author: MAXWELL, J., CARLTON, J., RUSSELL, J.,

text:
    In the Matter of the ESTATE OF Joe Howard ESTES, Deceased: Greg Estes and Jeff Estes, Appellants v. Sarah Estes, Appellee.
    No. 2011-CA-01451-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied April 30, 2013.

      T.K. Moffett, attorney for appellants.
    Rhett R. Russell, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. The Mississippi Legislature has conferred upon widows and widowers a statutory allowance of one year’s support for maintenance of the surviving spouse and children. But to receive this so called “widow’s allowance,” the surviving spouse must show he or she was supported by the decedent. Here, Sarah Young Estes (Young) was widowed when her husband, Joe Howard Estes (Estes), to whom she had only been married for nine months, died without providing for Young in his will. Young — who was seeking a divorce from Estes at the time of his death and had been living apart from Estes since his health began sharply declining soon after they married — sought a statutory allowance. Because Young failed to show she was being supported by Estes, we find the chancellor erred by awarding her a $12,000 widow’s allowance. Thus, we reverse and render this award.

¶ 2. Because we find the chancellor erroneously applied the law regarding a widow’s right to take a child’s share of the estate, we also reverse the chancellor’s award to Young of one-fifth of Estes’s estate, or $68,927.63. When a widow has clearly deserted or abandoned the marriage, she is estopped from claiming a statutory right to an inheritance. And while the chancellor heard evidence of Young’s abandonment, he made no finding concerning estoppel. We therefore remand for a determination of whether Young clearly deserted or abandoned the marriage and, thus, was estopped from claiming a statutory right to an inheritance.

Background

¶ 3. Estes married Young on August 3, 2006. Shortly after they married, Estes suffered multiple health complications, requiring an amputation of one leg and surgery to clear a blocked artery. In late 2006, Young permanently moved from Estes’s residence back into her own home. She filed for divorce from Estes a few months later.

¶ 4. While the divorce was still pending, Estes died testate on May 18, 2007, leaving Young and four children, who were not born of the marriage between Estes and Young. Estes’s will named as co-executors his two sons, Greg Estes and Jeff Estes, who immediately probated Estes’s will in the Lee County Chancery Court. Because the will contained no provision for Young, she renounced it and filed a petition to appoint appraisers and for one year’s support.

¶ 5. Four years of contentious probate ensued. During this protracted fight, the co-executors challenged both the appraisal of Estes’s estate and Young’s separate property, as well as Young’s right to a statutory widow’s allowance and child’s share of the estate. At a April 26, 2011 hearing, the co-executors put on lengthy testimony of Young’s abandonment and mistreatment of Estes. The co-executors argued Young’s desertion and dereliction of her marital duties should result in her having no interest in their father’s estate. As they saw it, Young’s acts were akin to those of the wife in Byars v. Gholson, 147 Miss. 460, 465, 112 So. 578, 578-79 (1927), in which the Mississippi Supreme Court held that a voluntarily estranged wife was not entitled to a widow’s allowance. Having considered the evidence of desertion in determining whether Young should receive a widow’s allowance under Mississippi Code Annotated sections 91-7-135 and 91-7-141 (Rev.2004), the chancellor ordered Estes’s estate to pay Young an allowance of $12,000.

¶ 6. But the chancellor did not consider evidence of Young’s abandonment of the marriage when ordering that Young was entitled to one-fifth of the estate under Mississippi Code Annotated section 91-5-27 (Rev.2004). Though acknowledging the co-executors’ argument — that because of Young’s actions, she was not entitled to inherit — had factual support, the chancellor held it lacked legal support. According to the chancellor, “like it or not,” Young had an “automatic” right to inherit under the statute, without any legal exception.

¶ 7. Subtracting the $12,000 widow’s allowance from the estate, the chancellor then calculated Young’s one-fifth portion to be $68,927.63. With the allowance, Young was to receive a total of $80,927.63.

¶ 8. The chancellor later entered a final judgment resolving the remaining disputed issues. The co-executors timely appealed, arguing the chancellor improperly awarded Young a widow’s share’ despite her abandonment of the marriage and improperly valued both Estes’s and Young’s estates when awarding Young a one-fifth share of Estes’s estate. Because we find the chancellor abused his discretion and applied an erroneous legal standard when considering the evidence of Young’s abandonment of the marriage and its effect on her statutory rights as Estes’s widow, we need not reach the valuation issue.

Discussion

¶ 9. The chancellor made two findings regarding Young’s statutory rights as Estes’s widow—(1) that she was entitled to $12,000 as a widow’s allowance for one year’s support and (2) that she had an automatic right to one-fifth of the estate. We will not disturb a chancellor’s findings “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)).

I. Widow’s Allowance

¶ 10. A widow or widower who was , dependent on the surviving spouse is statutorily entitled to a year’s allowance for his or her maintenance and that of the children, if any. Section 91-7-135 imposes a duty on “the appraisers [of an estate] to set apart out of the effects of the decedent, for the spouse and children who were being supported by the decedent, or for the spouse if there be no such children, or for such children if there be no spouse, one (1) year’s provision[.]” Miss.Code Ann. § 91-7-135. This provision may take the form of money “necessary for the comfortable support of the spouse and children, or spouse or children, as the case may be, for one (1) year.” Id.

¶ 11. Under section 91-7-141, the chancery court has discretion to “apportion the one year’s allowance, or any part of it, according to the situation, rights, and interests of any of the children or the widow, and may direct the payment of any portion of the allowance which may be found necessary or proper to any of them.” Miss. Code. Ann. § 91-7-141; see also Bryan v. Quinn, 233 Miss. 366, 368, 102 So.2d 124, 125 (1958) (citations omitted) (“The rule is well settled in this State that the widow’s allowance for one year’s support is within the sound discretion of the chancellor.”).

¶ 12. While the chancellor relied on this statutory authority to award Young a $12,000 widow’s allowance, Young was not “being supported by the decedent” and, thus, not in need of provision from Estes’s estate to make her comfortable. See Miss. Code Ann. § 91-7-135. So we find the award an abuse of discretion.

¶ 13. Our supreme court has clarified that the statute “relative to the widow’s allowance provides that such allowance shall be set aside to the widow and children who were supported by the decedent.” In re Marshall’s Will, 243 Miss. 472, 479, 138 So.2d 482, 484 (1962) (emphasis added). The statute places on the widow “the burden of establishing her claim to a year’s support, [by] showing either that she was being supported by [her husband] at the time of his death or that she was away from him without fault on her part.” Id. Here, Young clearly failed to meet this burden.

¶ 14. It is undisputed that Young left Estes’s home by her own volition after his leg was amputated. And she was living in her own home at the time Estes died. In Byars, the Mississippi Supreme Court held that a widow who had been living apart from her husband, without his fault, and who was not supported by him, was not entitled to one year’s support from his estate. Byars, 147 Miss. at 465, 112 So. at 578. We find the same is true here.

¶ 15. Because we find the widow’s allowance was not supported by substantial evidence of Young’s financial dependence on Estes at the time he died, the chancellor abused his discretion in awarding Young one-year’s support. We reverse the award of a $12,000 widow’s allowance and render judgment against Young’s claim to one-year’s support.

II. Child’s Share of the Estate

¶ 16. The statutory right of a spouse to inherit when not provided for in the deceased spouse’s will does not arise when there is clear desertion and abandonment. Yet the chancellor incorrectly believed it was automatic. So he reasoned he was bound to award Young one-fifth of the estate regardless of whether she had deserted or abandoned the marriage. Since this was a misapplication of law, we reverse the award of $68,927.68 and remand to determine whether Young’s actions met the clear-abandonment standard and estopped her from inheriting from Estes’s estate.

¶ 17. Mississippi Code Annotated section 91-5-25 (Rev.2004) allows a widow whose deceased husband “does not make satisfactory provision” for her in his will to renounce the unsatisfactory provision and elect to take the a child’s share of the estate. See also Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923) (holding second husband not provided for in his deceased wife’s will was entitled to inherit a child’s share of his wife’s real property). Under section 91-5-27, when the husband’s will makes no provision at all for his widow, no renunciation is required — it will be assumed that the widow has elected to take her share of the estate. Miss.Code Ann. § 91-5-27. Thus, the chancellor was correct in one sense that the right to inherit under 91-5-27 is “automatic” because, in contrast to the right under section 91-5-25, no act of renunciation or election of a child’s share is required.

