not provide a single citation to any authority in support of his arguments. Mississippi Rule of Appellate Procedure 28(a)(6) provides that the argument portion of an appellant’s brief “shall contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” (Emphasis added). “Mississippi case law has consistently held that ‘failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.’ ” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So.3d 408, 410 (¶ 5) (Miss.Ct.App.2012) (quoting Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005)). Jones filed his brief pro se, and the Mississippi Supreme Court has held that on appeal, an appellate court “will credit not so well pleaded allegations so that a pro se prisoner’s meritorious complaint may not be lost because inartfully drafted. Our courts will also allow the same deference to pro se litigants in civil actions.” Klein v. McIntyre, 966 So.2d 1252, 1255 (¶ 9) (Miss.Ct.App.2007) (quoting Harvey v. Stone Cnty. Sch. Dist., 862 So.2d 545, 549 (¶ 9) (Miss.Ct.App.2003) (internal citations and quotation marks omitted)).

¶ 8. Although Jones filed his brief pro se, the Mississippi Supreme Court has stated on numerous occasions that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Id. (quoting Harvey, 862 So.2d at 549 (¶ 9)). Therefore, we find that Jones’s failure to cite to a single authority acts as a procedural bar to his claims, and this Court will not address them on appeal.

¶ 9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: JAMES, J.,

text:
    Darrin MOFFITE a/k/a Darrin Junior Moffite a/k/a Darrin Moffite, Jr. a/k/a Darrin Nelson a/k/a Darrin Junior Nelson a/k/a Darrin J. Moffite, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00351-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.

      Darrin Moffite, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Darrin Moffite (pro se) appeals the order of the Lauderdale County Circuit Court denying his motion for post-conviction relief (PCR). On appeal, Moffite raises the following issues: (1) whether the trial court erred in enhancing his charge from possession of 2.44 grams of cocaine to possession of cocaine “with intent,” and (2) whether the trial court erred in revoking his post-release supervision (PRS) and imposing the suspended portion of his sentence. We find no reversible error and affirm. However, we remand for the trial court to correct the scrivener’s error in the judgment of revocation.

FACTS AND PROCEDURAL HISTORY

¶ 2. Moffite was indicted for possession of cocaine with intent to distribute, as a habitual offender. On May 28, 2003, Mof-fite pled guilty to possession of 2.44 grams of cocaine with an enhanced penalty based on prior drug convictions. Moffite was sentenced to serve a term of twenty-seven years in the custody of the Mississippi Department of Corrections (MDOC). Twenty-two years of that sentence were suspended pending successful completion of five years of PRS. Moffite was also ordered to pay $5,548 in fines and fees. After serving five years in the custody of MDOC, Moffite was released on PRS. On July 23, 2009, Moffite entered into a restitution-center program, which allowed him to work to pay off his outstanding fines and fees.

¶ 3. After Moffite failed three drug and alcohol tests, an MDOC field officer filed a petition to have Moffite’s PRS revoked. A hearing was held on April 6, 2010. The trial court determined that Moffite had failed to abide by the terms of his PRS agreement, and revoked the suspended portion of Moffite’s sentence. Moffite was sentenced to serve fifteen of the twenty-two years remaining on his sentence in the custody of MDOC. On June 28, 2011, Mof-fite filed a PCR motion, arguing his PRS was unlawfully revoked. Specifically, Mof-fite claimed that, based on the terms of his plea agreement, the trial court was only allowed to impose the PRS portion of his sentence for any violation, which was five years. The trial court denied the motion. Moffite now appeals to this Court.

STANDARD OF REVIEW

¶ 4. We will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s findings are clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). For issues involving questions of law, the applicable standard of review is de novo. Id. (citing Pace v. State, 770 So.2d 1052, 1053 (¶ 4) (Miss.Ct.App.2000)).

