text:
    Nathaniel Anthony JACKSON, Jr. a/k/a Nathaniel Jackson, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00579-COA.
    Court of Appeals of Mississippi.
    March 18, 2014.
    Nathaniel Anthony Jackson Jr., appellant, pro se.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On October 4, 2010, the Stone County Circuit Court revoked Nathaniel Anthony Jackson Jr.’s suspended sentence based upon his commission of new crimes. On February 15, 2012, Jackson filed a motion to reinstate his suspended sentence. The circuit court construed Jackson’s motion as one requesting post-conviction relief (PCR) and denied the motion. Feeling aggrieved, Jackson appeals and argues that the circuit court erred in revoking his suspended sentence because the court did not have jurisdiction to conduct the revocation hearing and because the State did not meet its burden of proof at the revocation hearing.

¶ 2. Finding no error, we affirm.

FACTS

II3. On January 8, 2007, Jackson pleaded guilty to the transfer of a controlled substance. The circuit court sentenced Jackson to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended upon successful completion of the Regimented Inmate Discipline (RID) program, followed by three years of probation. Jackson successfully completed the RID program, and on October 11, 2007, the circuit court instituted Jackson’s promised sentence — fifteen years in the custody of MDOC, with fifteen years suspended and three years of probation, in addition to the payment of fines and fees.

¶ 4. Jackson’s probation officer filed a petition to revoke Jackson’s probation on July 9, 2008. At a hearing held on July 28, 2008, the circuit court found that Jackson had violated the terms and conditions of his probation. Instead of revoking Jackson’s probation, the court ordered Jackson to complete drug and alcohol treatment at Live Oaks, which Jackson completed on September 29, 2008. The court re-instituted Jackson’s original sentence of fifteen years in the custody of MDOC, with fifteen years suspended and three years of probation.

¶ 5. Jackson’s probation officer filed a second petition to- revoke Jackson’s probation on July 27, 2010. The probation officer alleged that Jackson had violated the terms and conditions of his probation in the following manner:

CONDITION “A” — FAILURE TO OBEY THE LAW: To wit, Jackson was arrested on June 2nd, 2010[,] by the Stone/Wiggins Narcotics Task Force for Possession with Intent to Distribute Cocaine and Marijuana.
CONDITION “E” — FAILURE TO PAY SUPERVISION FEES AS DIRECTED: In that Jackson is in arrears $590.00 to the Department of Corrections for monthly supervision fees.
CONDITION “L” — FAILURE TO PAY COURT ORDERED ASSESSMENTS AS DIRECTED: To wit, Jackson has made none of the $100.00 minimum monthly payments to the [cjircuit [cjourt as directed. He owes a total of $3,489.50.

The circuit court held a hearing on the second petition to revoke Jackson’s probation on October 4, 2010. Jackson represented himself during the hearing. He admitted that he had been arrested on June 2, 2010, and charged with possession of cocaine and marijuana with the intent to distribute.

¶ 6. Lieutenant Roland Flowers, with the Stone Wiggins Narcotics Task Force, testified during the revocation hearing. Lieutenant Flowers stated that, on June 2, 2010, he and the task force were executing

a search warrant at 2308 East Fifth Avenue, an apartment complex in Wiggins, Mississippi. Upon arrival[,] I pulled my vehicle into the driveway where there was a white four[-]door Cadillac parked in front of the residence. As I exited my vehicle[,] Mr. Jackson was standing at the driver’s door of the Cadillac. When I exited my vehicle[,] he started walking away from the vehicle[,] and I detained him at the front bumper. I got his ID, identified him as Mr. Jackson. I told him why we were there; we were conducting a search warrant. As I was talking to Mr. Jackson, I turned around, looked on the ground by the driver’s door handle of the Cadillac. There was a bag of what is believed to be marijuana laying [sic] on the ground along with three one-dollar bills and a tin can. As I opened the tin can up, there [were] three pieces of what is believed to be crack cocaine inside the tin can. Mr. Jackson was the only person in the area of the vehicle when I drove up and he walked away.

¶ 7. Lieutenant Flowers testified that although there were other people outside of the house, Johnson was the only individual near the vehicle, and he was leaning against the vehicle’s driver-side door. During cross-examination, Lieutenant Flowers admitted that the alleged controlled substances were not found on Jackson’s person, but were found “in the exact spot where [Jackson’s] feet were ... at the driver’s side of that vehicle.” According to Lieutenant Flowers, the suspected controlled substances were taken to the Mississippi Crime Lab, but the task force had not received the official test results.

¶8. When given the opportunity to make a statement, Jackson told the court that the drugs did not belong to him, nor did he throw the drugs on the ground. He also stated that he did not sell or use drugs. He added that he “don’t [sic] be around drugs.” The court determined that, “[b]ased on the testimony of Investigator Flowers, ... a crime ha[d] been committed, and it [was] more than likely that [Jackson] committed that crime[.]” The court revoked Jackson’s probation and sentenced him to the original sentence of fifteen years in the custody of MDOC.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. Appellate courts review the circuit court’s denial of a PCR motion for an abuse of discretion. Allen v. State, 62 So.3d 450, 452 (¶ 7) (Miss.Ct.App.2011). As such, the “court’s denial ... will not be reversed absent a finding that the ... decision was clearly erroneous.” Edwards v. State, 946 So.2d 822, 823 (¶ 6) (Miss.Ct.App.2007) (citing Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002)).

I. Jurisdiction

¶ 11. Jackson contends that the circuit court did not have jurisdiction to conduct the probation hearing or to revoke his probation. Jackson also argues that the circuit court violated his due-process rights by failing to appoint counsel to represent him at his probation-revocation hearing. Both of Jackson’s claims are without merit.

¶ 12. First, Mississippi Code Annotated section 47-7-37 (Rev.2011) states that

[t]he period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation.... Thereupon, or upon an arrest by warrant as herein provided, the court, in termtime or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.

Therefore, as the Stone County Circuit Court was the same court that initially sentenced Jackson to probation, the Stone County Circuit Court retained jurisdiction to revoke Jackson’s probation if he violated the terms and conditions of his probation.

¶ 18. Second, “[t]his Court has recognized that probationers do not necessarily have a right to counsel at probation[-]revocation hearings.” Staten v. State, 967 So.2d 678, 680 (117) (Miss.Ct.App.2007) (citing Riely v. State, 562 So.2d 1206, 1209 (Miss.1990)). “When the issues relevant to the hearing are complex or difficult to develop, the court should appoint counsel for the probationer.” Id. (citing Riely, 562 So.2d at 1209). The issues relevant to Jackson’s probation-revocation hearing were not complex. Also, a probationer is entitled to have counsel at his probation-revocation hearing when he “makes a timely and plausible claim that he did not commit the violations of his probation[.]” Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Here, Jackson claimed that the drugs found by the task force did not belong to him and that the drugs must have been placed on the ground by someone else before he arrived at the house. He offered no evidence and no witnesses to support his claim, other than his own testimony, which is understandably self-serving. Therefore, we cannot say that he made a plausible claim that he did not commit the offense or that the circuit court denied Jackson’s due-process rights by not appointing counsel to represent him at his probation-revocation hearing. This issue is without merit.

II. Burden of Proof

¶ 14. Jackson further argues that the State did not meet the proper burden of proof to support the circuit court’s revocation of his probation. Jackson contends that the State was required to prove beyond a reasonable doubt that he was guilty of the crime of possession with intent to deliver. However, this Court has stated that “probation may be revoked upon a showing that a defendant more likely than not violated the terms of probation.” Id. at 681 (¶ 8) (quoting Graham v. State, 952 So.2d 1040, 1042 (¶ 6) (Miss.Ct.App.2007)). Here, the State presented testimony from Lieutenant Flowers that he observed Jackson standing near the drugs and that Jackson started to walk away once he saw Lieutenant Flowers. Additionally, Lieutenant Flowers found the drugs in the exact spot where Jackson was standing. As such, we find that the circuit court had sufficient evidence to determine that Jackson “more likely than not” violated the terms and conditions of his probation. Accordingly, this issue is without merit.

