source: Caselaw Access Project

author: KING, Justice,

license: Public Domain

text:
    Finis R. McFARLAND, Jr. v. D’Anne P. McFARLAND.
    No. 2011-CA-00713-SCT.
    Supreme Court of Mississippi.
    Jan. 24, 2013.

      Maura Delaney McLaughlin, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before DICKINSON, P. J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. In this divorce case, the husband appeals the trial court’s award of lump-sum alimony, temporary alimony, and interest to the wife. The chancellor examined all relevant factors in determining lump-sum alimony, and his determination is supported by the record. Furthermore, the chancellor was within his power to enforce the temporary order and continue the obligation of temporary alimony until the divorce was finalized. Last, the chancellor did not err in awarding interest on monies owed to the wife that were more than a year past due. Because the chancellor did not err in any of these determinations, this Court affirms the trial court in all respects.

FACTS AND PROCEDURAL HISTORY

¶ 2. Finis “Skip” McFarland and D’Anne McFarland married on June 17, 1978, when D’Anne was twenty years old and Skip was four days shy of his thirty-fifth birthday. D’Anne had a tenth-grade education and a GED, while Skip attended some college. It was Skip’s second marriage, and he had three children from his first marriage, with whom he had visitation. Skip and D’Anne then had two children of their own, both of whom are now emancipated by age. D’Anne held a few short-term jobs during the marriage, but was primarily a stay-at-home wife and mother, while Skip worked full-time throughout most of the marriage. In 1999, Skip and D’Anne opened a business together, Precision Vision. D’Anne paid herself about $500 per month for operating Precision Vision, until the months leading up to the divorce, when she paid herself $500 per week. Skip and D’Anne began sleeping in separate bedrooms in the fall of 2006, with plans of divorcing, and Skip moved out of the house in January of 2007.

¶ 3. D’Anne filed for divorce on January 31, 2007, on the grounds of habitual cruel and inhuman treatment. On March 13, 2007, the trial court entered an agreed temporary order, which governed the status of the parties for several years. The temporary order included a provision giving D’Anne use of the house and provided that Skip would pay the mortgage. It also provided that D’Anne “shall turn over day-to-day control of the business known as ‘Precision Vision, Inc.’ to” Skip, that Skip must account to D’Anne monthly for all business transactions, and further that Skip “shall pay to [D’Anne] the sum of $500.00 per month ... from operations of Precision Vision, Inc. by [Skip], until further Order of this Court.” After the separation, D’Anne worked odd jobs, including construction, picking up cans, and cleaning, but as of December 2010, she had not filled out any formal job applications. D’Anne has not reported all her income from these odd jobs to the Internal Revenue Service (IRS).

¶ 4. On September 10, 2009, Skip and D’Anne presented the trial court with an agreement to divorce on the grounds of irreconcilable differences, presenting the sole issue of alimony to the court. The court then held a hearing during which the agreement between the parties was announced into the record orally. The parties do not have a formal written agreement. Under the oral agreement, the parties agreed to the following provisions relevant to this appeal: 1) D’Anne would vacate the home by October 1, 2009; 2) Skip would pay D’Anne fifty percent of the appraised value of the home within sixty days of the hearing (rendering the deadline on or about November 10, 2009); 3) the parties would equally divide their certificates of deposit in the amount of $20,327.34; 4) the parties would equally divide a Fidelity Individual Retirement Account (IRA) in the amount of approximately $63,000; and 5) Skip would pay D’Anne fifty percent of the appraised value of Precision Vision after the appraisal. The home ultimately was appraised at $190,000 and Precision Vision was appraised at $33,000. This agreement was not reduced to or included in an order, until the final order was entered approximately one and a half years later.

¶ 5. On October 12, 2009, D’Anne filed a complaint to cite Skip in contempt of court for his failure to account to D’Anne for the business and for his failure to pay D’Anne $500 per month from the business. The chancellor heard arguments on the matter on December 17, 2009. Skip argued that the agreement between the parties in September 2009 had resolved the issue. The chancellor agreed with D’Anne that the $500-per-month obligation should continue, stating that as of the December 2009 hearing, the marriage was still in existence, thus “the obligations for support and for sharing of expenses and assets remains, and I think the 500 bucks at least will get us past the point and to a point where a final decision can be made.” The chancellor indicated that the $500 per month was equitable because Skip had not paid D’Anne for her interest in the house, nor had Precision Vision even been appraised, yet D’Anne had vacated the house in a timely manner, stating “I think the monthly obligations that we agreed were reasonable way back probably ought to continue if, in fact, the 60 days is not going to take place as agreed on and the appraisal is not going to take place as agreed on.”

¶ 6. In December 2010, nearly four years after the divorce action was initiated, and more than one year after the parties’ agreement on most issues, the court held a trial on the alimony issue. At the trial, Skip had yet to pay D’Anne for her fifty percent interests in the home and business, and he had not yet paid her an agreed-upon sum of $1,500 in exchange for personal property he received. D’Anne had not yet paid Skip his half of the CDs. The Fidelity IRA likewise had not been divided.

¶ 7. In its April 18, 2011, Amended Opinion and Final Judgment, the court summarized the parties’ agreement, finding that Skip owed D’Anne $111,500 (D’Anne’s half of the house and business) that was past due, and D’Anne owed Skip $12,613.67 (Skip’s half of the certificates of deposit and a Precision Vision account) that was past due, thus both parties were in breach of the contractual agreement of September 2009. The court determined that the net past-due obligation amounted to Skip owing D’Anne $98,886.33. In addition, D’Anne, by agreement, was to receive $31,500 from the Fidelity IRA once a QDRO was entered. The court ordered Skip to pay D’Anne $98,886.33 within thirty days of the filing of the judgment. The court further awarded D’Anne interest on the “net unaccomplished obligations” at the rate of eight percent, finding that “[i]n-terest may be calculated on amounts due ... for payment of half of the accounts, half of the house value, and half of the business value from the dates set out as effective dates for payment.”

¶ 8. The chancellor then addressed alimony, making detailed findings on each of the factors required by Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). Next, the chancellor examined the Cheatham factors to determine whether an award of lump-sum alimony was appropriate. See Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988). The chancellor concluded that a deficit existed in the equality of the asset division and that D’Anne needed security in her later years as a result of her many years of “unpaid contribution to the family business and her contribution to the marriage in caring for their children as well as those of Skip.” He thus awarded D’Anne lump-sum alimony in the form of the transfer of the entirety of the Fidelity IRA to D’Anne. This consisted of $31,500 due D’Anne contractually, and $31,500 that was to go to Skip contractually, but would be considered lump-sum alimony and be awarded to D’Anne.

¶ 9. Skip filed a motion for new trial or in the alternative for amended findings of fact and conclusions of law and judgment on April 28, 2011, which the trial court denied. Aggrieved, Skip appeals to this Court.

ANALYSIS

1. Lump-Sum Alimony

¶ 10. “When this Court reviews a chancellor’s decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24 (Miss.2007). Thus, this Court will not disturb the chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.” Id. (internal quotations omitted).

¶ 11. Skip argues that the chancellor erred in awarding D’Anne lump-sum alimony. He contends that the chancellor made erroneous findings about D’Anne’s and Skip’s estates and incomes, and failed to take into consideration that Skip was near retirement age. He argues that the chancellor “in effect changed Skip’s position from difficult to destitute.” He further maintains that the chancellor failed to consider that D’Anne lied regarding her assets, her income, and her earning ability.

¶ 12. Skip’s arguments are without merit. First, as to Skip’s arguments regarding D’Anne’s truthfulness regarding income and work skills, the court specifically found that D’Anne (and Skip, for that matter) had been less than truthful in dealings with the IRS. Furthermore, the court found that D’Anne had the ability to earn at minimum-wage level and that she “has the ability to manage the day to day details of a small and previously successful business.” Thus, the court did find that D’Anne had not always been honest, and it also found that D’Anne did indeed have the ability and skills to work. Skip’s assertion that the court failed to consider that D’Anne “lied” is without any merit. Moreover, “[i]n a divorce proceeding, the chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Carambat v. Carambat, 72 So.3d 505, 510 (Miss.2011). The chancellor’s findings regarding D’Anne are supported by substantial evidence, thus he did not manifestly err in that regard.

¶ 13. Skip also argues that the court rendered him destitute. The record contains detailed financial information for both parties that was before the court. Skip received the marital home, the joint business, two automobiles, ample personal property, half of the certificates of deposit, plus an inheritance from his parents, and was to receive additional inheritance. In addition, Skip collects a monthly social security benefit in the amount of $1,457.00. Although the chancellor found that Skip was not financially secure, he certainly is not destitute, thus the chancellor’s findings regarding Skip were supported by substantial evidence.

