author: STEWART, J.

text:
    Tony Jason LAWRENCE, Plaintiff-Appellee v. Aimee Diann LAWRENCE, Defendant-Appellant.
    No. 49,373-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Laurie J. Burkett, for Appellant.
    Richard L. Fewell, Jr., for Appellee.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   STEWART, J.

hln this child custody matter, Aimee Diann Lawrence is appealing the trial court’s judgment awarding the parties joint custody, and designating Tony Lawrence the primary domiciliary parent. Asserting that the original custody decree was a considered decree, and that Tony did not satisfy the Bergeron standard, infra, Aimee now appeals.

Since the record before us does not indicate the trial court abused its discretion in its factual findings and determination, we affirm.

FACTS AND PROCEDURAL HISTORY

Tony Jason Lawrence and Aimee Diann Hackworth (formerly Lawrence) married on January 1, 2004. Of their marriage, two children were born. Gunner was born on October 10, 2004, and Gauge was born on September 27, 2006.

Tony and Aimee separated on February 21, 2010, and Tony filed for divorce two days later. Tony sought domiciliary custody of the two minor children. Aimee filed a reconventional demand, seeking joint and domiciliary custody of the children, child support, spousal support, exclusive use of the marital domicile, and a temporary restraining order against Tony, his father, and his brother.

Tony and Aimee’s judgment of divorce was rendered on February 24, 2011. In a separate judgment on rules, rendered on February 3, 2011, but signed on February 25, 2011, Tony and Aimee entered into a stipulated judgment granting joint custody of the two minor children, with Aimee designated as the domiciliary parent. Tony and Aimee also agreed to share physical custody of the children on a 50/50 basis, exchanging the children | ?every other Friday. Tony was also ordered to pay Aimee $1,225.00 per month in child support. An amended judgment was filed on May 11, 2011, due to the omission of Aimee being specifically designated as the domiciliary parent in the February 3, 2011, judgment.

On May 24, 2011, Tony filed a motion and rule to terminate Aimee as primary domiciliary parent, alleging that she was not acting in the best interest of Gauge by re-enrolling him at First Baptist Wee School, instead of enrolling him at Wood-lawn Elementary School with his brother, Gunner. In response to Tony’s motion, Aimee filed an exception of no cause of action.

On June 3, 2011, Tony filed a motion to have his child support payment reduced due to his job loss, and a rule for contempt, alleging Aimee violated the judgment by having her boyfriend at her home after 10:00 p.m. when the children were with her. Tony filed another motion to terminate Aimee as primary domiciliary parent and for contempt on July 1, 2011, alleging that during her vacation, Aimee stayed in a room with their two minor children, while her boyfriend stayed in an adjoining room with his son, Logan, and her other son, Gatlin. Tony also alleged that Gatlin had been expelled from school for misbehavior and had failed most of his classes.

After a hearing on Tony’s motions, the trial court issued a judgment on September 21, 2011, granting Aimee’s exception of no cause of action, and granting Tony’s motion for a temporary reduction in child support. Tony’s payments were reduced to $500.00 per month for three months, and would return to $1,225.00 in January 2012.

13Aimee subsequently filed a rule for contempt for Tony’s failure to pay his child support obligation. She also included a claim for contempt for Tony’s failure to provide her with the right of first refusal in the event he could not care for their minor children for more than a three-hour period. Tony responded by filing a motion to reduce his child support, asserting that his child support payments should be reduced because his income was lower. He also asserted that Aimee had since remarried and enjoyed the benefits of expense sharing. The trial court denied Aimee’s rule for contempt, fixed Tony’s child support arrearage at $1,096.50, and lowered his child support payments to $253.00 per month, effective October 1, 2011.

On February 13, 2013, Aimee filed a rule to modify custody to have the current arrangement where they shared physical custody of the minor children on a 50/50 basis modified so that the children would reside primarily with her during the school year. She alleged that the current custody arrangement “is not working and is not in the best interest of the two children.” In response, Tony filed a rule to modify custody, seeking primary custody. He alleged that it would not be in the children’s best interest to grant Aimee primary custody, and that he is able to “provide a more stable and supportive environment for the minor children which would be more conducive to their emotional, physical, mental, financial, and educational well-being.” The hearing officer recommended that Aimee continue in her role as domiciliary parent, and that the visitation schedule be modified to every other weekend from Friday to Monday morning, alternating Wednesdays and holidays, and six weeks in the summer. Tony |4objected to these recommendations. The recommendations of the hearing officer were noted, but were not made an interim order of the court. Trial regarding this matter took place on October 15-16, 2013.