DISCUSSION

I. Whether the trial court erred in finding that Moffite pled guilty to possession of cocaine with intent.

¶ 5. Moffite argues that the trial court committed plain error at the revocation hearing by enhancing his charge from possession of cocaine to possession of cocaine with intent. Following the revocation hearing, the trial court entered an order revoking Moffite’s PRS, which listed “possession of cocaine with intent” as the crime to which Moffite pled guilty. However, Moffite pled guilty to possession of 2.44 grams of cocaine with an enhancement for a prior drug conviction, and the trial court entered an order accepting his plea. In its brief, the State submits that this was indeed error, as Moffite’s plea agreement and the plea-hearing transcript both reflect that Moffite pled guilty to possession of 2.44 grams of cocaine with an enhancement for a prior drug conviction. It appears that crime listed in the revocation order is a clerical error. “Courts of record have inherent power to correct clerical errors in criminal prosecutions and civil cases.” Melton v. State, 950 So.2d 1067, 1073 (¶ 24) (Miss.Ct.App.2007) (citing Kitchens v. State, 253 Miss. 734, 179 So.2d 13, 14 (1965)). Therefore, we remand to allow the trial court to correct the clerical error in the order revoking Moffite’s PRS.

II. Whether the trial court erred in revoking Moffite’s post-release supervision and imposing a portion of his suspended sentence.

¶ 6. Moffite argues that the trial court was without authority to revoke the suspended portion of his sentence after having found that Moffite violated the terms of his PRS. Moffite claims that upon revoking his PRS, the trial court unlawfully imposed the suspended portion of his sentence. Moffite misinterprets a provision of the trial court’s order accepting his guilty plea and imposing his sentence, which reads, “Failure to abide by any one of these conditions is sufficient to revoke the post-release supervision portion of this order.” Because Moffite was sentenced to five years of PRS, it is his contention that five years is the maximum sentence the trial court was allowed to impose upon revocation. Moffite is mistaken in this regard. The suspension of twenty-two years of Moffite’s sentence was contingent upon successful completion of a restitution-center program as part of his post-release supervision. Moffite failed to abide by the terms and conditions of his PRS by testing positive for drugs and alcohol on three separate occasions. Mississippi Code Annotated section 47-7-34(2) (Rev.2011), which governs the trial court’s termination of PRS, provides:

The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant.... Procedures for termination and recom-mitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

¶ 7. “[W]hen a defendant is found to have violated the terms of his probation, the court has the power to impose any sentence which would have been originally imposed.” Brunson v. State, 796 So.2d 284, 287 (¶ 10) (Miss.Ct.App.2001) (quoting Johnson v. State, 753 So.2d 449, 455 (¶ 15) (Miss.Ct.App.1999)). Further, “[t]he [trial] court may not impose a sentence greater than the original sentence, but can sentence the defendant to the full original sentence if it deems such an action necessary.” Id. at (¶ 14) (emphasis added) (citing Johnson, 753 So.2d at 455 (¶ 15)). Moffite was originally sentenced to serve a term of twenty-seven years. Upon revocation of Moffite’s PRS, the trial court sentenced him to serve fifteen years. The trial court did not impose a greater sentence than that originally imposed. In fact, the court declined to impose the full suspended portion of Moffite’s sentence, which was twenty-two years. We find that the court was within its authority to revoke Moffite’s PRS and impose a fifteen-year sentence. This issue is without merit.

¶ 8. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. THIS CASE IS REMANDED FOR THE CORRECTION OF THE SCRIVENER’S ERROR IN THE ORDER OF REVOCATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


author: IRVING, P.J.,

text:
    James Lee MACK, Jr. a/k/a James Lee Mack a/k/a James Mack, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01478-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.

      Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On May 16, 2011, a Hinds County jury convicted James Lee Mack Jr. of capital murder, Count I, and arson, Count II. The circuit court sentenced Mack to life on Count I and to twenty years on Count II, with the sentence in Count II to run consecutively to the sentence in Count I, all in the custody of the Mississippi Department of Corrections, without eligibility for parole or probation. Mack filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which the court denied. Feeling aggrieved, Mack appeals and argues that the circuit court erroneously prohibited him from presenting a meaningful defense by preventing him from cross-examining the State’s main witness regarding the witness’s prior conviction.

¶ 2. Finding no error, we affirm.

FACTS

¶ 8. Mack met Christopher Newsome over a chat line for homosexuals. New-some contacted Mack and suggested that they meet to have sex. Mack agreed, but secretly intended to rob Newsome. The two met at a vacant house on Flag Chapel Road in Jackson, Mississippi. Mack arrived with a loaded .880 pistol. When Newsome arrived, Mack pulled out the pistol, pointed it at Newsome, and instructed him to go into the bathroom in the vacant house. Mack told Newsome to give him his keys and wallet, and New-some complied. Soon after Newsome gave Mack his belongings, Mack killed New-some. Mack drove Newsome’s car to a nearby gas station and purchased gas. He returned to the house, poured gas in various rooms within the house, and set the house on fire.