¶ 14. The court made detailed findings under the Armstrong and Cheatham factors. Among its findings were that Skip and D’Anne had a long marriage, that D’Anne assisted Skip in his business ventures and spent time as a housewife raising their two children and Skip’s three children from a previous marriage while Skip traveled for business, and that “[wjhile neither party would be characterized as financially secure, D’Anne is less secure than Skip.” It noted that the most income D’Anne earned in any year was $8,000, while Skip’s high year was $89,578. Its findings are amply supported by the record before this Court. It concluded that an award of lump-sum alimony in the amount of approximately $31,500 was appropriate “to deal with the net value of taxes, interest and opportunity costs on the various sums owed by each to the other, the ‘deficit’ in attainment of equality of division ... and the need of D’Anne for security in her later years resulting from the years of unpaid contribution to the family business and her contribution to the marriage in caring for their children as well as those of Skip.”

¶ 15. This Court has held that a trial court must apply the Ferguson factors in determining an award of lump-sum alimony “in all appropriate situations.” Yelverton, 961 So.2d at 25-26. The Ferguson factors are:

1. Substantial contribution to the accumulation of the property (see Cheatham factor No. 1).
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise, [see Armstrong factor No. 11]
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution such as [non-marital assets].
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution. [see Armstrong factor No. 9]
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity (See Cheatham factors Nos. 3 & 4).
8. Any other factor which in equity should be considered (See Cheatham factor No. 2).

Yelverton, 961 So.2d at 25-26 (second alteration in original).

¶ 16. While the chancellor did not specifically set forth and apply the Ferguson factors as he should have, the omission is not reversible error in this case. This Court has found that Cheatham does not necessarily apply to a small award of lump sum alimony — $15,000 in Bland. Bland v. Bland, 629 So.2d 582, 587 (Miss.1993). In Bland, the Court found that the chancellor relied on the Cheatham factors at least in part, and that “the amount of alimony ‘should be reasonable ... commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay.”’ Id. at 587-88 (quoting Gray v. Gray, 562 So.2d 79, 83 (Miss.1990)) (alterations in original). Thus, the trial court’s failure to specifically cite Cheatham was not reversible error. Id. Similarly, in this case, the lump-sum alimony award was a smaller one, approximately $31,500, and the chancellor considered D’Anne’s accustomed standard of living, her own resources, and Skip’s ability to pay. In this case, the chancellor went so far as to specifically apply the Cheatham factors, and he also relied on the Ferguson factors.

¶ 17. Furthermore, the chancellor appears to have considered all the Ferguson factors that are relevant to this case, despite failing to cite the case itself. Yelver-ton states that Ferguson should be applied in all “appropriate” situations. Yelverton, 961 So.2d at 25. In this case, all personal and real property was painstakingly divvied up by prior agreement by the parties, rendering some of the Ferguson factors less applicable to the chancellor’s consideration. The chancellor considered Ferguson factors 1, 2, 5, 7, and 8 in his analysis of the Armstrong and Cheatham factors. While the chancellor did not specifically cover factors 3, 4, and 6, he did note the value of each party’s nonmarital assets, including their respective inheritances and D’Anne’s trailer. Moreover, the parties came to an agreement regarding their property, which renders the factors regarding division of property, particularly the emotional value of the assets, less applicable.

¶ 18. Therefore, the chancellor did not manifestly err in awarding D’Anne lump-sum alimony. The legal standard he applied, while not ideal because of the failure to specifically cite and apply Ferguson, was not clearly erroneous, as the chancellor did consider all the Ferguson factors relevant to the determination of lump-sum alimony. Further, substantial evidence supports the award.

2. Interest

¶ 19. The decision to award prejudgment interest is reviewed for abuse of discretion. Arcadia Farms P’ship v. Audubon Ins. Co., 77 So.3d 100, 105 (Miss.2012). The trial court ordered Skip to pay interest on the money he failed to pay D’Anne under the parties’ agreement. Skip does not argue that ordering interest in the first instance was error, but rather argues that it was error for the trial court not to likewise order D’Anne to pay interest on the money she owed Skip under their agreement, stating that the chancellor “should have awarded both parties interest or neither party.” This point of error is entirely without merit.

¶ 20. The court found that D’Anne owed Skip $12,613.67 and that Skip owed D’Anne $111,500, and that these amounts were more than a year past due. Thus, the net unaccomplished contract obligations amounted to Skip owing D’Anne $98,886.33, which is the amount on which the court ordered interest. If the court had ordered interest on the amount that D’Anne owed Skip, it follows that it would have ordered interest on the total amount of $111,500 that Skip owed D’Anne, and the amounts of interest would have offset, or even placed Skip in a worse position than he is now. The trial court is affirmed on this issue, as it clearly did not abuse its discretion in ordering interest on the past-due net unaccomplished obligation between the parties, rather than on the entire amounts owed.

3. $500 per Month Under Temporary Order

¶ 21. While a chancellor’s decisions in a divorce action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo. Harris v. Harris, 988 So.2d 376, 378 (Miss.2008).

¶ 22. Skip argues that it was error for the court to order him to pay D’Anne $500 per month subsequent to their September 2009 property settlement agreement. He argues that the agreement between the parties trumps the temporary order on this issue, and that the court essentially modified the contract between the parties by ordering Skip to pay the $500. The chancellor appears to have based his decision purely on equity, and did not engage in contract interpretation.

¶ 23. An agreement made between the parties should ordinarily be enforced, and the court should take a dim view of efforts to modify or reform the parties’ settlement agreement. Williams v. Williams, 37 So.3d 1171, 1174 (Miss.2010). Thus, since the court in this case found that the settlement agreement between D’Anne and Skip was a valid contract, it should not modify anything decided by that agreement. Contract interpretation involves a three-step analysis. Epperson v. SOUTHBank, 93 So.3d 10, 16-17 (Miss.2012); Harris, 988 So.2d at 378-79. “First, [this Court] must determine whether the contract is ambiguous, and if it is not, then it must be enforced as written.” Epperson, 93 So.3d at 16. In this step, the Court analyzes the express wording of the contract and enforces the plain meaning where there is no ambiguity. Id. at 16-17. If the contract is deemed ambiguous, the Court applies the meaning more favorable to the nondrafting party. Id. at 17. Third, if the contract’s meaning remains ambiguous, the Court will consider extrinsic evidence. Id.

¶ 24. Before examining the contract, this Court must determine the nature of the $500-per-month obligation. The record reveals differing views on whether the $500 was termed temporary alimony or some unknown type of support based on D’Anne’s contribution to the business. The $500 per month was for the purpose of supporting D’Anne, due to a sudden lack of income that was directly attributable to her separation from Skip. Regardless of whether Skip was to pay her from funds from the business or other funds, he was ordered to pay her this money for her support. In substance, this award was for temporary alimony.

¶ 25. Turning to the property settlement agreement, D’Anne and Skip specifically and unambiguously left an alimony determination to the court, thus the agreement explicitly reserved the continued applicability of the $500 a month under the temporary order to decision of the court. The chancellor, to whom decisions regarding alimony was reserved, determined that equity demanded the $500 per month continue under the temporary order that was still in effect, given that Skip had not performed his contractual duties. Therefore, the trial court did not err in ordering that Skip continue to pay the $500 per month under the temporary order where alimony was contractually left to the court to determine and continuing the obligation was equitable under the circumstances.

¶26. The chancellor’s decision to enforce Skip’s obligation to pay D’Anne $500 per month under the temporary order, even after the agreement of the parties, is not error because the $500 per month was temporary alimony and the agreement specifically left a determination of alimony to the court.

CONCLUSION

¶ 27. The chancellor in this case was not manifestly wrong or clearly erroneous, nor did he apply a clearly erroneous legal standard. Because the lump-sum alimony award is supported by the evidence and the chancellor’s findings, the temporary alimony award was contractually left to the chancellor to determine and was equitable, and the decision to award interest on the net unaccomplished obligations was not manifestly wrong, this Court affirms the trial court.

¶ 28. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.

      . D’Anne vacated the home by October 1, 2009, in accordance with the parties’ agreement.

      . Initially, it was thought that the Fidelity IRA was in D’Anne’s possession Later, it was determined that it was in Skip's possession. It was to be divided by a Qualified Domestic Relations Order (QDRO) to avoid tax consequences, which was not entered by the court until after the final judgment.