¶ 18. But the chancellor was incorrect that this automatic right to inherit, as if the deceased husband died without a will, arises in every situation without exception. The record shows the chancellor believed his hands were tied regarding Young’s renunciation of Estes’s will and right to inherit one-fifth of the estate. Although acknowledging the evidence supporting Young’s abandonment of the marriage, the chancellor nonetheless awarded her a child’s portion of the estate because he was not aware “of any case law at all that would reflect ... that [Young] somehow would not be entitled to a child’s portion[.]”

¶ 19. But there is Mississippi precedent of this nature. Our supreme court has previously acknowledged the operation of estoppel when a spouse trying to take a child’s share of the estate has deserted or abandoned the marriage. In re Marshall’s Will, 243 Miss, at 478, 138 So.2d at 484; Walker v. Matthews, 191 Miss. 489, 511-12, 3 So.2d 820, 826 (1941); Williams v. Johnston, 148 Miss. 634, 636-37,114 So. 733, 733-34 (1927). In Tillman v. Williams, 403 So.2d 880, 881 (Miss.1981), the supreme court clarified what was required for estoppel: “Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estop-pel.”

¶ 20. While he acknowledged evidence showing Young’s desertion or abandonment of the marriage, the chancellor did not make a finding of clear desertion or abandonment. This was because he mistakenly believed such an estoppel-type finding would have no legal effect on Young’s right to inherit. Since the award of a child’s share of the estate was based on an erroneous application of the law, we reverse the award to Young of one-fifth of the estate and remand for a determination of whether Young’s action met the dear-abandonment standard of Tillman, thus estopping her from inheriting from the Estes’s estate.

¶ 21. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS REVERSED, RENDERED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

CARLTON, J.,

dissenting:

¶22. I respectfully dissent from the majority’s opinion. I submit that the chancellor erred by failing to make a finding regarding the final accounting of Estes’s estate before reducing the gross estate by the widow’s allowance and the expenses of the estate. However, I find no evidence in the record that the chancellor abused his discretion in awarding Young a $12,000 widow’s allowance or in determining the date-of-death value of Young’s property. Therefore, I would reverse the chancery court’s judgment in part and affirm in part.

¶ 23. The record reflects that Estes died testate on May 18, 2007, making no provision in his will for his widow, Young. Young renounced the will and sought one year’s support, otherwise known as a widow’s allowance. The chancery court granted Young a one-fifth share of the estate and a widow’s allowance. The co-executors of the estate now appeal, arguing: (1) Young was not entitled to a widow’s allowance; (2) the chancery court erred in valuing Young’s property; and (3) and the chancery court prematurely apportioned the estate prior to a final accounting.

¶ 24. Young renounced the will and filed a petition to appoint appraisers and for one year’s support and a petition for exclusive possession of the marital home, homestead property, and exempt property. On February 9, 2009, the chancery court issued an order appointing three commissioners to hire an appraiser to conduct an appraisal of Estes’s estate and the date-of-death value of Young’s property. The commissioners filed their report, and the co-executors filed an objection to the report, arguing that the commissioners improperly valued Estes’s real property and Young’s personal and real property. After a hearing on September 8, 2010, the chancery court denied the objection of the co-executors and confirmed the report. The chancery court stated that the co-executors were allowed to retain an expert to appraise Young’s separate property, as long as it was completed and filed in a timely manner. The co-executors filed their expert’s appraisal of Estes’s estate on April 13, 2011. The expert’s appraisal did not contain a valuation of Young’s property.

¶ 25. On June 22, 2011, the chancery court issued an order reaffirming the valuation provided in the commissioners’ report, rejecting the appraisal of the co-executor’s expert, and ruling that Young was entitled to $70,427.63 — representing her one-fifth share of Estes’s estate. The court also awarded her $12,000 as a widow’s allowance.

¶ 26. On August 31, 2011, the chancery court issued an order correcting the prior judgment and reducing the value of Estes’s estate by the $12,000 widow’s allowance prior to apportioning the estate to Young. The court then adjusted Young’s one-fifth interest to reflect that deduction, reducing her share to $68,927.63. Young was to receive a total of $80,927.63, which included her widow’s allowance. Additionally, the court denied Young’s motion for exclusive possession of the marital home, homestead property, and exempt property.

I. WIDOW’S ALLOWANCE

¶ 27. Before turning to the issue of the widow’s allowance, I must preface my discussion by recognizing that a chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Consol. Pipe & Supply Co. v. Cotter, 735 So.2d 958, 961 (¶ 13) (Miss.1999). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss. 2002) (citations omitted).

¶ 28. The record reflects that the chancery court granted Young a widow’s allowance of $12,000 under Mississippi Code Annotated section 91-7-135 (Rev.2004). This section empowers the chancery court to apportion the one year’s allowance “necessary for the comfortable support of the spouse and children, or spouse or children[.]” Id. The co-executors challenge the $12,000 allotment on the grounds that Young and Estes were separated at the time of Estes’s death and that Young was not supported by Estes at the time of his death.

¶ 29. A widow’s allowance is considered to be “a matter of right whatever may be the condition of the estate, and the application therefor [is] a matter with which the administrator has no concern.” Harwell v. Woody, 206 Miss. 863, 868, 41 So.2d 35, 36 (1949) (quoting Morgan v. Morgan, 36 Miss. 348, 350 (1858)) (internal quotations omitted). The Mississippi Supreme Court has held that an administrator’s opposition to a widow’s allowance “is not contemplated by the statute, and should not be tolerated .... ” Morgan, 36 Miss, at 350. Permitting the administrator to challenge the allowance would be counter to the reason behind the statute, which is to give immediate support to widows, widowers, and children. Id. Litigation of this support would delay the allowance, “depriving the parties of the humane provisions of the law at the very time when they [stand] most in need of it.” Id.

¶ 30. The co-executors argue on appeal that Young is not entitled to an allowance, because the husband’s duty to support the wife “is coupled with reciprocal obligations upon the wife to perform her duty imposed by such marital relations.” Byars v. Gholson, 147 Miss. 460, 465, 112 So. 578, 579 (1927). Accordingly, because Young had moved from the marital home by her own free will and had relinquished all her marital obligations, she was not entitled to support in the form of a widow’s allowance.

¶ 31. The chancery court heard testimony of Young’s failure to perform her marital obligations and heard the argument that under Byars, Young was not entitled to a widow’s allowance. However, there is no evidence in the record that the chancellor abused his discretion or was clearly erroneous. Therefore, I find no error in the chancellor’s award of a $12,000 widow’s allowance to Young.

II. DATE-OF-DEATH VALUE OF YOUNG’S PROPERTY

¶ 32. The commissioners submitted their report on the appraisal of Estes’s estate and the date-of-death value of Young’s property, and the chancery court confirmed the report, denying the objections raised by the co-executors. However, the court gave the co-executors the opportunity to retain a separate appraiser to assess Young’s property. The co-executors were directed that the report should be conducted and filed with the clerk of the court within a reasonable time from the October 11, 2010 hearing.

¶ 33. On December 17, 2010, Young filed a statement notifying the court that neither she nor her attorney had received any notification that the co-executors had retained an expert. The co-executors filed their expert’s appraisal of Estes’s estate on April 13, 2011. The appraisal did not contain a valuation of Young’s property.

¶ 34. The chancery court held a hearing on April 26, 2011, and noted that the co-executors never requested that Young allow their appraiser to inspect her personal property; therefore, the appraisal of the date-of-death value of Young’s property was never performed. The chancellor also stated from the bench that it was inherently unfair for the co-executors to wait until the day the estate was set to close to attest that Young possessed property of significant value, which the co-executors attempted to do at the April 26 hearing.

¶ 35. The co-executors were given every opportunity to provide supporting evidence for their objections to the special commissioners’ reported appraisal of Young’s property. They failed to do so in a timely manner.

¶ 36. Accordingly, I find that the chancery court did not err in confirming the special commissioners’ report. The co-executors failed to comply with the court’s directive allowing their appraiser to value Young’s property. Because the chancery court did not err in determining the date-of-death value of Young’s property, I would therefore affirm the chancery court’s judgment in part as to this issue.

III. APPORTIONMENT OF THE ESTATE

¶ 87. Young renounced the will and was granted a one-fifth share of the estate under Mississippi Code Annotated section 91-5-25 (Rev.2004). The co-executors do not raise the issue of Young’s right to renounce the will and receive a one-fifth share. Because it was not raised, I will not address the issue.

¶ 38. The co-executors contend that the trial court erred when it apportioned the estate into one-fifth shares prior to deducting the estate’s debts from the gross estate. Young does not respond to this issue in her brief. If the appellee fails to address an issue in her brief, and the appellants brief clearly shows that the trial court erred, this Court is not obligated to search the record on the appellee’s behalf in order to counter or subvert the appellant’s argument. Westinghouse Credit Corp. v. Deposit Guar. Nat’l Bank, 304 So.2d 636, 637 (Miss.1974).