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

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

      . The record is unclear regarding the amount of the fines and fees.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    In the Interest of N.B. and K.B.: Jerry Steven Beard and Jackie Elaine Beard, Appellants v. Eugene Berryman and Patsy Berryman, Appellees.
    No. 2013-CA-00176-COA.
    Court of Appeals of Mississippi.
    March 18, 2014.

      Anthony Rhett Wise, attorney for appellants.
    Duncan L. Lott, Thomas Orville Cooley, attorneys for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This case stems from a contested adoption suit that was filed in Prentiss County Chancery Court between paternal grandparents, Steven Beard and Jackie Elaine Beard, and paternal great-grandparents, Eugene Berryman and Patsy Ber-ryman. On November 17, 2011, the biological parents of minor twins, N.B. and K.B., irrevocably surrendered their rights to the minor children to the Prentiss County Department of Human Services (DHS). Subsequently, the Beards and the Berrymans filed separate complaints seeking adoption of the minor children. On August 29, 2012, the chancery court permitted the Berrymans to adopt the minor children. The Beards later filed a motion for reconsideration, which was denied. The Beards appealed. Finding no reversible error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. N.B. and K.B., male twins, were born to Jennifer Raines and Eric Beard in Corinth, Mississippi, on October 3, 2011. At that time, Jennifer, Eric, and their two-year-old son, C.B., were living with Eric’s mother and Steven’s ex-wife, Kristy Beard Rich. For the first month of the twins’ lives, various family members, including the Berrymans, assisted Jennifer and Eric in caring for the twins. Jennifer and Eric mentioned to family members several times that they did not think they could care for the twins. Approximately a month following the birth of the twins, Jennifer and Eric surrendered the twins to Baptist Memorial Hospital in Booneville, Mississippi.

¶ 3. DHS was notified that a set of twins had been abandoned at a hospital by the biological parents who wished to put them up for adoption. DHS offered to provide assistance that would enable Jennifer and Eric to keep the children, but the couple refused. Subsequently, an emergency order was entered directing the children to be taken into custody by DHS. Pursuant to that order, the twins were placed with their paternal aunt and uncle, Chris and Lori Jones. Approximately two days later, the children were relocated to a licensed foster home in Tishomingo County, Mississippi, where they remained for approximately a week. Thereafter, DHS placed the children in the home of the Beards, who kept the children for a few days.

¶ 4. On November 8, 2011, the Prentiss County Youth Court executed an order instructing that a home study and background check of the Beards be completed within fourteen days. The order provided: “[G]iven no finding that the [c]hildren should not be placed with a suitable relative, the children shall be placed with the [grandparents.” An additional order was executed on November 10, 2011, instructing that a home study and background check of the Berrymans also be completed. The additional order provided:

[Sjhould said background check and/or home study make no finding that the children should not be placed with these grandparents, then the Court does direct that said children shall be placed with the children’s paternal grandparents, namely, Eugene and Patsy Berry-man, until further orders of the Court.

The children were then placed with the Berrymans that same day. A report recommending that the children stay with the Beards was given on November 14, 2011. No other orders were entered by the youth court altering its directive for placement of the children with the Berrymans.

¶ 5. On November 16, 2011, the Beards filed suit in the chancery court, joining DHS as a defendant, to terminate the parental rights of the biological parents and adopt the twins. A voluntary surrender of parental rights was executed by Jennifer and Eric and attached to the Beards’ petition on November 17, 2011. On November 21, 2011, the Berrymans filed their complaint for adoption, also joining DHS. The cases were later consolidated upon a joint motion of the parties. On February 14, 2012, Lisa A. Koon was appointed to the case as the guardian ad litem (GAL).

¶ 6. A trial was held on July 23, 2012. The chancery court heard testimony from all parties, as well as testimony by DHS adoption specialist Tonya McAnally, and the paternal aunt, Lori Jones. At the conclusion of the trial, the chancellor took the matter under advisement. The report and recommendation of the GAL was filed with the chancery court on August 2, 2012. Pursuant to an Albright analysis, the GAL was unable to make a clear finding as to who would be the most suitable parents. However, citing the Berrymans’ age as the primary factor, the GAL recommended adoption of the twins by the Beards.

¶ 7. After considering the evidence and conducting her own Albright analysis, the chancellor granted the Berrymans’ petition for adoption on August 29, 2012. On September 13, 2012, a supplemental decree was issued, clarifying the judgment. Shortly after, the Beards filed a motion for reconsideration, requesting a new trial and raising several issues for the chancellor to review and reconsider.

¶ 8. In response, the chancery court conducted a hearing for oral arguments on the motion on November 15, 2012. At that time, the Beards requested that the previous trial conducted on July 23, 2012, be transcribed and reviewed prior to the issuance of a final decision. On December 27, 2012, the chancellor rendered a detailed opinion in favor of the Berrymans. Aggrieved, the Beards now appeal.

DISCUSSION

119. “In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong [or] clearly erroneous, or the proper legal standard was not applied.” Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). The Mississippi Supreme Court has found that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robison v. Lanford, 841 So.2d 1119, 1122 (¶ 9) (Miss.2003) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). Furthermore, “we, as an appellate court, will affirm the decree if the record shows any ground upon which the decision may be justified.” Mosley v. Mosley, 784 So.2d 901, 905 (¶ 15) (Miss. 2001) (citing Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

¶ 10. The Beards argue that the chancellor abused her discretion in her analysis of the Albright factors. Further, the Beards assert that the chancellor abused her discretion by failing to follow the report and recommendation of the GAL. The Beards claim that the reasons given for disregarding the GAL’s recommendation were manifestly wrong and not supported by the record. Therefore, the Beards contend that the chancellor erred in granting the Berrymans’ petition for adoption and that it would be in the best interest of the minor children to be adopted by the Beards. We disagree.

¶ 11. Mississippi Code Annotated section 93-17-8 (Rev.2013) provides guidance regarding contested adoptions. When it is determined that a parent is not entitled to object to the adoption proceedings, the court “shall determine the custody of the child in accord with the best interests of the child and the rights of the parties as established by the hearings and judgments.” Miss.Code Ann. § 93-17-8(l)(c). It is undisputed by all parties that the biological parents have no interest in the adoption since they unequivocally surrendered their parental rights and chose not to participate in the proceedings.

I. The Albright Factors

¶ 12. In determining the best interest of the child, the following factors should be considered:

Age[,] ... health, and sex of the child; a determination of the [party] that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of [each party] and responsibilities of that employment; physical and mental health and age of the [parties]; emotional ties [with the] child; moral fitness of [parties]; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each [party], and other ... relevant [factors.]

Albright, 437 So.2d at 1005. Here, the chancellor went through an extensive analysis of each Albright factor in the final judgment and in her reconsideration of that judgment. In her initial Albright analysis, the chancellor found that four factors favored the Berrymans, one factor favored the Beards, and six factors favored neither party. Upon reconsideration of the judgment, the chancellor found that six factors favored the Berrymans, one factor favored the Beards, and four factors favored neither party.

¶ 13. The Beards claim the chancellor erred in her application of the following seven factors listed in Albright: age, health, and sex of the children; continuity of care; parenting skills; moral fitness of the parents; stability of home environment and employment of each parent; and other factors. However, of all the factors challenged, the Beards only cite to authority in support of their claim against the chancellor’s decision regarding continuity of care. “Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment.” Wells v. Wells, 35 So.3d 1250, 1257 (¶ 30) (Miss.Ct.App.2010) (citations omitted). We will address only those factors that the Beards challenge on appeal.