After the evidence was presented, the trial court issued a judgment in November 2013, awarding primary domiciliary custody of the minor children to Tony, with Aimee having visitation with the minor children on alternating weekends, on alternating Wednesdays after school through Thursday mornings, summer months, and holidays. Aimee was also ordered to pay child support in the amount of $313.92 per month, with the exception of summer months, beginning January 1, 2014.

Aimee appeals.

LAW AND DISCUSSION

Legal Standard of Modification of Custody

In her first assignment of error, Aimee argues that the trial court erred in failing to treat her designation as the “domiciliary parent” of the two minor children in the May 13, 2011, amended judgment as a considered decree. She further argues that in order to change her designation, Tony has the heavy burden of proving her status as domiciliary parent is “so deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the changing of that designation is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986).

IfiThe primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131; Chandler v. Chandler, 48,981 (La.App.2d Cir.12/13/13), 132 So.3d 413; Atkins v. Atkins, 47,563 (La.App.2d Cir.9/26/12), 106 So.3d 614. This applies not only in actions setting custody initially, but also in actions to change custody. Gray v. Gray, 2011548 (La.7/1/11), 65 So.3d 1247. Jurisprudence provides different burdens of proof to modify custody in instances where the initial custody decree was either a stipulated (consent) judgment or a considered decree. A considered decree is an award of permanent custody made when the trial court has received evidence of parental fitness. Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726; Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731. The party seeking modification of a considered decree bears the heavy burden of proving that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron, supra.

Our law provides that a stipulated judgment is a bilateral contract between the parties, and as such, constitutes the law between them. Mobley v. Mobley, 37,364 (La.App.2d Cir.8/20/03), 852 So.2d 1136. It is the parties’ voluntary acquiescence, not the court’s adjudication, which gives the contract its binding force. Id. In cases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the | fiheavy burden of proof enunciated in Bergeron is inapplicable. Evans, supra; Wages v. Wages, 39,819 (La.App.2d Cir.3/24/05), 899 So.2d 662; Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir.3/15/95), 653 So.2d 48, writ denied, 660 So.2d 478 (La.9/22/95). In such cases, the party seeking modification has the twofold burden of proving (1) that there has been a material change in circumstances since the original custody decree, and (2) that the proposed modification is in the best interest of the child. Adams, supra; Evans, supra.

As we stated in the facts section of this opinion, in February 2011, Tony and Aimee entered into a stipulated judgment granting joint custody of the two minor children, with Aimee designated as the domiciliary parent. In its original custody decree, rendered on February 3, 2011, and signed on February 25, 2011, the trial court included the following pertinent language:

WHEREAS, the parties entered into certain stipulations of record and the court considering the stipulations of the record and the law ...[.]

Based on the transcripts from the February 3, 2011, hearing, the consent of the parties, and the language included in the judgment, we find that the original custody decree was indeed a stipulated judgment and not a considered decree. This stipulated judgment was made with the consent of the parties, and no evidence of parental fitness was taken. The May 13, 2011, judgment that Aimee is referring to is an amended judgment rendered only to designate Aimee as domiciliary parent. Again, no evidence of parental fitness was taken. Therefore, the heavy burden of proof rule of Bergeron is inapplicable. Tony, who is seeking to modify custody 17established by a stipulated judgment, has the twofold burden of proving (1) that there has been a material change in circumstances since the original custody decree, and (2) that the proposed modification is in the best interest of the child, as jurisprudence has established. See Adams, supra; Evans, supra.

Factors in Determining Child’s Best Interest

Aimee’s remaining assignments of error involve the factors enumerated in La. C.C. art. 134; therefore, we will discuss these assignments together. Aimee asserts that the trial court abused its discretion in removing her as domiciliary parent, and in granting domiciliary custody of the two minor children to Tony. Specifically, she alleges that the trial court abused its discretion in its findings regarding the factors enumerated in La. C.C. art. 134.

The parties’ stipulated judgment, like all child custody judgments, is subject to modification by the court upon the appropriate showing and according to the best interests of the child. Adams, supra; Street v. May, 35,589 (La.App.2d Cir.12/5/01), 803 So.2d 312. As we stated in the previous assignment, where the original custody decree is a stipulated judgment, the party seeking modification of the decree must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Adams, supra.; Evans, supra.

The trial court is in the best position to ascertain the best interests of the children given each unique set of circumstances. A trial court’s ^determination in the establishment or modification of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101 (La.1988); Knowlton v. Knowlton, 40,931 (La.App.2d Cir.4/12/06), 927 So.2d 640.

Our legislature has provided 12 nonexclusive factors contained in La. C.C. art. 134 that are used to determine the best interest of the child:

1. The love, affection, and other emotional ties between each party and the child.
2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
4. The length of time the child has lived in a stable, adequate environment, and-the desirability of maintaining continuity of that environment.
5. The permanence, as a family unit of the existing or proposed custodial home or homes.
6. The moral fitness of each party, insofar as it affects the welfare of the child.
7. The mental and physical health of each party.
8. The home, school, and community history of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
[11. The distance between the respective residences of the parties.
12. The responsibility for the care and rearing of the child previously exercised by each party.