¶ 39. To determine the estate to be divided among the heirs, the chancery court must first ascertain the gross value of the estate. And from that value, the chancellor must deduct the “debts of the decedent, administrative expenses[,] and funeral expenses!,] leaving the net value of decedent’s estate.” Banks v. Junk, 264 So.2d 387, 392 (Miss.1972); see also In re Estate of Hollaway, 631 So.2d 127, 137 (Miss.1993).

¶ 40. The special commissioners reported the value of Estes’s estate to be $555,561.41 and the date-of-death value of Young’s property to be $39,990.65. The chancellor then divided Estes’s estate by five, apportioning it equally to Young and the four children, which came to $111,112.28. Additionally, the court subtracted the value of Young’s property from her one-fifth share and reduced the share further by $694 for her proportionate share of the fees from the special commissioners and the appraiser, making Young’s share $70,427.63.

¶41. The co-executors moved for the court to reconsider the judgment, arguing in part that if Young were to be granted a widow’s allowance, then the allowance should have been subtracted from the value of Estes’s estate prior to dividing it among the heirs. The co-executors also asserted that although the final accounting for the estate had not been filed at that time, certain expenses such as taxes and funeral expenses should have been paid from the estate before Young’s share was apportioned.

¶ 42. On August 31, 2011, the court altered its prior judgment, deducting the widow’s allowance from Estes’s estate pri- or to division into one-fifth shares. Young’s share was reduced from $70,427.63 to $68,927.63 ($555,561.41 - 12,000 = $543,561.41 / 5 = $108,712.28 - $39,990.65 = $68,721.63). Including her widow’s allowance, the estate was ordered to pay Young a total of $80,927.63. Clearly, the math is incorrect. The judgment amount is $206 greater than the mathematically accurate amount. Additionally, the August 31 judgment does not reduce Young’s award by the $694 amount of fees subtracted in the June 22 judgment. In-eluding the fees the correct judgment should be for $68,027.63 plus the $12,000 widow’s allowance, totaling $80,027.63.

¶ 43. Both the June 22, 2011 judgment and the August 31, 2011 corrected judgment use the special commissioners’ estate valuation of $555,561.41. Although $4,985 in funeral expenses were included in that valuation, a final accounting of the estate was not conducted in compliance with Mississippi Code Annotated section 91-7-291 (Rev.2004).

¶ 44. The co-executors moved for a continuance to give them time to file a petition for a final accounting and for the chancery court to have a hearing on the matter. The chancery court did not respond to the co-executors’ request. The co-executors should have been given leave to file a petition for a final accounting within a reasonable time period. Then, the chancery court should have determined if any remaining debts of the estate should be reduced from the gross estate prior to dividing the estate into one-fifth shares.

¶ 45. I find that the chancery court was premature in apportioning Estes’s estate. The court should have made a finding regarding the final accounting of the estate before reducing the gross estate by the widow’s allowance and the expenses of the estate. Therefore, I would reverse the chancery court’s judgment in part and remand this issue to the chancery court for findings consistent with this opinion.

RUSSELL, J.,

concurring in part, dissenting in part:

¶ 46. I agree with the majority that Young is not entitled to an award of a widow’s allowance and that we should reverse and render on this issue. I also agree with the majority that the chancellor erroneously applied the law in awarding the widow a child’s share of Estes’s estate and reverse its decision as to that issue. I disagree with the majority’s holding that the chancellor heard evidence but made no finding regarding Young’s abandonment, and that remand is the proper disposition for this portion of the judgment. I would find that Young is estopped from inheriting from Estes’s estate and reverse and render on this issue as well. The chancellor acknowledged that Young abandoned Estes but felt his hands were tied by the law. Therefore, I respectfully dissent.

RIGHT TO RENOUNCE WILL

¶47. It is undisputed that Mississippi law allows a widow or widower to renounce the will of a deceased spouse if she or he is left unprovided for in the will. Miss.Code Ann. § 91-5-25 (Rev.2004). A surviving spouse’s right to renounce the will of a deceased spouse is a personal right that abates at the death of the surviving spouse. Shattuck v. Estate of Tyson, 508 So.2d 1077, 1081 (Miss.1987).

¶ 48. While the right to renounce the will of a deceased spouse is provided for by statute, certain circumstances will prohibit a spouse from exercising this right. Under Mississippi law, willful desertion or abandonment of the marriage will estop a spouse from inheriting from the other spouse. In re Marshall’s Will, 243 Miss. 472, 478, 138 So.2d 482, 484 (1962). In the present case, it was established during trial that prior to Estes’s death, Young relinquished all her marital obligations and permanently moved from the marital home by her own free will. A review of the record indicates that Young and Estes were married only a couple of weeks before his leg was amputated above the knee on August 17, 2006. Young stated that she would not take care of a cripple. The evidence is undisputed that the Estes family, not Young, provided for the primary care and maintenance of Estes following his amputation and subsequent surgery in October 2006 for eighty percent blockage of his carotid artery. By the end of November, Young had left the marital home and moved back to the home she occupied pri- or to the marriage to Estes, and she did not return to the marital home until the death of Estes in May 2007. In the interim before Estes’s death, Young refused to provide basic assistance and support to Estes while she attempted to have Estes declared mentally incompetent, allegedly attempted to poison him, allegedly attempted to hit him on at least two occasions, and filed for divorce on March 7, 2007. The record is replete with overwhelming evidence that Young voluntarily abandoned and deserted her marriage to Estes. “[D]esertion or abandonment is generally held to be a bar to any right to share in the estate of the deceased spouse.” Walker v. Matthews, 191 Miss. 489, 8 So.2d 820, 826 (1941).

¶ 49. This bar includes the right of the surviving spouse to renounce or contest the will of a deceased spouse. Williams v. Johnston, 148 Miss. 634, 114 So. 733 (1927). “[W]here the willful conduct of one of the parties to [a] marriage contract is such as will estop him or her from claiming any property rights of the other, the doctrine of estoppel will apply against the offending party.” Id. at 635,114 So. at 734.

¶ 50. In Williams v. Johnston, a wife died testate, leaving her entire estate to her daughter. Id. at 634, 114 So. at 733. The husband sought to renounce the will to obtain his statutory one-half share of the wife’s estate. The court ruled that the husband was estopped from claiming a child’s share of his wife’s estate because he had deserted and lived apart from his wife for a number of years until her death. Id. The court further held that the husband’s general conduct in willfully deserting his wife estopped him from claiming a right to share in her estate. Id. The husband was barred from any right he may have had to renounce or contest the will due to his willful desertion of the marriage. Id.

¶ 51. The majority cites Tillman v. Williams, 403 So.2d 880, 881 (Miss.1981), which provides that a clear desertion and abandonment of the marriage must be shown in order for estoppel to apply. However, in Tillman, there was doubt as to whether the widower had completely abandoned the marriage, and there was no evidence alluding to the parties’ reason for separation. The couple simply separated for a number of years, but never showed any intention of obtaining a divorce. The opinion states, “None of the witnesses had any positive knowledge as to the reason for the separation of the parties or any relevant fact other than [that] he left.” Id. at 880. That is not the case here, as the record shows that after Estes encountered health problems following his leg amputation, Young refused to provide any care for him, permanently moved from the marital home in late 2006, and filed for divorce two months later. Here, the record is overflowing with evidence that Young voluntarily left Estes prior to his death with absolutely no intention of returning. Young’s abandonment of Estes is clear and definitive throughout the record. Thus there is no need for a remand to determine whether a clear desertion and abandonment took place.

¶ 52. The Mississippi Supreme Court’s reasoning in the above-cited cases applies to the present case. Prior to Estes’s death, Young stopped caring for Estes while he was ill, left the marital home, and returned to her own home. Young made it perfectly clear that she wanted nothing more to do with Estes after his leg amputation. Young completely abandoned the marriage, relinquished her marital duties, and had no intention of returning. Such willful conduct serves as a bar to Young’s right to renounce Estes’s will and her right to inherit from his estate.

¶ 53. For these reasons, I agree with the majority that the chancery court erred in awarding Young a one-fifth share of Estes’s estate. However, I would reverse and render on this issue based on the overwhelming evidence that Young abandoned Estes.

IRVING, P.J., JOINS THIS OPINION.

      . She also filed a petition for exclusive possession of the marital home, homestead property, and exempt property.

      . In his original June 22, 2011 order, the chancellor had calculated Young’s share of the estate without taking out the widow’s allowance, giving her $70,427.63. After the co-executors filed for reconsideration under Mississippi Rule of Civil Procedure 59, the chancellor corrected this figure by order dated August 31, 2011.

