author: JAMES, J.,

text:
    Nicholas Khan CARSON a/k/a Nicholas Carson a/k/a Nicholas K. Carson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00560-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    George T. Holmes, Jackson, Mollie M. McMillin, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Nichols Khan Carson was convicted in the Hinds County Circuit Court of capital murder and possession of a firearm by a convicted felon. On appeal, Carson argues that the trial court erred in refusing his two proposed circumstantial-evidence jury instructions. Finding the evidence did not warrant the giving of a circumstantial-evidence instruction, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roderick McDonald lived in a trailer in Jackson, Mississippi, along with his girlfriend, Brittany Wroten, and Jennifer Wilder. Timothy Bowie,' a close friend of McDonald’s, lived in a trailer across the street. On the morning of January 9, 2009, Bowie went to McDonald’s trailer for a visit. Wroten and Wilder had left home for work. Bowie noticed a tan Jeep Cherokee parked in front of McDonald’s trailer. Bowie testified that a young woman was sitting in the driver’s seat of the jeep. As Bowie opened the door to McDonald’s trailer, he saw Carson pointing a gun at McDonald. According to Bowie, McDonald hád tears in his eyes. Startled, Carson turned around and pointed the gun at Bowie and told him to “get the ‘F’ back.” Bowie left McDonald’s trailer and ran across the street to his own trailer. Bowie testified that before he could open his front door, he heard a gunshot. Bowie stated that after he went into his home, he looked out the window and saw Carson running out of McDonald’s trailer. According to Bowie, Carson attempted to unlock the door of McDonald’s vehicle, a white Honda Accord, with a set of keys, but was unsuccessful. Bowie testified that he saw Carson run back into McDonald’s trailer, and that he heard three of four more gunshots immediately after. Bowie stated that after he heard the gunshots, he saw Carson run back out of McDonald’s trailer. This time, according to Bowie, Carson was able to open the car door. Bowie stated that Carson drove away in McDonald’s vehicle, and was followed by the young woman driving the Jeep .Cherokee. After Carson left the scene, Bowie ran to McDonald’s trailer. Bowie testified that he found McDonald inside lying on his stomach in a pool, of blood. Seconds after he was found by Bowie, McDonald died from multiple gunshot wounds.

¶ 3. On September 1, 2009, Carson was indicted for capital murder and possession of a firearm by a convicted felon. A jury trial was held on March 6-9, 2012. Carson was found guilty on both counts. For the capital-murder charge, Carson was sentenced to serve life without the possibility of parole in the custody of the Mississippi Department of Corrections. For the charge of possession of a firearm by a convicted felon, Carson was sentenced to serve ten years. Both sentences were ordered to run consecutively. Carson was sentenced as a habitual offender. On March 19, 2012, Carson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied. Carson now appeals his conviction, arguing the trial court erred in refusing his two proposed circumstantial-evidence jury instructions, D-9 and D-10.

DISCUSSION

¶ 4.We review a trial court’s giving or refusal of jury instructions under an abuse-of-discretion standard. McInnis v. State, 61 So.3d 872, 875 (¶ 10) (Miss.2011). Jury instructions are to be read and taken together as a whole. Id. So long as “the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Maye v. State, 49 So.3d 1124, 1129 (¶ 7) (Miss.2010) (quoting Rubenstein v. State, 941 So.2d 735, 784-85 (¶ 224) (Miss.2006)). Though a defendant has the right to jury instructions that present his theory of the case, an instruction may be refused if it “incorrectly states the law, is covered fairly elsewhere in the instructions!;,] or is without foundation in the evidence.” Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss.2009) (quoting Phillipson v. State, 943 So.2d 670, 671 (¶ 5) (Miss.2006)).

