author: LEE, C.J., ISHEE, J.,

text:
    William GARDNER, Appellant/Cross-Appellee v. Teresa GARDNER, Appellee/Cross-Appellant.
    No. 2012-CA-00604-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    Rehearing Denied Jan. 28, 2014.

      Chuck McRae, attorney for appellant.
    Danny E. Cupit, Jackson, attorney for appellee.

      Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Teresa and William Gardner married in 1987 and separated on December 15, 2007. Teresa filed for divorce on March 24, 2010, in the Hinds County-Chancery Court, alleging habitual cruel and inhuman treatment, desertion, and irreconcilable differences. William filed a counterclaim seeking a divorce on the ground of habitual cruel and inhuman treatment. All grounds were subsequently dropped except the ground for desertion. After a trial, the chancellor granted Teresa a divorce on the ground of desertion. The chancellor divided the marital estate and ordered William to pay Teresa a total of $27,055.50. The chancellor denied both parties’ requests for attorney’s fees.

¶2. William appeals, asserting the following issues: (1) the chancellor erred in granting Teresa a divorce on the ground of desertion; (2) evidence was improperly admitted; (3) the chancellor erred in distributing marital assets; and (4) he was denied his right to a fair trial.

¶ 3. Teresa cross-appeals, asserting the chancellor erred: (1) in distributing the marital assets; (2) in the valuation of certain property; (3) in dividing the marital debt; and (4) by failing to award her attorney’s fees.

STANDARD OF REVIEW

¶ 4. We afford chancellors much discretion in our review of domestic-relations cases. Steiner v. Steiner, 788 So.2d 771, 777 (¶ 18) (Miss.2001). This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998).

DISCUSSION

I. DESERTION

¶ 5. In his first issue on appeal, William contends the chancellor erred in granting a divorce on the ground of desertion. Mississippi Code Annotated section 93-5-1 (Supp.2012) allows for a divorce on the ground of “[w]illful, continued and obstinate desertion for the space of one (1) year.” William cites the following in support of his argument: Teresa opened her own checking account; Teresa testified she tried to reconcile; Teresa sold his tools and equipment; he picked his mail up at the marital home twice a month; he contributed money towards the couple’s joint debts; and they filed a joint tax return for 2007.

¶ 6. The chancellor determined that William offered no testimony to contradict Teresa’s assertion that William left the marital home on December 15, 2007, and failed to return or resume any marital duties. William also offered no proof that his failure to return to the home was Teresa’s fault. The chancellor found William’s contribution to the marital debt, including the house payment, “might well be otherwise expected in [William’s] own financial self-interest in order to preserve such assets.” Teresa testified she spoke on the phone frequently with William in an effort to persuade him to return to the marriage. Teresa also testified that William never entered the house to pick up his mail; rather, she left it outside for him. We find there was no error on the part of the chancellor in granting Teresa a divorce on the ground of desertion. This issue is without merit.

II.IMPROPER EVIDENCE

¶ 7. In his second issue on appeal, William contends certain evidence was improperly admitted in violation of Mississippi Rule of Evidence 1006. Rule 1006 states as follows:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

¶ 8. William argues he requested all bank records and statements from Teresa during discovery, but Teresa failed to produce these until trial when she attempted to admit the summaries of these documents into evidence. From the record, it appears the bank records at issue are statements from William’s personal checking account. William’s attorney admittedly received notice from Teresa’s attorney that these records were available for his review as early'as November 29, 2010. It appears that Teresa actually requested these documents in discovery, not William, and Teresa was required to obtain the records via subpoena on the bank. In his testimony, William admitted that he and his attorney reviewed the bank statements on December 3, 2010, at Teresa’s attorney’s office. Furthermore, the comment to Rule 1006 states that “the summaries are clearly admissible as evidence, but ... the underlying material [should] be made available to the other parties for their examination.”

¶ 9. The decision to admit evidence is within the chancellor’s discretion. Sproles v. Sproles, 782 So.2d 742, 749 (¶ 29) (Miss.2001). We cannot find any abuse of discretion by the chancellor in allowing the summary of William’s bank records into evidence. This issue is without merit.

III. EQUITABLE DISTRIBUTION

¶ 10. In his next issue, William contends the chancellor failed to give him credit for the monthly deposits in the parties’ joint checking account between 2008 and 2010. However, William has failed to cite any authority or advance any substantive argument to support this claim. It is well settled that “this Court is not required to address any issue that is not supported by reasons and authority.” Varvaris v. Perreault, 813 So.2d 750, 753 (¶ 6) (Miss.Ct.App.2001) (citations omitted). Thus, we decline to review this issue.

IV. RIGHT TO A FAIR TRIAL

¶ 11. In his final issue on appeal, William argues he was denied a fair trial and a trial free from ambush. William simply reargues his earlier issue regarding the summary of William’s bank statements. Having found that issue to be without merit, we likewise find this issue to be the same.

Cross-Appeal

I. EQUITABLE DISTRIBUTION '

¶ 12. In her first issue on her cross-appeal, Teresa contends the chancellor’s factual findings regarding a bank account opened by William in 2003 were in error. Teresa argues this error resulted in an inequitable distribution of the marital assets.

1113. The chancellor found that “the parties opened two checking accounts in about 2003, a joint account on which both parties had authority to withdraw funds and another that was a business account for [William’s] private investigation work.” Teresa claims the chancellor correctly found William had dissipated marital assets, but incorrectly calculated the amount dissipated based upon an erroneous finding that the checking account opened by William in 2003 was a joint account.

¶ 14. The testimony is confusing in regard to the multiple bank accounts, but William testified he opened two accounts in 2008, one was the account he used to deposit work checks and the other was described by William as a joint account. Although William described the account used for his work checks as a personal account and not a business account, William testified he did deposit checks he received pursuant to his employment as a private investigator for a local law firm into this account. William further stated that at the time of trial, this account had no money in it. Although William’s testimony in regard to these bank accounts was confusing, he did testify at one point that Teresa had signing authority on a joint account opened in 2003.

¶ 15. The chancellor further found as follows: “The evidence in the form of account documentation and the testimony of the parties does not completely clarify the uses made of the funds in these accounts, although both parties acknowledge that many of their marital expenses, both during the period they continued to live together and after the separation, were paid from funds in these accounts.” Teresa admitted some of the money from these accounts, including William’s personal account, was used for furniture, vacations, home remodeling, gym memberships, dog food, and landscaping their home.

¶ 16. Regardless, the chancellor made in-depth findings in determining the marital assets and equitably dividing the same, including a detailed analysis of the factors outlined in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). We find no error by the chancellor. This issue is without merit.

II. VALUATION OF WILLIAM’S TOOLS

¶ 17. In her next issue on cross-appeal, Teresa argues the chancellor erred in finding Teresa wrongfully sold some of William’s motorcycle tools. Teresa also contends the chancellor placed an incorrect value on these tools.

¶ 18. These tools consisted of a welding machine, a lift table, an air compressor, and jacks. In his financial statement, William estimated these tools were worth approximately $8,000. William also testified to this at trial. Teresa admittedly sold some of these tools for $800 and gave the others away. This occurred after William had left the marital home.

¶ 19. “[Findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ [Uniform Chancery Court Rule] 8.05 financial disclosures, in the testimony, or in other evidence.” Horn v. Horn, 909 So.2d 1151, 1165 (¶ 49) (Miss.Ct.App.2005) (citations omitted). The chancellor did the best he could with the evidence presented to him, and we decline to find error in his conclusions. This issue is without merit.

III. DIVISION OF MARITAL DEBT

¶ 20. In her next issue on cross-appeal, Teresa contends the chancellor erred in dividing the marital debt. However, Teresa’s argument is simply a restatement of her first issue — that the chancellor’s findings in regard to William’s checking accounts were error and these errors resulted in the disproportionate allocation of marital assets and marital debt. Having found no abuse of discretion by the chancellor in regard to Teresa’s first issue on cross-appeal, we find no merit to this issue.

IV. ATTORNEY’S FEES

¶ 21. In her final issue on cross-appeal, Teresa argues the chancellor should have awarded her attorney’s fees. Chancellors are to apply the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), in granting or denying attorney’s fees. An award of attorney’s fees is a matter largely within the sound discretion of the chancellor. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). This Court is “reluctant to disturb a chancellor’s discretionary determination [of] whether or not to award attorney’s fees.... Id. (citation omitted).