¶ 4. Afterwards, Mack visited Dexter Walker, a friend of Mack’s family and his previous roommate. Mack told Walker that he had “murked that n* * * *,” which Walker understood to mean that Mack had killed someone. During Mack’s visit with Walker, Walker saw Mack with Newsome’s wallet and credit cards. After Mack left Walker’s apartment, Walker contacted the Jackson Police Department. He told the police officers everything that Mack had told him and that he saw Mack driving Newsome’s white Nissan.

¶ 5. Based on the information that officers received from Walker, a warrant was issued for Mack’s arrest. Mack voluntarily reported to the police station. He detailed his involvement with Newsome’s murder as follows:

Last night he pulled in the driveway. He hopped out of the car. I followed him towards the door. [I pjulled the pistol out and I told him to ... go to the bathroom[,] and I told him to give me his wallet and his car keys. He gave me the wallet and the car keys. He turned around and I felt like he was about to do something because he had that look in his eyes, and I turned around. The gun was cocked and there wasn’t anything left to do but shoot him. When he gave me that look, I feared for my life and I pulled the trigger. I left and came back. I went to the gas station on the hill and got some gas. Came back[,] thr[ew] it around the house, lit the match, and left out. I was just going to mess the scene up to make it look like a fire. I dash[ed] gas on the walls, front room floor, and the bathroom. I think I shot him in the chest and he fell back into the tub.

¶ 6. At trial, Walker testified as the State’s main witness. He stated that he did not believe that Mack had killed anyone until he saw him with Newsome’s credit cards and wallet. However, Walker could not recall seeing Mack driving New-some’s car, or any similar car, on the morning of Newsome’s murder.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Mack argues that the circuit court prevented him from presenting a meaningful defense by prohibiting him from cross-examining Walker regarding Walker’s prior armed-robbery conviction. “Limitations on cross-examination are reviewed for abuse of discretion.” Anthony v. State, 108 So.3d 394, 397 (¶ 5) (Miss.2013) (quoting Jefferson v. State, 818 So.2d 1099, 1109 (¶ 24) (Miss.2002)). “[Appellate courts] will affirm the [circuit] court’s exercise of discretion unless the ruling resulted in prejudice to the accused.” Id. (citing Clark v. State, 40 So.3d 531, 542 (¶ 29) (Miss.2010)). “Mississippi allows wide-open cross-examination of any matter that is relevant, including the possible interest, bias, or prejudice of the witness.” Id. (¶ 6) (citing Meeks v. State, 604 So.2d 748, 755 (Miss.1992)). “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or intent of the witness for or against any party to the case is admissible.” Id. (quoting M.R.E. 616).

¶ 9. The admissibility of Walker’s 1994 armed-robbery conviction for the purpose of attacking his character for truthfulness is governed by Mississippi Rule of Evidence 609, which reads, in pertinent part, as follows:

(a) General Rule. For the purpose of attacking the character for truthfulness of a witness, ... evidence that ... a nonparty witness has been convicted of a crime shall be admitted subject to [Mississippi Rule of Evidence] 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was eonvicted[.]
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

¶ 10. Here, the circuit court determined that Walker’s conviction was inadmissible under Rule 609 because it was approximately seventeen years old and had no probative or impeachment value. We cannot find that the circuit court abused its discretion by prohibiting cross-examination regarding Walker’s 1994 conviction. Not only is Walker’s conviction over ten years old, Mack has failed to present any evidence that Walker’s prior conviction or the circumstances surrounding Walker’s prior conviction would have offered any probative value in the case against Mack. Additionally, there is no evidence that Walker’s testimony was motivated by any animus against Mack. Accordingly, we find that the circuit court did not err in prohibiting cross-examination regarding Walker’s seventeen-year-old armed-robbery conviction. This issue is without merit.

¶11. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE OF LIFE; AND COUNT II, ARSON, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: FAIR, J.,

text:
    Phillip W. WILLIAMS, Appellant v. Gail H. WILLIAMS, Appellee.
    No. 2012-CA-00141-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Jak McGee Smith, Tupelo, attorney for appellant.
    John A. Ferrell, Booneville, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Phillip and Gail Williams had been married for fifty-one years when they appeared before a chancellor seeking dissolution of their marriage, distribution of their marital property, and final resolution of their financial affairs.