The court must consider all relevant factors in determining the best interest of the child. La. C.C. art. 134; Chandler, supra; Atkins, supra. Every child custody case should be decided in light of its own particular set of facts, circumstances and relationships. Chandler, supra; Atkins, supra.

In the case sub judice, the trial court found that Tony and Aimee’s inability to have shared custody of their children under the February 2011, consent decree constituted a “significant material change in circumstance from the entry of the judgment which would justify the court making a change in custody.” We agree. Further, both parties have admitted that the shared custody arrangement was not working. This is evidenced by the fact that the parties have been involved in constant litigation since they separated.

The trial court determined, while analyzing the factors enumerated in La. C.C. art. 184, that Tony and Aimee were “even” regarding most of the factors, and that three of the factors weighed in Tony’s favor.

Aimee argues that the trial court erred in finding that she and Tony were equal regarding the second factor enumerated in La. C.C. art. 134, namely, “the capacity and disposition of each party to give the child love, affection and spiritual guidance and to continue the education and rearing of the children.” She believes that the evidence presented at trial showed that this factor weighed in her favor. We disagree. The evidence did not | ^indicate that this factor weighed in either party’s favor. It is clear that both parties provide the children with love, affection, and spiritual guidance. Even though the parties had previously disagreed about which school Gauge should attend, this dispute had been resolved before the November 2013 judgment was rendered. Aimee stated in her brief that she sought a modification in Tony’s visitation because the “children’s grades suffered when they were with him during the school year.” We agree with the trial court’s determination that the cause of the decline in grades was “due to the instability of the relationship between the two of you [Tony and Aimee] and going back and forth with two various degrees of parenting styles.”

Aimee also argues that the trial court erred in finding that the third factor enumerated in La. C.C. art. 134, namely, “the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs,” weighed in Tony’s favor. At the time of trial, Aimee testified that she was living in a home in West Monroe, Louisiana, acquired by her current husband, Ryan Hackworth, with his separate property. She had not obtained her high school diploma, or her GED, and she was not employed. Aimee relied on Ryan’s financial support, and child support from Tony. Ryan testified that he was two months behind on the mortgage payments on his home. Tony, on the other hand, testified that he was a college graduate with both a full-time job and a part-time job. Even though Tony rented his home in West Monroe, Louisiana, he had lived there for approximately three years at the time of the trial. Further, Tony paid the Inpremiums for the boys’ medical insurance. Based on these facts, the trial court did not err in finding this factor weighed in Tony’s favor.

Aimee also contends that the trial court erred in weighing the fifth factor enumerated in La. C.C. art. 134, namely, “the permanence, as a family unit of the existing or proposed custodial home or homes,” in Tony’s favor. Aimee argues that she was “penalized” for not owning her home. After reviewing the record, it is clear that the trial court weighed this factor in Tony’s favor because of the long-term consistency of his home. As stated in our discussion of the previous factor, the trial court was concerned about Aimee’s husband being two months behind on mortgage payments. The trial court also stated that it believed Tony’s current wife, Anna Lawrence, would encourage the children to have a relationship with Aimee.

Aimee also asserts that the trial court erred in weighing the tenth factor enumerated in La. C.C. art. 134, namely, “the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and other party,” in Tony’s favor. The record supports the trial court’s finding that both parties did a poor job in terms of encouraging a close and continuing relationship between the child and the other party. Based on the numerous unnecessary pleadings filed regarding child custody matters, it is clear that the parties cannot put aside their differences for the best interest of the children. Aimee has exhibited some alarming behavior at the boys’ school, such as accusing Anna of kidnapping the boys from school, when Anna was only picking them up at Tony’s direction due to his conflicting work schedule. Aimee caused a scene at the |12school, and even reported it to the school board. It is clear that Aimee used that opportunity to attack Tony personally. Additionally, when the children were in Tony’s custody, Aimee constantly interfered and challenged his authority. She would constantly go to the children’s school during the weeks that Tony had custody of them. When the children were riding the bus to Tony’s house or his mother’s house, she would often sit in the yard so that the kids would see her. Aimee’s actions made the children’s difficult adjustment to the custody schedule even more challenging. Even though Tony never “caused a scene,” the record indicated that he did not maintain an open line of communication concerning the boys’ well-being, often ignoring Aimee’s texts.