¶ 22. The chancellor ordered each party to be responsible for “their respective legal fees and other costs in this proceeding.” Although the chancellor made no specific findings under the McKee factors, there was sufficient evidence for the chancellor to consider in deciding whether to award Teresa attorney’s fees; thus, we affirm. See R.K. v. J.K., 946 So.2d 764, 779 (¶ 46) (Miss.2007) (“[A]bsent an apparent abuse of discretion, this Court will assume the chancellor considered the appropriate factors in awarding [or denying] attorney’s fees.”); Dickerson v. Dickerson, 34 So.3d 637, 649 (¶ 49) (Miss.Ct.App.2010) (“[W]here there is substantial evidence in the record supporting the chancellor’s award of attorneys’ fees, the omission of specific findings cannot be deemed reversible error.”).

¶ 23. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-APPELLANT.

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

ISHEE, J.,

concurring in part and dissenting in part:

¶ 24. While I concur with much of the majority’s opinion, I must dissent with respect to the grant of divorce on the ground of desertion. The Mississippi Supreme Court first recognized desertion as a legal ground for divorce in 1949 in the benchmark case of Griffin v. Griffin, 207 Miss. 500, 505, 42 So.2d 720, 722 (1949). Therein, the supreme court addressed a case involving a wife whose husband failed to care for her and their children, forcing her to take the children and leave the marital home. Id. In reference to the husband’s constructive desertion of his family, the supreme court stated:

Here it is evident that appellant ... was constitutionally opposed to all kinds of profitable labor. He was indigent and improvident without cause. The family did not have sufficient food and nourishment; practically no shelter; largely lived off their neighbors; evidently they were humiliated; all pride was fast departing from them; health was impaired.

Id. The supreme court emphasized that desertion only occurs where there is “a complete separation or abandonment of the marital relationship by one or the other.” Id.

¶ 25. In the Gardners’ case, I disagree with the chancery court and the majority in their finding that William’s actions or inactions fall within the legal framework for desertion. Certainly this case is a far cry from the original intent of the supreme court when it allowed for divorce on the ground of desertion. The Griffin case outlined a husband and father who refused to care for his family. Id. The supreme court allowed for the concept of constructive desertion as a ground for divorce on the theory that a husband had abandoned his wife and children by failing to provide for even their most basic necessities. Id.

¶ 26. Unlike in Griffin, William provided small forms of support to his wife even in his absence from the marital home. The record reflects that William visited the marital home twice a month, contributed to the payment of the couple’s debts, and filed a joint tax return with Teresa in 2007. I simply cannot support such a casual application of desertion-based divorce to these facts. As such, I would reverse and remand the chancery court’s judgment of divorce on the ground of desertion.


source: Caselaw Access Project

author: ROBERTS, J., JAMES, J.,

license: Public Domain

text:
    Mary Jane BORDEN, Appellant/Cross-Appellee v. Edward Shannon BORDEN, Appellee/Cross-Appellant.
    No. 2012-CA-01258-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2014.

      J. Mark Shelton, Jana L. Dawson, attorneys for appellant.
    David 0. Butts Jr., attorney for appel-lee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal arises out of a child-custody dispute between Mary Jane Borden and Edward Shannon Borden (Shannon). The Lee County Chancery Court awarded primary physical custody of the parties’ two minor children to Shannon. Mary Jane appeals and claims that the chancellor’s application of the factors discussed in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), was not supported by substantial credible evidence. Mary Jane also claims that the chancellor awarded custody of the children to Shannon to punish her for her extramarital communications with other men. Additionally, Mary Jane argues that the chancellor erred by failing to summarize the guardian ad litem’s recommendations, and by failing to explain why the chancellor rejected the guardian ad litem’s recommendations. Shannon cross-appeals and argues that the chancellor erred by declining to award him reasonable attorney’s fees related to his defense against Mary Jane’s claim that he had abused the children. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shannon and Mary Jane were married in Memphis, Tennessee, on September 10, 2000. During the marriage, the couple had two children, Elijah (Eli), born December 5, 2002, and William, born November 20, 2006. Shannon worked in a management position for Penske Trucking Company. Mary Jane worked full-time as a nurse at St. Joseph’s Hospital. In 2005, the couple moved to Tupelo, Mississippi, due to Shannon’s job transfer. Mary Jane continued to work as a nurse in Memphis, but she only worked sixteen days per year. When she worked in Memphis, she stayed there overnight.

¶3. After the move to Tupelo, Mary Jane and Shannon began to experience problems in their marriage. The couple separated on August 16, 2010. Mary Jane picked up the oldest child from school and took both children with her to her parents’ home in Tennessee. Mary Jane did not tell Shannon she was leaving. Mary Jane also took her computer with her. Two days later, Shannon filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. On August 20, 2010, Mary Jane filed her answer and counter-complaint for • divorce on the same grounds.

¶ 4. On August 30, 2010, Mary Jane filed a motion to appoint a guardian ad litem and for a forensic examination of the children. According to Mary Jane, Eli and William exhibited behavior that led Mary Jane to believe they had been sexually abused. Although Mary Jane never alleged that anyone in particular had abused the children, she states in her brief that her suspicion of sexual abuse “arose from (1) alarming statements made by the children, and (2) bizarre responses given by Shannon.” The chancellor appointed Jonathan Martin as guardian ad litem to investigate the allegations and represent the interests of the children. The guardian ad litem interviewed Shannon, Mary Jane, their two children, and several other individuals. The guardian ad litem also had polygraph examinations administered to both Mary Jane and Shannon. The re-suits of the polygraph examinations showed that both parties were being truthful. However, the investigation revealed no evidence that the children had been sexually abused. Based on his Albright analysis, the guardian ad litem recommended that Mary Jane receive primary physical custody of the children.

¶ 5. On November 9, 2010, Mary Jane and Shannon entered an agreed temporary order based on the guardian ad litem’s recommendations. The parties were awarded joint legal custody of the children, and Mary Jane was awarded primary physical custody. Shannon was awarded reasonable visitation.

¶ 6. On November 30, 2010, Shannon filed an amended complaint to include adultery as an additional ground for divorce. Shannon alleged that prior to their separation, Mary Jane had engaged in extramarital affairs with two of her old high-school classmates, Eric Brown and Brian Hurt. Brown and Hurt both lived in Memphis. Sometime between January 2008 and November 2009, Mary Jane reconnected with Brown and Hurt via Facebook.

¶ 7. During October 2009, Mary Jane was photographed with both Brown and Hurt at a bar in Memphis. In July 2010, Mary Jane went to a friend’s birthday party in Memphis, where both Hurt and Brown were present. Mary Jane admitted to communicating with Hurt and Brown via Facebook, but she denied that she had an extramarital affair with either of them. However, Mary Jane admitted that she engaged in inappropriate sexual communications with Brown through Facebook. She also admitted that she and Brown met in Tupelo during November 2Q09. Brown picked her up at a shopping center across the street from his hotel room. They then went back to Brown’s hotel room, but their meeting was interrupted by a surprise visit by Brown’s wife, who confronted Mary Jane regarding her inappropriate Face-book communications with'Brown.

¶ 8. The parties went to trial on August 8-11 and September 26, 2011. During the trial, Shannon introduced a seventy-five page transcript of Facebook chats between Mary Jane and Brown. The chats, which contained numerous sexual references, began in November 2009. Suffice it to say, some of the messages were quite explicit. According to Mary Jane, her inappropriate Facebook chats with Brown occurred during a period where she and Shannon were experiencing difficulties in their marriage. Mary Jane also testified that her children were not home during her inappropriate contact with other men.

¶ 9. Ultimately, the chancellor found that there was insufficient evidence to award Shannon a divorce from Mary Jane based on adultery. The chancellor also found insufficient evidence to award either party a divorce based on habitual cruel and inhuman treatment. Thus, the chancellor declined to award a divorce. But the chancellor awarded primary physical custody of the children to Shannon. The chancellor also declined to award Shannon attorney’s fees related to the expenses associated with his defense against Mary Jane’s claim that the children had been abused. Mary Jane appeals, and Shannon cross-appeals.