A. Age, Health, and Sex of the Children

¶ 14. The Beards contend that the chancellor erred in finding that the age, health, and sex of the children did not weigh in favor of either party. The Beards argue that, due to the significant age gap between the minor infants and the Berrymans, this factor should weigh in their favor.

¶ 15. In support of their argument, the Beards reference testimony given by Patsy in which she addressed the age difference between her and her husband and the twins, as well as the potential problems that may arise in the future because of that age difference. Patsy acknowledged that in ten years, her and her husband would be in their seventiés and that health issues that arise in old age could hinder their ability to care for the minor children. However, she also testified that her and her husband were in good health, and so long as that continues, she does not foresee a problem with their ability to act as parents to the twins.

¶ 16. The Beards argument centers on the Berrymans’ age, not the children’s age. In her written opinion, the chancellor stated that “[t]he court considers the age of the parties under the relevant factor hereinafter.” The record reflects that there was no evidence presented that the children’s age, health, or sex raised a concern that would favor either party. The subject of the parties’ age was discussed under the catch-all factor and the chancellor found that it weighed in favor of the Beards.

¶ 17. After reviewing the record, there is credible evidence to support this decision. The chancellor, however, declined to base her entire ruling of custody on one factor. “Age should carry no greater weight than other factors to be considered .... ” Albright, 437 So.2d at 1005. We agree with the chancellor’s handling of this factor.

B. Continuity of Care

¶ 18. The Beards argue that the chancellor erred in finding that the continuity of care for the minor children favored the Berrymans. The Beards contend that the chancellor abused her discretion by focusing solely on the contact and care provided by the respective parties during the thirty-day period after the minor children’s birth, when the biological parents still maintained custody. The Beards assert that the chancellor should have also considered the continuity of care after the children were abandoned by the parents, and both parties began to initiate suits for adoption. The Berrymans argue that, from the outset, they have maintained the continuity of care.

¶ 19. In support of their argument, the Beards cite to Jerome v. Stroud, 689 So.2d 755 (Miss.1997). In Jerome, the Mississippi Supreme Court emphasized the importance of considering both the present and the past when making determinations pursuant to an Albright analysis. Id. at 757. The supreme court has reaffirmed the ruling in Jerome, stating the “time between [the] separation and trial should be considered in determining continuity for [the] children.” Copeland v. Copeland, 904 So.2d 1066, 1076 (¶ 39) (Miss.2004) (citation omitted).

¶ 20. The record reflects that Patsy maintained daily contact with the biological mother and the twins following their release from the hospital after the twins’ birth. Further, Patsy testified that the biological father would drop the twins off or she would pick them up, so she could take care of them while he worked. The Beards admitted that, prior to the twins’ abandonment, they had only seen the children once.

¶ 21. Once the twins were surrendered at the hospital, the Beards contacted DHS to express their interest in adopting them. The twins were placed with the Beards for approximately three days before a court order was entered placing them with the Berrymans. Shortly after, the Berrymans agreed to allow the Beards to have visitations with the twins. This arrangement remained in place for seven months, until the date of the hearing on the matter of adoption.

¶22. In reaching her conclusion, the chancellor acknowledged the time prior to and after the twins’ separation from their biological parents. The chancellor concluded that, not only did the Beards have limited contact with the twins prior to their abandonment, but that any contact with the twins after their separation was done through arrangements made on behalf of the Berrymans. We agree. Therefore, we do not find that the chancellor erred when he found that this factor weighed in favor of the Berrymans.

C. Parenting Skills

¶ 23. The Beards contend that the chancellor erred when she revised her initial opinion to find that this factor favored the Berrymans. In her initial analysis, the chancellor found this factor to be neutral since neither side criticized the other side’s parenting skills and all seemed to have the appropriate parenting skills necessary for the twins. Upon consideration of the post-trial motion, however, the chancellor found that the parties’ past relationships with their own children deserved scrutiny.

¶ 24. The chancellor concluded that due to the strained relationship that Steven had with his son and the twins’ biological father, Eric, this factor favored the Berry-mans. The chancellor found, upon further review, that the Berrymans and their children did not have the same problems. The Beards contend that Steven’s relationship with Eric should not have been at issue in this case.

¶ 25. There was ample testimony regarding the father-son relationship, and therefore, it became credible evidence that the chancellor considered when weighing this factor. The relationship Steven has with his own son is a direct example of his parenting skills. We do not find that the chancellor erred in considering the relationship the parties had with their children, current or prospective, when reconsidering their parenting skills.

D. Moral Fitness of the Parties

¶ 26. The Beards argue that the chancellor erred when she considered their post-trial conduct in her reconsideration of the moral fitness of the parties. Initially, the chancellor concluded that both parties enjoyed a lengthy marriage and a good relationship. The chancellor found that both parties attended church, were without a criminal record, and that there was no evidence of moral unfitness.

¶ 27. On December 12, 2012, an article was published on the front page of the Northeast Mississippi Daily Journal, titled “Prentiss custody battle raises questions,” along with a photograph portraying and identifying the Beards and the twins. Subsequently, the chancellor rendered an order on December 13, 2012, pursuant to Uniform Chancery Court Rule 3.10, which provides:

No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made. No person shall send any written communication to the Chancellor concerning a pending action in the Court without delivering or mailing a copy of that communication to the opposing party. The Chancellor shall file in the court file all such written communications received by him. Any person who shall violate this rule, knowing that such conduct is prohibited, shall be guilty of a contempt.

In her final ruling on December 27, 2012, the chancellor considered the Beards’ conduct and found that the factor regarding moral fitness weighed in favor of the Ber-rymans. In support of her decision, the chancellor stated that “initiating such public exposure regarding this pending confidential matter is in conflict with well-established law regarding the confidentiality of Youth Court and adoption proceedings.” We agree.

¶ 28. The Beards argue that it is not proper to consider this post-trial conduct. However, consideration of post-trial conduct with regard to this particular factor has been upheld by this Court. See Love v. Love, 74 So.3d 928, 935-36 (¶¶ 29-34) (Miss.Ct.App.2011). We do not find that the chancellor erred in her reconsideration of this factor.

E. Stability of Home Environment and Employment of Each Parent

¶29. The Beards argue that the court “incorrectly penalized” them when it found this factor to be in favor of the Berrymans. The Beards assert that the chancellor placed too much emphasis on the fact that Jackie’s adult children had been in and out of the home, as well as considering the nature of their relationship with those children. They contend that the evidence does not provide that this conduct was destabilizing to the twins in any way.

¶30. In her analysis, the chancellor noted that the Berrymans are a retired couple with good retirement incomes who have resided in the same home since 1972. The chancellor also acknowledged that the Beards have stable jobs and that Jackie has owned her own home for many years. However, the chancellor concluded that due to the presence of other persons in the Beard residence, as well as Steven’s relationship with Eric, this factor weighed slightly more in favor of the Berrymans.

An Albright analysis is not premised solely on a scoring system to determine which parent “wins[,]” ... [a]nd our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.

May v. May, 107 So.3d 1052, 1054 (¶ 8) (Miss.Ct.App.2013) (internal citations omitted). We find that the chancellor considered all the evidence provided and did not abuse her discretion in reaching her decision that this factor favored the Berry-mans.

F. Other Factors

¶31. The Beards contend that the chancellor erred in failing to consider the parties’ present relationship with the twins’ biological family, as well as their ability to foster a continuing relationship with the twins’ biological brother, C.B. The chancellor concluded, both initially and finally, that the twins’ relationship with their biological brother was not a factor in this adoption. The chancellor found that both sides had encouraged the relationship and that all children had spent time at both the Beards’ and the Berrymans’ homes.