The trial court noted that Tony appeared to have a “calmer approach,” and “was more level headed and more balanced in terms of dealing with Aimee.” On the other hand, the trial court found Aimee’s actions to “be more emotionally driven, maybe more extreme.” It noted that she overreacted to situations instead of taking a “calmer approach.”

Aimee also disagrees "with the trial court’s finding that she and Tony were “equal” regarding the twelfth factor enumerated in La. C.C. art. 134, namely, “the responsibility for the care and rearing of the child previously exercised by each party.” Aimee argues that during the parties’ marriage, she was a stay-at-home mom who provided nearly all of the care for the two minor children. Not to disclaim Aimee’s role in the children’s lives, the record also shows that Tony also cared for the boys during their shared ^custody arrangement, while maintaining a full-time and part-time job. The trial court did not err in making this determination. •

The trial court was faced with a difficult decision in this matter. It found that the parties’ inability to have shared custody of their children under the February 2011 consent decree constituted a “significant material change in circumstance from the entry of the judgment which would justify the court making a change in custody.” After carefully considering the testimony and evidence presented, the trial court determined that it would be in the children’s best interest to award the parties joint custody, and designate Tony as the primary domiciliary parent. After a careful review of the record, we find that the trial court did not abuse its discretion in making its determination.

CONCLUSION

For the reasons set forth in this opinion, we affirm the trial court’s judgment awarding the parties legal joint custody of the children, and designating Tony Lawrence as the primary domiciliary parent. Costs of the appeal are assessed against the appellant, Aimee Lawrence.

AFFIRMED.

      . This judgment was not signed until February 14, 2014.


source: Caselaw Access Project

license: Public Domain

text:
    William H. LAMB Appellant v. STATE of Mississippi Appellee.
    No. 2011-CT-00369-SCT.
    Supreme Court of Mississippi.
    Nov. 19, 2013.
   ORDER

This matter is before the undersigned Justice on the Motion for Reconsideration filed by William H. Lamb, pro se. On October 24, 2013, this Court dismissed Lamb’s Petition for Writ of Certiorari. Lamb now requests reconsideration of that ruling. Yet “[n]either an acceptance nor a rejection of a petition for certiorari shall be subject to further pleading by a party for rehearing or reconsideration.” M.R.A.P. 17(f). Based thereon, the undersigned Justice finds that this motion should be denied.

IT IS THEREFORE ORDERED that the Motion for Reconsideration filed by William H. Lamb, pro se, is hereby denied.

SO ORDERED.

/s/ Michael K. Randolph MICHAEL K. RANDOLPH, PRESIDING JUSTICE


author: LAMAR, Justice,

text:
    Karen COLLINS v. PINNACLE TRUST, Executor of the Estate of Stuart M. Irby, Deceased, Successor to the Conservatorship of Stuart M. Irby, Sr., Joseph Irby, Jeff Rickles, and Richard Montague as Co-Conservators of Stuart M. Irby, Sr.
    No. 2012-CA-01831-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.

      Terris C. Harris, Dennis C. Sweet, III, Jackson, Bo Roland, Dennis C. Sweet, IV, William P. Featherston, Jr., Ridgeland, attorneys for appellant.
    Luke Dove, Jackson, Laura M. Glaze, A.M. Edwards, III, attorneys for appel-lees.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. The Chancery Court for the First Judicial District of Hinds County, Mississippi, appointed conservators over the person and estate of Stuart Irby. Approximately one year later, Karen Collins Irby, Stuart’s ex-wife, filed pleadings to invalidate the conservatorship and set aside the transactions of the conservators. The chancery court denied Karen’s petition to invalidate the conservatorship and, finding no error, we affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶2. On February 11, 2009, Karen and Stuart were involved in a deadly automobile collision with a second vehicle. Karen was driving and Stuart suffered serious injuries, including head trauma. As a result of his injuries, Stuart developed impulse-control issues.

¶ 8. On March 22, 2011, Stuart filed a Petition for the Temporary and Permanent Appointment of a Conservator for his Estate and Person (“Petition”). Stuart was the only petitioner. Stuart sought a con-servatorship under Mississippi Code Sections 93-13-251, et. seq, and alleged that he was “incapable of managing his own estate due to a mental weakness, due to a traumatic injury to the frontal lobe of his brain sustained in an automobile accident February 11, 2009.”

¶ 4. Affidavits from two medical providers, Clea Evans, Ph.D., and Sudhakar Madakasira, M.D., were attached to the petition. Dr. Evans, a clinical neuropsy-chologist, averred that she had examined Stuart within the last thirty days and was of the opinion that he could not manage his own estate due to the damage to the frontal lobe of his brain and recommended that a conservator be appointed over his property and person. Dr. Mada-kasira, a psychiatrist, averred that he had examined Stuart within the last sixty days and was of the opinion that he could not manage his own estate by reason of mental weakness and recommended that a conservator be appointed over his property and person. Stuart also requested leave to file additional statements from medical providers and attorneys under seal.