STANDARD OF REVIEW

¶ 10. In cases involving the award of child custody, “[t]his Court will not disturb the factual findings of the chancellor unless [they] are manifestly wrong or clearly erroneous.” Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 4) (Miss.2004) (quoting Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)). “[I]f there is substantial evidence in the record to support the chancellor’s findings, we will not reverse.” Tanner v. Tanner, 956 So.2d 1106, 1108 (¶ 5) (Miss.Ct.App.2007) (citing Wilbourne v. Wilbourne, 748 So.2d 184, 186 (¶ 3) (Miss. Ct.App.1999)).

ANALYSIS

I. CUSTODY

¶ 11. Mary Jane contends that the chancellor’s application of the Albright factors was contrary to the weight of the evidence. It is well settled that “the polestar consideration in ehild[-]eustody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. To determine which parent is better suited to have primary physical custody of the children, the chancellor must consider the following factors:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the- employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school, and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; 11) other factors relevant to the parent-child relationship.

Hollon v. Hollon, 784 So.2d 943, 947 (¶ 12) (Miss.2001) (citing Albright, 437 So.2d at 1005). “All [Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Thurman v. Johnson, 998 So.2d 1026, 1030 (¶ 18) (Miss.Ct.App.2008) (quoting Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003)).

¶ 12. The chancellor found that the following factors favored Shannon: age, health, and sex of the children; parenting skills; willingness and capacity to provide primary child care; moral fitness of the parents; home, school, and community record of the children; and stability of the home environment. The chancellor only found that the continuity-of-care factor favored Mary Jane. The chancellor concluded that the remaining factors did not favor either party. Mary Jane argues that the chancellor punished her for her inappropriate communications with Brown and Hurt by denying her custody of the children. She also argues that the chancellor punished her for her unfounded allegations of child abuse.

¶ 13. It is undisputed that the guardian ad litem’s investigation revealed no evidence of child abuse. The chancellor considered Mary ■ Jane’s allegations of child abuse under the parenting-skills factor:

[Mary Jane] turns around and tries to bolster her case, I think, really, makes these false accusations, which she later admits[,] and even the guardian ad litem states[,] there was. no credible evidence to support them[,] and the polygraph test clearly indicates that, that [Shannon] ..clearly passed that. There was nothing to that. That’s not a very good parenting skill to advance against the father of your children unless you know it’s for sure.

¶ 14. We find that the chancellor acted within his discretion when he weighed Mary Jane’s allegations under the parenting-skills factor. The chancellor related his analysis of Mary Jane’s unfounded accusations to her skills ■ as a parent. ■ It would have been within the chancellor’s discretion to conclude that' Mary Jane raised those allegations to obtain a tactical advantage against Shannon. And although it is reasonable to conclude that the chancellor did not consider Mary Jane’s unfounded allegations favorably to her, nothing suggests that the chancellor intended to punish Mary Jane for them.'

¶ 15. It was also within the chancellor’s discretion to negatively weigh Mary Jane’s inappropriate and extensive contact with Brown and Hurt. Mary Jane’s conduct weighed heavily against her in that the chancellor found that her extramarital contact with the two men negatively affected her responsibility as a parent. The chancellor stated:

[W]e also see that in all of this, [Mary Jane] is making inappropriate contact with these two people that I’ve already mentioned, Mr. Hurt and Mr. Brown. She should have been at home taking care of those children or should have been with them instead of out partying in Memphis[,] or [wherever] she was[,] at the night spots and going out on the town and meeting with another man here at a motel.

¶ 16. The record clearly shows that the chancellor carefully weighed.each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when- he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine, ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So.2d 369, 373 (¶ 8) (Miss.Ct.App.2007). “Even if we would have given greater weight to different testimony, so long as substantial credible .evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.

II. RECOMMENDATIONS OF THE GUARDIAN AD LITEM

¶ 17. Next, Mary Jane argues that the chancellor’s failure to provide a summary of the guardian ad litem’s recommendations and the reasons that he rejected those recommendations was reversible error. “[Tjhere is no requirement that the chancellor defer to the findings of the guardian ad litem[.]” S.N.C. v. J.R.D., 755 So.2d 1077, 1082 (¶ 17) (Miss.2000). However, the chancellor “shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in his findings of fact and conclusions of law” when the appointment of a guardian ad litem is statutorily required. J.P. v. S.V.B., 987 So.2d 975, 982 (¶ 20) (Miss.2008) (citing S.N.C., 755 So.2d at 1082 (¶ 18)). Further, “if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. (citing Floyd v. Floyd, 949 So.2d 26, 29 (¶ 8) (Miss.2007)).

¶ 18. Mississippi Code Annotated section 93-5-23 (Rev.2013) requires the appointment of a guardian ad litem when there are allegations of child abuse. Here, the chancellor properly appointed a guardian ad litem after Mary Jane raised her allegations of child abuse. Though the allegations turned out to be unfounded, the guardian ad litem recommended that Mary Jane have primary physical custody of the children. Specifically, the guardian ad li-tem stated:

[I] would recommend to the Court a finding that it’s in the best interest of the minor children that ... primary physical custody ... be vested with [Mary Jane], with [Shannon] enjoying visitation as set by this Court.
I did not find ... that [Mary Jane’s] conduct reflected on her as a parent but rather as a. poor spouse.

Regarding the guardian ad litem’s recommendations, the chancellor stated:

I’ve also considered the ... guardian ad litem’s recommendations here. To some extent, I disagree with those, and to some extent, I’ve agreed. But I find under the circumstances and based on these factors under Albright that the primary physical care, custody and control of these two minor children will be and the same is hereby awarded to the father.

¶ 19. As previously stated, the chancellor was not bound by the guardian ad litem’s recommendations. “[I]n custody cases,- we are bound by our limited standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed.” Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002). The dissent finds that reversible error results from the fact that the chancellor did not summarize the guardian ad litem’s recommendations or explain his decision to reject them in part. However, in Ethridge v. Ethridge, 926 So.2d 264, 267 (¶ 13) (Miss.Ct.App.2006), this Court found that a chancellor did not err when he “only referred explicitly to the guardian ad litem’s report one time in his opinion.” Here, the chancellor clearly stated that he had considered the guardian ad litem’s recommendations. Based on the chancellor’s thorough application of the Al-bright factors, he determined that it was in the children’s best interest for Shannon to receive primary custody of the children. The chancellor found that Shannon was the more responsible parent, and was better suited to care for the children. And the chancellor provided his reasons during his Albright analysis. Thus, we find no error in the chancellor’s decision.

CROSS-APPEAL

¶ 20. In his cross-appeal, Shannon argues that the chancellor erred in failing to award him attorney’s fees and costs for defending Mary Jane’s allegations of child abuse. The chancellor ordered that the guardian ad litem’s fees be split equally between Shannon and Mary Jane, but ruled that Shannon was not entitled to attorney’s fees with respect to defending himself against Mary Jane’s allegations. Though the investigation revealed no evidence of abuse on the part of Shannon, that in and of itself did not entitle Shannon to compensation for defending the allegations. Primarily, the motion for appointment of a guardian ad litem was filed in the best interest of the children. Further, Mary Jane did not expressly accuse Shannon of abusing the children, although she tacitly did so. Nevertheless, the purpose of the forensic examination was not to prove or disprove that Shannon sexually abused the children, but merely to investigate circumstances surrounding statements allegedly made by the children. Shannon is not automatically entitled to attorney’s fees just because there was no evidence that he abused the children.

¶ 21. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the sound discretion of the trial court.” Zeman v. Stanford, 789 So.2d 798, 806 (¶ 30) (Miss.2001) (citing Poole v. Poole, 701 So.2d 813, 818 (Miss.1997)). “Unless the chancellor is manifestly wrong, his decision regarding attorney’s fees will not be disturbed on appeal.” Id. (citing Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss.1997)). We find no error in the chancellor’s decision not to award attorney’s fees to Shannon, nor in his decision that each party pay one-half of the guardian ad litem’s fees. Thus, Shannon’s cross-appeal is without merit.

CONCLUSION

¶ 22. We find no error in the chancellor’s Albright analysis, as his findings were supported by substantial credible evidence. The chancellor was not required to defer to the guardian ad litem’s recommendations. Further, the chancellor acted within his discretion when he denied Shannon’s request for attorney’s fees. Accordingly, we affirm the chancellor’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

JAMES, J.,

concurring in part and dissenting in part:

¶ 24. I agree with the majority that the chancellor was within in his discretion in denying Shannon’s request for attorney’s fees. However, I find the chancellor improperly applied the Albright factors in his award of child custody. The record does not support the chancellor’s finding that Shannon is better suited to have primary physical custody of the children. I also find reversible error in the chancellor’s failure to provide his reasons for rejecting the guardian ad litem’s recommendations, considering the fact that child-abuse allegations were raised. Therefore, I would affirm in part and reverse and render in part.