¶ 5. Carson claims the State failed to put on direct evidence that he shot McDonald. He argues that because Bowie did not actually see the shooting, the State’s case was purely circumstantial, and therefore his proposed circumstantial evidence jury instructions should have been given. Carson is wrong in this regard. “A circumstantial-evidence case is one where the State is ‘without a confession and wholly without eyewitnesses to the gravamen of the offense charged[.]’” Garrett v. State, 921 So.2d 288, 291 (¶ 17) (Miss.2006) (quoting Kniep v. State, 525 So.2d 385, 392 (Miss.1988)). “The term ‘gravamen’ is defined as the ‘substantial point or essence of a claim, grievance, or complaint.’ ” McInnis v. State, 61 So.3d at 876 (¶ 13). Carson was indicted for capital murder, for killing McDonald while engaged in the commission of a robbery. Miss.Code Ann. § 97-3-19(2)(e) (Rev. 2006). In this case, robbery is an essential element of capital murder. The State produced direct evidence that Carson , robbed McDonald at gunpoint. Bowie testified that he saw Carson pointing a gun at McDonald moments before McDonald was killed. Bowie also stated that, after the shooting, he saw Carson with McDonald’s ears keys, and that Carson drove away in McDonald’s vehicle.

¶ 6. The fact that Bowie did not actually see Carson shoot McDonald does not compel the' giving of a circumstantial-evidence instruction regarding the crime of capital murder because the State produced direct evidence of the armed robbery. A “defendant is not entitled to a circumstantial evidence instruction where both circumstantial and direct evidence” exist. Garrett, 921 So.2d at 292 (¶ 17) (emphasis added). In fact, “any direct evidence eliminates the need for a circumstantial evidence instruction.” Starks v. State, 798 So.2d 562, 566 (¶ 13) (Miss.Ct.App.2001) (citing Sullivan v. State, 749 So.2d 983, 992 (¶ 21) (Miss.1999)). Carson’s proposed circumstantial-evidence jury instructions were without foundation in the evidence. Thus, we find no error in the trial court’s refusal of the instructions. This issue is without merit.

¶ 7. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE, AND CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN YEARS, ALL AS A HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONSECUTIVELY, 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., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., AND MAXWELL, J„ CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Bowie testified that McDonald had two sets of keys to his vehicle, but only one set could unlock the driver’s side door.


source: Caselaw Access Project

author: GRIFFIS, P. J.,

license: Public Domain

text:
    Dorothy SYKES, Appellant v. HOME HEALTH CARE AFFILIATES, INC., Appellee.
    No. 2011-CA-00913-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2013.

      Carter Dobbs Jr., attorney for appellant.
    John Lewis Hinkle IV, attorney for ap-pellee.
   GRIFFIS, P. J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. This case is before us on a motion for rehearing; the motion is granted, and the original opinion is withdrawn and substituted with this opinion.

¶ 2. In this respondeat superior action, the Lowndes County County Court granted summary judgment in favor of the defendant, Home Health Care Affiliates Inc. (Home Health), because the plaintiff, Dorothy Sykes, failed to serve process upon Home Health’s employee, Zelp Gambleton, within 120 days from when the summons was issued. Sykes did serve process upon Home Health. Nevertheless, the county court found that because Gambleton was not served, and the statute of limitations had expired, summary judgment was proper for Home Health. The Lowndes County Circuit Court affirmed. We find that in a respondeat superior action, the employer and the employee are jointly and severally liable; therefore, Gambleton was not a necessary party, and Home Health was not entitled to summary judgment. Consequently we reverse and remand this action for further proceedings consistent with this opinion.

FACTS

¶ 3. On May 8, 2009, Sykes filed suit in the County Court of Lowndes County against Home Health and its employee, Gambleton. The action arose from a automobile accident that occurred on May 8, 2006, in which a vehicle driven by Gamble-ton collided with a vehicle occupied by Sykes. As a result, Sykes alleged she suffered personal injuries. Sykes further alleged Gambleton negligently and carelessly operated his vehicle, and was working in the scope of his employment with Home Health at the time of the automobile accident.