¶ 5. On March 30, 2011, a hearing was held on Stuart’s Petition. Mississippi Code Section 93-13-253 requires that “upon the filing of the petition, the clerk of court ... shall cause not less than five (5) days’ notice thereof to be given to the person for whom the conservator is to be appointed.... ” Section 93-13-253 further provides:

Unless the court finds that the person for whom the conservator is to be appointed is competent and joins in the petition, the notice shall also be given to one (1) relative of the person for whom the conservator is to be appointed who is not the petitioner and who resides in Mississippi if such relative is within the third degree of kinship, preferring first the spouse, unless legally separated....

Miss.Code Ann. § 93-13-253 (Rev.2013). Stuart was present at the hearing, as was his brother, Charles, a resident of Tennessee. The chancery court asked if Stuart had been served, and was informed by Stuart’s counsel that Stuart joined in the Petition and had waived process. The court did not discuss whether Stuart was competent to join in the petition. Karen, who was married to Stuart at the time of the hearing, did not receive notice of the hearing from the clerk of court.

¶ 6. After reviewing the affidavits from the doctors supporting the petition, the chancery court granted the petition, and appointed Charles Irby, his brother Joe, and Stuart’s son, Stuart Jr. as co-conservators over Stuart’s estate. The court explained to Stuart that he would no longer be able to act on his own without going through his brothers and son, and asked him if he understood. Stuart responded that he understood. • The chancery court entered a permanent Order Appointing Conservators of the State and Person of Stuart Irby reflecting its findings made at the hearing.

¶ 7. On May 17, 2011, Stuart Irby filed a petition for divorce against Karen in the First Judicial District of Hinds County, Mississippi. The conservatorship was not a party to the original divorce complaint. On May, 26, 2011, the conservatorship filed a petition for leave to file an amended complaint for divorce to join the conserva-torship as a party to the divorce proceedings in the chancery court. The chancery court granted the conservators authority to file suit for divorce on Stuart’s behalf and to ratify the petition for divorce previously filed by Stuart. The conservators also were granted leave to execute documents necessary to carry the divorce proceeding to conclusion.

¶ 8. Thereafter, a property-settlement agreement was reached in the divorce, which was signed by Karen and her counsel, Richard Montague as co-conservator over Stuart, and counsel for the Conserva-torship. The property-settlement agreement was approved by the chancery court and was incorporated as an exhibit to the final judgment of divorce filed in chancery court on December 12, 2011. The chancery court found that Stuart was entitled to a divorce, that the parties had agreed to a property settlement, and that the claim for divorce and the claims pertaining to property and alimony between Stuart and Karen had been finally decided. The judgment of divorce was certified as final under Mississippi Rule of Civil Procedure 54(b). Karen did not object to the conser-vatorship at any time during the divorce proceedings. No appeal was taken from the final judgment of divorce.

¶ 9. On January 17, 2012, Stuart died. On March 12, 2012, Karen filed a petition to invalidate the conservatorship and set aside transactions in the chancery court. Karen argued, for the first time, that she should have received five days’ notice of the hearing appointing a conservatorship over Stuart under Mississippi Code Section 93-13-253. Karen argued that notice was not provided to her or to a Mississippi-resident relative of Stuart’s, and that the conservatorship was invalid due to the lack of notice. Karen further argued that all transactions involving the conservator-ship were, therefore, void. Lack of notice was the only basis Karen asserted to set aside the conservatorship.

¶ 10. On August 1, 2012, a hearing was held on Karen’s petition to set aside the conservatorship, along with other matters related to-Stuart’s estate. The chancery court heard testimony from Dr. Clea Evans and Charles Irby. Dr. Evans, the neu-ropsychologist who had prepared an affidavit in support of Stuart’s motion to appoint a conservatorship, testified that she had evaluated Stuart at the end of January and February of 2011, and that it was her opinion that Stuart needed a conservator-ship at that time, because, after his accident, his history of addiction, bipolar disorder, and obsessive-compulsive disorder “worsened such that his ability to consistently control his impulses and engage in socially appropriate behavior was compromised.” Dr. Evans further testified that:

[Stuart] had a lot of capacity and he had a lot of deficits. His abilities to comprehend and his reading comprehension, his language comprehension was fairly good. His verbal expression was compromised by some slurring of speech after his accident, but was fluent. He had retained at that point short-term memory for ongoing daily events [that] was fairly accurate. He was not disoriented or amnestic or confused.