STANDARD OF REVIEW

¶ 25. In cases involving the award of child custody, “[t]his Court will not disturb the factual findings of the chancellor unless [they] are manifestly wrong or clearly erroneous.” Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 4) (Miss.2004) (quoting Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Id. (quoting Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss.2001)).

DISCUSSION

I. Whether the chancellor’s Albright analysis was supported by substantial credible evidence.

¶ 26. The majority asserts that the chancellor’s award of primary custody to Shannon was supported by substantial credible evidence. I respectfully disagree. It has long been held that “the polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The applicable factors used by the chancellor in determining which parent is better suited for primary custody are:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school, and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; 11) other factors relevant to the parent-child relationship.

Hollon, 784 So.2d at 947 (¶ 12) (citing Al-bright, 437 So.2d at 1005). A discussion of each of these factors is warranted.

1. Age, Health, and Sex of the Children

¶ 27. The chancellor found this factor favored Shannon, considering that both children were male. The guardian ad li-tem found this factor did not weigh in favor of either parent.

2. Continuity of Care Prior to Separation

¶ 28. The chancellor found, as did the guardian ad litem, that this factor weighed in favor of Mary Jane. The record shows that Mary Jane, as a stay-at-home mom, was the primary caretaker of the children. Prior to the parties’ separation, Mary Jane was responsible for taking the children to and from school, scheduling the children’s doctor’s appointments, and helping the children with their schoolwork. Mary Jane testified that she also took a leadership role in caring for William’s developmental delays. She stated that William had speech problems, and that she was responsible for taking him to regular therapy sessions with a speech pathologist. Shannon testified that he never attended any of William’s therapy sessions.

3.Parenting Skills and the Willingness and Capacity to Provide for the Children

¶29. The chancellor found this factor favored Shannon. The chancellor based this determination primarily upon Mary Jane’s inappropriate contact with Brown and Hurt. The guardian ad litem found this factor weighed in favor of Mary Jane, as she was responsible for caring for the children on a daily basis. The guardian ad litem also considered Shannon’s absence from William’s therapy sessions. In addition, Shannon testified that, because Mary Jane was a nurse, she was better suited than he to handle William’s therapy sessions. During trial, when asked why he never attended any of William’s therapy sessions, Shannon responded, “I wasn’t going to start that battle.” Regarding Mary Jane’s inappropriate spousal conduct as it relates to her parenting skills, the guardian ad litem stated the following:

[WJhile it may certainly be the case that Mrs. Borden was not a good wife over the last year-and-a-half prior to the separation, the guardian ad litem could not find that she was an inadequate[,] or below what was required of[,] a mother or that her parenting had changed in any appreciable way over the year.... As a result ... would recommend that the factor of parenting skills ... be found in favor of Mrs. Borden.

¶ 30. The chancellor erroneously found that Mary Jane’s contact with Brown and Hurt reflected on her skills and responsibility as a parent. The record does not support that determination. Mary Jane’s behavior was indisputably a poor reflection on her moral fitness, but not on her parenting skills. There is no evidence that Mary Jane’s contact with Brown and Hurt impinged on her parental duties, nor is there any evidence that her limited communications with the men had a negative impact on the children. -

4. Employment and Responsibilities of Each Parent

¶ 31. The chancellor found this factor to be neutral. The chancellor noted that while Shannon’s employment was more stable and produced a much higher income than that of Mary Jane, Mary Jane’s employment allowed her to spend more time with the children due to her having fewer job responsibilities. For those reasons, this factor balanced out equally between the parties.

5. Physical and Mental Health and Age of Each Parent

¶ 32. The chancellor, as well as the guardian ad litem, found this factor to be neutral.

6. Emotional Ties Between the Parents and Children

¶ 33. Both the chancellor and the guardian ad litem found this factor to be neutral.

7. Moral Fitness of the Parents

¶ 34. Both the chancellor and the guardian ad litem found this factor favored Shannon. However, I find that the chancellor placed undue weight on this particular factor. Also, the chancellor erroneously considered and applied this factor in his analysis of several other factors, as discussed further below.

8. Home, School, and Community Record of the Children

¶ 35. Both the chancellor and the guardian ad litem found this factor favored Shannon.

9. Preference of the Children

¶ 36. This factor was inapplicable.

10. Stability of the Home Environment of Each Parent

¶ 37. The chancellor found this factor favored Shannon. Again, the chancellor based this determination exclusively on Mary Jane’s communications with Brown and Hurt, stating the following:

But now I have to look at the stability of the home. The mother testified that she’s got these children in school now, that they’re in a good private school, as I understand it, that they have a stable environment, she claims. But they had one before they left here if she’d stayed off the internet and stayed off of her contact with her two boyfriends especially and running around on her husband. All of this indicates to me that she has really no stability of home life....

Here, the chancellor acknowledged that Mary Jane provided a stable home environment for the children and that the children were enrolled in a good school. Nevertheless, the chancellor disregarded this evidence and erroneously considered Mary Jane’s extramarital contact with Brown and Hurt under this factor.

11. Other Factors Relevant to the Parent-Child Relationship

¶ 38. Finding this factor to favor Shannon, the chancellor stated:

[0]ne thing that came to focus to me in the testimony here of the grandfather, parental grandfather, and it was this[:] what can his son give to these children[?] He was asked that question. He says love, discipline, affection, morals, ethics and responsibility. I think those six things sum up what can be expected in the raising of young children, especially young boys. And I have to give that factor[,] under these circumstances and based on the testimony[,].. to the father.

Again, the chancellor improperly applied the moral-fitness factor to this factor, as he did to other factors.

¶ 39. “Adultery of a parent may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect.” Brekeen, 880 So.2d at 284 (quoting Carr v. Carr, 480 So.2d 1120, 1123 (Miss.1985)). Here, the chancellor found no adultery on the part of Mary Jane, yet faulted Mary Jane for engaging in secretive, inappropriate communications with Brown and Hurt. However, there is no proof whatsoever that Mary Jane’s actions had an adverse effect on the children. There is no evidence in the record that the children ever had any contact with Brown or Hurt, or were even aware of their mother’s communications with the men. Further, Shannon offered no evidence of the children ever having contact with Brown or Hurt.

¶ 40. It is clear from the chancellor’s opinion that Mary Jane’s inappropriate communications with Brown and Hurt caused her to be denied custody of her two children. The parties initially agreed that it was in the children’s best interest that Mary Jane have primary custody, as shown by the November 9, 2010 temporary order. Though Mary Jane’s contact with the two men may be a poor reflection on her as a spouse, that is no indication that she is no longer suited to have primary custody of her children. The record shows that it is in the children’s best interest to remain in the primary care of their mother. Mary Jane has been their primary caregiver since birth. She has been responsible for the children’s schoolwork and doctor’s appointments, as well as monitoring and supervising William’s progress with speech therapy, which Shannon admittedly refused to do. The chancellor ignored these factors and overemphasized Mary Jane’s inappropriate contact, though there was no evidence of adultery. The award of primary physical custody to Shannon is simply unsupported by the evidence. Notably, the record before us lacks evidence of Mary Jane’s inappropriate communications with Brown and Hurt being detrimental to the children. The chancellor improperly applied the Albright factors. Therefore, I feel we are obliged to find the chancellor in error.

II. Whether the chancery court erred by using custody to punish Mary Jane.

¶ 41. Mary Jane contends that the chancellor punished her by awarding primary physical custody to Shannon due to her communications with Brown and Hurt and her allegations of child abuse against Shannon. “Marital fault should not be used as a sanction in custody awards.” Albright, 437 So.2d at 1005. I find that undue weight was placed on Mary Jane’s inappropriate contact with Brown and Hurt. As for the allegations of child abuse, while the guardian ad litem found no evidence to support the allegations, the record shows that Mary Jane’s concerns were legitimate. Mary Jane testified that the children said they were touched inappropriately on more than one occasion.