      . In this judgment, the chancellor denied Young’s motion for exclusive possession of the marital home, homestead property, and exempt property.

      . Indeed, the appraisers’ one-year allowance under section 91-7-135 "is advisory to, but not binding upon, the [c]hancellor,” in whose sound discretion falls the determination of a widow’s allowance for one year's support. Bryan, 233 Miss. at 368, 102 So.2d at 125 (quoting Moseley v. Harper, 202 Miss. 442, 444, 32 So.2d 192, 193 (1947)).

      . While the co-executors did not raise as a separate issue Young’s renunciation of the will, they raised the issue of Young’s abandonment of the marriage and its effect upon Young’s rights, as well as challenged the amount of the award of one-fifth of the estate. Thus, we find the question of the will's renunciation and Young's right to inherit a child's share is before us. But even were it not, reversal based on the chancellors misapplication of the law would be warranted under plain-error review. "Plain-error review is properly utilized for 'correcting obvious instances of injustice or misapplied law.’ ” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)); see also M.R.A.P. 28(a)(3) (permitting this court to "notice a plain error not identified or distinctly specified” in the appellants’ statement of issues).

      . While we agree with Judge Russell that the chancellor legally erred by rejecting the co-executors’ argument that Young was not entitled to inherit, we disagree that rendering is the proper disposition for this portion of the judgment. With the widow’s allowance, the chancellor’s finding that Young was entitled to an allowance was unsubstantiated. Young had the burden to prove she was being supported by Estes, which she failed to do, male-ing rendering the appropriate disposition. But with the child’s share of the estate, the chancellor made no finding — let alone a finding of clear abandonment, as required by Tillman — making remand proper, so that the chancellor, as the fact-finder, may determine whether Young is estopped from claiming an inheritance though sections 91-5-25 and 91-5-27.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Jerome WOODS and Arletha P. Woods, Appellants v. VICTORY MARKETING, LLC d/b/a Sprint Mart # 7, Appellee.
    No. 2012-CA-00399-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.
    Rehearing Denied April 30, 2013.

      Brandon Scott Leslie, Tupelo, attorney for appellants.
    Jeffrey Dean Leathers, Tupelo, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jerome and Arletha Woods argue the Monroe County Circuit Court improperly granted summary judgment in favor of Victory Marketing LLC. But the Woods did not appeal the circuit court’s final order granting Victory Marketing summary judgment. Instead, they appeal the denial of their Rule 60(b) motion to reconsider. On a Rule 60(b) motion to reconsider, we do not reach the merits of the underlying judgment but instead solely consider whether the circuit court abused its discretion by denying reconsideration. Because the Woods were simply trying to relitigate their case through their motion to reconsider by presenting evidence they could have presented while the summary-judgment motion was pending, we find their motion was properly denied. Thus, we affirm.

Background

¶ 2. Victory Marketing is a convenience-store operator doing business as “Sprint Mart.” In December 2009, Jerome allegedly fell on an aisle at the Sprint Mart in Amory, Mississippi. According to Jerome, while perusing the aisle, he slipped on a “wet substance” that smelled “waxy.” On his way down, he hit his knee before landing on his back. After he fell, another customer, Eunice Bonman, entered the store and saw Jerome on the ground. Jerome was transported by medics to a local hospital. Both he and his wife sued Victory Marketing for damages caused by the slip and fall.

¶ 3. The circuit court originally granted Victory Marketing’s motion for summary judgment after it sat unopposed for three months. The Woods’ attorney filed a motion to reconsider, which was granted. After giving the Woods the opportunity to present evidence supporting their negligence claim, the circuit court again granted summary judgment in favor of Victory Marketing — this time on the merits, finding the Woods failed to create a jury issue on the elements of premises liability.

¶ 4. A final judgment was entered on January 28, 2012. On February 7, fifteen days after the entry of the final judgment, the Woods filed a second motion to reconsider. Attached to this motion was an affidavit by Bonman, which the Woods argued created an issue of material fact on whether Victory Marketing had created a dangerous condition by mopping the floor prior to Jerome’s fall. This time reconsideration was denied. And on March 8, more than thirty days after the entry of the final judgment, the Woods appealed.

Discussion

¶ 5. The Woods argue that Bon-man’s affidavit creates a factual dispute preventing summary judgment under Rule 56. See M.R.C.P. 56(c); see also Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991) (“All that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact[.]”). But the Woods did not file their notice of appeal within thirty days of the January 23, 2012 grant of summary judgment. See M.R.A.P. 4(a). Instead, they filed their March 8, 2012 notice of appeal within thirty days of the denial of their motion to reconsider that judgment. So the issue on appeal is not whether summary judgment was properly granted but instead whether reconsideration was properly denied.

I. The Woods’ Motion to Reconsider

¶ 6. The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). M.R.C.P. 59, 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

¶ 7. A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 985 (¶ 3) (Miss.2001) (citations omitted). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001) (citations omitted).

¶8. But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). City of Jackson, 792 So.2d at 985 (¶ 3). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991)). So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment. Melton v. Smith’s Pecans, Inc., 65 So.3d 853, 858 (¶ 18) (Miss.Ct.App.2011) (citing Overbey v. Murray, 569 So.2d 303, 305 (Miss.1990); Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).

¶ 9. The Woods acknowledge that, while the trial court entered its final judgment on January 23, 2012, they did not file their motion to reconsider until February 7, 2012. But they suggest there was no timing issue because they filed for reconsideration “within two weeks of the final [o]r-der.” However, there is a timing issue for the Woods because filing for reconsideration fifteen days after the final judgment puts the Woods’ reconsideration motion outside of Rule 59. See M.R.C.P. 59(b), (e) (requiring that a motion for a new trial or to alter or amend the judgment “shall be filed not later than ten days after the entry of the judgment”); City of Jackson, 792 So.2d at 985 (¶ 3) (holding a motion for clarification filed twelve days after the entry of the judgment fell under Rule 60(b)). Because the Woods’ motion to reconsider fell under Rule 60(b), we do not review the underlying grant of summary judgment de novo. Instead, we review the denial of reconsideration for abuse of discretion. See Melton, 65 So.3d at 858 (¶ 18) (applying a limited abuse-of-discretion standard of review to a denial of a Rule 60(b) motion).

II. The Circuit Court’s Denial of Reconsideration

¶ 10. Rule 60(b) permits the trial court, “[o]n motion and upon such terms as are just,” to “relieve a party ... from a final judgment” for one of six enumerated reasons, two of which are relevant to the Woods’ motion: (1) “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b),” and (2) the catchall “any other reason justifying relief from the judgment.” M.R.C.P. 60(b)(3), (6).

¶ 11. The sole argument in the Woods’ motion to reconsider was that Bonman’s attached affidavit created a material factual dispute defeating summary judgment. But they failed to show this affidavit was newly discovered evidence that was undis-coverable until after Rule 59’s ten-day time limit had passed. See M.R.C.P. 60(b)(3). In fact, the Woods acknowledged in their motion to reconsider that they had identified Bonman as an eyewitness during discovery. So Bonman’s affidavit testimony was certainly discoverable prior to the summary-judgment ruling. See Richardson ex rel. Richardson v. DeRouen, 920 So.2d 1044, 1050 (¶ 17) (Miss.Ct.App.2006) (holding the trial court properly denied a Rule 60(b) motion because medical records, which the plaintiff knew about during trial, were not “newly discovered evidence”).

¶ 12. The Woods have also failed to show any other reason justifying relief. Recently, the Mississippi Supreme Court rejected the argument that a Rule 59 motion to reconsider, which was supported solely by an affidavit that could have been obtained prior to the final judgment, should have been granted. Fowler v. White, 85 So.3d 287, 292 (¶¶ 18-19) (Miss.2012). The supreme court adopted the Fifth Circuit’s view that “the unexcused failure to present evidence which is available at the time summary judgment is under consideration eonstitute[s] a valid basis for denying a motion to reconsider.” Id. at (¶ 19) (quoting Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.1991)). Here, the Woods provided no excuse for their failure to present Bonman’s affidavit at the time the trial court granted their first motion to reconsider and considered the merits of Victory Marketing’s summary-judgment motion. Thus, their second motion to reconsider was properly denied.