      .The court's initial judgment was incorrect in some of its calculations of debts and obligations of the parties, thus this judgment was entered clarifying and correcting them.

      . D’Anne is to receive one-half the appraised value of the home and business, received an inheritance from her mother, and owns a trailer home. She is not yet eligible to receive social security benefits, and will not be for several years. When she is eligible receive social security benefits, the monthly amount will be approximately half of what Skip receives monthly.

      . We emphasize that this holding does not dispense with a chancellor’s obligation to analyze the Ferguson factors in making a determination of lump-sum alimony. Chancellors should continue to analyze each Ferguson factor with specificity when determining whether to award lump-sum alimony.

      . D'Anne’s argument that Skip’s appeal on this issue is waived is without merit. While it is true that Skip did not raise this issue in his motion for new trial, an appeal of a ruling enforcing a temporary order, a ruling that the final judgment terminated, is clearly not an appropriate issue to raise in a motion for new trial, as the issue was not addressed in the trial and had no bearing on the outcome of the trial. Furthermore, the court’s order enforcing the temporary order was not a final judgment, and thus would have been interlocutory and not appealable to this Court. See

        Michael v. Michael, 650 So.2d 469, 471 (Miss.1995).

      . However, this Court may affirm the chancellor if he reached the correct result, even if he reached that result for the wrong reason. Knight v. Knight, 85 So.3d 832, 838 (Miss.2012).

      . Courts may modify property settlement agreements under certain circumstances, for example, where fraud, overreaching, or mistake are involved; however, absent special circumstances, courts should be hesitant to modify a property settlement agreement, as they would with any contract. Speed v. Speed, 757 So.2d 221, 224-25 (Miss.2000).

      . Alimony is rooted in the traditional marital duty of support, and has more recently evolved to assist a dependant spouse in becoming self-supporting. Deborah H. Bell, Mississippi Family Law §§ 9.01[1], 9.01 [2][c] (2005).

      .We note that in most circumstances, "[t]o amend a prior decree, even if a temporary one, the parties hereafter should recite the change and present the same to the Court, otherwise we are in the inexplicable position of having an order of the Court changed by the parties without consideration for or by the Court.” Lewis v. Lewis, 586 So.2d 740, 743 (Miss.1991). Furthermore, the temporary order specifically stated that Skip was to pay D’Anne the $500 per month "until further Order of this Court.” No final divorce order or order otherwise approving the parties' property settlement agreement was entered until 2011, approximately one and a half years after the parties entered the property settlement agreement. Because the parties failed to explicitly address an obligation specifically ordered by the court, a fair interpretation of the agreement between the parties is that it did not alter the obligations of the temporary order, especially absent any order of the court.


author: CHANDLER, Justice,

text:
    In the Interest of B.S., a minor.
    No. 2011-CA-00759-SCT.
    Supreme Court of Mississippi.
    Jan. 24, 2013.

      Patricia Peterson Smith, Kelly Gunter Williams, attorneys for appellant.
    Minor F. Buchanan, Jackson, Kate S. Eidt, attorneys for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. This case involves a dispute over custody of B.S. Diana Crosby, B.S.’s maternal grandmother, claims that the Hinds County Youth Court erred in awarding custody of B.S. to B.S.’s father, Robert Sims Jr. Finding no error, we affirm the decision of the youth court.

FACTS

¶ 2. Sims and B.S.’s mother, Liza Nichols, divorced in 1998. Sims had physical custody of B.S. with reasonable visitation rights for Nichols. On December 1, 2008, the Department of Human Services (DHS) received a report that B.S. claimed she was being physically abused by Sims. After B.S. was interviewed, the Hinds County prosecuting attorney filed a petition alleging that Sims had abused B.S., and Youth Court Judge William Skinner entered an order appointing an investigative guardian ad litem and an order appointing a certified attorney guardian ad litem. After a shelter hearing, B.S. was placed in the custody of Nichols.

¶ 3. On December 10, 2008, Nichols died, and B.S. went to live with Crosby. On October 15, 2009, the youth court held an adjudicatory hearing. That same day, the court entered an order adjudicating B.S. to be an abused child and placing B.S. in the custody of Crosby. Sims was awarded visitation rights. The court stated that, if the visitation was successful, then Sims could petition for custody.

¶ 4. Sims filed a motion for review on April 1, 2010, seeking restoration of custody and stating that he had complied with the visitation requirements specified in the adjudication order. He stated that he had been exercising visitation rights with B.S. every other weekend without incident. The disposition hearing occurred on January 27, 2011, before the Honorable Houston J. Patton. The court heard the testimony of Sims, family friends Cindy and Chancee Davis, Robert Sims Sr., and Danny Sims. The court also heard from Sims’s expert witness, Baxter Hogue. Crosby testified, along with Bramlette, the appointed counselor, and a social worker. Judge Patton also interviewed B.S. in his chambers.

¶ 5. After hearing the testimony of the witnesses and considering the physical evidence, the court entered a final judgment awarding custody to Sims. The court stated that B.S. was to be returned to her father, effective June 1, 2011. Until that time, she was to remain with her grandmother. Crosby was awarded unsupervised visitation on alternating weekends. The court entered an amended final judgment on May 31, 2011. Crosby filed a notice of appeal the same day. Crosby also filed an emergency petition to expedite stay pending appeal, which we granted.

STANDARD OF REVIEW

¶6. “The appellate standard of review for youth court proceedings is the same as that which we apply to appeals from chancery court.” A.B. v. Lauderdale County Dep’t of Human Servs., 13 So.3d 1263, 1266-67 (Miss.2009). “The standard of review for the youth court is the same as that of a chancellor whether the ruling was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” S.C. v. State, 795 So.2d 526, 529 (Miss.2001).

DISCUSSION

I.WHETHER THE YOUTH COURT’S DECISION TO RETURN B.S. TO THE CUSTODY OF HER FATHER WAS MANIFESTLY WRONG, CLEARLY ERRONEOUS, OR APPLIED AN ERRONEOUS LEGAL STANDARD.

¶ 7. “The rule that the paramount concern in cases where custody of a child is involved is the child’s best interest has remained in full force and effect in this jurisdiction, and has continually been reaffirmed by this Court.” In re Beggiani, 519 So.2d 1208, 1212 (Miss.1988) (citation omitted); In re S.A.M., 826 So.2d 1266, 1274 (Miss.2002). The youth court considered the testimony concerning the relationship between B.S. and her father as well as B.S.’s medical records. Based upon that evidence, and applying the proper legal standard, the court determined that it was in the child’s best interest to be returned to her father. Crosby argues that the court’s grant of custody to Sims is against the overwhelming weight of the evidence, because Sims “presented not one scintilla of evidence” to support his position. We disagree and find that the record contains sufficient evidence to support the court’s decision to award custody to Sims. Based upon the evidence presented at the disposition hearing, the decision was not manifestly wrong or clearly erroneous. We affirm the youth court’s decision to award custody to Sims.

II. THE COURT’S INTERVIEW WITH B.S.

¶ 8. Crosby argues that the youth court erred when it allowed the guardian ad litem and attorney for Sims into chambers during B.S.’s interview. The interview was made part of the record, and the judge stated that he took the interview into consideration when making his decision. The authority Crosby cites does not support her argument. Therefore, we find the argument to be without merit.

III. THE YOUTH COURT’S FINDINGS REGARDING THE FEES AWARDED TO COURT-APPOINTED COUNSELOR, LIL BRAMLETTE

¶ 9. Crosby argues that the court erred by reducing the amount Sims had to pay to Bramlette, the court-appointed counselor. Crosby provides no legal authority for her argument. “This Court is not required to address any issue that is not supported by reasons and authority.” Zinn v. City of Ocean Springs, 928 So.2d 915, 920 (Miss.Ct.App.2006) (citations and quotations omitted). Therefore, this issue is procedurally barred.

CONCLUSION

¶ 10. For the aforementioned reasons, we affirm the grant of custody to Sims.

AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J„ NOT PARTICIPATING.


author: RUSSELL, J.,

text:
    Gail Nolls TURNER, Appellant v. TRUSTMARK NATIONAL BANK d/b/a Credit Card Center, Appellee.
    No. 2011-CA-01407-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2012.
    Bennie L. Jones Jr., West Point, attorney for appellant.
    Wanda Williams Cross, attorney for ap-pellee.
    Before LEE, C.J., RUSSELL, and FAIR, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Gail Nolls Turner appeals the judgment of the Clay County Circuit Court granting summary judgment in favor of Trustmark National Bank d/b/a The Credit Card Center (Trustmark). Turner raises one issue on appeal, which we restate for clarity: whether the circuit court erred in finding there was no genuine issue of material fact in this case. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 27, 2010, Trustmark filed an action against Turner alleging that Turner opened a credit-card account with Trustmark and that Turner owed $3,796.91 to Trustmark. Turner denied this allegation, and Trustmark subsequently filed a motion for summary judgment alleging that there were no genuine issues of material fact and that it was entitled to a judgment as a matter of law. On July 14, 2011, Turner filed a response to Trust-mark’s motion for summary judgment, arguing that the circuit court should deny the motion for summary judgment because there were genuine issues of material fact as to whether Turner owed Trustmark the debt and whether Trustmark failed to comply with the requirements of the Fair Debt Collection Practices Act (FDCPA). On July 20, 2011, the circuit court held a hearing on the motion, and on August 25, 2011, the circuit court entered an order granting Trustmark’s motion for summary judgment. The circuit court further awarded Trustmark a $3,796.91 judgment, as well as $1,265.51 in attorney’s fees, and $648.90 in pre-judgment interest, for a total of $5,711.32, plus interest of 21% per annum and court costs. On September 20, 2011, Turner filed notice of this appeal.

DISCUSSION

¶ 3. “The standard of review in considering ... a [circuit court’s] grant or denial of summary judgment is de novo.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (115) (Miss.2005) (citing Hataway v. Nicholls, 893 So.2d 1054, 1057 (¶ 9) (Miss.2005)). In considering whether the circuit court erred in granting summary judgment, “we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits” in the light most favorable to the nonmovant. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (¶ 10) (Miss.2006). “The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the [nonmovant] is given the benefit of the doubt as to the existence of [an issue of] material fact[.]” Id. (citing Monsanto Co., 912 So.2d at 136 . (¶ 5)). Mississippi Rule of Civil Procedure 56(e) states what is required of an adverse party:

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

¶ 4. Turner argues that the circuit court erred when it granted Trustmark’s motion for summary judgment because there is a genuine issue of material fact as to whether Turner owed Trustmark the debt. Specifically, Turner argues that Trustmark failed to provide evidence to support its allegation that there was no genuine issue of material fact. We disagree.

¶ 5. Trustmark provided a sworn affidavit from Ginny Perrett, who was employed as a recovery officer for Trustmark. The affidavit stated that Perrett was familiar with Turner’s account, and Perrett swore to the existence of the debt and the amount owed. The affidavit further stated that Turner was sent statements each month, and that there was no record of a dispute as to any of the statements. Through Perrett’s affidavit and Turner’s bank statements, we find that Trustmark met its burden of persuasion and production to shift the burden to Turner to produce evidence that there is a genuine issue of material fact.

¶ 6. Turner argues that by denying that she owed Trustmark the debt in her answer, an issue of material fact was established. Our supreme court has held that “[i]ssues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position.” Price, 920 So.2d at 488 (¶ 10) (citing Am, Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). However, Turner rests upon the mere denials of her pleadings and does “not set forth specific facts showing that there is a genuine issue of for trial.” Id. at 483-84 (¶ 10) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss. 2005)). Furthermore, although Turner did file an affidavit, she never swore that she did not owe the debt, nor did she dispute the amount of debt. For these reasons, the circuit court did not err in finding that there is no genuine issue of material fact as to whether Turner owed Trustmark the debt.

¶ 7. Additionally, Turner argues that Trustmark failed to comply with the FDCPA, which required Trustmark to give Turner notice of the debt and an opportunity to dispute the debt pursuant to 15 United States Code Annotated section 1692g(a) (2006). Turner argues that although notice was provided, it did not comply with the FDCPA because it was attached to the complaint. According to 15 United States Code Annotated section 1692g(d) (2006), “[a] communication in the form of a formal pleading in a civil action shall not be treated as an initial communi-eation[.]”

¶ 8. However, notice was attached to the complaint and the summons. Although a summons is usually served with a complaint, a summons is not defined as a pleading under Mississippi Rule of Civil Procedure 7(a). Furthermore, other courts have held that notice attached to a summons and complaint may constitute an initial communication. See Sprouse v. City Credits Co., 126 F.Supp.2d 1088, 1089 n. 8 (S.D.Ohio 2000) (finding that a summons and complaint served in a state court action constitute “initial communications” under the FDCPA); see also Senftle v. Landau, 390 F.Supp.2d 463, 472 (D.Md.2005) (finding that a summons and complaint may constitute an “initial communication”). For these reasons, this issue is without merit.

CONCLUSION

¶ 9. Because we find there are no genuine issues of material fact, the judgment of the circuit court is affirmed.

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

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

      . Trustmark's counsel is a debt collector as defined in 15 United States Code Annotated section 1692a(6), which states in pertinent part:
      The term "debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

      . Section 1692g(a) provides in pertinent part: "Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice[.]” (Emphasis added).

      .Rule 7(a) provides:
      There shall be a complaint and an answer, a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person, who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except the court may order a reply to an answer or a third-party answer.


author: LEE, C.J.,

text:
    MORAN HAULING INC., Appellant v. DEPARTMENT OF FINANCE AND ADMINISTRATION, Appellee.
    No. 2011-SA-00677-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2012.

      Christopher Solop, attorney for appellant.
    Office of the Attorney General by Harold Edward Pizzetta III, Aubrey Leigh Goodwin, Lowry Christopher Lomax, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Moran Hauling Inc. (“Moran”) submitted a bid to the Department of Finance and Administration (“DFA”) through the Bureau of Building, Grounds and Real Property Management (“BOB”) for the reconstruction of Buccaneer State Park.

¶ 2. BOB and the Public Procurement and Review Board (“PPRB”) are offices within DFA. BOB is a building authority that assists state agencies and the like with construction projects. PPRB is empowered to approve state contracts, review bid decisions, and adopt contract regulations. In this ease, DFA through BOB is the determining agency, and PPRB is the appellate, de novo review board. For the purposes of this opinion, we refer to DFA, BOB, and PPRB collectively as DFA, unless otherwise noted.

¶ 3. DFA determined Moran’s bid to be nonresponsive. Moran appeals, arguing: (1) the circuit court erred in affirming DFA’s rejection of Moran’s bid because it was supported by substantial evidence; and (2) DFA’s rejection of Moran’s bid was in violation of the Mississippi’s procurement statutes and regulations.

FACTS AND PROCEDURAL HISTORY

¶ 4. DFA solicited bids for Phase I of the reconstruction of Buccaneer State Park in Waveland, Mississippi. The bids were opened on July 3, 2008.

¶ 5. Moran submitted a bid of $3,629,406.24 on the required proposal form. One section of the form asked if the value of the mechanical subcontract exceeded $50,000, and if so, the contractor was required to list the subcontractor’s name and certificate-of-responsibility (“COR”) number. Another section of the form asked if the value of the electrical subcontract exceeded $50,000, and if so, the contractor was required to list the subcontractor’s name and COR number. Moran answered “No” to both the mechanical and the electrical subcontract questions. Moran was the only contractor of the three that submitted bids to value the project’s mechanical and electrical portions below $50,000 each, and therefore, was the only contractor to answer “No.”

¶ 6. Guild Hardy Architects (“Guild”) contacted Moran to verify its bid. Initially, Moran informed Guild that Moran intended to self-perform the work; therefore, no subcontractors would be hired for the mechanical or electrical portions of the job. The next day, Moran changed its mind and informed Guild that Ace Contractors Inc. (“Ace”) would be subcontracted for both the mechanical and electrical work.

¶ 7. Moran received notification that its bid was nonresponsive, and as a result, it was rejected. DFA accepted GM & R Construction Inc.’s bid of $3,808,800 as the lowest and best bid. Moran filed a protest with BOB, claiming DFA’s rejection of the bid was unreasonable, arbitrary, capricious, and in violation of the regulations for the State Board of Contractors and DFA’s regulations pertaining to submission of subcontractors. BOB affirmed its original determination that Moran’s bid was nonresponsive. Moran requested reconsideration and a hearing before PPRB. A hearing was held, and after a de novo review, Moran’s bid was found to be non-responsive. Moran appealed to the Hinds County Circuit Court, which ruled in favor of DFA. This appeal followed.

STANDARD OF REVIEW

¶ 8. When reviewing an administrative agency’s decision, this Court is limited in its review and will only determine “whether or not the order of the administrative agency (1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.” Tillmon v. Miss. State Dep’t of Health, 749 So.2d 1017, 1021 (¶ 15) (Miss.1999). “Substantial evidence means something more than a ‘mere scintilla’ or suspicion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000). The Mississippi Supreme Court has further defined substantial evidence as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. When addressing an administrative agency’s decision, if it “is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Id. at 430 (¶ 35).