¶ 4. Sykes timely served Home Health in accordance with Rule 4(h) of the Mississippi Rules of Civil Procedure. Gambleton, however, was never served. On September 28, 2009, Home Health filed a motion for summary judgment in the county court. On April 23, 2010, the county court entered an order granting summary judgment to Home Health and dismissing with prejudice the cause of action against Home Health. The county court also dismissed the claims against Gambleton without prejudice. In its order, the county court ruled that (1) the action against Home Health was barred by the running of the applicable statute of limitations against its employee, Gambleton; and (2) Sykes failed to establish good cause for failing to timely serve Gambleton within the 120 days provided by Rule 4(h). Sykes appealed the county court’s ruling to the Circuit Court of Lowndes County. On May 26, 2011, the circuit court affirmed the ruling of the county court. Sykes appealed to the Mississippi Supreme Court, and the appeal was assigned to this Court.

STANDARD OF REVIEW

¶ 5. This Court employs a de novo standard of review when reviewing a trial court’s grant of summary- judgment. Webb v. Imperial Palace of Miss., LLC, 76 So.3d 759, 759-60 (¶ 3) (Miss.Ct.App.2011). Summary judgment “shall be rendered forthwith 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). We will consider all of the evidence before the trial court in the light most favorable to the non-moving party. Webb, 76 So.3d at 760 (¶ 3). The party opposing the motion “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.” M.R.C.P. 56(e).

DISCUSSION

¶ 6. The facts surrounding this appeal from the grant of summary judgment are not in dispute. There was an automobile accident between Sykes and Gamble-ton, and Gambleton was employed by Home Health. Sykes’s respondeat superi- or action was filed within the three-year statute of limitation generally applicable to . negligence. See Miss.Code Ann. § 15 — 1— 49 (Rev.2012). Simply stated, the issue in this case is that Home Health contends it may not be sued unless Gambleton is a named party to the suit, and unless he was personally served with the summons and complaint. More precisely, Home Health asserts summary judgment was proper because Sykes’s claim is based upon respon-deat superior, which is a derivative action imposing liability upon Home Health for Gambleton’s actions. And, because Gam-bleton was never served with process, and because the county court found good cause did not exist for failure to serve process, and because the statute of limitations has run as to Gambleton, Home Health contends Sykes cannot recover from either Gambleton or itself as a matter of law.

¶ 7. Under the doctrine of re-spondeat superior, the employer and employee are jointly and severally liable for injury caused by the employee’s negligence. Capital Transp. Co. v. McDuff, 319 So.2d 658, 661 (Miss.1975). The practical implication of joint and several liability is that a plaintiff in a respondeat superi- or action may sue either the employer or the employee, or both. Id. (citing Thomas v. Rounds, 161 Miss. 713, 718-19, 137 So. 894 (1931)). See also Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 4:11 (2001). American Jurisprudence states the general rule as to necessary parties: “[T]he right of an injured party to sue the employer is a direct or primary right because the claim is distinct and separate from the claim against the employee; therefore, the employee is not a necessary party to an action against an employer.” Am.Jur.2d Employment Relationship § 400 (2004). In fact, there have been suits based upon respondeat superior in which the negligent employee was never made a party. See, e.g., Children’s Med. Group v. Phillips, 940 So.2d 931 (Miss.2006); AAA Cooper Transp. Co. v. Parks, 18 So.3d 909 (Miss.Ct.App.2009).