¶ 32. The Beards contend that, since the initiation of these proceedings, the Berrymans have developed a strained relationship with the minor children’s biological parents. Therefore, the Beards argue that the chancellor erred when she did not find that this factor favored them. The chancellor concluded that, while Eric has estranged himself from the Berrymans, the relationship they and the twins have with C.B. has not altered. Therefore, she found that this factor remained neutral. We agree.

¶ 33. The chancellor made clear findings of fact and conclusions of law for each Albright factor after considering the •witnesses’ testimony and the evidence, including the GAL’s report and recommendation. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way she sees fit in determining where the child’s best interest lies.” Blakely v. Blakely, 88 So.3d 798, 803 (¶ 17) (Miss.Ct.App.2012) (citing Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003)).

[W]e may not always agree with a chancellor’s decision as to whether the best interests] of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us. However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong [or] clearly erroneous, or an erroneous legal standard was employed.

Love, 74 So.3d at 936 (¶ 35) (internal citations omitted). After a thorough review of the record and the chancellor’s written findings, we find that the chancellor did not abuse her discretion in her analysis of the Albright factors. This issue is without merit.

II. GAL’s Report and Recommendation

¶ 34. The Beards also argue that the chancellor abused her discretion when she failed to follow the report and recommendation of the GAL. The Beards assert that the chancellor’s reasons for declining to follow the GAL’s recommendation are not supported by substantial credible evidence. After a review of the chancellor’s written findings, we find that the chancellor sufficiently provided reasons for not adopting the GAL’s recommendation and that those reasons were supported by substantial evidence.

¶ 35. Our supreme court does not require a chancellor to follow the findings of a GAL. S.N.C. v. J.R.D. Jr., 755 So.2d 1077, 1082 (¶ 17) (Miss.2000). However, “when a chancellor’s ruling is contrary to the recommendation of a statutorily required [GAL], the reasons for not adopting the [GAL]’s recommendation shall be stated by the court in the findings of fact and conclusions of law.” Id. at 1082 (¶ 18). The chancellor disagreed with the GAL on three Albright factors: parenting skills, moral fitness, and stability of the home. The GAL and the chancellor also reached different conclusions when considering the age of the Berrymans.

¶ 36. In support of their argument, the Beards do not cite authority but rather invite this Court to simply reconsider the chancellor’s findings of fact. A failure to cite authority in support of an assignment of error is a procedural bar. Wells, 35 So.3d at 1257 (¶30). Further, “[s]o long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” May, 107 So.3d at 1055 (¶ 10) (citation omitted).

¶ 37. A review of the chancellor’s order and the record contradicts the Beards’ claim. The chancellor provided explanations for diverting from the GAL’s recommendation, and the explanations are supported by credible evidence provided in the record. We do not find that the chancellor abused her discretion in failing to follow the GAL’s report and recommendation. This issue is without merit. Therefore, we affirm the chancellor’s judgment.

¶ 38. THE JUDGMENT OF THE PRENTISS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN RESULT ONLY.

      . To protect the minor children’s confidentiality, we will refer to them throughout this opinion by their initials.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).


author: BARNES, J.,

text:
    Dwight LOTT, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00308-COA.
    Court of Appeals of Mississippi.
    March 18, 2014.
    Dwight Lott, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. In 1988, Dwight Lott was convicted in the Pearl River County Circuit Court for murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Lott was released on parole in 2000, but was arrested in July 2010 on charges in Marion County, resulting in an indictment in May 2011 for attempted sexual battery and molestation of a child. Although the Marion County charges were nolle prossed in May 2012, the Mississippi Parole Board revoked Lott’s parole on October 12, 2011. Lott filed a motion for post-conviction relief (PCR) in the Greene County Circuit Court on October 15, 2012, alleging that he had been denied a parole hearing. The circuit court denied Lott’s motion on the merits on January 29, 2013. It is from this judgement that Lott appeals. We find that the circuit court lacked the requisite jurisdiction to hear Lott’s PCR motion and dismiss this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Lott committed murder in Pearl River County and was sentenced in 1988 to life in the custody of the MDOC. Lott appealed, and his conviction was affirmed in 1992. Lott v. State, 597 So.2d 627, 631 (Miss.1992). In 2000, Lott was paroled.

¶ 3. On July 6, 2010, Lott was arrested in Marion County for the offenses of attempted sexual battery and child molestation. Lott was indicted on these charges in May 2011. On October 12, 2011, the Parole Board revoked Lott’s parole. In May 2012, Lott’s Marion County charges were dismissed by the State due to the failure of the victim to cooperate in the prosecution of the matter.

¶ 4. Lott filed a PCR motion in the Greene County Circuit Court on October 15, 2012, alleging that he had been denied a parole hearing and other rights set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It is unclear on this record whether Lott is correct in this contention. The circuit court treated the filing as a PCR motion and denied it on January 29, 2013. Lott now appeals the circuit court’s judgment.

DISCUSSION

¶ 5. The Mississippi Uniform Post-Conviction Collateral Relief Act permits a person sentenced by a Mississippi court to file a motion to assert that his parole was unlawfully revoked. Miss.Code Ann. § 99 — 39—5(l)(h) (Supp.2013). Accordingly, Lott is entitled to challenge the revocation of his parole.

¶ 6. Such a PCR motion may only be filed in the county where the person was convicted, however, and not where he is incarcerated. Miss.Code Ann. § 99-39-7 (Supp.2013) (“The motion ... shall be filed ... in the trial court....”); Randle v. Miss. Parole Bd., 123 So.3d 942, 942 (¶ 3) (Miss.Ct.App.2013); Nelson v. Bingham, 116 So.3d 172, 174 (¶ 6) (Miss.Ct.App.2013); Maston v. State, 768 So.2d 354, 355 (¶¶ 4-5) (Miss.Ct.App.2000). Only the Marion County Circuit Court, and not the Greene County Circuit Court, had jurisdiction to consider Lott’s PCR motion.

¶ 7. Furthermore, an exception to the statute, applicable here, provides that where a conviction has been appealed to the Mississippi Supreme Court and affirmed, the motion must be first presented to the supreme court for authorization to proceed in the trial court. Miss.Code Ann. § 99-39-7; Nelson, 116 So.3d at 174-75 (¶ 9). Because Lott’s conviction was affirmed on direct appeal, he was required to obtain permission from the supreme court to file his PCR motion. His failure to do so means that the circuit court lacked jurisdiction to consider his PCR motion, as do we. Accordingly, we dismiss Lott’s appeal for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, C.J.,

text:
    Debra L. KENT, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00284-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      John M. Mooney Jr., Jackson, attorney for appellant.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Debra Kent was fired from River Regional Medical Corp., where she was a lab coordinator and section supervisor. Kent filed for unemployment benefits with the Mississippi Department of Employment Security (MDES). After investigating the matter and interviewing Kent and her supervisor, Darlene White, the MDES claims examiner determined that Kent was disqualified from receiving benefits because she was discharged for misconduct. Kent appealed to the administrative law judge (ALJ). After a hearing, the ALJ found that following warnings that her work was substandard, Kent failed to notify her director that a lab instrument was out of compliance for several months. The ALJ stated that Kent’s actions showed “a willful and wanton disregard of the employer’s interest and constitute^] misconduct connected with the work.” The MDES Board of Review (the Board) also affirmed, adopting the ALJ’s fact findings and conclusions. Kent appealed to the Warren County Circuit Court, which affirmed the Board’s decision.

¶ 2. Kent now appeals, asserting (1) she is entitled to unemployment benefits because she did not commit misconduct, (2) the circuit court’s judgment was arbitrary and capricious, and (3) the circuit court erred in denying Kent’s request to supplement the record.