¶ 2. At the end of trial, which took place over the course of multiple days, the chancellor invited briefs, allowed sixty days for their submission, and on November 23, 2011, entered an opinion and final judgment granting a divorce to Gail on grounds of habitual cruel and inhuman treatment. The chancellor then divided the marital property, adjudicated that what remained of a personal injury settlement in favor of Gail was her separate property, and awarded Gail $125 per month in periodic alimony.

¶ 3. Phillip appeals, claiming the chancellor erred in dividing the marital property, in finding the settlement to be Gail’s separate property, and in awarding alimony to Gail. Finding that the chancellor did not so err, we affirm.

FACTS

¶ 4. Gail and Phillip married on January 16, 1960, raised two children to adulthood, and separated in Tishomingo County on September 3, 2009, a little over three months short of their golden anniversary.

¶ 5. Gail shortly thereafter filed for divorce, equitable division of property, and alimony; Phillip responded with denials and a counterclaim. The normal course of discovery, along with temporary motions, hearings, orders and injunctions followed.

¶ 6. In a thorough and well-written fifteen-page opinion and judgment, the chancellor set out findings of facts and descriptions of evidence to support her finding that Phillip’s habitual cruel and unusual treatment of Gail, which included multiple occasions of physical violence, a recently acquired inclination for viewing non-heterosexual pornography online, as well as other abuse over their long marriage, caused their separation and justified granting a divorce to Gail. Phillip has not appealed that determination.

¶ 7. Citing Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and noting the established presumption that all property acquired during a marriage is presumed marital unless found otherwise, the chancellor classified, valued, and divided the property she found to be marital. She adjudicated one asset — the proceeds of a personal injury settlement in a mass tort case for Dow Chemical’s marketing of alleged defective breast implants Gail received fifteen years in the past — to be Gail’s separate property. In her opinion and judgment, the chancellor set out in a table a detailed listing of the Williams’ marital assets; the claims of value submitted by each party for each item; and the evidence in the record of valuation, whether lay testimony of the party, appraisal by an expert, a document or documents in evidence, or as set out in the mandatory Rule 8.05 forms of each party.

¶ 8. In a separate table, following discussion of the Ferguson factors as they relate to the items listed in the summary table, the chancellor set out her final valuations of the marital property. The table named the recipient of each and detailed the evidence or the method used to reconcile conflicting evidence of valuation. She prefaced the factor discussions and final division with the observation that “[t]he Court is also mindful of the general proposition that ‘an equitable division of property does not necessarily mean an equal division of property.’ ” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009).

¶ 9. Addressing the four factors set out in Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988), the chancellor found lump sum alimony unwarranted and thereafter discussed whether or not rehabilitative alimony or periodic alimony should be awarded. Discussing the twelve factors to be addressed when considering alimony, as set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), she found a small deficit in the monthly Social Security income of the parties, $707.10 to Gail and $1,245.50 to Phillip. The chancellor also acknowledged other income from marital assets divided between them, such as interest on bank and stock accounts, rental income on a house in Alabama being received by Phillip, and the fact that the marital assets are not subject to debt with the possible exception of a small loan on Phillip’s pickup acquired after separation and allegedly made to pay toward the Alabama house. She awarded $125 per month in periodic alimony, “which will equitably adjust the Social Security benefits received by the parties.”

¶ 10. The chancellor finally declined to award fees and expenses, finding each party had sufficient resources from which to satisfy his or her attorney’s fees.

¶ 11. Phillip appealed.

ISSUES

¶ 12. As asserted in his brief, Phillip claims:

1. The Court committed manifest error in its mathematical calculation in the division of property by counting some of Phillip’s assets twice. Additionally, the Court ignored the overwhelming proof offered by Phillip that he put other significant sums of money into the purchase of the Alabama home which the Court again counted twice.
2. The Court committed manifest error by not accepting the fair-market-value of the Alabama home offered by Phillip, and, instead, averaged the fair-market-value of the Alabama home with an unauthenticated tax value of the pi-operty.
3. The Court committed manifest error by averaging the value of certain assets when there was no rational basis for doing so.
4. The Court committed error in its failure to credit Phillip by counting the $25,000.00 settlement on the breast enlargement as separate property and failing to give Phillip credit for the amount of the medical expenses he incurred in paying for the breast enlargement.
5. Alimony was improperly awarded to Gail since the Court found no deficit (none existed), and made no Armstrong analysis. The Court further committed error in giving alimony for the purpose of balancing the incomes of the parties.