¶ 8. Nevertheless, there are exceptions to the general rule that an employer may be sued separately for the negligence of an employee acting in the scope of his employment. A plaintiff may not release either an employee or employer from any claim, and then pursue the ■ same claim against the unreleased employee or employer. J & J Timber Co. v. Broome, 932 So.2d 1, 6 (¶ 20) (Miss.2006) (release of employer); Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 581-82, 1 So.2d 216, 218 (1941) (release of employee). At common law, an employer’s vicarious liability in a respondeat superior action gives rise to a right of indemnification from the employee to compensate the employer for damages paid to an injured party. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1028 (¶ 14) (Miss.2000); Granquist, 190 Miss. at 582, 1 So.2d at 218. Any release of a party that would prevent the indemnification of the party who eventually had to satisfy a judgment based on another’s negligence will prevent suit based upon respondeat superior. Broome, 932 So.2d at 9 (¶ 30) Somewhat related are the defenses of res judicata and collateral estoppel, which would preclude recovery against an employer when a previous suit against an employee resulted in a jury verdict for the employee and a finding of no negligence. McCoy v. Colonial Baking Co., Inc., 572 So.2d 850, 852 (Miss.1990). A further exception to the general rule that an employer may be sued without joinder of the negligent employee occurs when the statute of limitations expired as to the employee before suit was brought against the employer. Lowery v. Statewide Healthcare Serv., Inc., 585 So.2d 778, 779-80 (Miss.1991).

¶ 9. This case, however, does not present any of these exigencies. There is no doubt Sykes’s suit was timely, and Home Health was properly served with a summons. There is no legal preclusion from litigating Gambleton’s alleged negligence; rather, the only legal preclusion present in this case is that Gambleton cannot be directly liable to Sykes. Further, assuming Sykes prevails in this respondeat superior action, nothing precludes Home Health from seeking indemnification from Gambleton. Home Health’s motion for summary judgment was solely based upon Sykes’s failure to serve process on Gambleton. Simply put, there is no legal authority to support Home Health’s assertion that as a matter of law it may not be sued unless Gamble-ton is a party to Sykes’s suit. Accordingly, we find the circuit court erred in affirming summary judgment for Home Health, and we reverse that judgment and remand for proceedings consistent with this opinion.

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

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

      . See, e.g., Rieser v. District of Columbia, 563 F.2d 462, 469 n. 39 (D.C.Cir.1977) ("[T]he employee is not a necessary party to a suit against his employer under respondeat superior.”); Yamane v. Pohlson, 111 Hawai'i 74, 137 P.3d 980, 990 (2006) (medical group could be sued for doctor’s malpractice without doctor being made a party); Lopez v. Las Cruces Police Dep’t, 139 N.M. 730, 137 P.3d 670, 676 (Ct.App.2006) (governmental entity could be liable for employee's intentional tort without the employee being made a party); Dixon-Gales v. Brooklyn Hosp. Ctr., 35 Misc.3d 676, 941 N.Y.S.2d 468, 472 (N.Y.Sup.Ct.2012) (hospital could be sued for nurse’s negligence without nurse being made a party).


author: ISHEE, J,

text:
    Steven Anthony CUPP, Appellant v. Jennifer Gray CUPP (Wolfe), Appellee.
    No. 2012-CA-00505-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2013.

      Gregory C. Morton, Olive Branch, attorney for appellant.
    Jerry Wesley Hisaw, Southaven, attorney for appellee.
    Before IRVING, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J,

for the Court:

¶ 1. In August 2010, Steven Anthony Cupp (Steve) and Jennifer Gray Cupp (Jenny) were married in DeSoto County, Mississippi. They resided there until their separation in Tennessee in June 2011. Jenny initially filed for divorce based on habitual cruel and inhuman treatment, but the parties eventually agreed to an irreconcilable-differences divorce. They submitted the issues of property classification and division of the marital estate, among other issues, to the DeSoto County Chancery Court. After the chancery court entered its final judgment, Steve filed an appeal. Finding no error, we affirm.

STATEMENT OF FACTS

¶2. Immediately following the parties’ wedding in August 2010, Steve and Jenny, along with Jenny’s son from a prior relationship, lived in a home Steve had purchased prior to the marriage in Lake Cormorant, Mississippi. Steve purchased the home for a total of $123,000, making a $7,000 down payment and paying for the remainder through a mortgage. Shortly after the wedding, the couple decided to move to Sevierville, Tennessee. Steve left for Sevierville ahead of Jenny to make business and home plans for the couple.