STANDARD OF REVIEW

¶ 3. Our review of administrative appeals is restrictive. In the absence of fraud and if supported by substantial evidence, the Board’s order on the facts is conclusive in the trial court. Miss. Emp’t Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). On appeal, employees have the burden of overcoming a rebuttable presumption in favor of the Board’s decision. Miss. Emp’t Sec. Comm’n v. Noel, 712 So.2d 728, 730 (¶ 5) (Miss.Ct.App.1998). The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights. Miss. Comm’n on Envtl. Quality v. Chickasaw Cnty. Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993).

DISCUSSION

I. MISCONDUCT

¶ 4. Kent argues that she did not commit misconduct; thus, she should be awarded unemployment benefits. The Mississippi Supreme Court defined the term “misconduct” in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), which provides:

[T]he meaning of the term “misconduct,”. as used in the unemployment compensation statute, [is] conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered “misconduct” within the meaning of the statute.

(Citations omitted). Kent asserts that she was terminated for substandard work. Furthermore, she argues that she was not guilty of misconduct because she “was not charged with insubordination or any willful[-]type conduct or any of the qualifying elements of ‘misconduct’ on the day of her termination.”

¶ 5. On May 28, 2010, Kent was given a verbal warning that she had acted insubor-dinately when she prepared the payroll in her supervisor’s absence. Instead of calling her supervisor to ask questions regarding the payroll, Kent delivered the payroll checks along with a letter denying any responsibility for errors in preparing the checks. On July 7, 2010, she received a written warning for insubordination when she refused to attend a meeting required by her supervisor on June 2, 2010. Also on July 7, 2010, she received a final warning for unprofessional conduct, insubordination, and failure to follow the chain of command, regarding an incident on June 3, 2010, where she refused to report to the human-resources office with a supervisor and requested a physician to intervene in her personnel matters.

¶ 6. On July 9, 2010, Kent was discharged because she failed to report that a laboratory instrument that analyzed bodily fluids was not properly calibrated and had been out of compliance for about three months. Because she failed to timely report this, the hospital failed to meet verification standards of the Joint Commission Regulations.

¶ 7. The Board adopted the findings of the ALJ, which stated Kent’s “actions of performing substandard work following warnings show[ ] a willful and wanton disregard of the employer’s interest and constitute misconduct connected with the work.” We find substantial evidence to support the Board’s decision; thus, we affirm the circuit court’s decision to uphold the Board’s denial of unemployment benefits to Kent.

II. ARBITRARY AND CAPRICIOUS

¶ 8. Kent argues that the circuit court’s judgment was not supported by substantial evidence and was arbitrary and capricious. The supreme court has stated that an act is arbitrary when, instead of being done in accordance with reason and judgment, it is done “depending on the will alone.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 976 (¶ 13) (Miss.1999) (citations omitted). An act is capricious “if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Id.

¶ 9. The circuit court recognized that Kent’s failure to report that the instrument was not properly calibrated was not done intentionally or maliciously. However, the court stated that “it also recognize[d] the grave importance of [Kent’s] duty to report the [instrument’s] status. [Her] failure to report the status of the instrument could have had severe consequences that could have le[d] to the death or serious illness of one of her employer’s patients.” The circuit court then found that Kent’s actions were of such high degree of negligence that “they [were] a substantial disregard of [her] duties and obligations to her employer, thereby constituting misconduct connected to her work.” We find that the Board’s decision was not made depending on will alone or in a whimsical manner. Therefore, the judgment was not arbitrary or capricious. This issue is without merit.

III. SUPPLEMENTATION OF THE RECORD

¶ 10. Over two months after Kent had filed her reply brief in the circuit court, she moved to supplement the record or, in the alternative, for the court to remand for further findings of fact by the AL J and the Board. Kent sought to enter into the record deposition testimony from Dr. Vee-na Shenoy and the minutes of the July 15, 2010 laboratory supervisor’s meeting. Both the deposition and the minutes were obtained in another case. On September 28, 2011, Kent filed a notice for the court to have a hearing on the matter on November 3, 2011. Then, on October 14, 2011, Kent filed a re-notice for a hearing on November 3, 2011. Apparently, no hearing occurred, and two months later, the court issued its order affirming the Board’s denial of unemployment benefits. The court did not address Kent’s motion to supplement the record.

¶ 11. Under Uniform Rule of Circuit and County Court 2.04, the movant has the duty to pursue her “motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion[.]” Because Kent failed to pursue her motion to a hearing and decision by the court, her motion was abandoned. This issue is without merit.

¶ 12. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED.

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: IRVING, P.J.,

text:
    Marion STRICKLAND, Appellant v. Dennis DARBY, Appellee.
    No. 2012-CA-02044-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.

      Randolph Walker, attorney for appellant.
    James Stephen Hale Jr., attorney for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from the Panola County Circuit Court’s denial of Marion Strickland’s petition for a writ of habeas corpus, seeking a reduction in bail originally set by the Panola County Justice Court. At the time that he filed his petition, Strickland was imprisoned in the Panola County jail under the supervision and control of Dennis Darby, Sheriff of Panola County, Mississippi. Strickland alleges that the circuit court erred in denying his petition because the amount of bail and the restrictions on his release are both unreasonable and excessive. Finding no error with the circuit court’s judgment, we affirm.

FACTS

¶ 2. Strickland was arrested and charged with enticing a child pursuant to Mississippi Code Annotated section 97-5-33(7) (Supp.2013). The charge against Strickland emerges from Strickland’s requesting and receiving a picture of a fourteen-year-old student’s erect penis. The Panola County Justice Court originally set Strickland’s bail at $500,000, but later reduced it to $100,000 and placed the following restrictions on his release from jail: (1) 3 p.m. to 7 a.m. curfew at Strickland’s legal address; (2) no use of electronic devices capable of receiving or sending text messages; (B) no use of electronic devices capable of receiving or sending e-mails; and (4) no use of electronic devices capable of receiving or sending -visual images, -with the exception of televisions. Strickland filed a petition for a writ of habeas corpus in the circuit court, alleging that the amount of the bail and the restrictions on his release were a violation of his right to reasonable bail.

¶ 3. The circuit court held a hearing on the petition. Strickland’s father, Marion Brown, testified that the Strickland family raised money to contribute to Strickland’s bail, but could only afford the bail fee for a bail between $10,000 and $20,000. He also stated that Strickland had no resources that Strickland could use to contribute toward the bail amount and that Strickland would be staying with Strickland’s mother if he was able to make bail. Brown further testified that if the court released Strickland on bail, he would make sure that Strickland appeared in court as scheduled.

¶ 4. Special Agent Tim Douglas, with the Mississippi Bureau of Investigation, testified that Strickland, a high-school teacher, used his position to contact underage students and ask them for sexually suggestive photographs. More specifically, Strickland would convince some of the young male students that he would use the photographs to “set them up with a female.” Special Agent Douglas also testified that Strickland admitted that he had requested the photograph from the student. Additionally, Special Agent Douglas stated that Strickland had engaged in this type of conduct before. According to Special Agent Douglas, Strickland had used the same method of operation while he was a student at Delta State in 2009. While at Delta State, Strickland would entice men to let him take photographs of their private parts.

¶ 5. As stated, the circuit court denied Strickland’s petition seeking a reduction in bail. However, the circuit court stated that if the grand jury had not indicted Strickland by June 1, 2013, then it would reduce the bail amount.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. We first note that the appel-lee did not file a brief in this ease. Our supreme court has held that the “[fjailure of an appellee to file a brief is tantamount to a confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and [the] brief of the appealing party, that there was no error.” Sanders v. Chamblee, 819 So.2d 1275, 1277 (¶ 5) (Miss.2002) (quoting Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). Here, after reviewing the record and Strickland’s brief, we can say with confidence that the circuit court did not err. Therefore, we do not consider the appellee’s failure to file a brief a confession of error.