¶42. According to Mary Jane, statements made by the children led her to believe that they had been sexually abused, which was why she filed the motion for appointment of a guardian ad litem and for a forensic examination. In her motion, Mary Jane made clear that she was “making no allegations as to who[m] the perpetrator might be,” but instead she was requesting an examination to “determine whether the children have been abused and[,] if so[,] the identity of the perpetrator.” Nowhere in the motion does Mary Jane allege that Shannon sexually abused their children. Mary Jane was questioned at length by the guardian ad litem about the statements. The polygraph examination administered to Mary Jane by the guardian ad litem indicated that Mary Jane was being truthful about her concerns.

¶ 43. Regarding the allegations, the trial court stated:

[Mary Jane] turns around and tried to bolster her case, I think, really, makes these false accusations, which she later admits and even the guardian ad litem states there was no credible evidence to support them and the polygraph test clearly indicated that.... That’s not a very good parenting skill to advance against the father of your children unless you know it’s for sure.

Based on this statement alone, I cannot say with confidence that the chancellor intended to penalize Mary Jane for raising allegations of child abuse — specifically considering the fact that the chancellor denied Shannon’s motion for an assessment of fees and costs related to his defense of the allegations. However, the record does show that the chancellor sanctioned Mary Jane for her inappropriate contact with Brown and Hurt by taking primary custody of the children away from her and awarding it to Shannon, as there was no evidence to indicate that her contact with the men had an adverse effect on the children. As previously stated, marital fault may not be used as a sanction in child-custody awards. Therefore, I find the chancellor’s custody award to be an abuse of discretion.

III. Whether the chancery court erred by failing to provide a summary of the guardian ad litem’s recommendations and by failing to provide its reasons for rejecting those recommendations.

¶ 44. The majority finds no error in the chancellor’s failure to provide a summary of the guardian ad litem’s recommendations and failure to provide his reasons for rejecting those recommendations. I respectfully disagree. “[Tjhere is no requirement that the chancellor defer to the findings of the guardian ad litem[.]” S.N.C. v. J.R.D., 755 So.2d 1077, 1082 (¶ 17) (Miss.2000). However, the chancellor “shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court’s findings of fact and conclusions of law” when the appointment of a guardian ad litem is statutorily required. J.P. v. S.V.B., 987 So.2d 975, 982 (¶ 20) (Miss.2008) (citing S.N.C., 755 So.2d at 1082 (¶ 18)). “[I]f the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. (emphasis added) (citing Floyd v. Floyd, 949 So.2d 26, 29 (¶ 8) (Miss.2007)).

¶ 45. The majority correctly states that Mississippi Code Annotated section 93-5-23 (Rev.2004) requires the appointment of a guardian ad litem where allegations of child abuse are made. Though the chancellor complied with the statute by appointing a guardian ad litem following the allegations of abuse, he did not provide a summary of the guardian’s recommendations, nor did he provide his reasons for rejecting the guardian’s recommendations. The guardian ad litem made the following recommendation:

[I] would recommend to the Court a finding that it’s in the best interest of the minor children that ... primary physical custody ... be vested with [Mary Jane], with [Shannon] enjoying visitation as set by this Court.
I did not find[,] respectfully[,] that [Mary Jane’s] conduct reflected on her as a parent but rather as a poor spouse.

The only regard the chancellor gave to the guardian’s findings and recommendations was the following:

I’ve also considered the ... guardian ad litem’s recommendations here. To some extent, I disagree with those, and to some extent, I’ve agreed. But I find under the circumstances and based on these factors under Albright that the primary physical care, custody and control of these two minor children will be and the same is hereby awarded to the father.

Nowhere else in the record does the chancellor mention the findings and recommendations of the guardian ad litem. The chancellor did not state his reasons for disagreeing with the guardian ad litem’s recommendations. Considering the great disparity between the chancellor’s findings and those of the guardian, and the fact that the guardian’s appointment was statutorily required in this case, I find reversible error in the chancellor’s failure to do so. Nevertheless, as previously discussed, the record simply does not support the finding that Shannon is better suited than Mary Jane to have primary physical custody of the children.

¶ 46. In the majority opinion, the Court cites Tritle v. Tritle, 956 So.2d 369, 373 (¶ 8) (Miss.Ct.App.2007), when it discusses the chancellor’s responsibility to weigh the evidence. However, this opinion does not suggest a reweighing of the evidence or substitution of our opinion for the chancellor’s opinion. In this opinion, it is asserted that the chancellor improperly applied the Albright factors and used an incorrect legal standard, which constitutes reversible error. This case is distinguishable from the Tritle case because in that case, the Albright factors were properly addressed and the correct legal standard was applied.

¶47. The majority opinion also cites Ethridge v. Ethridge, 926 So.2d 264, 267 (¶ 13) (Miss.Ct.App.2006), and it is stated that the chancellor there only referred to the guardian ad litem’s report once. However, in the Ethridge opinion, the chancellor properly addressed the guardian ad litem’s report even though it was only referred to once. Id. It is also noted in the Ethridge case that the chancellor fashioned a remedy for the best interest of the children when custody was awarded to the mother, who allegedly was having an affair. Id. at 267 (¶ 12).

¶48. The moral fitness of the mother can properly be questioned, but it cannot outweigh all the other evidence of the mother’s fitness to be awarded custody. See Hollon v. Hollon, 784 So.2d 943, 952 (¶ 37) (Miss.2001). In the present case, there was no showing that the alleged immoral acts of the mother had any effect on the children.

¶49. For these reasons, I would reverse and render the child-custody award.

      . Mary Jane’s computer was later destroyed. According to Mary Jane, her mother threw her computer away. Mary Jane denied that she attempted to conceal evidence that could have been harmful to her case.


author: JAMES, J.,

text:
    Carl Ray HALE, Appellant v. MISSISSIPPI STATE BOARD OF EXAMINERS FOR LICENSED PROFESSIONAL COUNSELORS, Appellee.
    No. 2012-SA-01618-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2014.

      Paul E. Rogers, Jackson, attorney for appellant.
    Leyser Q. Hayes, attorney for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. The Mississippi State Board of Ex: aminers for Licensed Professional Counselors (Board) denied Carl Ray Hale’s application for reinstatement of his license as a professional counselor. Hale appealed to the Madison County Circuit Court, which affirmed. Hale now appeals the judgment of the circuit court, arguing the Board’s decision was not supported by substantial evidence and was arbitrary and capricious. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 6, 1997, Hale, a licensed professional counselor (LPC), pled guilty to charges of billing and submitting false insurance claims to the federal government. Upon advice of counsel, Hale surrendered his license on June 27, 1997. Hale was placed on probation for five years and was prohibited from participating in Medicaid, Medicare, or any other federal health-care programs.

¶ 3. At the time of his arrest, Hale was under investigation by the Board due to complaints that had been filed against him. The first complaint alleged that Hale was engaged in inappropriate and' intimate relationships with three of his patients. Another complaint pertained to a newspaper article in which Hale falsely represented himself as a licensed clinical psychologist in an ad for his practice. The record also shows that Hale distributed business cards representing the same false credentials.

¶ 4. Hale was found to have violated his probation on multiple occasions. In 2002, he was arrested for embezzlement, and on another occasion, he was arrested for stealing several records from a music store where he was employed. Hale served time in prison and was released in 2003.

¶ 5. On August 2, 2010, Hale applied to the Board to have his license reinstated. On January 4, 2011, the Board issued Hale a notice advising him that he would be afforded a hearing to allow him to show cause as to why his application should not be denied.

¶ 6. At the hearing, Hale testified on his own behalf, in addition to several character and professional witnesses. Following the hearing, the Board denied Hale’s application. An order to that effect was issued on September 28, 2011. Hale appealed to the Madison County Circuit Court, which affirmed. Hale now appeals to this Court.

STANDARD OF REVIEW

¶ 7. “The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party.” Miss. Bd. on Law Enforcement Officer Standards & Training v. Clark, 964 So.2d 570, 573 (¶ 7) (Miss.Ct.App.2007) (citing Bd. on Law Enforcement Officer Standards & Training v. Voyles, 732 So.2d 216, 218 (¶ 6) (Miss.1999)). “There is a rebut-table presumption in favor of the agency’s decisions; the burden of proving to the contrary is on the challenging .party.... [AJppellate review of an agency’s decision is limited to the record and the agency’s findings.” Id. Finally, we will not substitute our judgment for that of the agency, nor will we reweigh the facts of the case. Id.

DISCUSSION

¶ 8. Hale argues that the Board’s decision to deny his application for reinstatement of his license was not supported by substantial evidence and was arbitrary and capricious. The Mississippi Supreme Court has defined substantial evidence as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Emps. Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000). “Substantial evidence means something more than a ‘mere scintilla’ or suspicion.” Id. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Id. at 430 (¶ 35).