¶ 11. Dr. Evans testified that, while Stuart was an intelligent man pre-injury and might know the correct answer on paper, at the time the conservatorship was imposed, he had problems following through with good reasoning and judgment in the real world. Dr. Evans further testified that Stuart was aware of the con-servatorship, that they had discussed it for some time, that Stuart had agreed to it, and that he understood what he was agreeing to. Charles testified that he had discussed the conservatorship with Stuart pri- or to the March 2011 hearing, that Stuart appeared to understand what a conserva-torship meant, and that Stuart had appeared to be competent to go forward with the decision to request that a conservator-ship be created.

¶ 12. The chancery court denied the petition to set aside the conservatorship, finding that Stuart’s petition was properly supported by the affidavits of two medical professionals. The court found that, at the March 80, 2011, hearing on Stuart’s petition, it had examined the affidavits provided by the medical providers, had personally observed Stuart, and had questioned him with regard to whether he understood the proceedings. The chancery court noted that Stuart had represented to the court that he was aware of and understood the proceedings.

¶ 13. The chancery court further found that, although it did not specifically state that Stuart was “competent” in its order appointing a conservatorship, the court did find that he was competent to understand the proceedings. The chancery court found that, if it had determined that Stuart was not competent, the court would not have opened a conservatorship the day of the hearing, but would have instructed counsel to follow the alternative notice requirements under Mississippi Code Section 93-18-253. The chancery court concluded that, “[b]ecause Irby was competent and joined in the Petition, no statutory duty existed to provide [Karen], or any other person, with notice of the conservatorship hearing.”

¶ 14. Karen now appeals the order denying her petition to set aside the conser-vatorship.

DISCUSSION

¶ 15. On appeal, Karen raises the following five issues:

A. Whether the conservatorship is invalid due to failure to provide adequate notice under Mississippi Code Section 93-13-253;
B. Whether judicial estoppel prevents the conservatorship from asserting that Stuart Irby was competent;
C. Whether the conservatorship is invalid due to failure to file a certificate of a medical professional with the clerk of court under Mississippi Code Section 93-13-255;
D. Whether the conservatorship is invalid due to the conservators’ failure to post a bond under Mississippi Code Section 93-13-17; and
E. Whether Stuart Irby lacked the power to commence a legal proceeding.

A. Whether the conservatorship is invalid due to failure to provide adequate notice under Mississippi Code Section 93-13-253.

1. Standard of Review

¶ 16. A chancellor’s findings are subject to an abuse-of-diseretion standard of review, and this Court will not disturb the “factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” “However, questions of law will be reviewed de novo”

2. The chancery court did not err in finding that the conservatorship was valid and that Karen was not entitled to notice of the hearing.

¶ 17. Mississippi Code Section 93-13-251 provides in relevant part that,

[u]nless the court finds that the person for whom the conservator is to be appointed is competent and joins in the petition, the [clerk of court] shall also [give five days notice of the hearing] to one (1) relative of the person for whom the conservator is to be appointed who is not the petitioner and who resides in Mississippi if such relative is within the third degree of kinship, preferring first the spouse, unless legally separated, then an ascendent or descendant, then a brother or sister....

Karen argues that Stuart was not competent at the time of the hearing and therefore could not consent to the conser-vatorship, and that the conservatorship is invalid because neither she nor any other of Stuart’s Mississippi-resident relatives were provided with notice by the clerk of court. The conservators argue that notice of the hearing was not required to be given to anyone other than Stuart because he filed his petition individually and was competent to do so.

¶ 18. In its order denying Karen’s petition to invalidate the conservatorship, the chancery court found that, at the hearing to appoint a conservatorship in 2011, the court:

questioned Irby with regard to his understanding of the proceeding. Although this Court did not specifically state that Irby was “competent,” this Court did find that Irby was competent to understand the conservatorship. If this Court had determined Irby to be incompetent, this Court would not have opened a conservatorship on the date of the hearing. Instead, this Court would have instructed counsel to follow the alternative notice requirements set forth in Miss.Code Ann. § 93-13-253. Therefore, this Court did find that Irby was competent to understand the conserva-torship proceeding on March 30, 2011, whether or not the same was explicitly set forth in its bench opinion.

Therefore, the chancery court denied Karen’s petition.

¶ 19. The record reflects that the chancellor asked Stuart if he understood the proceedings at the March 30, 2011, hearing and that Stuart indicated that he did. On August 1, 2012, the chancery court heard testimony at the hearing on Karen’s motion to invalidate the conservatorship from Dr. Evans and Charles Irby. Dr. Evans testified that she had evaluated Stuart at the end of January and February of 2011, that Stuart was aware of the conservator-ship, that they had discussed it for some time, that Stuart had agreed to it, and that he had understood what he was agreeing to.