¶8. Strickland argues that the amount of bail and the conditions placed on his release were excessive. The Mississippi Supreme Court has “maintained that the setting of bail is within the [circuit] court’s discretion[.]” Clay v. State, 757 So.2d 286, 240 (¶ 20) (Miss.2000). However, there are eight factors that a circuit court should consider when setting bail for a defendant:

1) [The][d]efendant’s length of residence in the community;
2) His employment status and history and his financial condition;
8) His family ties and relationships;
4) His reputation, character[,] and mental condition;
5) His prior criminal record, including any record of prior release on recognizance or on bail;
6) The identity of responsible members of the community who would vouch for [the] defendant’s reliability;
7) The nature of the offense charged and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of non-appearance; and
8)Any other factors indicating the defendant’s ties to the community or bearing on the risk of willful failure to appear.

Id. (quoting Shook v. State, 511 So.2d 1386, 1387 (Miss.1987)). Additionally, Article 3, Section 29(3) of the Mississippi Constitution of 1890 provides:

In the case of offenses punishable by imprisonment for a maximum of twenty (20) years or more or by life imprisonment, a county or circuit court judge may deny bail for such offenses when the proof is evident or the presumption great upon making a determination that the release of the person or persons arrested for such offense would constitute a special danger to any other person or to the community or that no condition or combination of conditions will reasonably assure the appearance of the person as required.

¶9. After considering the eight factors, the circuit court found that Strickland was charged with a “capital offense,” which is a “serious matterf ] ... [requiring a] serious bail.” Consequently, the circuit court determined that the bail and conditions should remain the same. The circuit court also stated that under Article 3, Section 29(1) of the Mississippi Constitution of 1890, “in some capital offenses[,] the [defendant is not entitled to bail at all.” However, the circuit court was mistaken, as the offense under section 97-5-33(7) is not a capital offense. Mississippi Code Annotated section 1-3-4 (Rev. 2005) provides that capital offenses are offenses that are “punishable by death or imprisonment for life in the,state penitentiary.” The offense of enticing, inducing, persuading, seducing, etc., a child to produce a visual depiction of sexually explicit conduct, which is described in section 97-5-33(7), is punishable by a maximum sentence of forty years’ imprisonment. Nevertheless, section 97-5-33(7) does fall under Article 3, Section 29(3), quoted above, which also allows the circuit court to deny bail, under certain circumstances, when the maximum punishment is greater than twenty years.

¶ 10. The circuit court’s refusal to reduce Strickland’s bail is tantamount to denying bail, which, as stated, is permitted by Article 3, Section 29(3) when the proof is evident or the presumption great upon a finding that Strickland’s release would pose a danger to the child or to the community. Section 97-5-33(7) provides that “[n]o person shall by any means, including computer, knowingly entice, induce, persuade, seduce, solicit, advise, eoerce[,] or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct.” Mississippi Code Annotated section 97-5-31(b)(v) (Supp. 2013) defines sexually explicit conduct as “actual or simulated ... lascivious exhibition of the genitals or pubic area of any person[.]”

¶ 11. It is undisputed that Strickland requested and received a picture of the child’s genitals after convincing the child that he would set him up with a female. Therefore, the question is whether the picture of the child’s genitals is a depiction of the actual exhibition of the genitals, as the picture certainly is not a simulation. The physical display of the genitals themselves clearly would be an actual exhibition, but there was no physical display, at least not to Strickland. Nevertheless, we find that it would be an unreasonable or too narrow a construction of the words of the statute to find that a picture of a child’s genitals is not a depiction of the actual exhibition of the genitals. Therefore, we find that the picture of the child’s genitals constitutes “sexually explicit conduct” within the perimeters of 97-5-31(b)(v). Because the allegations against Strickland fall within the conduct prohibited by section 97-5-33(7), and because the proof is evident and the presumption great that Strickland may have committed an offense under section 97-5-33(7), we cannot say that the circuit court abused its discretion in refusing to reduce Strickland’s bond.

¶ 12. Therefore, we affirm the circuit court’s judgment denying Strickland’s petition for a writ of habeas corpus.

¶ 13. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Special Agent Douglas's actual testimony was that Strickland would entice men to let him take photographs of them, but it is clear from the context of the testimony of Special Agent Douglas that he was referencing pictures of the men’s private parts. Further, we assume that "men” refers to male students, whether they had reached the age or majority or not, who were attending Delta State.

      . Strickland filed this appeal prior to June 1, 2013. The record does not indicate whether the court reduced Strickland's bail after June 1, 2013, or if the bail amount remains the same. The Mississippi Supreme Court has held:
      Generally, [appellate courts] will not adjudicate moot questions. However, the public[-]interest exception allows [appellate courts] to review moot issues when the question concerns a matter of such nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.... [A]n exception exists for cases which are capable of repetition, but would otherwise evade judicial review.

        Lafayette Cnty. Bd. of Supervisors v. Third Circuit Drug Court, 80 So.3d 785, 788 (¶ 12) (Miss.2012) (internal citations and quotation marks omitted). Although we have no knowledge of whether the circuit court reduced Strickland’s bail, we deem it appropriate to review the issue.

      . The circuit court found that Strickland was gainfully employed as a teacher at the time of the hearing. However, this was not the case, as the South Panola County School District had terminated Strickland’s employment soon after he was taken into custody.


author: BARNES, J„

text:
    Barbara SHARLOW and Thomas Sharlow, Appellants v. Robert RAYBOURN, Individually and d/b/a Raybourn’s Hair Salon, Appellee.
    No. 2012-CA-01373-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.

      Christopher E. Fitzgerald, Springs, attorney for appellants.
    Melinda Owen Johnson, Gulfport, attorney for appellee.
   BARNES, J„

for the Court:

¶ 1. Barbara Sharlow filed a negligence suit after she slipped and fell on the sidewalk outside Raybourn’s Hair Salon. Sharlow alleged that Raybourn’s breached its duty to her as an invitee by failing to correct or warn her of a dangerous condition on the sidewalk. The circuit court found that Raybourn’s owed Sharlow no such duty, as she was a licensee at the time of her fall. Raybourn’s was granted summary judgment. We agree that summary judgment was appropriate and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sharlow worked as a full-time receptionist at Raybourn’s from 1995 to 2004. In 2008, she returned to work at Raybourn’s as a receptionist on an as-needed basis. Beginning in 2004, after she retired, Sharlow received free haircuts from Mary Whittington, a stylist at Rayb-ourn’s, once every four to six weeks. Sharlow would make her appointments directly with Whittington, even though Raybourn’s had a receptionist. Sharlow did not pay Whittington for the haircuts; however, she always left a tip. On October 2, 2009, Sharlow entered Raybourn’s at 7:00 a.m. to have her hair cut by Whit-tington. Sharlow was not scheduled to work that day, and the appointment was not during normal business hours, as Raybourn’s opened at 8:00 a.m.

¶ 3. It was raining heavily on the day of Sharlow’s appointment. While she was inside the salon, a “big downpour” occurred. After her haircut, Sharlow waited inside for the storm to subside. Between 7:30 and 7:45 a.m., the rain “let up a little bit,” and Sharlow decided to leave. When she exited the building and proceeded to the parking lot, she slipped and fell on a concrete ramp adjacent to Raybourn’s. Water had accumulated on the ramp due to the rainfall, and additional water was redirected onto the ramp from the down spout of the building’s gutter system. Sharlow broke her left ankle and injured her left leg and foot during the fall.

¶ 4. According to Whittington, Sharlow admitted immediately after the fall that she was at fault, and that she “knew better than to run in the rain.” Robert Rayb-ourn, the salon’s owner, spoke to Sharlow later, as he was not at the salon when the fall occurred. Raybourn testified that Sharlow told him that the fall was “not his fault,” but that her “feet just went out from under [her].” Sharlow admitted that she did not use the handrail when walking down the ramp. She did not recall the conversations with either Whittington or Raybourn.