¶ 9. Additionally, “the agency’s interpretation of its own rules and statutes which govern its operation” are given great deference. Tillmon, 749 So.2d at 1020 (¶ 15).

DISCUSSION

I. DFA’S DETERMINATION

¶ 10. When submitting a bid to BOB, contractors must ensure the bid is timely and accurately completed according to BOB’s manual and the instructions to bidders in order for the bid to be deemed “responsive.”

¶ 11. The bid-proposal form contained a portion pertaining specifically to the mechanical and electrical aspects of the project. The portion of the form questioned:

Mechanical and Electrical Subcontractors (5.05 of Bidder’s Checklist)
Is the value of the MECHANICAL SUBCONTRACT over $50,000.00? Yes _No_
If yes, the mechanical subcontractor’s name and Certificate of Responsibility Number (COR) must be provided in its entirety at the time this proposal is submitted.
Mechanical Subcontractor:
Name_COR No-Is the value of the ELECTRICAL SUBCONTRACT over $50,000.00? Yes_ No_
If yes, the electrical subcontractor’s name and Certificate of Responsibility Number (COR) must be provided in its entirety at the time this proposal is submitted.
Electrical Subcontractor:
Name_COR No_

Moran checked “No” to both questions and, as a result, did not provide the names of a mechanical or electrical subcontractor.

¶ 12. According to Moran, it had originally planned to perform the mechanical and electrical aspects of the project “in-house.” Yet its in-house mechanical and electrical contractors did not hold current COR numbers and were incapable of performing the work. By the time Moran attempted to name a subcontractor for the mechanical and electrical work, eight days had passed since the bids were opened, making the submission untimely.

¶ 18. DFA’s determination that Moran’s bid was inaccurate and nonresponsive was based on substantial evidence and was not arbitrary and capricious. Therefore, the circuit court did not err in affirming DFA’s determination. This issue is without merit.

II. DFA RULES AND REGULATIONS

¶ 14. Moran also contends the circuit court erred in affirming DFA’s decision because DFA’s explanation for rejecting the bid was inconsistent with Mississippi’s procurement statutes and regulations. DFA’s Procedure Manual section 600.55 states that a general contractor is to submit a list of “all Subcontractors to be used on the Project within seven (7) days after written notice of contract award.” Moran claims that DFA’s determination that its bid was nonresponsive because it failed to list the mechanical and electrical subcontractors is in direct violation of the seven-day rule present in section 600.55.

¶ 15. Moran ignores the fact that the proposal form repeatedly stated that if the mechanical and electrical jobs exceeded $50,000, the subcontractors for those jobs were to be listed. If a term of a contract is ambiguous, “specific clauses in a contract are to be given greater weight than general ones.” Estate of Parker v. Dorchah, 673 So.2d 1879, 1382 (Miss.1996). Here, the specific requirement for listing mechanical and electrical subcontractors supercedes the general listing of subcontractors in section 600.55.

¶ 16. Moran argues that if DFA intends to declare any bid that does not list subcontractors as nonresponsive, then this authority must be reflected in its regulations and instructions to bidders. Moran’s bid was declared nonresponsive because: it was inaccurate in its valuation of the mechanical and electrical portions of the project; it failed to disclose a certified subcontractor capable of doing the work; and its attempts to cure the bid’s nonresponsiveness were inaccurate and untimely. DFA did not determine the bid to be nonrespon-sive simply on the failure to list subcontractors. As noted above, DFA clearly listed in the proposal form if the mechanical and electrical portions of the job exceeded $50,000, the bidder was required to list the respective subcontractors performing the work.

¶ 17. Additionally, great deference is afforded to the agency when interpreting its own rules and statutes. Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989). And “[t]he burden of proof rests with the party challenging the actions of an administrative agency.” Id. Moran failed to show that DFA acted arbitrarily or capriciously in interpreting its own rules and statutes. This issue is without merit.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


author: ISHEE, J., FAIR, J.,

text:
    Ronald H. JORDAN, Jr., Appellant v. Stacy Lee JORDAN, Appellee.
    No. 2011-CA-01361-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Jones County Chancery Court, Franklin C. McKenzie Jr., J.
    Elizabeth P. Todd, for appellant.
    Jerry D. Sharp, for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, the Jones County Chancery Court issued a final judgment regarding child support and child custody of Ronald and Stacy Jordan’s minor child, Joshua, following the Jordans’ 2010 divorce. The chancery court awarded primary physical custody of the child to Stacy, with the parties sharing joint legal custody. Ronald was granted visitation rights. The chancery court also ordered Ronald to contribute to Stacy’s attorney’s fees. Ronald filed a motion to alter or amend the final judgment or, in the alternative, for a new trial. The motion was denied. Aggrieved, Ronald appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. The Jordans were married in 2007, and Stacy gave birth to their son in November 2009. The couple separated prior to Joshua’s birth, and Stacy filed for divorce in December 2009. After a trial, the divorce was finalized in 2010 when the chancery court issued its findings of fact and conclusions of law.

¶ 3. The chancery court noted that testimony provided at trial did not indicate that either parent was unfit or lacked parenting skills. Notably, Stacy’s ex-husband, Kevin McQuirter, testified that she is a good mother and that he is very pleased with the mothering she provides to McQuirter and Stacy’s two children, who reside in Stacy’s home. In sum, the chancery court stated that neither parent “was deficient in most of the [Albright ] factors. [The parties’] disagreement is that Ronald asks ... to [be awarded] joint physical custody of Joshua[,] and Stacy argues the opposite[ ].”

¶ 4. The chancery court determined that the parties were neutral with regard to all Albright factors except for three: (1) age of the child, (2) continuity of care prior to the separation, and (3) employment responsibilities. At the time of the chancery court’s findings in February 2011, Joshua was just over one year old. Since Joshua was, and is, “of tender years,” the chancery court determined that this Albright factor favored Stacy. Additionally, since Stacy had been Joshua’s primary caregiver since he was born, the continuity-of-care factor also favored Stacy.

¶ 5. Stacy was a stay-at-home mother from the time Joshua was born until the chancery court entered its findings. However, her intention had always been to return to work. Stacy had been hired for work, but had not yet started her job. As such, her future employer testified on her behalf and stated that Stacy’s work schedule and environment would be extremely flexible. Stacy would be able to bring Joshua to work with her every day. By contrast, Ronald has a mandatory forty-hour work week that often requires additional hours. Although his work week is condensed to four days instead of five, his job as an officer with the Mississippi Department of Marine Resources requires him to travel often. Furthermore, Ronald admitted that he would not be able to take Joshua to work with him. Regardless, Ronald stated he does not think his work environment would be a suitable daily location for Joshua. Thus, the chancery court found the employment-responsibilities factor favored Stacy.

¶ 6. Finally, Stacy testified as to her inability to pay her attorney’s fees. Since she is a stay-at-home mother, she has no source of income. Despite the fact that Ronald has a job, he and Stacy have had to borrow money from family members to pay for their respective attorneys’ fees. However, Stacy testified regarding Ronald’s “excessive” filings, which she claims were meritless and have increased her attorney’s fees substantially. Accordingly, the chancery court awarded Stacy a portion of her attorney’s fees.

¶ 7. Soon after the chancery court entered its findings of fact and conclusions of law, Ronald filed a motion for a new trial, to correct a mistake, and to amend the findings of fact and conclusions of law. After reviewing Ronald’s motion, oral evidence, and documentary evidence, the chancery court entered a final judgment with regard to child custody and attorney’s fees, among other issues. In its order, the chancery court granted joint legal custody to both parties but awarded primary physical custody to Stacy. Ronald was awarded visitation.

¶ 8. Ronald’s visitation schedule included every other weekend and one day during each week. During Christmas holidays, Stacy and Ronald were granted one week each during the week before and the week after Christmas day. The week each party was granted alternated every year. Thanksgiving holidays also alternated between the parties each year, as did Joshua’s school’s spring holidays. Ronald was granted Father’s Day, and Stacy was granted Mother’s Day. The party not having custody of Joshua on his birthday was granted visitation from 4:00 p.m. until 7:00 p.m. on that day. Additionally, Ronald was granted two weeks and one extra weekend during the child’s summer vacation until Joshua reaches the first grade. Once he reaches the first grade, the parties were ordered to alternate custody during the summer vacation on an every-other-week schedule.