¶ 9. Mississippi Code Annotated section 73-30-9(c) (Rev.2012) provides that an applicant for licensure as an LPC must be of good moral character. Section 73-30-21 permits the Board to “suspend, revoke or refuse to issue or renew a license or [to] reprimand the license holder, upon a determination by the [B]oard that such license holder or applicant for licensure has: ... [b]een convicted of a felony.” Miss. Code Ann. § 73-30-21(l)(b) (Rev.2012).

¶ 10. Pursuant to Mississippi Code Annotated section 73-30-7(2) (Rev.2012), the Board has developed guidelines in determining whether an applicant who has pled guilty to a felony may be issued a license to practice as an LPC. These guidelines are set forth in chapter 4, section 1 of the Board’s Rules and Regulations. Chapter 4, section 1(E)(5) provides: “[N]o person shall be eligible to receive or hold a license issued by the Board if that person has pleaded guilty or nolo contendere to or has been found guilty of any felony or misdemeanor involving moral turpitude.” Section 1(E)(6) provides that “upon receipt of information from the Department of Public Safety that a person has pleaded guilty or nolo contendere to or been found guilty of any felony or misdemeanor involving moral turpitude, the Board shall immediately deny licensure or refuse renewal of license.”

¶ 11. Section 4(E)(8) enumerates factors the Board is to consider when evaluating an applicant who has committed a crime of moral turpitude. Among those factors are: the age at which the crime was committed, the circumstances surrounding the crime, the length of time since the crime, the applicánt’s subsequent work, history, employment references, character references, and any other evidence demonstrating that the applicant does not pose a threat to the health or safety of the public.

¶ 12. The Board found that Hale, having been convicted of a felony involving moral turpitude, was precluded from licen-sure as an LPC. The Board held the following:

Although Hale’s felony conviction occurred ... fourteen years ago[,] ... [Hale’s] criminal record demonstrates a disregard for Federal laws governing providers’ health care reimbursement as well as disregard for the law under which he seeks licensure.... [Hale] was a mature adult ... when he committed the crime, and not a youth.... [Hale’s] crime was based on serious, egregious conduct that bears closely and directly upon his fitness and trustworthiness to carry out the duties of a[n] LPC.... The deceptive, dishonest and exploitive acts that formed the basis of [Hale’s] conviction demonstrate untrustworthiness and a lack of fitness to carry out ... duties and functions of a[n] LPC in the State of Mississippi.

¶ IB. The Board also considered the fact that Hale’s counseling certification had been revoked by the National Board of Certified Counselors. And the Board considered that he violated his probation in 1997; was sentenced to ten months in federal prison; had been indefinitely suspended from Medicare, Medicaid, and other federal health programs; and had several complaints pending before the Board at the time he surrendered his license.

¶ 14. Based on these findings, in addition to Hale’s felony conviction of a crime of moral turpitude, the Board concluded that Hale was not qualified to hold a license. We find that the Board’s decision to deny Hale’s application for reinstatement of his license was based on substantial evidence and was neither arbitrary nor capricious. Accordingly, we affirm the judgment of the Madison County Circuit Court.

¶ 15. THE JUDGMENT OF THE [MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS IlPPEAL ARE ASSESSED TO THE APPELLANT.

I LEE, C.J., IRVING AND GRIFFIS, |.JJ., BARNES, ISHEE, ROBERTS, llARLTON, MAXWELL AND FAIR, JJ., ■ONCUR.


author: BARNES, J„

text:
    Robert POSEY and Paul Posey, Appellants v. Dorothy POPE and Willard Posey, Appellees.
    No. 2012-CA-00307-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2014.

      Steven Detroy Settlemires, Philadelphia, attorney for appellants.
    G. Todd Burwell, Jacqueline H. Ray, William Watkins Cunningham Jr., Ridge-land, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES, and CARLTON, JJ.
   BARNES, J„

for the Court:

¶ 1. This action originated after Gladys Posey conveyed title to approximately 132 acres of her property to her sons, Paul and Robert Posey (Appellants), on September 13, 2007, through two separate deeds. Prior to that conveyance, Gladys had also conveyed approximately two acres of land to Robert’s daughter and grandson, Hope and Dylan Chunn, in 2006. Gladys retained a life estate in the property. Two of Gladys’s other children, Dorothy Pope and Willard Posey (Appellees), filed a complaint against Robert, Paul, and the Chunns in 2008, seeking to set aside the deeds and claiming that Dorothy and Willard had acquired title to some of the property in question through adverse possession.

¶ 2. Dorothy had been deeded a two and one-half acre parcel of land by her father in 1984. Along with the deeded property, she also utilized another twenty-five acres of the property, building fences, cutting timber, and constructing buildings. Dorothy acknowledged that the majority of the land belonged to her parents, but she acted as if it were her property. Dorothy claimed that this was the property she was due to inherit upon her parents’ deaths.

¶ 3. Around 1994, Willard began possessing approximately sixty acres of his parents’ property. Willard cut timber from the property, even providing his mother with proceeds from the sale of the timber. However, no property was ever deeded to Willard.

¶ 4. After Gladys executed the two deeds to the Appellants in 2007, conveying almost the entire property inherited from her husband, the Appellees filed a complaint to cancel the deeds and to confirm their title by adverse possession. The Neshoba County Chancery Court entered a final judgment on January 30, 2012, finding that the deeds conveying property to the Appellants should be set aside as a result of undue influence. The judgment also granted the Appellees’ claims of title by adverse possession.

¶ 5. On appeal, the Appellants challenge the chancery court’s decision that the Ap-pellees acquired title to land owned by Gladys through adverse possession. However, since the Appellants do not contest the chancellor’s finding that the underlying deeds were void as a result of undue influence, the Appellees argue that the named Appellants no longer have standing to appeal the judgment. Upon review, we conclude that the Appellees are correct and dismiss the appeal.

DISCUSSION

¶ 6. Mississippi Code Annotated section 11-51-3 (Rev.2012) states that a notice of appeal may be taken from a final judgment “by any of the parties or legal representatives of such parties[.]” There is no question that the Appellants were parties to the underlying judgment. But it is equally apparent that their mother, Gladys, was not designated as a party in the chancery court action. Furthermore, she is not named as a party to the appeal of the chancery court’s decision. Mississippi Rule of Appellate Procedure 3(c) says that “[t]he notice of appeal shall specify the party or parties taking the appeal!.]” Therefore, this Court must examine: (1) whether the Appellants have standing to appeal the chancery court’s finding that the Appellees obtained title to the property at issue by adverse possession; and (2) whether Paul, as Gladys’s legal representative through a power of attorney, filed the appeal on her behalf.

I. Do the Appellants have standing to appeal?

¶ 7. “[P]arties have standing to ‘sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.’ ” DeSoto Times Today v. Memphis Publ’g Co., 991 So.2d 609, 612 (¶ 8) (Miss.2008) (quoting Fordice v. Bryan, 651 So.2d 998, 1003 (Miss.1995)). Clearly, as recipients of the deeds from Gladys, the Appellants had standing to participate in the underlying chancery court action.

¶ 8. However, as a result of the chancellor’s ruling of undue influence, which voided the deeds, the Appellants no longer maintained any property interest when the appeal was filed. “A party’s claim ‘must be grounded in some legal right recognized by law, whether by statute or by common law[,]’ and that party must be able to show that it has ‘a present, existent actionable title or interest.’ ” In re City of Biloxi, 113 So.3d 565, 570 (¶ 13) (Miss.2013) (quoting City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 526 (¶ 40) (Miss.2005)). Since the Appellants do not appeal the chancellor’s decision to void the warranty deeds, they no longer possess a “present, existent actionable interest” in the property at issue. The Appellants have also acknowledged that, at the time of appeal, Gladys was the only person who would benefit from a reversal of the chancellor’s finding that the Appellees gained title through adverse possession. Consequently, we find the Appellants lack standing to appeal the chancellor’s decision.

II. Did Paul have the authority to file the appeal on Gladys’s behalf, and was he acting as her legal representative?

¶ 9. As we have just mentioned, the Appellants admit that “the only person (among the Appellants) who could benefit from a reversal of the [cjhancellor’s finding of adverse possession was, and is, Gladys Posey.” But they claim that it is “equally obvious” that the Appellants “were attempting to act on Gladys’s behalf when they filed the appeal.” The Appellants contend that since Paul was Gladys’s legal representative, he had the power to participate in the appeal on her behalf.