STANDARD OF REVIEW

¶ 13. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed (unless factor analysis is mandated) on the assumption that she resolved all such fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)). “A chancellor’s findings of fact will only be reversed when the record possesses no credible evidence to support them.” Collins v. Collins, 112 So.3d 428, 433 (¶ 16) (Miss.2013) (citing Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002)).

DISCUSSION

¶ 14. We have reorganized the errors assigned by Phillip to allow discussion in the order suggested in the long line of cases discussing property and money based on Hemsley, Ferguson and Armstrong.

1. Gail’s Dow Chemical Settlement— Separate or Marital?

¶ 15. As recognized by the chancellor, in an equitable division of property brought into or acquired during a marriage, the property must first be subjected to a Hemsley analysis, the determination of whether assets are marital or separate and assignment of a value to each item or groups of items. Property acquired during marriage is presumed marital. In this case Gail had received a money settlement based on defective breast implants made by Dow Chemical Company during the marriage. She kept it, however, in a separate account in her name only. The sum in the account was alternatively stated in the record as $25,097, $25,075, or “about $25,000.”

¶ 16. The Supreme Court of Mississippi had wrestled with determination of the status of personal injury settlements as marital or separate property long before it handed down the Hemsley and Ferguson cases on July 7, 1994. In fact, in Hemsley it noted specifically the case of Regan v. Regan, 507 So.2d 54 (Miss.1987), as a harbinger of things to come. In Regan, using language adopted in Hemsley some seven years later, the supreme court had held that:

Incident to a divorce the Chancery Court certainly has the power to look behind the formal state of title to property and decree an equitable division of jointly accumulated property, the divi-
sion to be made by reference to the economic (though not necessarily monetarily economic) contributions made by each to the acquisition and maintenance of the property. Pickle v. Pickle, 476 So.2d 32, 34 (Miss.1985); Spearman v. Spearman, 471 So.2d 1204, 1205-06 (Miss.1985); Watts v. Watts, 466 So.2d 889, 890-91 (Miss.1985); cf. Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss.1986). Here, however, the evidence is overwhelming that these monies derived in substantial part, if not in whole, from Lloyd’s personal injury claim. The Chancery Court in its opinion notes:
It is undisputed that the origin of the money was a 1981 settlement of a personal injury/loss of consortium claim arising from defendant’s [Lloyd’s] injuries.
While it is true that the evidence suggests that a good bit of the settlement proceeds have been expended for the mutual benefit of the parties, there is no evidence that Lloyd ever made any gift of one-half or any other part of the proceeds to Jeanette. See May v. Summers, 328 So.2d 345, 347-48 (Miss.1976); Tucker v. Tucker, 252 Miss. 344, 358, 173 So.2d 405, 411 (1965). To the extent that the funds reflected by the certificate of deposit were in fact derived from the Lloyd’s maritime personal injury claim, they are his property and may not be ordered shared with his wife as a part of a property division incident to divorce proceedings. See Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639, 641-44 (1981).
The Chancery Court erred when it ordered the certificate of deposit divided equally between the parties. Rather, the property division should have re-fleeted, pro-rata, the extent to which the settlement proceeds were fairly attributable to the respective claims of Lloyd and Jeanette. On this appeal Lloyd strongly urges that Jeanette had no claim and, accordingly, that he should receive the entire certificate of deposit. There is enough in the record, however, to suggest to us that this may well not be the case. Under the circumstances we remand to the Chancery Court and direct that court to determine the amount of the $225,000.00 settlement attributable to the claims of Lloyd and the amount of that settlement attributable to the claims of Jeanette.l The proportions can then easily be calculated from which it will follow that the certifícate of deposit will be divided in those proportions.

Regan v. Regan, 507 So.2d 54, 56-57 (Miss.1987).

¶ 17. Regan was recognized twelve years later by this Court in decisions, later affirmed by the supreme court, holding that funds acquired in a personal injury case are not automatically separate property. Justice Mills began the supreme court’s opinion by noting:

We granted certiorari to address the division of personal injury settlements between spouses in divorce proceedings. The Court of Appeals found that the law has broadened in favor of the non-injured spouse since we last squarely addressed the issue in Regan v. Regan, 507 So.2d 54 (Miss.1987). The Court of Appeals reversed and remanded to the Chancery Court of Panola County for further proceedings. Tramel v. Tramel, (Miss.Ct.App.1998). Finding the decision of the Court of Appeals to be correct, we affirm.