¶ 9. Finally, Ronald was ordered to contribute $8,418.14 toward Stacy’s $8,418.14 in attorney’s fees. This amount was ordered to be paid to Stacy in increments of $100 per month until paid in full. Ronald timely filed an appeal challenging the chancery court’s award of primary physical custody, the award of visitation, and the award of attorney’s fees.

DISCUSSION

¶ 10. “[W]hen considering the decisions of a chancellor on appeal, this Court has a limited standard of review.” In re the Matter of the Conservatorship of the Estate of Loyd, 868 So.2d 363, 367 (¶ 11) (Miss.Ct.App.2003) (citing McNeil v. Hester, 753 So.2d 1057, 1063 (¶21) (Miss.2000)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So.3d 1134, 1137 (¶ 6) (Miss.Ct.App.2012) (citing Buford v. Logue, 832 So.2d 594, 600 (¶ 14) (Miss.Ct.App.2002) (citation omitted)).

I. Custody

¶ 11. Ronald first challenges the chancery court’s award of physical custody to Stacy. The case of Albright v. Albright, 437 So.2d 1003 (Miss.1983), provides the requisite test for determining child custody in custody disputes. Ultimately, the “polestar consideration in child custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005.

¶ 12. The Albright test weighs the following factors:

Age[,] ... health, and sex of the child; a determination of the parent 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 the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; 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 parent[;] and other factors relevant to the parent-child relationship.

Id,

¶ 13. Ronald specifically challenges the chancery court’s order by asserting that the chancellor failed to make specific findings of fact as required by law. See Powell v. Ayars, 792 So.2d 240, 243 (¶ 5) (Miss.2001). However, a review of the chancery court’s order belies Ronald’s claim. The chancery court addressed four Albright factors that favored Stacy and further stated the remaining Albright factors were neutral.

¶ 14. With regard to the age, health, and sex of the child, the chancery court recognized that Joshua is a child of tender years, and although Ronald has shown that he can care for the child over a weekend, Stacy’s involvement in Joshua’s life at this age is paramount. In relation to Stacy’s parenting role at this stage, the chancery court also noted that Stacy has been Joshua’s primary caregiver since his birth, with Ronald only having weekend visitations. As such, Joshua has been accustomed to Stacy providing the continuity of primary care for him since his birth.

¶ 15. Additionally, Stacy’s employment circumstances are far more favorable than Ronald’s. The chancery court acknowledged that Ronald has a full-time job requiring a mandatory forty-hour work week with frequent overtime hours and travel. By contrast, Stacy is currently a stay-at-home mother. However, her future employer testified as to Stacy’s flexibility in her job and her ability to bring Joshua to work with her. Ronald admitted that he could not bring Joshua to work with him and that his work environment would not be conducive to a child. Ronald was also unable to provide a solution to how he would care for Joshua during the work week if he receives physical custody. Accordingly, the chancery court did not err in finding that Stacy is favored with regard to employment responsibilities, the willingness and capacity to provide primary child care, and stability of the home environment and employment.

¶ 16. With regard to parenting skills and moral fitness, while neither party was shown to be lacking in either category, Stacy’s ex-husband testified as to his satisfaction with Stacy’s parents skills for their two children, who reside with Stacy. Since Stacy already has these two children for whom she continues to care, she has more experience with raising a child. Furthermore, her ex-husband’s testimony provides support for her capabilities as a mother.

¶ 17. Finally, the child’s age negates several of the factors, including the child’s preference and the child’s home, school, and community record. Thus, we agree with the chancery court’s determination that the remaining Albright factors favor neither party. As such, we find no reversible error in the chancery court’s determination of custody. This issue is without merit.

II. Visitation

¶ 18. We next address Ronald’s claim that he did not receive sufficient visitation. Ronald’s visitation comprises the following:

(1) Every other weekend;
(2) One weekday each week;
(3) One week during the Christmas holidays;
(4) Thanksgiving holidays every other year;
(5) Father’s Day;
(6) 4:00 p.m. until 7:00 p.m. on Joshua’s birthday if Ronald does not have custody on that day;
(7) Two weeks and one extra weekend during the summer until Joshua reaches the first grade; and
(8) Every other week during Joshua’s summer vacation after he reaches the first grade.

¶ 19. Ronald’s entire argument regarding this issue is comprised of one paragraph. Therein, he specifically complains that the chancery court “failed to address holiday or extended summer visitation.” To the contrary, the chancery court adequately discussed holidays and summer vacations. The chancellor provided Ronald substantial holiday visitation and made specific provisions for Thanksgiving, Christmas, Father’s Day, and Joshua’s birthday. Additionally, not only did the chancellor grant Ronald current summer visitation, he even addressed Joshua’s summer vacation after he reaches of school age. This issue is without merit.

III. Attorney’s Fees

¶ 20. Finally, Ronald asserts that the chancery court erred in granting Stacy attorney’s fees. We have held that “unless the chancellor is manifestly wrong, his decision regarding attorneyfs] fees will not be disturbed on appeal.” Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992) (citation omitted). An award of attorney’s fees should be “fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.” Id. at 1286 (citation omitted).

¶ 21. Here, Ronald has failed to present any evidence that the attorney’s fees in question fall outside of the purview of awardable attorney’s fees. The record indicates the fees in question were rendered by Stacy’s attorney during the litigation of the case at hand. Furthermore, the record substantiates Stacy’s inability to pay her attorney’s fees. We cannot find that the chancellor was manifestly wrong in his determination. This issue is also merit-less.

¶ 22. THE JUDGMENT OF THE JONES 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 RUSSELL, JJ., CONCUR. FAIR, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ROBERTS, MAXWELL AND RUSSELL, JJ.

FAIR, J.,

specially concurring:

¶ 23. I write separately to address the award of attorney’s fees by a trial judge, a subject the Mississippi Supreme Court has discussed directly only twice in the last five years.

¶ 24. It is not disputed by judges and practitioners that the “best practice” in awarding fees is a ruling by the trial judge in which each of the factors set out in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), is specifically addressed.

¶ 25. Ronald argues that the lack of such a discussion should require mandatory reversal as is the case in other “factor determination” cases. See Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009) (factor tests, as provided in Ferguson and Armstrong, must be considered on the record in every case); Powell v. Ayars, 792 So.2d 240, 244 (¶ 8) (Miss.2001) (holding failure of trial court to address each Al-bright factor in awarding custody was reversible error).

¶ 26. Not so, says the Mississippi Supreme Court. In West v. West, 88 So.3d 735, 747 (¶ 57) (Miss.2012), the supreme court upheld the chancellor’s award of attorney’s fees “because it was not manifestly wrong.” The court explained that “[a]l-though the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.” Id. at (¶ 58) (citation omitted).

¶ 27. The same standard was applied to a circuit court. In Collins v. Koppers, 59 So.3d 582, 593 (¶ 35) (Miss.2011), the court noted:

The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors.... The judge noted that this litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous. After considering those factors, the court’s knowledge of what is charged for legal services in the area, and all other [McKee] factors, the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.

¶ 28. While I would continue to recommend an on-the-record analysis of each McKee factor to support an award of attorney’s fees, the failure to do so has not been considered reversible error.

GRIFFIS, P.J., ROBERTS, MAXWELL AND RUSSELL, JJ., JOIN THIS OPINION.

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


author: FAIR, J.,

text:
    Alisa Gale ROLISON, Appellant v. Gary Wayne ROLISON, Jr., Appellee.
    No. 2011-CA-00192-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Jason Lee Shelton, Richard Shane McLaughlin, Tupelo, attorneys for appellant.
    Jak McGee Smith, Tupelo, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. After twenty years of marriage, Gary and Alisa Rolison were divorced on the ground of Alisa’s adultery. Alisa appeals the chancellor’s judgment awarding custody of their four children to Gary, asserting that the chancellor failed to apply the history-of-domestic-violence presumption, failed to consider the children’s preference, disregarded reports of the guardian ad litem (GAL) and the Department of Human Services (DHS), and punished her for adultery. Finding that the chancellor’s decision was within his discretion, discussed appropriately on the record, and supported by the evidence, we affirm.

FACTS

¶ 2. The chancellor held a bifurcated trial and first considered grounds for divorce and custody. In his bench opinion, the chancellor stated that he was not happy with either of the parents. The GAL submitted a written report and recommended that custody of the oldest child, a seventeen-year-old girl with behavioral problems, be awarded to Alisa and that custody of the three other children be awarded to Gary. DHS also conducted an investigation, and its caseworker made the same recommendation. Ultimately, the chancellor rejected the expressed preference of the two oldest children and the recommendations of the GAL and DHS.