Conclusion

¶ 13. The supreme court and this court have been consistent in holding that a Rule 60(b) motion should be denied where it is merely an attempt to relitigate. E.g., City of Jackson v. Jackson Oaks Ltd. P’ship, 860 So.2d 309, 311-12 (¶6) (Miss.2003); Stringfellow, 451 So.2d at 221; Piernas v. Campiso, 95 So.3d 723, 726 (¶ 11) (Miss.Ct. App.2012); Guinn v. Wilkerson, 963 So.2d 555, 558 (¶ 7) (Miss.Ct.App.2006). That is exactly what the Woods were trying to do when they presented Bonman’s affidavit to the circuit court through a Rule 60(b) motion to reconsider. After being afforded the opportunity to litigate their claim through their successful first motion to reconsider, which was necessitated by their failure to timely respond to Victory Marketing’s motion for summary judgment, they were not entitled to relitigate their claim when the circuit court ruled against them for failure to present sufficient evidence. Having already provided the Woods the proverbial second bite at the apple, the circuit court did not abuse its discretion by denying them a third. We therefore affirm.

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

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

      . See M.R.C.P. 60(b).


author: IRVING, P.J.,

text:
    Roderic C. CATCHINGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00348-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.

      Roderic C. Catchings, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Roderic C. Catchings filed a motion for post-conviction relief (PCR) with the Rankin County Circuit Court, which summarily dismissed the motion. Feeling ag-' grieved, Catchings appeals and argues that the circuit court should have resentenced him instead of sending him to trial after setting aside his pleas. He also argues that the circuit court enhanced his sentence out of judicial vindictiveness. Finding no error, we affirm.

FACTS

¶ 2. On November 28, 2005, Catchings pleaded guilty to three counts of armed robbery and one count of aggravated assault. Pursuant to his plea agreement, the circuit court sentenced him to twenty years on the aggravated-assault charge and thirty-five years for each armed-robbery charge, with ten years suspended. All of the sentences were to run concurrently.

¶ 3. In his first PCR motion, Catchings argued that his guilty pleas were involuntary because he had not been informed that his sentences on the armed-robbery charges must be served day for day. The circuit court appointed counsel for Catchings and held a hearing on March 17, 2008, in which the court ultimately found that Catchings’s guilty pleas were involuntary. The court offered Catchings two choices: he could be resentenced or he could withdraw his guilty pleas entirely and face trial. Catchings chose to be resentenced. The circuit court sentenced Catchings to thirty-five years on each of the armed-robbery charges, with eighteen years to serve, day for day, and seventeen years suspended. The court stated that the sentence was its estimate of the actual time Catchings would have served if his understanding of the previous sentence had been accurate. Catchings received the same twenty-year sentence for aggravated assault.

¶ 4. On November 25, 2008, Catchings filed a second PCR motion, alleging that he was misinformed regarding the effect of the sentences offered by the circuit court. The circuit court dismissed the second motion as a successive writ. Catchings appealed that judgment to this Court. In reversing the circuit court’s decision to dismiss, we stated that Catchings’s motion was not barred as a successive writ and that the circuit court should have required Catchings to enter entirely new pleas or go to trial instead of just resentencing him. We remanded the case for the circuit court to consider the motion on the merits. Catchings v. State, 35 So.3d 552, 555 (¶ 11) (Miss.Ct.App.2010).

¶ 5. On remand, the circuit court granted Catchings’s PCR motion, set aside the pleas, and placed the case back on the docket for trial. On June 8, 2011, Catchings, represented by counsel, entered open pleas of guilty to all charges. At the sentencing hearing, the circuit court sentenced Catchings to thirty-five years for each of the three armed-robbery convictions and twenty years for the aggravated-assault conviction, all of which were to be served concurrently. Catchings filed a third PCR motion in the circuit court, which the circuit court dismissed.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Appellate courts will not disturb a circuit court’s dismissal of a PCR motion unless the court’s factual findings are clearly erroneous. Lee v. State, 78 So.3d 330, 331 (¶ 5) (Miss.2012). However, questions of law are reviewed de novo. Id.

I. The Circuit Court’s Remedy on Remand

¶ 8. Catchings argues that on remand, the circuit court should have resentenced him instead of setting his pleas aside and sending him to trial. Specifically, Catchings claims that the court’s decision to bring him to trial constituted a breach of the plea agreement on the State’s behalf, an abuse of discretion, and double jeopardy.

a. Breach of Plea Agreement and Abuse of Discretion

¶ 9. “[A] trial court is not bound to accept a defendant’s guilty plea or enforce a plea agreement reached between the prosecutor and the defendant.” Wade v. State, 802 So.2d 1023, 1028 (¶ 20) (Miss. 2001). A plea agreement is merely a recommendation made by the prosecution, and the court may use its discretion in adopting the agreement. Here, Catchings argues that the circuit court should have considered the first plea agreement that he made with the State in determining his sentences rather than considering his open guilty pleas which were entered on remand.

¶ 10. Not only was the circuit court not bound by Catchings’s initial plea agreement, it completely set aside the second set of sentences that Catchings received. If a defendant’s guilty pleas are found to be involuntary, then the court must not only set aside the sentences, but must vacate the guilty pleas as well. Courtney v. State, 704 So.2d 1352, 1358 (¶20) (Miss.Ct.App.1997). This is true even if the defendant only sought to vacate his sentences and did not specifically seek to vacate his guilty pleas. Id. “Both parties are placed back in the positions which they occupied prior to entering into the [plea] agreement.” Stevenson v. State, 674 So.2d 501, 505 (Miss.1996) (quoting Lanier v. State, 635 So.2d 813, 817 (Miss.1994) (overruled on other grounds by Twillie v. State, 892 So.2d 187, 190 (¶11) (Miss.2004))). As a result, the circuit court cannot simply resentence a defendant using his original plea agreement when a guilty plea is found to be involuntary. The defendant can choose either to enter a new guilty plea or go forward with trial.

¶ 11. Catchings contends that the circuit court should have resentenced him as it did after he filed his first PCR motion without requiring him to enter new pleas. However, in our opinion reversing and remanding the dismissal of Catchings’s second PCR motion, we pointed out that the circuit court erred by resentencing Catchings in the absence of new guilty pleas. Catchings, 35 So.3d at 555. We added that the circuit court should have set aside both the guilty pleas and the sentences when it found that Catchings’s guilty pleas were involuntary. Id.

¶ 12. On remand, the court set aside the sentences and pleas and placed Catchings’s case on the trial docket. As stated, he entered open pleas and, according to the transcript of the sentencing hearing, understood that the court was not bound by any plea agreement that was previously made, which meant that the court could impose the maximum sentence for each count. The circuit court did not abuse its discretion by disregarding the original plea agreement and putting the case on the trial docket. This issue is without merit.

b. Double Jeopardy

¶ 13. Catchings argues that because he did not voluntarily breach his first plea agreement, he is entitled to double-jeopardy protection. “Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense.” Powell v. State, 806 So.2d 1069, 1074 (¶ 8) (Miss.2001). Although it is unclear to us which protection Catchings claims the circuit court violated, we, nevertheless, find that his claim is without merit.

¶ 14. Catchings relies on the Mississippi Supreme Court’s holding in State v. Danley, 573 So.2d 691 (Miss.1990), to assert that the circuit court violated the Double Jeopardy Clause by sending him to trial. In Danley, the supreme court reversed the defendant’s murder conviction on procedural grounds, and the defendant voluntarily breached his plea agreement by refusing to plead guilty to two lesser offenses. Id. at 694. The court in Danley stated that, as a result of the breach, the State could prosecute the defendant under the original indictment and that reprosecution would not constitute double jeopardy. Id. Also, the court noted that reversing the defendant’s murder conviction did not equal an acquittal as required for double-jeopardy protection. Id. at 695.

¶ 15. Catchings’s reliance on Danley is clearly misplaced. In Danley, the court stated that the “Double Jeopardy Clause does not preclude reprosecution where the convicted defendant has managed on appeal to have his conviction reversed on grounds other than evidentiary insufficiency.” Id. at 694. Here, Catchings’s convictions were not reversed on the basis of insufficient evidence. Additionally, the United States Supreme Court has held that when a conviction is set aside by the defendant’s appeal, he cannot use double jeopardy as a bar to a new trial. Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); Trono v. United States, 199 U.S. 521, 533, 26 S.Ct. 121, 50 L.Ed. 292 (1905). There is no reason why the defendant should not “be proceeded against as if no trial had previously taken place.” Trono, 199 U.S. at 533. Therefore, Catchings cannot get his convictions set aside and then claim that he is protected from a new trial by the Double Jeopardy Clause. This issue is without merit.