¶ 10. In April 2008, Paul obtained a power of attorney (POA) for his mother, Gladys. Section (g) of the referenced durable POA gave Paul the following right:

To commence, and prosecute in my [ (Gladys’s) ] behalf, any suits or actions or other legal or equitable proceedings for the recovery of my lands or for any goods, chattels, debts, duties, demand, cause or thing whatsoever, due or to become due or belonging to me, and to prosecute, maintain, and discontinue the same, if my attorney-in-fact deem[s] properf.]

(Emphasis added). Although generally one does not have the right to appeal another’s interest, this language in the POA makes it clear that Paul had the authority to assert any legal claims on his mother’s behalf. On May 6, 2013, Paul, acting as “attorney-in-fact” for his mother, joined her in the Appellants’ response to the Appellees’ motion to dismiss. Paul signed the motion to join the appeal (join-der) on his mother’s behalf. As already noted, she died several days later.

¶ 11. The Appellants assert that Gladys was elderly and easily confused and needed someone to act on her behalf. Yet they also fiercely maintain that she was mentally competent. This claim is supported by the physicians’ statements in the record. Her deposition reflects that while Gladys was quite stubborn and spoke her own mind about certain matters, she did not always understand what was happening, especially in relation to the intricacies of legal matters. The chancery court’s unap-pealed finding of undue influence certainly supports this view.

¶ 12. Nothing in the record suggests that any of the parties attempted to join Gladys as a party in the proceedings below. The Appellants admit that Gladys was a “necessary” party below, but they allowed the trial to proceed in her absence. In practical terms, the Appellants sought to remove their mother from the acrimonious proceedings as much as possible. This attempt, while noble, appears to have been short-sighted, as Gladys had retained a life estate in the property. The Appellants should have joined Gladys in the action below as a necessary party, anticipating that she could regain her entire interest in the property if the deeds were rendered void.

¶ 13. Admittedly, our supreme court has held: “Any court of this State sitting as an appellate court has the inherent authority to allow additional parties to participate in the appeal upon timely application or upon the court’s invitation.” Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996) (emphasis added and citation omitted). However, we find no evidence that, at the time that the appeal was filed, the Appellants were acting on behalf of Gladys or attempting to include her as a party to the action. Furthermore, while the POA gave Paul authority to commence an action on Gladys’s behalf, he never attempted to do so until almost fifteen months after the original notice of appeal had been filed. All briefs, motions, and the like, were filed solely on behalf of the Appellants. Paul only sought to join Gladys as an appellant when it became apparent Robert and Paul did not have standing to appeal.

¶ 14. Because it is evident that the Appellants were not acting on Gladys’s behalf prior to filing the joinder on May 6, 2013, it is difficult to see how this Court could proceed with this case on the merits. “Pursuant to Rule 3(c) [of the Mississippi Rules of Appellate Procedure], our review is limited to those parties named in an appellant’s notice of appeal.” Estate of Perry ex rel. Rayburn v. Mariner Health Care Inc., 927 So.2d 762, 765 (¶ 8) (Miss.Ct.App.2006). As we have already determined, the named Appellants do not have standing.

¶ 15. Therefore, it is the opinion of this Court that the appeal should be dismissed.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Madison Posey, the parties’ father, died in 2004, leaving all of the property to his wife, Gladys. All told, the property encompassed approximately 138 acres in Neshoba County, Mississippi.

      . The chancellor dismissed the claims against the Chunns during a bench trial on November 20, 2010. Consequently, they are not parties to this appeal.

      . The Appellees also filed a motion to dismiss the appeal. Based on our finding that the Appellants do not have standing, we grant the motion.

      .The attorney for the Appellants in the chancery court action noted during Gladys's deposition: "Ms. Posey!,] as she has not been made a party to this action, I have been retained by Paul and Robert Posey to represent their interests as well as Hope Chunn's and Dylan Chunn’s in this matter. To date, I have not been retained by Ms. Gladys Posey in this matter pending.”

      . As to whether the Appellants had an interest in the property as anticipatory heirs, the Mississippi Supreme Court has noted that “no person is an heir of another living personf.]” Berry v. Berry, 463 So.2d 1031, 1032 (Miss.1984); see also Crenshaw v. Kener, 127 Ga. 742, 57 S.E. 57, 59 (1907) ("[Ajnticipatory heirs could have no interest by inheritance until the death of their mother.”). We do observe that since the filing of the appeal, Gladys has died. However, while Gladys’s heirs may have a "colorable” interest, there is nothing in the record to reflect who those interested parties might be. This Court makes no determination as to the effect of the Appellees' adverse-possession claim on Gladys’s estate, as she was not a named party to the action.

      . The rights conveyed to Paul under the POA have now been extinguished due to Gladys's death.

      . The notice of appeal was filed on February 21, 2012; the joinder was filed on May 6, 2013.

      . As the Appellees note in their “Suggestion of Death," Paul’s standing as Gladys's legal representative is no longer in effect, as the POA is extinguished. Rather, only the duly appointed executor or administrator of her estate would have that authority. There has been nothing further filed on behalf of Gladys by her estate.


author: BARNES, J.,

text:
    Danny SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00790-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2014.

      Danny Smith, appellant, pro se.
    Office of the . Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., BARNES, ROBERTS and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Danny Smith was charged with felony shoplifting as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Smith was also indicted on fourteen counts of uttering a forgery. On March 21, 2011, Smith pleaded guilty to the charge of shoplifting and was sentenced to ten years in the custody of the Mississippi Department of Corrections as a habitual offender, without eligibility for parole or probation, with credit for time served. For this conviction, he was also ordered to pay restitution of $839.24, plus all court costs and a $200 prosecution fee. In exchange for his guilty plea, the fourteen counts of forgery were retired to the inactive files.

¶ 2. However, although the forgery charges were retired, the Adams County Circuit Court entered an order requiring Smith to pay restitution in the amount of $34,304 to the victim of the forgeries, Brit-ton and Koontz Bank. The order also specified that the bank had the right to execute its judgment for the losses against Smith’s “vehicles and/or personal property seized by law enforcement authorities.” A couple of days later, a writ of garnishment was issued by the Adams County Circuit Clerk.

¶ 3. Smith filed a motion for post-conviction relief (PCR) on February 26, 2012, asserting that: (1) the requirement for him to pay restitution for the forgery charges subjected him to double jeopardy; and (2) allowing the bank to seize his personal property to satisfy the restitution violated his due-process rights. Smith’s PCR motion did not concern his guilty plea for his shoplifting conviction; rather, it requested that the circuit court quash the order demanding he pay restitution for the retired forgery charges.

¶4. The circuit court denied the PCR motion on June 11, 2012, finding that it did not have jurisdiction to address Smith’s claim regarding his violation of due-process rights and concluding that Smith was “not entitled to any relief on the merits, as there was a civil matter, which resolved the disposition as to his personal property as a result of his criminal activities.” The circuit court also found no merit to Smith’s claim of double jeopardy. Smith appeals, and finding no error, we affirm the judgment.

STANDARD OF REVIEW

¶ 5. A PCR motion will be dismissed “[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the mov-ant is not entitled to any relief!.]” Miss. Code Ann. § 99-39-11(2) (Supp.2013). “When considering the dismissal of a PCR motion on appeal, “we review the [circuit] court’s findings of fact for clear error.’ ” Pepper v. State, 96 So.3d 780, 783 (¶ 6) (Miss.Ct.App.2012) (quoting White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011)).

I. Whether the order to pay restitution for the forgery charges subjected Smith to double jeopardy and was imposed in error.

¶ 6. Although Smith argues that the order to pay restitution for the forgery charges resulted in his being “twice punished for the same offense,” we find nothing to support this contention. In order to bar a second prosecution based on double jeopardy, “there must be an actual conviction on the merits.” Arrington v. State, 77 So.3d 542, 546 (¶ 11) (Miss.Ct.App.2011). In other words, “before an accused can claim a violation of the state’s Double-Jeopardy Clause, ‘the accused must first suffer an actual acquittal or conviction on the merits of the offense.’ ” Id. (quoting State v. Fleming, 726 So.2d 113, 115 (¶ 9) (Miss.1998)).

Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier “having jurisdiction to try the question of the guilt or innocence of the accused.” Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.

Deeds v. State, 27 So.3d 1135, 1140 (¶ 13) (Miss.2009) (quoting Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975)). Since Smith’s forgery charges were retired, he was never acquitted or convicted for the forgeries. Therefore, Smith’s claim of double jeopardy is without merit.

¶ 7. However, we do find the circuit judge’s order of restitution for’ the dismissed forgery charges warrants further discussion. Smith argues that since he “did not plead guilty to, nor was convicted of, the charge of [fourteen counts] of uttering a forgery, there was no victim of the crimes for which he was convicted and to whom he could be ordered to pay restitution.” Under Mississippi Code Annotated section 99-37-3(1) (Rev.2007), a circuit court has the authority to impose restitution for criminal activities for which the defendant is convicted. The statute states:

When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim; provided, however, that the justice court shall not order restitution in an amount exceeding Five Thousand Dollars ($5,000.00).

(Emphasis added). As noted, Smith was not “convicted” of the forgery charges; the charges were dismissed.

¶ 8. Under the Mississippi statutory restitution scheme, however, “criminal activities” are defined as “any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” Miss.Code Ann. § 99-37-1(a) (Rev.2007) (emphasis added). The following is an excerpt from Smith’s plea hearing:

BY THE COURT: Pursuant to the agreement, the Court is going to dismiss or retire the other [forgery] charge[s] against you, and the restitution that in that matter that we had some discussion today, that’s not going to be a condition of you being prosecuted. You cannot be prosecuted on those other charges again.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: But I am going to order that the restitution be paid because he’s guilty of these — not guilty. Excuse me. That’s the wrong word to use. Under the restitution statute, he’s admitted doing this and owes this restitution, but the difference is it’s not a condition where that can ever be brought up against you to be prosecuted even if this is not paid. Do you understand that?
BY THE DEFENDANT: Right.
BY THE COURT: So it’s more in the nature of almost like a civil matter....
BY THE DEFENDANT: Well, the bank has issued some on a civil order-on a civil action for that money.
BY THE COURT: Okay. Well, as the bank said, they offset what they were able to recover some of the money, but it was thirty something thousand dollars remaining. So you will be ordered to pay essentially civilly!,] and they will be entitled to a judgment against you, but it cannot be a condition of the criminal matter because the agreement that your attorney reached was for the criminal charge[s] to be dismissed. In other words, that’s going to wind up your criminal business with the Court.
BY THE DEFENDANT: Okay.

(Emphasis added).

¶ 9. Thus, Smith was informed at the hearing that the circuit judge was ordering restitution for the forgeries, and he made no objection. Mississippi Code Annotated section 99-37-8(3) (Rev.2007) states: “If the defendant objects to the imposition, amount or distribution of the restitution, the court shall, at the time of sentencing, allow him to be heard on such issue.” However, the failure to object to the imposition of restitution during sentencing waives the issue on appeal. Harris v. State, 757 So.2d 195, 199 (¶ 19) (Miss.2000). While Smith did not expressly admit guilt regarding the forgery charges, we find the colloquy with the judge at the plea hearing provides, at the very least, a tacit admission by Smith. When the circuit judge noted that Smith admitted to the forgery charges, Smith does not launch any objection; rather, he responded, “Right.”

¶ 10. Lastly, we note that Smith consented to restitution as part of his plea agreement. The Mississippi Supreme Court has held:

Although the authority to impose restitution flows from the adjudication of guilt or the defendant’s plea of guilty, that is not to say that restitution may not be imposed at any stage of the criminal process through informal, government-sanctioned compromises and settlements between offender and victim so long as detention is not used to induce an agreement.

Butler v. State, 544 So.2d 816, 821 (Miss.1989) (citing Falco Inc. v. Bates, 30 Ill. App.3d 570, 334 N.E.2d 169, 170 (1975)). In State v. Dexter, 276 Kan. 909, 80 P.3d 1125, 1131 (2003), the Supreme Court of Kansas found that unless the defendant agreed as part of his plea agreement “to pay for losses not caused directly or indirectly by the defendant’s crime,” a district court “may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted!.]” Smith acknowledged that the bank was pursuing a civil action in an attempt obtain restitution. We can only presume from the remarks made at the hearing that the bank had filed a separate civil action, which was not included in the record, and $34,304 was outstanding after they had recovered some of the money.

¶ 11. Therefore, Smith stated no objection to paying restitution to the bank, and he did not protest the court’s finding that he admitted to the forgery charges (i.e., “criminal activities”). In his PCR motion, Smith admitted that “he did agree in plea negotiations to make restitution” for both the shoplifting and forgery charges. In his appellate brief, he again notes that, as part of his plea bargain, “he agreed to pay restitution of approximately $34,304.00.” Consequently, we find the circuit court’s order of restitution did not constitute error.

II. Whether Smith’s rights to due process were violated.

¶ 12. The order for restitution stated that the bank was entitled to a judgment against Smith for $34,304, “for all of which let execution issue, specifically including execution against any of the defendant’s vehicles and/or personal property seized by law enforcement authorities.” After the circuit court ordered restitution, a writ of garnishment was issued three days later against the Natchez Police Department (the garnishee-defendant) “to hold all such personal property and effects in its possession for the benefit of Britton & Koontz First National Bank as the same is now bound in the hands of the Natchez Police Department for the benefit of Britton & Koontz First National Bank and deliver possession of the same to Britton & Koontz upon answering this writ.”

¶ 13. Smith contends that the taking of his personal property by the bank violated his due-process rights. In the order denying Smith’s PCR motion, the circuit judge stated:

The Court does not have jurisdiction to address the defendant’s claim regarding a violation of his due process rights as to his personal property. Notwithstanding, the Court finds that he is not entitled to any relief on the merits, as there was a civil matter, which resolved the disposition as to his personal property as a result of his criminal activities.

However, Smith argues that the circuit court clearly held that he was entitled to “get back” his personal property, citing the following exchange:

BY THE COURT: Mr. Smith, as I understand, there were some matters taken out of your house that were seized?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: I’ll order they be returned to the custody of family members, the ones that are not subject to — that doesn’t belong to someone else that he’s entitled to get back. I’ll give a reasonable time to get that done.

(Emphasis added).

¶ 14. We agree with the circuit court’s holding that he did “not have jurisdiction to address the defendant’s claim regarding a violation of his due process rights as to his personal property.” The issue addresses the civil action taken by the bank when it filed a writ of garnishment, not Smith’s order of restitution. See Cooper v. Estate of Gatwood, 119 So.3d 1031, 1038 (¶ 23) (Miss.2013) (“[A] garnishment proceeding is in the nature of a civil action[.]”).

¶ 15. Notwithstanding, we find no merit to Smith’s argument. The supreme court has noted:

The federal constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV(l). The Mississippi Constitution’s counterpart provision reads, “no person shall be deprived of life, liberty, or property except by due process of law.” Miss. Const. Art. 3, § 14.

Trainer v. State, 930 So.2d 373, 381 (¶ 16) (Miss.2006). Due process is satisfied when the interested parties are given “notice reasonably calculated, under all the circumstances, to apprise [them] of the pen-dency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Smith was aware that his personal property had been seized by the authorities and that he was going to have to pay restitution. Smith acknowledges in brief that the items “were taken upon belief by investigators that these items were purchased with money from the forgery charges[.]”

¶ 16. Furthermore, as the circuit judge noted at the hearing, Smith was entitled to get back only those items that did not belong to someone else. Smith has not provided this Court -with any evidence that the personal property seized to satisfy the restitution was property he was entitled to get back.

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

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

      . While Smith's appellate brief requests that this Court vacate his entire plea agreement, his PCR motion only addressed the circuit court's order of restitution for the forgery charges, not the judgment for the shoplifting conviction.

      . Although Smith's notice of appeal was not filed until August 3, 2012, the circuit court granted his motion to reopen the time for appeal since Smith “did not receive notice of [the circuit court’s] Order until July 25, 2012, making a timely filing of appeal impossible.” See M.R.A.P. 4(a) & (h).

      . Although the Restitution Form for Plea noted that Smith did not agree to restitution, the form referred to the case number for the felony shoplifting charge (10-KR-205-J), not the forgeries.

      . The case number referenced on the court's order (and the writ of garnishment) is the case number for the criminal case for the fourteen forgeries (10-KR-0206-J).