¶ 3. On appeal, Alisa asserts four errors: (1) the chancellor did not apply the family-violence statutory presumption; (2) the chancellor improperly rejected the custody recommendations of the GAL and the DHS caseworker; (3) the chancellor failed to explain why he disregarded the children’s preference; and (4) the chancellor punished her for adultery by awarding custody to Gary. Alisa requests that this Court reverse the chancellor’s custody decision and order him to explain his reasoning in compliance with the established requirements for custody decisions.

STANDARD OF REVIEW

¶ 4. This Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Benal v. Benal, 22 So.3d 369, 372 (¶ 4) (Miss.Ct.App.2009) (quoting Chapel v. Chapel, 876 So.2d 290, 292 (¶ 8) (Miss.2004)). If the chancellor’s findings are supported by substantial evidence, then we will affirm. Minter v. Minter, 29 So.3d 840, 850 (¶ 36) (Miss.Ct.App.2009).

DISCUSSION

1. History of Perpetrating Family Violence

¶ 5. Mississippi Code Annotated section 93-5-24 (Rev.2004) provides for determination of child custody in divorce cases. Subsection (9)(a)(i) establishes a rebuttable presumption regarding family violence:

[I]t is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.

¶ 6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss.Code Ann. § 93-5-24.

¶ 7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So.2d 975 (Miss.2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶ 11-12). The supreme court upheld awarding custody to the maternal grandparents explaining:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue.

J.P., 987 So.2d at 981-82 (¶ 16).

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss.Code Ann. § 93-5-24.

¶ 9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶ 10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶ 11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So.3d 840, 844 (¶¶ 15-19) (Miss.Ct.App.2012).

2. The Albright Factors

¶ 12. Alisa directs this Court’s attention to the chancellor’s discussion of only one Albright factor — the expressed preference of a child for his custodial parent. The statute requires the chancellor to explain why the child’s preference was not followed, and Alisa asserts the chancellor failed to do so. See Mississippi Code Annotated § 93-11-65 (Supp.2012). Her appeal, however, implies a desire for a change in result, so we briefly discuss the other factors.

a. The Other Factors

¶ 13. The chancellor addressed each Al-bright factor and discussed them individually. The oldest child is in counseling, but nothing under this factor favored one parent over the other. Continuity of care was with Alisa prior to separation. The chancellor found that both parents had faults and judged their parenting skills equal. Both had a willingness and capacity to provide primary care.

¶ 14. Alisa is a teacher, and Gary works in his family’s logging operation. Both have stable employment, but Gary has worked longer. They have similar employment responsibilities, and neither had a job less favorable than the other. Both parents are about forty and physically healthy, though Alisa suffers from psychological disorders for which she is taking medication. Each parent is loved by the children equally, but the moral-fitness factor favored Gary. Both have decent homes, and the children would attend the same schools from either home. Gary had a more stable home environment because of Alisa’s on-again, off-again relationship with her boyfriend.

b. Children’s Preference

¶ 15. The two oldest children expressed a preference to reside with their mother, although one would prefer joint custody over being forced to choose. The two youngest expressed no preference because they were not eligible to do so. When the chancellor rejected the preference of the older two children, it triggered a statutory discussion requirement.

¶ 16. Mississippi Code Annotated section 93-11-65 (Supp.2012) is another legislative enactment that requires a chancellor to explain his decision and is likely the statutory basis for the required Albright analysis. After establishing that a child over twelve years old may express a custodial preference to the chancellor, the statute provides: “The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored. Miss. Code Ann. § 93-ll-35(l)(a).

¶ 17. The oldest daughter expressed conflicting preferences regarding custody, and the chancellor discussed his reasons for not honoring her wishes: “I think the reason that [the seventeen year old] wants to live with mother is because [she] can call the shots.... I think it’s her wanting to be the chief.”

¶ 18. The chancellor also discussed a few specific examples of conduct that caused concern. Alisa reconnected with a male friend from college whom she had not seen in twenty years. With her children in the house, Alisa slept in same bed as her friend and allowed his teenaged son to sleep with her oldest daughter. The chancellor found that this is when the daughter began having sexual intercourse. Since that time, she has also had sex with others while in the temporary custody of her mother.

¶ 19. A school teacher testified that Alisa drank, smoked marijuana, and acted like a teenager after she and Gary separated. Alisa exposed her teenaged daughter to her boyfriend in violation of a temporary court order, and she was arrested for using a credit card taken from a purse she found in a parking lot. She told the children “it’s just like finding a hundred dollar bill on the side of the road.”

¶ 20. We find that the chancellor appropriately explained his reasons for awarding custody to Gary instead of Alisa, even though the oldest children expressed a preference to reside with their mother.

3. GAL and DHS Reports

¶ 21. In his bench opinion, the trial judge opined:

The Court has read the guardian ad litem’s report. I have all of the respect in the world for [the GAL][;] he has been guardian ad litem in this court for a long time on numerous cases. He is very thorough. He’s very good at it and probably the best I’ve ever seen. And I have a lot of respect for [DHS employee][;] I’ve known her since she’s been— I’ve been judging she’s been DHS, and she does a good job and she’s given me a report. And I’ve taken into consideration both of the reports.

¶ 22. After discussing the Albright factors, the chancellor noted that the DHS employee made the same recommendation as the GAL — award custody of the oldest child to her mother and custody of the three younger children to their father. “I’m not going to accept those recommendations,” the chancellor said, adding that it is “the first time that I have not accepted the recommendations.”

¶ 23. It is clear that the chancellor was worried about the oldest daughter. There was evidence that she seemed to be doing well with her father. For the six months preceding the hearing, she and her father had experienced no problems, and she gave a statement at one point in the proceedings that she preferred him as her custodial parent. There was also concern over keeping the siblings together and Alisa’s complicity in her oldest child’s promiscuity.

¶ 24. The chancellor properly discussed the recommendation of the GAL and the DHS caseworker and explained his reasons for deviating from their suggestion. See Floyd v. Floyd, 949 So.2d 26, 29 (¶8) (Miss.2007). The stated reasons are sufficient to support the chancellor’s decision.

4. Punishment for Adultery

¶ 25. Alisa claims the chancellor improperly punished her for committing adultery by awarding custody of the children to Gary. This asserted error is based on a typographical error in the trial record. The transcript has since been corrected by the court reporter with the con-

sent of counsel for both parties. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . This Court rendered a similar decision in Lawrence v. Lawrence, 956 So.2d 251, 260-61 (¶¶ 33-35) (Miss.Ct.App.2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So.3d 840, 844 (¶¶ 15-19) (Miss.Ct.App.2012).

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


text:
    Joseph F. TATUM III, Appellant v. Lauren D. TATUM, Appellee.
    No. 2011-CA-01795-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      David Alan Pumford, Hattiesburg, attorney for appellant.
    Michael V. Ratliff, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Joseph F. Tatum III appeals the judgment of the Lamar County Chancery Court. Joseph argues that the chancery court erred in: (1) awarding relief beyond that specifically ordered pursuant to this Court’s prior mandate; (2) awarding attorney’s fees; (3) awarding attorney’s fees incurred on appeal; and (4) awarding any further relief when Lauren D. Tatum came to the court with unclean hands. Finding that the chancery court erred by exceeding the scope of this Court’s mandate by awarding interest, we reverse and render the chancery court’s award of interest. With respect to attorney’s fees, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 20, 2008, the chancery court granted a divorce in favor of Lauren against Joseph on the ground of adultery. On October 1, 2008, in a judgment regarding child custody, visitation, distribution of property and support, the chancery court awarded Lauren $15,500 in attorney’s fees in addition to the $4,500 already paid to her attorney. After the chancery court denied both Joseph’s and Lauren’s post-trial motions, Joseph filed a notice of appeal on November 12, 2008. He asserted that the chancellor failed to properly consider the McKee factors and applicable law governing the award of attorney’s fees. On July 20, 2010, this Court rendered an opinion reversing and remanding in part for a determination of the amount of attorney’s fees to be awarded using the factors outlined in McKee. Further, on March 17, 2011, this Court issued a mandate to the chancery court. On April 19, 2011, Lauren filed a motion in the chancery court to determine attorney’s fees and interest. After a hearing on the attorney’s fees, on June 15, 2011, the chancery court awarded Lauren attorney’s fees totaling $26,237.50 as well as interest on the amount awarded to her in the divorce judgment. On December 2, 2011, Joseph filed notice of this appeal.