Tramel v. Tramel, 740 So.2d 286, 286 (¶ 1) (Miss.1999). Revisiting the subject addressed in Regan was found appropriate because:

In 1994, this Court completely transformed the law of property division in divorce proceedings in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994). In Hemsley, we held:
We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.

Tramel, 740 So.2d at 288 (¶ 9).

¶ 18. In their Tramel opinions, both of our appellate courts described the three approaches being taken by other states in classification of personal injury settlements in equitable division cases. They drew from the comprehensive discussion in the South Carolina Supreme Court Case of Marsh v. Marsh, 313 S.C. 42, 437 S.E.2d 34 (1993), which set out the three methods of classification then in use: (1) award to the injured spouse; (2) the analytic approach in which compensation for pain and suffering is personal, compensation for loss of wages during the marriage is marital, but future economic compensation non-marital; and (3) a mechanistic finding the settlement, since acquired during marriage, is wholly marital property. Declining, however, to leave the choice of approaches to the trial court as did the South Carolina court, our courts adopted the reasoning in Georgia and North Carolina cases, rejecting the first and third mechanistic approaches and adopting the analytical approach. Our supreme court expressly overruled any provisions of Regan contrary to its adoption of the analytic approach and held that the lines “a chancellor must draw, as difficult as they may be, are these:”

1) that portion of the proceeds allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and,
3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.

Tramel, 740 So.2d at 291 (¶ 18).

¶ 19. In her opinion in this case, the chancellor found:

After a careful consideration of the proof presented in this matter and the application of the above summarized guidelines, the Court finds all of the real property and personal property addressed in these proceedings is marital property subject to equitable distribution, with the exception of the personal injury settlement proceeds received by Gail. Those funds are contained in the Woodman of the World account # 973 in Gail’s name, in the approximate amount of $25,097. See Exhibits 17, 18 and 32. These funds were obtained by Gail as a result of a settlement with Dow concerning defective breast implants. Pursuant to the principles set forth in Tramel v. Tramel, 740 So.2d 286, 291 (Miss.1999), the Court finds those personal injury proceeds were for Gail’s pain and suffering and disfigurement. Further, insufficient proof was presented to establish those funds had been co-mingled with marital assets.

(Emphasis added). The account records show the principal amount deposited and ■withdrawal of interest, as testified to by Gail, on that money, which she said was commingled with marital funds. Gail testified that her full settlement was for $45,000, and she was additionally awarded $5,000 for medical expenses for corrective surgery. She paid $20,000 for a new car, a marital asset, and placed the remaining $25,000 in a separate account. She related that she and Phillip discussed why she wanted it in her name at the time. “It was for pain and suffering,” she said three times in her testimony, adding that the additional $5,000 was for medical expenses. She concluded by saying that there were also accounts in Phillip’s name only and that she wanted to have that account in hers only. It was established that the cost of the implant surgery, which occurred fifteen years before trial, was paid from the marital checking account. The amount paid is not in the record on appeal, although Phillip claims it is, and that it is $8,000. The chancellor found Gail’s testimony that the amount left in the account is for pain and suffering to be credible, and not directly contradicted by Phillip’s testimony.

¶ 20. We affirm the chancellor’s finding the settlement proceeds were separate property as well within her discretion.

2. The Alabama House — Valuation and Calculation

¶ 21. After separation, Phillip bought a house in Alabama. He later decided to sell it, and testified that he had entered into an agreement with a tenant for a lease purchase of the house for a total of $40,000 with the tenant to pay $325 per month-rent, to be credited toward the $40,000 when the tenant paid the balance through a loan which was allegedly in process, thereby establishing the existence of a willing buyer, a willing seller, and an amount agreeable to both. He alleges the chancellor erred in considering a tax valuation of $61,100, which, when averaged with his $40,000 sale price, produced her final valuation of $50,550.