¶ 20. Charles testified that he had discussed the conservatorship with Stuart pri- or to the March 2011 hearing, that Stuart had appeared to understand what a con-servatorship meant, and that Stuart had appeared to be competent to go forward with the decision to request that a conser-vatorship be created. The testimony presented at the September 2012 hearing supported the chancellor’s determination that Stuart was competent to join in the petition, even though he was not competent to manage his own affairs. Indeed, no evidence was presented that would show that Stuart was not competent to join his petition, and absent a finding that Stuart was not competent to join the petition, Karen was not entitled to notice of the hearing. Therefore, we find no abuse of discretion and affirm the chancery court’s determination that the conservatorship was not invalid due to lack of notice to Karen. This issue is without merit.

B. Whether judicial estoppel prevents the conservators from asserting that Stuart Irby was competent.

¶ 21. Karen argues that the conservators are judicially estopped from arguing that Stuart was competent because criminal charges against him were dismissed by the Circuit Court of Madison County, Mississippi, on November 2, 2011, in part because a psychiatric evaluation found that Stuart lacked the ability to confer with his legal counsel in preparation of a defense and that Stuart lacked the capacity to distinguish between right and wrong at the time of the crimes. The conservators argue that judicial estoppel does not apply in this case.

¶ 22. Judicial estoppel “arises from the taking of a position by a party to a suit that is inconsistent with the position previously asserted in prior litigation.” In this case, Karen argues that the conservators should be estopped from now claiming that Stuart was competent for purposes of joining in his petition in March 2011 because Stuart benefitted from a. finding that he was unable to assist in his legal defense to criminal charges in November 2011. There is no evidence that the conservators took any position with regard to Stuart’s competency in the criminal matter. Indeed, the order of dismissal in the criminal matter states that the independent psychiatric examination of Stuart to evaluate Stuart’s ability to assist in his defense was performed at the request of the State of Mississippi. Additionally, the conservators argue that Stuart was competent to join in his petition in March 2011, which was several months before Stuart was found incapable of assisting with his defense in the criminal matter. Therefore, we find that the conservators’ position that Stuart was competent to join in the petition in March 2011 is not inconsistent with a position taken in prior litigation, and that judicial estoppel is not applicable to this case.

C. Whether the conservatorship is invalid due to failure to file a certificate of a medical professional with the clerk of court under Mississippi Code Section 93r-13-255.

¶ 28. Mississippi Code Section 93-13-255 provides that, for a chancellor to determine whether a conservator is needed,

at least two (2) physicians who are duly authorized to practice medicine in this state, or another state or one (1) such physician and a psychologist, licensed in this state or another state, each of whom shall be required to make a personal examination of the subject party, and each of whom shall make in writing a certificate of the result of such examination, which certificate shall be filed with the clerk of court and become a part of the record of the case.

Stuart’s petition included affidavits of Dr. Evans and Dr. Madakasira, and it was filed in the chancery court on March 22, 2011. Both doctors averred that they personally had examined Stuart and that it was their opinion that Stuart was incapable of managing his own affairs and person due to mental weakness, and they further averred that a summary of Stuart’s history and disability would be more fully explained in their reports, which would be submitted to the chancery court under seal.

¶ 24. On appeal, Karen argues for the first time that the conservatorship is invalid due to failure to file the reports referenced in the affidavits provided by Dr. Evans and Dr. Madakasira with the clerk. The conservators argue that the affidavits of Dr. Evans and Dr. Madakasira were filed with the court as attachments to the petition, were made part of the record, and satisfied the requirements of Section 93-13-255.

¶25. We find that the affidavits filed with Stuart’s petition satisfy the requirements of Section 93-13-255, and that this issue is without merit.

D. Whether the conservatorship is invalid due to the conservators’ failure to post a bond under Mississippi Code Section 93-13-17.

¶ 26. Mississippi Code Section 93-13-17 provides that “[ejvery guardian, before he shall have authority to act, shall, unless security be dispensed with by will or writing or as hereinafter provided, enter into bond payable to the state, in such penalty and with such sureties as the court may require.... ” The order appointing conservators of the estate and person of Stuart Irby reflects that the chancery court found that “the conservators may serve without the posting of a bond.”

¶ 27. Karen argues, again for the first time on appeal, that the conservator-ship is invalid due to the chancery court’s failure to require the co-conservators to post a bond. The conservators argue that Section 93-13-17 addresses guardianship matters and does not apply to conservator. The conservators further argue that, even if a bond was required, such failure would be a curable defect and would not invalidate the conservatorship or the actions of the conservators. We find that this issue is procedurally barred from consideration because Karen failed to raise it in the chancery court. Notwithstanding the procedural bar, and assuming without deciding that a bond should have been required, “mere irregularities in the appointment or proceedings are immune from collateral attack”; therefore, the absence of bond is a curable defect and this issue is without merit.