DISCUSSION

¶ 3. “This Court applies a limited standard of review to a chancellor’s findings of fact.” A.B. v. Y.Z., 60 So.3d 737, 739 (¶ 11) (Miss.2011) (citing Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002)). “The chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, [was] clearly erroneous[,] or applied an incorrect legal standard.” Id. However, questions of law are reviewed de novo. Estate of Davis v. O’Neill, 42 So.3d 520, 524 (¶ 15) (Miss.2010) (citing Corporate Mgmt., Inc. v. Greene Cnty., 23 So.3d 454, 459 (¶ 11) (Miss.2009)).

I. Whether the chancery court erred in awarding relief beyond that specifically ordered pursuant to the mandate of this Court.

¶4. Joseph argues that the chancery court erred in awarding relief beyond that specifically ordered pursuant to the mandate of this Court. Specifically, Joseph argues that the chancery court erred in awarding Lauren post-judgment interest when the mandate of this Court provided no instructions for interest on the judgment. We agree.

¶ 5. Mississippi Rule of Appellate Procedure 37 states:

Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date [the] judgment was entered in the court or commission below. If a judgment is modified or reversed with [the] direction that a judgment for money be entered in the court below, the mandate shall contain instructions with respect to the allowance of interest.

(Emphasis added).

¶ 6. In Freeman v. Public Employees’ Retirement System, 822 So.2d 274, 276 (¶ 2) (Miss.2002) (Freeman I), the circuit court affirmed the decision of the Public Employees’ Retirement System (PERS) Board of Trustees to discontinue Freeman’s disability benefits. On appeal, our supreme court held: “[T]he judgments of the circuit court and PERS are reversed, and this case is remanded to the circuit court with instructions to remand to PERS for reinstatement of Freeman’s disability-status and his benefits, with back pay from the date of the termination of those benefits.” Id. at 283 (¶ 30). Subsequently, our supreme court issued a mandate providing: “You are commanded[ ] that execution and further proceedings as may be appropriate be forthwith ... had consistent with this judgment and the Constitution and Law of the State of Mississippi.” Pub. Employees’ Ret. Sys. v. Freeman, 868 So.2d 327, 328 (¶ 1) (Miss.2004) (Freeman II). On remand, the circuit court ordered reinstatement of Freeman’s disability status with benefits and back pay and payment of interest on unpaid benefits. Id. at (¶ 2). PERS appealed, and our supreme court held that its mandate did not address interest. Id. at 330 (¶ 11). Rather, the mandate “simply ordered reinstatement of Freeman’s disability status and his benefits with back pay only.” Id. Therefore, our supreme court held that the circuit court exceeded the scope of the mandate. Id. at 331 (¶ 11).

¶ 7. Because the mandate in this case did not contain instructions with respect to the allowance of interest, the chancery court did not have authority to grant post-judgment interest on its own initiative. For this reason, we find that the chancery court exceeded the scope of our mandate with respect to the award of post-judgment interest. Therefore, we reverse and render the award of post-judgment interest on this issue.

II. Whether the chancery court erred in awarding attorney’s fees.

¶ 8. Joseph argues that the chancery court erred in awarding attorney’s fees, because Lauren failed to present evidence under the McKee factors to support an award of attorney’s fees. Specifically, Joseph argues that Lauren failed to show her inability to pay her own attorney’s fees, and her assets enabled her to pay her own fees. We disagree.

¶ 9. “The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor.” Rhodes v. Rhodes, 52 So.3d 430, 449 (¶ 77) (Miss.Ct.App.2011) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). “ ‘We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney’s fees[.]’” Id. (quoting Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)). In McKee, the Mississippi Supreme Court set forth certain factors to be weighed in awarding attorney’s fees. “In determining an appropriate amount of attorney[’]s fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed.” McKee, 418 So.2d at 767 (citing Rees v. Rees, 188 Miss. 256, 194 So. 750, 751 (1940)).

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id. “An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So.2d 234, 239 (¶26) (Miss.1999) (citing Robison v. Robison, 722 So.2d 601, 605 (¶ 14) (Miss.1998)). “ ‘[W]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees.’ ” Wells v. Wells, 800 So.2d 1239, 1246 (¶ 15) (Miss.Ct. App.2001) (quoting Bates v. Bates, 755 So.2d 478, 482 (¶ 11) (Miss.Ct.App.1999)).

¶ 10. With respect to Lauren’s inability to pay, the chancellor found:

The inability of the party requesting fees to pay: Both parties acknowledged that Lauren had been a stay-at-home mother for several years, and therefore had very limited skills in the marketplace. She had devoted her time in the marriage to raising the couple’s two children!.] As a result, [Lauren was awarded] rehabilitative alimony to allow her to improve her marketable skills and generate income for herself and for the benefit of the children. However, due to the constant appeals and continuous attempts to deny Lauren an equitable distribution of the marital estate, the [c]ourt finds that she has been unable to pay her attorney’s fees. The [c]ourt ... is much aware of the disparity of the earning capacity of the parties and the unknown or unrealized deferred assets that favor Joseph.

¶ 11. Based on the evidence in the record from the first trial as well as the billing statement submitted to the chancery court by Lauren, we find that the chancellor’s determination was based on sufficient evidence and was not an abuse of discretion. For this reason, we find this issue to be without merit.

III. Whether the chancery court erred in awarding attorney’s fees incurred on appeal.

¶ 12. Joseph argues that the chancery court erred in awarding attorney’s fees incurred on appeal. He argues that the chancery court wrongfully awarded these fees on its own initiative and that none were awarded by this Court on appeal. We disagree.

¶ 13. In the opinion handed down by this Court, we assessed all costs of the appeal to Joseph. Therefore, this Court did award attorney’s fees incurred on appeal. The chancery court merely determined the exact amount of attorney’s fees. This issue is without merit.

IV. Whether the chancery court erred in awarding relief when Lauren came to the court with unclean hands.

¶ 14. Joseph argues that Lauren came to the chancery court with unclean hands when she had failed to comply with the terms of this Court’s prior judgment and did not provide a valid reason for not doing so. Specifically, Lauren failed to execute quitclaim deeds to properties awarded to Joseph. Therefore, Joseph argues that Lauren should have been barred from seeking any further relief.

¶ 15. This Court has explained the doctrine of unclean hands as follows:

The principle of “unclean hands” dictates that he who comes into [a court of] equity must come with clean hands.... The meaning of this maxim is to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity.

Chapman v. Ward, 3 So.3d 790, 799 (¶ 29) (Miss.Ct.App.2008) (emphasis added) (quoting Lane v. Lane, 850 So.2d 122, 126 (¶ 11) (Miss.Ct.App.2002)).

[W]henever a party seeks to employ the judicial machinery in order to obtain some remedy[,] and that party has violated good faith or some other equitable principle, “the doors of the court will be shut against him[,]” and “the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.”

Pruitt v. Payne, 14 So.3d 806, 811-12 (¶ 13) (Miss.Ct.App.2009) (quoting R.K. v. J.K., 946 So.2d 764, 774 (¶ 24) (Miss.2007)).

¶ 16. In Pruitt, “[the appellee] initially [sought] help from the chancery court by filing the original habeas corpus proceeding to have his minor children returned to him.” Id. at 812 (¶ 14). However, once his children were returned, “[the appellee] did not seek further aid from the court.” Id. For this reason, this Court found that the appellee was not a complaining party for purposes of the unclean-hands doctrine. Id.

¶ 17. Similarly, Lauren initially filed the complaint for divorce; however, she was no longer the complaining party at the time relief was granted to her. Rather, Lauren was returning to the chancery court pursuant to this Court’s mandate. However, unlike Pruitt, Lauren did seek further aid from the court. After this Court’s mandate but before appearing in chancery court, Lauren filed a motion to determine attorney’s fees and interest on the judgment, which is a request for relief.

¶ 18. Although Lauren may have returned to the court with unclean hands, we need not decide this issue. We find that Lauren returned to the court with respect to attorney’s fees pursuant to this Court’s mandate. Additionally, we have already determined that the chancery court erred in awarding the relief requested by Lauren because the mandate of this Court did not provide instructions for interest on the judgment. Therefore, this issue is moot.

CONCLUSION

¶ 19. Because the chancery court erred by exceeding the scope of this Court’s mandate by awarding interest, we reverse and render the chancery court’s judgment as to the award of interest. With respect to attorney’s fees, we affirm the decision of the chancery court.

¶ 20. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPEL-LEE.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

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

      . The chancery court noted that it generally awards attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court. In this case, one-half of the lower court's sum equals $10,000, for a total of $30,000 in attorney’s fees. The chancery court then subtracted the $4,500 credit and added $737.50 for expenses incurred by Lauren. This comes to $26,237.50.