II. Judicial Vindictiveness

¶ 16. The United States Supreme Court has stated that a judge must affirmatively state in the record reasons for imposing a harsher sentence to eradicate the presumption of vindictiveness on the part of the trial court. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). In Bush v. State, 667 So.2d 26, 29 (Miss.1996), our supreme court explained that “a judge who hears the defendant, the victim, and other circumstances of the crime at trial is entitled to impose a higher sentence than a judge who hears only the admission of guilt at a plea hearing.” Also, “[a] judge imposing the second sentence but not the first has no reason to be vindictive concerning the defendant’s attack of the first conviction.” Id. The same standard espoused in Bush applies here. In addition to there being a different judge imposing the second set of sentences, the State introduced new evidence at the sentencing hearing, which, according to Bush, entitles a judge to impose a higher sentence.

¶ 17. The judge at the last sentencing hearing heard testimony from Catchings, Catchings’s mother, and one of the victims of the armed robbery. The judge also reviewed Catchings’s letter to his girlfriend regarding the robbery and a report of a violent altercation Catchings had with a corrections officer while detained in the South Mississippi Correctional Institute. The judge acknowledged that the strength of the prosecution’s case had been enhanced dramatically by all of the evidence that was presented. Based on the facts presented, we find that any presumption of vindictiveness was well rebutted. This issue is without merit.

¶ 18. We find that the circuit court’s judgment dismissing Catchings’s PCR motion was proper. Therefore, we affirm the judgment of the circuit court.

¶ 19. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: BARNES, J.,

text:
    In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.
    No. 2011-CA-01438-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.
    Matthew Shepherd Poole, Jackson, attorney for appellant.
    Robert M. Logan, Jr., Newton, attorney for appellees.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. This appeal stems from a Newton County Chancery Court judgment where Vincent S. Parker’s amended petition to set aside the adoption of his natural son, Andy, by Melanie J. Watkins and Mark S. Lewis, was dismissed with prejudice. On appeal, Parker argues that he cannot have his parental rights terminated, as he was never made a party to the adoption proceeding and did not receive notice, and that the chancellor erred in dismissing the case under Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6 (Supp.2012). While it is undisputed that Parker did not receive formal notice of the adoption (and should have), this fact does not mean that the adoption is void, as Parker contends. Even if Parker had received notice, he did not meet the standard of demonstrating “a full commitment to the responsibilities of parenthood” under section 93-17-5(3), which would have allowed him, as an unwed father, to object to the adoption. Accordingly, we find no reversible error, and affirm the adoption of Andy and the termination of Parker’s parental rights.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Dana Foster and Parker conceived a child, Andy, who was born out of wedlock on May 25, 2004. At the time, Dana was seventeen years old and Parker was nineteen years old. The couple never married, and Parker was not listed as the father on the birth certificate at the hospital. The certificate was never amended. During her pregnancy, Dana lived with Parker at his mother and step-father’s mobile home in Brandon, Mississippi. Dana was unemployed, and Parker did seasonal work. Approximately six weeks after Andy’s birth, Dana moved out of the residence because she and Parker were not getting along. She also suspected Parker was using drugs. Apparently, Dana did not keep in touch with Parker after she left.

¶ 3. Dana moved to her father’s mobile home in Richland, Mississippi, where she lived for about a week. Then, Dana and Andy moved in with Mark Lewis, Dana’s brother (Andy’s natural uncle), and Melanie Watkins, his wife, in Newton County, Mississippi, for approximately one month. After a “little fuss,” Dana moved back to her father’s residence.

¶ 4. Soon after, in August 2004, Melanie notified the Mississippi Department of Human Services (MDHS), alleging Andy was living in “deplorable conditions” at the mobile home of Dana’s father. The Rankin County Youth Court appointed a guardian ad litem (guardian) on behalf of Andy. Dana told MDHS investigators that she wanted to give custody of Andy to Susie and Joe Kirk, friends of Dana’s family and godparents to Andy. The Kirks were granted temporary custody, and in September 2004, MDHS concluded that there was no evidence of neglect by Dana. However, the youth court directed Dana to fulfill certain prerequisites before she would be eligible to have Andy returned to her.

¶ 5. In November 2004, Melanie and Mark requested the youth court change Andy’s custody from the Kirks to them. Melanie testified the Kirks had no objection to this change; thus, after a “shelter hearing,” Melanie and Mark were awarded temporary custody.

¶ 6. In January 2005, Andy’s first guardian recommended a petition for neglect against Dana be filed in the youth court, because she “has not made progress in improving her ability to care for this child. Dana is bouncing from house to house, wherever anyone will let her stay.” Additionally, the guardian reported Andy was “thriving” with Melanie and Mark. In March 2005, the youth court issued an order finding Andy neglected by Dana, and Andy remained in Melanie and Mark’s custody.

¶ 7. Also in March 2005, Melanie, with Andy, met Parker at a Waffle House in Brandon, Mississippi, and told him of her intent to adopt Andy. Melanie testified that Parker told her he thought the adoption was in Andy’s best interest — he did not “need to be a father” at the time, and did not want Dana to have custody.

¶ 8. In April 2005, Dana signed a consent to Andy’s adoption by Melanie and Mark, and to the termination of her parental rights. On October 26, 2005, a petition for adoption by Melanie and Mark was filed in the Newton County Chancery Court; Parker was not made a party to the proceedings. At this time, Parker’s paternity had not been established because he had thus far ignored the youth court’s recommendations to have a DNA test performed. On December 16, 2005, the final decree of adoption was entered.

¶ 9. Nearly four years later, in September 2009, Dana filed a motion to set aside the adoption. Then, in late 2009, Dana approached Parker, asking him to file a petition to set aside the adoption. In May 2010, Parker filed such a petition, seeking custody of Andy, and Dana joined it. In the petition, Parker claimed Melanie and Mark committed fraud in bringing the adoption proceedings because they intentionally did not notify Parker. Also, he claimed Melanie and Mark conspired together, and coerced Dana into signing the adoption papers. Parker stated Melanie intentionally kept the child away from him and thwarted his efforts at paternity testing.

¶ 10. In December 2010, the chancellor dismissed Dana’s petition as untimely under Mississippi Code Annotated section 93-17-15 (Rev.2004) because her petition was not filed within six months of the adoption, but Parker’s petition remained on the docket. In January 2011, the chancellor ordered paternity testing, and Parker complied. The test confirmed Parker is Andy’s biological father. Also, Parker filed an amended petition to set aside the adoption. In it, he stated that he received no service of process or notice of the adoption.

¶ 11. In April 2011, a guardian was appointed to represent Andy in the proceedings. The guardian filed a detailed report on all of the parties in July 2011. In his report, the guardian opined that while the adoption did not meet the minimum standards of due process, the fact that Parker had made no attempt to visit Andy from 2005 to 2010, even though he had telephone numbers and “with just a little effort” could have found Melanie, is “a cliff rather than a hill for Mr. Parker to climb” regarding termination of his parental rights. The guardian recommended that if parental rights were not terminated, Andy remain with Melanie and regular visitation start slowly with Parker, and he pay child support to Melanie.

¶ 12. In July 2011, a hearing was held on Parker’s petition to set aside the adoption. Melanie testified that she did not serve Parker the adoption petition or obtain consent from him in October 2005 because her attorney did not advise her to do so. Further, Parker had not been adjudicated Andy’s father at that point. Melanie stated Dana did tell her Parker was the father; however, Melanie expressed her doubts, as Dana was dating several men at the time of Andy’s conception. Melanie testified at no point did Parker make an attempt to visit or contact Andy.

¶ 13. Mark testified that he and Melanie divorced in approximately 2007, and Melanie has full custody of Andy. Mark now lives in Nevada, and has only visited Andy four times since the divorce. Mark claimed he knew where Parker lived, but Melanie never asked for the information. Also, Parker had not asked him for information about Andy in the last five years.

¶ 14. Parker testified that he provided financial support to Dana during her pregnancy, as Dana had no income. He also transported her to the doctor. He claimed he and Dana were engaged before she became pregnant. Once Dana and Andy moved out of his parents’ mobile home in June 2004, approximately one month after Andy was born, Parker did not have much contact with her. Parker claimed not to have received summonses for the youth court proceedings, but found out about them through his mother, whom Dana had told about the proceedings. When he met Melanie at the Waffle House, he agreed to the adoption as long as he could visit Andy, but the record indicates he never did. Initially, Parker claimed he had no idea that the December 2005 adoption had taken place until “a couple of years” later, but on cross-examination he stated that he had knowledge of the adoption in May 2006. He was not served any summonses to appear in chancery court, and did not know in which county the adoption took place. He made an effort to communicate with Andy by calling and emailing Melanie, but denied knowing where she lived. He had not seen Andy since the Waffle House meeting over six years ago.