¶ 5. On March 18, 2011, Sharlow and her husband, Thomas Sharlow, filed a negligence action against Raybourn, individually and doing business as Raybourn’s. The complaint alleged that Sharlow was injured and suffered damages as a result of: (1) Raybourn’s failure to keep its premises reasonably safe; (2) its failure to warn her of the dangerous condition on the sidewalk; and (3) its failure to design and/or install the gutters and walkway properly. Thomas alleged mental and emotional distress and loss of consortium.

¶ 6. On November 11, 2011, Raybourn’s filed for summary judgment. Raybourn’s argued that summary judgment was warranted because Sharlow’s negligence claim was based solely on Sharlow’s status as an invitee, when the undisputed facts showed she was a licensee. As a licensee, Sharlow was owed a lesser duty of care than asserted in her complaint. The trial court agreed that the undisputed facts showed that Sharlow was a licensee. Because the record did not support a cause of action based on her status as a licensee, summary judgment was granted in favor of Rayb-ourn’s. Sharlow appeals.

STANDARD OF REVIEW

¶ 7. This Court reviews “the grant or denial of a motion for summary judgment de novo.” Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss.2013). Summary judgment is appropriate “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). The evidence must be viewed “in the light most favorable to the party against whom the motion has been made.” Karpinsky, 109 So.3d at 88 (¶ 9) (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 71 (¶ 5) (Miss.2012)).

ANALYSIS

¶ 8. Sharlow argues summary judgment was inappropriate because a factual dispute existed as to whether she was an invitee or licensee of Raybourn’s at the time of her fall.

¶ 9. A person’s status as an invitee, licensee, or trespasser determines a property owner’s duty in a premises-liability action. Double Quick, Inc. v. Moore, 73 So.3d 1162, 1166 (¶ 12) (Miss.2011). Once that duty is established, it is the plaintiffs burden to prove that the duty was breached, damages resulted, and a causal connection existed between the injuries and breach, such that the breach was the proximate cause of the injuries. Id. at (¶ 11). “When circumstances surrounding the victim’s purpose on the property are in dispute, status will be a fact question for a jury to decide.” Cade v. Beard, 130 So.3d 77, 81 (¶ 14) (Miss.2014) (citing Little ex rel. Little v. Bell, 719 So.2d 757, 760 (¶ 17) (Miss.1998)). “[W]here there are no factual disputes, status is a question of law for the trial court’s determination.” Id.

¶ 10. An invitee is one who enters “the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Corley v. Evans, 835 So.2d 30, 37 (¶ 21) (Miss.2003). A property owner “owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view.” Double Quick, 73 So.3d at 1166 (¶ 13). However, “a property owner is not the insurer of an invitee’s safety.” Id. A licensee is one who enters “the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner.” Cade, 130 So.3d at 81 (¶ 14) (quoting Corley, 835 So.2d at 37 (¶ 21)). A premises owner owes the same duty of care to a licensee as is owed to a trespasser — that is, “only the duty to refrain from willfully or wantonly injuring the licensee, unless the landowner engages in active conduct and knows of his or her presence.” Handy v. Nejam, 111 So.3d 610, 614 (¶ 14) (Miss.2013).

¶ 11. On the day she fell, Sharlow was present at Raybourn’s to receive a free haircut. Sharlow asserts that she was an invitee because: (1) Raybourn expressly or impliedly invited employees to the premises to receive free hair cuts; and (2) she and Raybourn received a mutual advantage from her presence — she received a free haircut, and Raybourn benefítted from free advertisement and happy employees. Raybourn admitted that he gave express or implied permission to stylists to give free haircuts to employees as a “perk” of employment. Further, Raybourn testified that Whittington had permission to schedule appointments outside of normal business hours and discretion not to charge Sharlow. Therefore, we find that Sharlow was on the premises at Rayb-ourn’s implied permission.

¶ 12. Sharlow must next prove that she and Raybourn received a mutual advantage from her presence at the salon on the day of her fall. According to Whitting-ton’s affidavit, she “never charged [Shar-low] for haircuts because [Sharlow] is [her] friend.” Sharlow does not dispute this. Thus, the advantage to Sharlow is clear: she received a free haircut. The advantage to Raybourn, however, is not clear. Raybourn received no direct financial benefit from the free haircut. Sharlow nonetheless argues that a factual dispute exists as to whether Raybourn received a mutual advantage for three reasons. First, she asserts that Raybourn potentially benefit-ted from the free advertisement of a good haircut. That is, others would see Shar-low’s haircut, and she would refer them to Raybourn’s. Second, she asserts that the “free haircut” was “not really free” because Whittington required a tip. Third, she asserts that Raybourn’s had the potential to make a profit if Whittington decided to charge her, or if products such as chemicals and dyes were used.

¶ 13. The record does not support Shar-low’s argument that Raybourn’s received a financial benefit from free advertisement from her haircut. Shadow's argument is based on speculation, not facts. No testimony was given that Sharlow had referred anyone to the salon based on her free haircuts. In fact, Shadow’s husband testified that he was not aware of anyone whom Sharlow had referred to the salon. Further, Raybourn did not testify that it was his intent to receive free advertising in exchange for free haircuts. Instead, he testified that he allowed stylists to give free haircuts, at their discretion, to make employees happy. Raybourn did not indicate that he had ever received a financial benefit from free haircuts of employees or anyone else. Rather, Raybourn asserts he sustained a loss for the free haircuts because he still incurred operating expenses, such as electricity, laundering of towels, water, insurance, and other expenses necessary to operate the business. The stylists at Raybourn’s do not reimburse Rayb-ourn for these expenses, and they do not pay rent for their chairs. Rather, Rayb-ourn’s receives a percentage of the revenue the stylists generate. When no revenue is generated, the salon receives no revenue to cover its fixed expenses. As there has been no testimony that Rayb-ourn’s profited from the free haircuts, the potential advantage argued by Sharlow is mere speculation. Sharlow has cited no law for the proposition that a speculative financial benefit can create a mutual advantage. Further, the advantage of happy employees to Raybourn’s is a psychological benefit, which has been found insufficient to prove a mutual advantage. See Daulton v. Miller, 815 So.2d 1287, 1239 (¶ 10) (Miss.Ct.App.2001) (homeowner’s psychological satisfaction of having guest enjoy Christmas display did not transform guest into “invitee”). While it may be argued that happy employees produce more revenue, there has been no assertion that this can be proven. Thus, we find that Shar-low has failed to create a fact question as to whether Raybourn’s received a mutual advantage from her free haircut.

¶ 14. Next, Sharlow argues that her haircut was not truly free, because Whit-tington only gave free haircuts to those who tipped. Thus, she argues Whittington was compensated, but in the form of a tip, rather than a commission. Any tip paid to Whittington was not shared with Rayb-ourn’s. Rather, Raybourn’s received a percentage of the fees charged by its stylists. If a customer did not pay the fee, Raybourn’s received nothing. Thus, while Sharlow always tipped Whittington, Rayb-ourn’s received no benefit from this. Whittington’s requirement that nonpaying customers tip only created a mutual advantage between Sharlow and Whittington. No mutual advantage existed as to Rayb-ourn’s. This assertion is without merit.

¶ 15. Finally, Sharlow asserts that Raybourn’s had the potential for profit because she would have been required to pay Raybourn’s for any dyes or chemicals used during her appointment. Also, Shar-low asserts Whittington had the discretion to begin charging her at any time for her haircuts, thus again creating a potential for profit. We do not need to discuss the payment for dyes and chemicals, as it is not alleged that those products were used at Sharlow’s appointment. Likewise, we do not need to discuss the potential for payment based on Whittington’s discretion to charge Sharlow, as Whittington did not charge Sharlow and had never charged her in the past. Further, the facts show that Sharlow did not anticipate having to pay for her haircut on the day of her fall, as Sharlow’s own testimony showed that she did not even take her wallet or purse with her into Raybourn’s.