¶ 3. Steve, a former auto-collision-repair worker, developed medical conditions just prior to the marriage, which caused his doctor to recommend that he leave the auto industry. He started an unsuccessful vehicle-graphics business that ended shortly after the couple wed. Thereafter, Steve moved to Sevierville with plans to open a souvenir shop.

¶ 4. Steve had inherited approximately $170,000 from his mother’s estate. He used the funds to relocate and rent a home and office space. He also used the money to buy items for the shop, including a $9,985 laser printer, among other things. Steve states that he spent the majority of his inheritance on the business. The business eventually failed, and by 2012, the balance in Steve’s separate account containing his inheritance from his mother was approximately $2,600.

¶ 5. Jenny, who has an associate’s degree and has worked as a legal secretary and paralegal, was working as a teacher’s assistant in DeSoto County at the time of the marriage. In 2011, Jenny earned approximately $1,450 a month. Due to Steve’s numerous changes in employment, Jenny had him listed on her employer’s health insurance during the course of the marriage.

¶ 6. A few weeks after the couple married, Steve purchased a 2005 Honda Odyssey van for Jenny using funds from his separate account. The van is valued at approximately $13,000. Steve owns a 2000 Chevrolet Silverado truck valued at $3,000 that he acquired before he married Jenny. Jenny entered the marriage with a 2001 Toyota Camry, which she sold in May 2011 for $4,500. The funds from the sale of the 2001 Toyota Camry were deposited into the couple’s joint account.

¶ 7. In June 2011, the couple separated. Steve alleges that just prior to the separation, Jenny transferred approximately $6,450 from Steve’s separate account into their joint account. Although Jenny did not have permission to access his separate account, Steve asserts that she contacted his ex-wife and others to determine his user name, password, and the answer to the account’s security question. Around May 2011, Jenny withdrew the $4,500 from the sale of her vehicle from their joint account and closed the account. Aside from $1,500 Jenny admitted to having contributed to rent for the home and business in Sevierville, the record indicates she used the funds in the joint account for her personal expenses only during the nine-month marriage.

¶ 8. After Jenny filed for divorce on the ground of habitual cruel and inhuman treatment, the couple finally agreed to an irreconcilable-differences divorce. They submitted property classification and division of their marital estate to the chancery court. In September 2011, prior to the trial, the chancellor ordered that Jenny reinstate and maintain Steve on her employer’s insurance. However, because of Steve’s prior medical conditions, Jenny claims it was financially impossible for her to reinstate retroactive coverage on her salary. Additionally, Steve claims Jenny’s offer to extend him COBRA coverage was hollow since the insurance would be useless to him since he lives out of state.

¶ 9. After a January 2012 trial on the merits, the chancellor determined that Steve was the primary financial contributor but that Jenny made significant domestic contributions to the marriage. The chancellor ruled that the 2005 Honda Odyssey van valued at $13,000, a 2010 income-tax refund of $7,472.55, the $9,985 laser printer, and the equity in the Lake Cormorant home minus the money Steve used as a down payment on the home were all part of the marital estate. The total of the marital estate was valued at $43,467.55.

¶ 10. In dividing the assets, the chancery court ordered that Jenny receive exclusive use and possession of the $13,000 2005 Honda Odyssey van. The chancery court also determined that in order to avoid lump-sum alimony, Jenny was entitled to the couple’s 2010 income-tax refund of $7,472.55. Jenny’s award was approximately $20,472.55.

¶ 11. Steve appeals the chancery court’s determination. He asserts that the Lake Cormorant home should not have been deemed part of the marital estate due to the brevity of the couple’s marriage and Jenny’s lack of financial contribution to the home. Steve argues that because the couple did not bear children to raise in the home, Jenny’s domestic contribution to the home is so minimal as to remove the home from the marital estate.