¶ 15. On cross-examination, Parker admitted that he had made no attempt to have his name placed on Andy’s birth certificate from the time of Andy’s birth until his petition to set aside the adoption, or approximately six years. Importantly, Parker admitted that he had an “arrangement” with Dana — she would pay for the adoption litigation, but she wanted visitation rights if Parker obtained custody of Andy. At the time of the hearing, Parker was married to another woman and had two other children. They resided at the mobile home in Brandon. Parker was a general laborer but unemployed, although he hoped to start a new job the following week.

¶ 16. Dana testified that Parker supported her during the pregnancy — he bought groceries, clothes, and a crib for Andy. She also stated he helped care for the baby. Dana claimed to thwart Parker’s relationship with Andy by not giving him her new telephone number. Dana stated she left the house of Parker’s parents because she suspected Parker was using marijuana and crystal methamphetamine — a claim Parker denied. She also admitted that she was paying for this litigation, and if Parker received full custody, she hoped to receive visitation rights from Parker. Dana visited Andy occasionally until October 2009, when the visits ceased due to a conflict with Mark and Melanie. She was aware that Andy had been diagnosed with severe attention deficit hyperactivity disorder.

¶ 17. Andy’s guardian cross-examined all four witnesses. The investigative reports from the MDHS and the youth court proceedings from 2004 were entered into evidence, as well as the DNA paternity report from January 2011. At the conclusion of Parker’s case, Melanie’s counsel moved for dismissal under Rule 60(b) and for failure to satisfy the requirements of section 93-17-6.

¶ 18. In August 2011, the chancellor issued a final judgment dismissing the petition, finding the petition was not filed within a reasonable time under Rule 60(b), and Parker failed to satisfy section 93-17-6’s requirements regarding his commitment to the responsibilities of fatherhood. Parker’s parental rights were terminated. Parker filed a motion to reconsider, which was denied. He then timely appealed and asserts the following: (1) as a matter of law, a father cannot have his parental rights terminated if he was never made a party to an adoption proceeding or served with process; (2) the chancellor erred in applying Rule 60(b) and section 93-17-6 to set aside the adoption; and (3) the chancellor abused his discretion in dismissing the case under Rule 60(b) and section 93-17-6.

ANALYSIS OF THE ISSUES

¶ 19. It is undisputed that Parker did not receive proper notice of the adoption. As Andy’s biological father, he should have been made a party to the proceedings under section 93-17-5. However, this omission does not mean the adoption is void. The analysis hinges on whether Parker had the right, as an unwed father, to object to the adoption under section 93-17-6. The chancellor found Parker did not have this right, and there is substantial evidence supporting this finding in the record.

1. Notice

¶ 20. Parker argues that the chancellor erred as a matter of law in terminating his parental rights and not setting aside the adoption because Melanie and Mark did not make him a party to the adoption in 2005. Also, he contends they deprived him of formal notice of the adoption, even though they knew of Parker’s paternity and physical location. Parker alleges the chancellor failed to follow clear precedent and compulsory statutes on these matters. He also claims these omissions violated his constitutional rights to due process.

¶ 21. This issue presents a question of law, which is reviewed de novo. In re Adoption of J.E.B., 822 So.2d 949, 951 (¶ 4) (Miss.2002) (citing Dep’t of Human Sens, v. Gaddis, 730 So.2d 1116, 1117 (¶ 4) (Miss. 1998)). Additionally, we note generally the setting aside of an adoption decree is disfavored in Mississippi. See id. at 952 (¶ 10) (citing Humphrey v. Pannell, 710 So.2d 392, 399 (¶ 35) (Miss.1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So.2d 702, 705 (¶ 12) (Miss.1998) (citing In re Adoption of R.M.P.C., 512 So.2d 702, 707 (Miss.1987)).

¶ 22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249, 98 S.Ct. 549. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256, 434 U.S. 246. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256, 98 S.Ct. 549. In Caban v. Mohammed, 441 U.S. 380, 392-94, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.

¶ 23. Both parties note in their briefs that at one time section 93-17-5 did not entitle an unwed putative father any notice whatsoever of an adoption. In Smith v. Malouf 722 So.2d 490, 497 (¶ 30) (Miss.1998) (impliedly overruled on other grounds), the Mississippi Supreme Court held that this notice provision of the statute was unconstitutional in light of United States Supreme Court authority. Smith held that a natural unwed father may, in certain circumstances, have a constitutional right to be notified or to withhold his consent to an adoption. Id. The Mississippi Legislature thereafter amended section 93-17-5(3), allowing a father to have the right to object to an adoption if he has demonstrated “a full commitment to the responsibilities of parenthood” within thirty days after the birth of the child. Smith, 722 So.2d at 494 n. 1. While Parker cites to several of these same United States Supreme Court cases found in Smith in support of his argument, he fails to note the main distinction with his case — he provided no evidence of an attempt to have a substantial relationship with his child.

¶ 24. The case before us presents an unusual set of circumstances regarding notice of the initial adoption proceedings in 2005. Undisputedly, Parker was not made a party or served with any formal notice. Yet these omissions do not automatically void the adoption, as Parker argues. The record indicates that Melanie placed Parker on notice that she intended to adopt Andy at their Waffle House meeting in March 2005, and he orally agreed to the adoption seven months before Melanie filed her petition. Dana consented to the adoption the next month, and in October 2005, Melanie and Mark filed their petition for adoption, noting that there had been no adjudication of paternity. Additionally, Parker admitted at the hearing in July 2011 that he had actual knowledge from Dana that the adoption had been finalized five months after the final decree, in May 2006, but did not file a petition to set aside until approximately four years later. Therefore, the record shows Parker had knowledge of the adoption, but not formal notice through service of process or publication.

¶ 25. Pursuant to section 93-17-5(3), had Parker been made a party defendant to the adoption proceeding in October 2005, as an unwed father he would have been entitled to a determination of his “full commitment to the responsibilities of parenthood.” This determination was before the court at the hearing in July 2011, and will be discussed in the next section. As the United States Supreme Court cases cited above explain, constitutional protection is only provided to unwed fathers who demonstrate a supportive, significant relationship with the child. Caban, 441 U.S. at 392-94, 99 S.Ct. 1760; Quilloin, 434 U.S. at 256, 98 S.Ct. 549. Accordingly, the court’s finding that Parker did not meet this standard, in effect, negates his right to constitutional protection of his relationship with Andy. Therefore, as a matter of law, the failure to give notice to Parker of the original adoption does not, in and of itself, constitute reversible error.

2. Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6

¶ 26. At the end of the hearing, Melanie’s attorney argued that Parker’s petition was in the nature of a Rule 60(b) motion to set aside what Parker argues is a void judgment — the initial adoption decree of 2005. In contrast, Parker’s attorney argued that the United States Constitution prevents casting the case solely as a Rule 60 matter, because Parker was never a party to the adoption. The chancellor determined that Melanie had moved for a dismissal of Parker’s petition under Rule 60(b), and concluded that Parker’s petition had not been filed within a “reasonable time” under Rule 60(b), and also failed under the statutory requirements of section 93-17-6. Therefore, he dismissed Parker’s petition and terminated his parental rights.

¶ 27. Parker contends that the chancellor improperly applied Rule 60(b) and section 93-17-6 to his petition. Alternatively, Parker claims that even if the chancellor was correct in applying these rules, he abused his discretion in dismissing Parker’s claim under section 93-17-6.

¶ 28. While Rule 60 was not the appropriate vehicle for dismissal of Parker’s petition, the point is moot since Parker did not meet the standard regarding a “full commitment to the responsibilities of parenthood” under section 93-17-6.

A. Rule 60(b)

¶ 29. Rule 60(b)(6) states, in pertinent part: “On motion ... the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from judgment. The motion shall be made within a reasonable time ...(Emphasis added.) The standard of review for “a motion for relief under Rule 60(b) is limited to whether the trial court abused its discretion by ordering or denying relief.” Iuka Guar. Bank v. Beard, 658 So.2d 1367,1373 (Miss. 1995) (citing January v. Barnes, 621 So.2d 915, 927' (Miss.1992)).

¶ 30. In the chancellor’s bench opinion regarding Rule 60(b), he noted Andy was one year and seven months old when adopted by Melanie and Mark. Parker filed his petition to set aside the adoption four years and five months after the adoption, when Andy was almost six years old. The chancellor found that under the circumstances, this was not within a “reasonable time” pursuant to Rule 60(b). From the testimony, Parker had known about the adoption for at least four years, since May 2006. During this time, Parker had not seen his son or attempted to visit him; so Andy would not remember anything about Parker. The chancellor noted that with very little effort Parker could have learned about the adoption even sooner, because he knew all of the parties.