¶ 22. Phillip also claims the chancellor erred by crediting him with receipt of $26,444.19 in funds he withdrew from marital accounts as part of his overall award. The chancellor found that the funds were applied to the purchase of a house in Alabama, which was also part of that award. Phillip asserts that the “paid for” house, having been paid for in part by a $12,944.19 withdrawal from his State Farm IRA 2211 account and a $13,500 withdrawal from his Edward Jones account, subsumed those amounts and that they should not be twice considered part of his award of marital property, in addition to the “paid for” house in Alabama.

¶ 23. As previously noted, the chancellor, in prefacing her application of the Ferguson factors to marital property in this case, pointed out clearly that an “equitable but not necessarily equal” division was her goal. On the other hand, in discussing alimony, she referred to the property division and stated that in her Ferguson division:

Gail was awarded marital assets of approximately $243,818, and Phillip was awarded marital assets of approximately $216,659. Additionally, Gail has more than $25,000 as the result of a personal injury settlement.

¶ 24. One acceptable method of dealing with mathematical errors in opinions of chancellors — in addition to remand for recalculation — is discussed in Dunaway v. Dunaway, 749 So.2d 1112, 1116 (¶ 10) (Miss.Ct.App.1999): “We will deal with Mr. Dunaway’s complaints with the chancellor’s addition skills by simply disregarding the computation error and substituting the correct sum for purposes of our analysis.”

¶ 25. In this case, it appears that Phillip’s claim is correct as to double inclusion of funds used to pay for the Alabama house with the house itself. The total valuation of those assets distributed to Phillip is, in fact $26,444.19 less than the $216,659 indicated in the chancellor’s opinion, which could render it, perhaps, further from “not necessarily equal,” as the chancellor had intended, bringing into question her later award of alimony.

¶ 26. According to Phillip’s brief, the figures for Gail’s award noted by the chancellor is also in error, and that $243,818 is inclusive of the personal injury settlement rather than exclusive of it, making her marital share $218,510 and his $190,215.

¶ 27. The chancellor’s totals are $27,159 apart. The figures Phillip submits are $28,295 apart. They differ by $1,136, without consideration for value averaging as discussed hereafter. We find that while there are obvious mathematical errors as to the total values attributed each party’s share of the former marital estate, they cancel each other out and result in distributions not materially deviating so as to require reversal of the chancellor. We therefore affirm the chancellors findings on asserted errors in addition and subtraction.

3. Averaging of Valuations

¶ 28. The Alabama house again is featured, this time along with personalty. Gail submitted a tax receipt into evidence reflecting valuation of the house for tax purposes of $61,100, with the house valued at $43,900 and the realty valued at the remainder. Phillip introduced “An Acknowledgment of Lease Purchase Agreement,” signed by Phillip as “seller,” the “buyer” as Larry Duvall, who typed it, and a third party as “Note Republic.” It was filed for record in the Alabama land deed records on July 14, 2010. It states as a purpose that it “allows the buyer to purchase homeowners insurance” and provides for $325.00 per month payments by Duvall beginning June 9, 2010, until he can “obtain a loan to pay off balance of $40,000 dollars, less the $325.00 a month without interest” and further allotting “any time it may take to obtain the loan.” The document, on its face written up by Duvall, can just as easily be called one assuring and securing his right to ownership upon payment of a $40,000 balance due as a document setting out an overall purchase price in that amount.

¶ 29. In fact, Phillip testified that Du-vall’s payments under his agreement with Duvall “will come out to be about almost $50,000.” The chancellor averaged Phillip’s claimed $40,000 value and Gail’s tax receipt showing $61,100, and valued the property at $50,550, which is $10,550 more than the $40,000 value Phillip asserts is correct, but only $550 more than what he admits he will receive overall from the purported “lease purchaser.”

¶ 30. The chancellor also averaged the two parties’ 8.05 valuations of household goods, yard equipment, and tools. Each accused the other of undervaluing items he or she would keep, while overvaluing what the other party would be receiving.

¶31. In McKnight v. McKnight, 951 So.2d 594 (Miss.App.Ct.2007), we held that the averaging of proposed appraisals was allowed in valuation of marital realty. Even more recently we held chancellors are required only to do the best they can with what is introduced into evidence before them:

[T]he chancellor cannot be blamed for the failure of the parties to present evidence of valuation. Faced with similar circumstances, this Court held as follows in Dunaway v. Dunaway, 749 So.2d 1112, 1121 (¶ 28) (Miss.Ct.App.1999):
[T]he chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.
It was not the chancellor’s duty to obtain appraisals of the marital property. Willie cannot now complain that the chancellor’s valuations are unfair when no reliable evidence of the value of the property was presented at trial. This issue is without merit.