¶ 12. He also argues that the chancery court failed to account for approximately $11,000 that he claims Jenny reallocated from his separate account and their joint account prior to the couple’s separation. Steve asserts that Jenny deposited about $4,500 into their joint account after she sold her 2001 Toyota Camry and then removed the funds from the account without explanation. He also claims that Jenny gained unauthorized access to his separate account and stole several thousand dollars from him. He asserts that the chancellor should have accounted for this money when equitably dividing the estate.

¶ 13. On appeal, Steve also argues that Jenny was not entitled to the 2010 tax refund because the record reflects her contribution to the reported $57,397 in income in 2010 was only $10,609. Furthermore, Steve notes that most of the refund was attributable to $17,654 in Steve’s reported business losses. Additionally, Steve claims the chancellor’s award was essentially an award of lump-sum alimony, which exceeded the scope of the chancellor’s authority in adjudicating the couple’s irreconcilable-differences divorce.

¶ 14. Steve next makes a general argument that the chancellor erred in his Ferguson analysis with regard to the aforementioned issues. Finally, Steve argues the chancellor erred by failing to address Steve’s lack of health insurance. Jenny never provided Steve the health insurance ordered by the chancery court in its September 2011 order. However, again, Jenny claims an impossibility of performance due to Steve’s preexisting conditions.

STANDARD OF REVIEW

¶ 15. When reviewing domestic-relations matters, we are confined to a limited standard of review. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, particularly in domestic-relations cases, “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss.2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)). The chancellor must have been “manifestly wrong, clearly erroneous[,] or an erroneous legal standard [must have been] applied,” for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000) (citation omitted).

DISCUSSION

I. Marital Home

¶ 16. We first address Steve’s argument that the chancellor erred in classifying the Lake Cormorant property as marital, and, therefore, the property should not have been included in the division of marital assets. Steve asserts that because he acquired the property prior to the marriage, titled the property solely in his name, and made mortgage payments from his separate account, that the property is not marital in nature. Jenny counters Steve’s claims by noting that she lived in the home with her son and Steve before Steve moved to Sevierville. At that time, Jenny contributed domestically to all maintenance on the home for a number of months until she joined Steve in Sevier-ville.

¶ 17. Mississippi employs the family-use doctrine when determining whether a couple’s separate property has become marital due to the family’s use of the property. See, e.g., Stewart v. Stewart, 864 So.2d 934, 937-38 (¶ 13) (Miss.2003); Rhodes v. Rhodes, 52 So.3d 430, 438 (¶¶ 25-26) (Miss.Ct.App.2011); Brame v. Brame, 98-CA-00502-COA (¶ 20) (Miss.Ct.App. Mar. 28, 2000), rev’d in part on other grounds, 796 So.2d 970 (Miss.2001). Property that was acquired prior to the marriage by one of the parties can become marital property when used by the family. See id. Furthermore, a party’s contribution to the maintenance of a family home, whether monetary or physical, is considered when dividing the home equitably. See, e.g., Ferguson, 639 So.2d at 928; Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994); Tatum v. Tatum, 54 So.3d 855, 861 (¶ 21) (Miss.Ct.App.2010).

¶ 18. The record reflects that the chancellor determined that the property in question was converted to a marital asset by means of the family-use doctrine. The chancellor also noted “that while [Steve] made the primary financial contributions to the accumulation of marital assets, [Jenny] made significant domestic contributions to the marriage.” We agree. Steve, Jenny, and Jenny’s son all lived in the home for some time prior to their move to Sevierville. Jenny also physically maintained the home by herself for several months after Steve moved. We cannot find manifest error in the chancellor’s determination that the Lake Cormorant property was part of the marital estate. This issue is meritless.