¶ 31. On appeal, Parker does not elaborate on a Rule 60(b) error; he only mentions it by way of his issue statements. In the adoptive parents’ brief, however, they cite two cases that are instructive on denial of Rule 60(b) relief in an adoption context. In M.D.T., the natural parents petitioned to set aside the adoption nine years after signing their consent. M.D.T., 722 So.2d at 703 (¶¶ 2-3). The natural parents made several arguments, including that the adoption was void, and thus their petition needed only be made within a “reasonable time” under Rule 60(b), and not six months under the statute of limitations. Id. at 705 (¶ 15). The supreme court was unpersuaded, holding that even if “a reasonable time” were the correct standard, the petition filed nine years after entry of the adoption decree was not made within a “reasonable time.” Id. at (¶ 16).

¶ 32. In J.E.B., the natural father filed a petition to vacate the adoption three years after it was agreed upon, alleging it was void. J.E.B., 822 So.2d at 950-51 (¶ 3). The supreme court reversed the chancery court’s grant of the petition to vacate the adoption, reinstating the adoption. Id. at 953 (¶ 15). Finding no jurisdictional defect with the adoption, the supreme court found the petition barred by the six-month statute of limitations. Id. The supreme court stated:

[The father/petitioner] should not now be heard, years later, to set aside the decree because it allowed him to retain his parental rights.... Finally, to the extent that he claims relief under Rule 60(b), he is likewise untimely. The motion, as to the allegations of fraud and misrepresentation[,] was not made within six months and as to other claims was not made “within a reasonable time.”

Id.

¶ 33. In each of these cases, the parents had, by their consents, been made parties to the original proceedings. In the case before us, Parker was not made a party defendant and did not file a consent to the adoption. Therefore, Rule 60(b), which “relieve[s] a party ... from final judgment,” is not applicable. The chancellor may, however, have considered the effect of Parker’s delay in asserting his parental rights on Andy under doctrines of waiver or laches. While Rule 60(b) was not the proper vehicle, this is not dispositive of the case.

B. Mississippi Code Annotated Section 93-17-6

¶ 34. The chancellor found that Parker failed to meet the statutory requirements of section 93-17-6 regarding his right to object to the adoption.

¶ 35. This Court’s scope of review is limited regarding a chancellor’s findings of fact. They will not be overturned “when supported by substantial evidence unless an erroneous legal standard is applied ....” In re B.N.N., 928 So.2d 197, 200 (¶ 6) (Miss.Ct.App.2006) (quoting Grafe v. Olds, 556 So.2d 690, 692 (Miss.1990)). Additionally, we are reluctant to disturb findings of fact because “[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Rodriguez v. Rodriguez, 2 So.3d 720, 724 (¶ 6) (Miss.Ct.App.2009) (quoting Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)). However, the chancellor’s “interpretation and application of the law is reviewed under a de novo standard.” Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004) (citing Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001)).

¶ 36. Section 93-17-6 reads, in part:

(1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the “alleged father”) may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding ....
(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).
(4) Proof of an alleged father’s full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now uniting and able to assume legal and physical care of the child; or
(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.

(Emphasis added.)

¶ 37. The chancellor noted that before Parker could enjoy certain statutory protections as an unwed father, including his right to object to the child’s adoption, he had to prove a commitment to parenthood as explained in Section 93-17-6(4); namely, that he established a “substantial relationship” with the child. As authority, the chancellor pointed to the United States Supreme Court’s Caban, which established this standard for a putative father. See Caban, 441 U.S. at 393-94, 99 S.Ct. 1760.

¶ 38. Parker argues that the chancellor erred ⅛ applying section 93-17-6 because it was not “compulsory” that Parker file a petition for determination of rights — Parker’s petition objecting to the adoption was permissible under the statute. Parker claims any petition to determine rights under section 93-17-6 would have had to have been filed prior to the grant of adoption. However, Parker misconstrues the statute’s application. The chancellor was not penalizing Parker for not petitioning for a determination of rights, but analyzing the factors found in section 93-17-6(4) to determine if Parker could come to court and object to the adoption. Therefore, the chancellor did not err in applying the statute.

¶ 39. The chancellor made the following factual findings related to his analysis of section 93-17-6(4). Parker had proof of Dana’s pregnancy and Andy’s birth, but they were in a relationship for “convenience purposes.” They never married, but lived together at Parker’s parents’ home for three to six weeks, at which point she left because Parker was not helping to care for the infant. Of note was the fact Melanie’s residence in Decatur was approximately thirty miles from Brandon, where Parker resides, yet Parker claimed Melanie absconded with the child. Further, Parker testified that he was not presently in a position to pay child support. The chancellor did not find Dana’s testimony credible because she contradicted herself at the hearing, as well as contradicted her testimony from an earlier deposition. And the chancellor found Parker’s testimony was “suspect at best, ... trfying] to say what he needed to say to establish a relationship.” The chancellor concluded:

[Tjestimony has not shown that Mr. Parker has consistently provided support for the child, consistently tried to visit with the child. It does not show anything about him contributing any money towards medical expenses or the cost of the birth of the child.... There is no testimony that he is now willing and able to assume physical care for this child.... There is also no testimony that Mr. Parker made any reasonable diligent efforts to try to locate this child, to try to visit with the child, spend time with the child, and ... the testimony has established that without Dana[’s] bringing him into this [litigation,] he wouldn’t be here today.... She originally also was a party trying to set aside the adoption, but her case [was] dismissed because she signed a consent, and it was years, years later. The statute of limitations had run on her prior to the time she filed her complaint. So, once she was dismissed, then it all fell on Mr. Parker. He had to be the horse that everybody was riding. The trouble is it’s at best a three-legged horse.

¶ 40. On appeal, Parker argues that testimony showed Dana “absconded” with Andy when he was an infant, and intentionally deprived Parker from visiting him. After examining the record, we are not persuaded by this interpretation of the evidence. Further, our standard of review requires us to defer to the chancellor’s interpretation of the evidence as well as the weight and credibility of the witnesses. See Rodriguez, 2 So.3d at 724 (¶ 6).

¶ 41. Parker exhibited no interest in asserting his paternal rights until he was approached by Dana over four years after the adoption. Dana confirmed Parker’s testimony that she was paying for the litigation to set aside the adoption in the hope that if Parker won, she could obtain visitation rights. We note Parker did nothing to prevent Andy, in his infancy, from being adjudicated “neglected” by the youth court. Moreover, Parker did ve¥y little for Dana during the pregnancy or thereafter. In sum, he did not demonstrate actions indicative of any commitment to Andy, much less the required showing of a “full commitment to the responsibilities of parenthood.”

¶ 42. This issue is without merit.

C. Termination of Parental Rights

¶ 43. Parker’s parental rights were terminated in the chancellor’s judgment of August 2011. Parker does not make a separate argument regarding the termination, outside of his arguments above. Accordingly, we shall not address this issue.

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

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

      . Pseudonyms are used in this opinion, rather than the parties’ names, in order to protect the identity of the child who is the subject of the adoption petition.

      . The relevant statute regarding parties to an adoption proceeding and notice is Mississippi Code Annotated section 93-17-5 (Rev.2004), which states in pertinent part:
      (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons ... :(a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years

        (3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.

      (4) If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry ....
      (Emphasis added.)

      .Section 93-17-6 sets out the procedure for a determination of rights of fathers of children born out of wedlock, and whether they can object to an adoption of such children.

      . Melanie continued to reside in Decatur, Mississippi, after the divorce, and is Andy's sole provider.

      . However, we note Parker attended only one of the youth court’s hearings about Andy, but it is unclear from the record which one.

      . Section 93-17-6(4) states that “proof of an alleged father's full commitment to the responsibilities of parenthood” would be shown in financial support to the mother and child, or visiting the child.

      . Section 93-17-6 gives an unwed father, such as Parker, the right to petition for determination of his rights as a putative father, and whether he could object to the adoption. Parker failed to take advantage of this procedure, just as he initially refused to take advantage of the paternity tests ordered by the youth court. Importantly, Parker delayed confirming his paternity for several years after the child was born. Testimony shows Parker ignored court recommendations for DNA paternity testing, but he finally complied in January 2011, over five years after the child was born.

      . Rule 60(b) states that the "rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court." Since Parker is not a party to the judgment, Rule 60(b), including its requirement that the motion be filed within a reasonable time, is not applicable. See also Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 222 (4th Cir.1999) (“[A] motion for relief under Rule 60(b) ... may be brought only by, or on behalf of, a party to the action that generated the contested judgment[.]”); United States v. 8136 S. Dobson Street, Chicago, Ill., 125 F.3d 1076, 1082 (7th Cir.1997) (person seeking relief from a judgment under Rule 60(b) “must have been a party”).