Common v. Common, 42 So.3d 59, 63 (¶¶ 12-13) (Miss.Ct.App.2010).

¶ 32. We find the chancellor’s averaging of valuations provided on Rule 8.05 forms submitted in the record and discussed on the record an acceptable course of action and within her discretion.

¶ 38. Overall, we find Phillip’s objections to the characterization, valuation, and division of marital property to be based on the evidence and within her discretion under Hemsley, Ferguson, and their progeny-

4. Alimony

¶ 34. Phillip asserts that no “deficiency” existed to allow the chancellor to award $125 per month periodic alimony to Gail, nor is the Social Security income differential between the two legitimate grounds for such an award.

¶ 35. In considering alimony in its usual three forms — lump sum, rehabilitative, or periodic — the chancellor set out in full the Cheatham and Armstrong factors, discussing with specificity those she found applicable to her decision. The chancellor then held that:

Neither party will be employed on a regular basis and each receives a Social Security benefits payment each month. Gail receives $707.10 per month and Phillip receives approximately $1,245.50 per month in these benefits. Having considered the credible proof in light of the foregoing guidelines. The Court finds rehabilitative alimony would not be appropriate. However, the Court finds equity warrants a periodic alimony payment from Phillip to Gail in the amount of $125 monthly, which will equitably adjust the Social Security benefits received by the parties. Accordingly, Phillip shall pay the sum of $125 per month to Gail as periodic alimony on December 1, 2011, and continuing in like manner on the first (1st) day of each month thereafter until further order of the Court.

¶ 36. She did not discuss in any detail the factor of health and age of the parties. However, we note Phillip was seventy-four and Gail sixty-eight. Gail had undergone back surgery, suffered from high blood pressure, and had a periodontal condition requiring surgery. Phillip had a brain tumor “back five or six years ago,” which later appeared to be in remission and may not have been a tumor at all. Otherwise, he was in good condition and was very physically active. He proudly asserted in testimony about physical confrontations with Gail — that he could have beaten her to death but did not. He noted that he rode a bicycle from Tishomingo County to Jackson and back, and had done the same to and from Nashville, Tennessee, “two summers” before trial. He also “walked every day or ... ran every day that [he] did not ride the bicycle.” There is a deficit in medical needs and ability to meet them between Gail and Phillip.

¶ 37. The supreme court has found, in a number of cases, that if a “deficit” exists in the circumstances of a dependent spouse, then periodic alimony may be awarded. The cases hold that if property division, with an emphasis on income producing capabilities and which should be accomplished by a chancellor first and with the possibility of eliminating alimony in mind, is insufficient to provide income to the dependent spouse from the assets provided and to approximate the lifestyle of the parties prior to divorce if possible, then alimony should be considered. The types of alimony (lump sum, rehabilitative, and periodic — and also in a few cases reimbursement) should be considered, as was done by the chancellor in this case, in that order. Rejecting lump sum and rehabilitative as unsupported under the facts of the case, the chancellor found that relatively minimal periodic alimony was required to reduce the deficit in income between the parties, and therefore it was awarded.

¶ 38. The monthly difference or “deficit” in Social Security income of the parties was $538.40 at the time of trial. The alimony awarded by the chancellor is a little over twenty-three percent of that figure, not enough to even up the monthly Social Security income as Phillip claims the chancellor intended. Phillip’s Social Security, reduced by $125 monthly to $1,120.50, will be augmented to $1,445.50 by the $325 in monthly rent from Larry Duvall. After her award of alimony from Phillip, Gail will receive $832.10 in monthly income, less than 58% of Phillip’s. At current interest rates, the income from approximately equal liquid assets to each will not add much to their incomes. Finally, it is noted that a significant component of Gail’s property award is the home in which she lives, and it does not produce income but rather generates significant expenses.

¶ 39. The chancellor was within her discretion to address the income deficit with $125 per month alimony, and we find Phillip’s issue with that award without merit.

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

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

      . Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994); Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . All financial awards of a chancellor are interdependent, with alimony tied to overall property distributions, and property distributions having an impact on whether and how much alimony may be appropriate and necessary. Johnson v. Johnson, 650 So.2d 1281 (Miss.1994).