¶ 16. In making her arguments, Shar-low asserts this case is comparable to Howell v. Holiday, — So.3d -, - (Miss.Ct.App.2013), in which this Court found the plaintiffs status as an invitee or licensee was a jury question. In Howell, the plaintiff alleged she was injured when she tripped over an extension cord in front of the defendant’s hair salon. Id. at - (¶ 4). The plaintiff was not a customer of the hair salon. Rather, she parked in the parking lot after hours to attend an event unrelated to the hair salon. Id. We found that a factual dispute existed “regarding possession and control of the common areas of the premises and responsibility for the alleged dangerous condition of the property.” Id. at - (¶28). Thus, a jury question was presented as to the plaintiffs status. Sharlow’s case is distinguishable, however, as no such facts are in dispute here.

¶ 17. The undisputed facts in this case show that Raybourn’s received no mutual benefit from Sharlow’s presence at the salon. Rather, Sharlow was at Rayb-ourn’s “for [her] own convenience, pleasure, or benefit pursuant to the ... implied permission [of Raybourn].” Double Quick, 73 So.3d at 1166 (¶ 12). While the facts show that Sharlow received the advantage of free haircuts, Raybourn’s received no tangible advantage in return. When determining a person’s status as an invitee or licensee, we must “focus on the owner and whether that person is receiving an advantage, or just permits the presence of the entrant....” Daulton, 815 So.2d at 1239 (¶ 9). Here, Raybourn’s permitted Sharlow’s presence on the property, but received no benefit from it. For this reason, Sharlow was a licensee, not an invitee, of Raybourn’s.

¶ 18. A property owner owes a licensee the duty “to refrain from willfully or wantonly injuring the licensee, unless the landowner engages in active conduct and knows of his or her presence.” Handy, 111 So.3d at 614 (¶ 14). There is no evidence of willful or wanton conduct in the record, nor was willful or wanton conduct pled in the complaint. Raybourn testified that he was unaware of any problem with the ramp. He had not received any complaints about rainwater accumulating on the ramp; and, to his knowledge, no one had ever slipped or fallen on the ramp. Further, Raybourn was unaware of Shar-low’s presence on the property, and he engaged in no active conduct to injure her.

¶ 19. “[Sjummary judgment is appropriate when the non[]moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Karpinsky, 109 So.3d at 88 (¶ 11) (citation and internal quotation marks omitted). Because Sharlow does not assert any intentional act to willfully or wantonly injure her, an essential element of her negligence claim, summary judgment was correctly granted in favor of Rayb-ourn’s. Likewise, because summary judgment was correctly granted as to Shar-low’s claims, it was correctly granted as to Thomas’s claims. Thomas’s claims for mental and emotional distress and loss of consortium are solely derivative of Shar-low’s claims. See Daulton, 815 So.2d at 1241 (¶ 17). Having held that Sharlow’s claims fail, we must conclude that Thomas’s claims fail as well. See id.

¶ 20. The trial court’s grant of summary judgment in favor of Raybourn’s is supported by the undisputed facts. Thus, we affirm its decision.

¶ 21. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . While Raybourn admitted that he gave stylists permission to give free haircuts to employees, a dispute existed as to whether Shar-low was an employee. Raybourn testified that he did not consider Sharlow an employee since "[s]he was a fill-in on a contract basis per hour on the hours she worked.” He also stated that he would have expected her to pay for services. He also testified he was unaware of her presence at the salon on the day of her fall. Sharlow considered herself an employee. Taking the evidence in the light most favorable to the nonmoving party, Shar-low, we find that she was an employee for purposes of this appeal.


text:
    Beverly B. EVANS, Appellant v. Robert D. EVANS, Appellee.
    No. 2012-CA-02026-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.

      S. David Norquist, attorney for appellant.
    Rabun Jones, Greenville, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Beverly and Robert Evans were divorced in 1998. Robert sought modification of child support, which the chancellor granted in a May 13, 2009 order and clarified in a July 28, 2009 order. In the original order, the chancellor found a material change in circumstances and decreased Robert’s monthly child-support payments from $2,000 to $1,000 for a six-month period. Robert was also required to maintain a life-insurance policy for the benefit of his son and provide his son’s health and automobile insurance. Robert was ordered to pay $1,000 for Beverly’s attorney’s fees. In the July 28, 2009 order, the chancellor found Robert in contempt for defaulting on $14,750 in child-support payments; required Robert to pay two installments of $100 each month until this arrearage was fully paid; and awarded Beverly an additional $1,300 in attorney’s fees.

¶ 2. Robert appealed in Evans v. Evans, 75 So.3d 1083 (Miss.Ct.App.2011). This Court remanded the issue of attorney’s fees, and instructed the chancellor that “any award of attorney’s fees must be supported with findings concerning Beverly’s inability to pay and the reasonableness of the award under the McKee [] factors.” Id. at 1090 (¶ 26). We also reversed the chancellor’s reduction of Robert’s child-support obligation and remanded “for the chancellor to make findings regarding the child-support guidelines and deviation criteria.” Id. at 1085 (¶ 2). We reversed and rendered on the issue of contempt and affirmed “the chancellor’s refusal to relate the modification order back to an earlier date.” Id.

¶ 8. On October 23, 2012, Beverly filed a suggestion for a writ of garnishment in the Washington County Circuit Court. Beverly based the garnishment request on the July 28, 2009 order issued by the chancellor, and sought the $14,750 arrear-age of child support, as well as an additional $2,000 in attorney’s fees. Three writs of garnishment were issued. Robert then sought to have those garnishments quashed. After a hearing on the matter, the circuit court set aside the writs of garnishment. Beverly moved for reconsideration. The circuit court denied Beverly’s motion for reconsideration and found that “a final judgment ha[d] not been rendered in this matter. Therefore, the garnishment was improper.”

¶ 4. Beverly now appeals, arguing: (1) the July 28, 2009 order was a final judgment; and (2) she is entitled to writs of garnishment regardless of the finality of the July 28, 2009 order.

STANDARD OF REVIEW

¶ 5. When addressing questions of law, this Court uses a de novo standard of review. Y-D Lumber Co., Inc. v. Humphreys Cnty., 2 So.3d 793, 796 (¶ 8) (Miss.Ct.App.2009).

DISCUSSION

¶ 6. Mississippi Code Annotated section 11-35-1 (Rev.2004) provides that a writ of garnishment may be issued “[o]n the suggestion in writing by the plaintiff in a judgment or decree in any court upon which an execution may be issued[.]” Under Mississippi Rule of Civil Procedure 54(a), a judgment is “a final decree and any order from which an appeal lies.” For a judgment to be final, it must “adjudicate the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007) (internal quotations omitted).

¶ 7. The July 28, 2009 order on which Beverly based the suggestions for the writs of garnishment was the subject of the appeal in Evans, 75 So.3d 1083. In that opinion, this Court reversed the chancellor’s reduction of Robert’s child-support obligation and remanded “for the chancellor to make findings regarding the child-support guidelines and deviation criteria.” Id. at 1085 (¶ 2). Additionally, this Court ordered the chancellor to make findings on the issues of attorney’s fees and child support. The chancellor was instructed to make findings regarding Beverly’s inability to pay the attorney’s fees and to address the reasonableness of the award under the McKee factors. Id. at 1090 (¶ 26). These findings were never made. As of the date of this opinion, those issues are still on remand in the Washington County Chancery Court. Because action is still required by the chancery court, the judgment was not a final judgement. Therefore, we affirm the judgment of the circuit court.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).