II. Reallocation and Dispersion of Funds

¶ 19. We next address Steve’s argument that the chancellor failed to account for money Jenny allegedly reallocated from Steve’s separate account and the couple’s joint account. At trial, Jenny admitted to transferring certain funds from Steve’s separate account into the joint account. However, Jenny testified that on one occasion, Steve instructed her to transfer approximately $1,500 into their joint account to cover household expenses, and on another occasion, Steve instructed her to transfer money to cover purchases he had made for his souvenir shop in Sevi-erville. Jenny asserted that the passwords to both Steve’s separate account and their joint account were the same. Steve contradicted this testimony and stated that the passwords were not the same, and that Jenny was never given authorization to access his account. Steve asserts that Jenny stole money from his account, transferred it into their joint account, and then withdrew the money. Furthermore, both parties admit that the proceeds from the sale of Jenny’s 2001 Camry were deposited in the joint account. They agree that the deposited amount was $4,500. However, they disagree as to how the funds were spent. In sum, Steve alleges that Jenny withdrew the money while Jenny claims she paid household bills with the money.

¶ 20. It is well-settled law that “in a divorce proceeding, the chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” McFarland v. McFarland, 105 So.3d 1111, 1116 (¶ 12) (Miss.2013) (citation omitted). It was within the chancellor’s authority to determine whose testimony was more credible. We will not invade the chancellor’s province by questioning his assessment of the parties’ credibility with regard to transferred funds and the funds from the sale of Jenny’s vehicle. This issue is without merit.

III. Tax Refund

¶ 21. Steve’s next issue on appeal concerns the chancellor’s award of the couple’s 2010 joint tax refund. The chancellor granted Jenny the refund of $7,472.55. Steve asserts this award was a de facto award of lump-sum alimony, which he claims the chancellor was unauthorized to make.

¶ 22. The record indicates that the couple consented to allow the chancery court to resolve lingering issues in their irreconcilable-differences divorce. The remaining issues included division of marital and personal property, as well as Steve’s claim of contempt against Jenny for failing to provide him with health insurance. Steve argues that because an award of alimony was not an issue presented to the chancery court, the chancellor acted outside the scope of their consent by awarding the tax refund to Jenny.

¶ 23. However, the chancellor did not award the tax refund as alimony. The chancellor stated, “By awarding Mrs. Cupp the income[-]tax refund and the Honda minivan[,] the [c]ourt will not have to award rehabilitative alimony, which would be a potential source of future friction between the parties.” This was stated immediately after the chancellor completed his Ferguson analysis. The award of the tax refund to Jenny appears to be merely a continuation of the chancellor’s attempt to equitably divide the marital estate such that alimony would not be required. This issue is meritless.

IV. Ferguson Analysis

¶ 24. Steve asserts that the chancellor erred in his Ferguson analysis when dividing the marital estate. However, all of Steve’s issues with regard to the Ferguson analysis have been addressed above. As such, our determination that Steve’s aforementioned issues lack merit is dispositive of his claim regarding the chancellor’s Ferguson analysis.

V. Contempt

¶25. Finally, Steve claims that the chancellor erred in failing to find Jenny in contempt of court for declining to provide Steve with court-ordered health insurance. Jenny counters Steve’s claim with a defense of impossibility. Jenny asserts that obtaining the insurance in question was cost-prohibitive to her.

¶ 26. The Mississippi Supreme Court has held that “[e]ven when there has been established a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation.” Newell v. Hinton, 556 So.2d 1037, 1044 (Miss.1990) (citation omitted). Here, Jenny attempted to reinstate Steve on her employer’s health-insurance policy after the couple separated. However, her testimony at trial revealed that it would cost approximately $418 a month for his health insurance. She further testified that her average net monthly paycheck was approximately $520 a month, but that there were months where her paycheck would be less than $300 a month due to holiday or seasonal school closings.

¶ 27. We cannot find that the chancellor committed manifest error in failing to hold Jenny in contempt of court. Particularly since Jenny has a child to support, it would be nearly impossible for her to pay for Steve’s health insurance and provide basic necessities for herself and her son with the leftover income from her paycheck. During some months, it appears that it would be absolutely impossible for Jenny to even cover the premium payment on the health insurance, much less provide for her child. This issue is without merit.

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

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

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).