E. Whether Stuart Irby lacked the power to commence a legal proceeding.

¶ 28. Karen argues that it was established that Stuart was a person of “unsound mind” on March 22, 2011, due to his February 2009 accident, because the chancery court determined that he was incapable of managing his own affairs and because the Circuit Court of Madison County dismissed the criminal charges against him. Therefore, Karen argues that Stuart lacked the capacity to commence a legal proceeding on March 22, 2011, and that the conservatorship is a nullity because Stuart was the only petitioner.

¶ 29. This argument overlaps with Karen’s argument that she was entitled to notice of the conservatorship hearing because Stuart was not competent to join in his petition. For all the reasons discussed above, we find that this issue is without merit and requires no further discussion.

CONCLUSION

¶ 30. For the foregoing reasons, we find that the Chancery Court of the First Judicial District of Hinds County, Mississippi, did not err in denying Karen Collins’s petition to set aside the conservatorship over Stuart Irby and invalidate all transactions. Therefore, we affirm the judgment of the chancery court.

¶ 31. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Mississippi Code Section 93-13-251 (Rev. 2013) provides in relevant part that
      If a person is incapable of managing his own estate by reason of advanced age, physical incapacity or mental weakness ... the chancery court of the county wherein the person resides ... upon petition of the person or of one or more of his friends or relatives, may appoint a conservator to have charge and management of the property of the person and, if the court deems it advisable, also to have charge and custody of the person subject to the direction of the appointing court.

      . Joe and Smart Jr. were both residents of Arkansas.

      . Charles and Stuart Jr. had resigned as co-conservators and had been replaced by Jeff Rickies and Richard Montague. Joe Irby remained a co-conservator.

      . Carlisle, v. Allen, 40 So.3d 1252, 1256 (Miss.2010) (citations omitted).

      . Id.

      . Ivy v. Harrington, 644 So.2d 1218, 1222 (Miss.1994) (citation omitted).

      . Triplett v. Mayor & Bd. of Aldermen of City of Vicksburg, 758 So.2d 399, 402 (Miss.2000) ("This Court has long held that it will not consider matters raised for the first time on appeal.”).

      . Matter of Estate of Moreland, 537 So.2d 1337, 1341 (Miss. 1989).


author: DICKINSON, Presiding Justice, PIERCE, Justice,

text:
    Harvill Payne RICHARDSON a/k/a Harvill Richardson a/k/a Harvill Richardson, Sr. a/k/a Harvill P. Richardson v. STATE of Mississippi.
    No. 2012-KA-01158-SCT.
    Supreme Court of Mississippi.
    June 26, 2014.
    Rehearing Denied Oct. 9, 2014.

      Michael W. Crosby, Gulfport, attorney for appellant.
    Office of the Attorney General by Brad Alan Smith and John R. Henry, Jr., attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. In this murder prosecution, the trial judge ruled in limine that the defendant would not be allowed to support his self-defense claim with evidence of the victim’s prior bad acts, including a violent criminal history. Because the defendant’s knowledge of this evidence would be highly probative of the reasonableness of his conduct and fear of the victim, we reverse and remand for a new trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Because Rudy Quilon was homeless following his release from prison, Harvill Richardson permitted Quilon to move into his home while he got back on his feet. Over the next five months, Quilon became increasingly unwelcome as he bragged about having been convicted for murder and armed robbery, his previous experiences as a gang member, and killing a “snitch” in prison. He warned that he could harm those who upset him.

¶ 3. On numerous occasions, Richardson attempted to persuade Quilon to leave the home, but Quilon claimed that he could not leave because he had no transportation or place to go. This prompted Richardson to offer Quilon a car and money for rent, but Quilon refused and repeatedly used threats to coerce Richardson and to remain in the home.

¶ 4. This situation culminated when Quilon, who had begun watching pornography on Richardson’s computer, stated that he wanted to have sex with Richardson’s wife. Richardson ordered Quilon to gather his belongings and leave. Quilon refused and walked out to a shed behind the home where Richard kept axes and other tools that could be used as weapons. Richardson then armed himself with a pistol. As Quilon returned from the shed, he approached Richardson in a threatening manner, with one arm concealed behind his back. Richardson attempted to stop him by warning him not to come any closer, and by firing a warning shot into the ground, but Quilon kept coming toward him, so Richardson shot Quilon in the stomach.

¶ 5. Richardson called 911 and informed the dispatcher that he had shot a man named Rudy Quilon in his back yard. Richardson stated that Quilon had come at him in a threatening manner and “kept coming towards me,” and that “I told him don’t come towards me any more.” He told the dispatcher that he had fired one warning shot at the ground, which Quilon ignored, and that Quilon had said “don’t do that, I’ll take care of you.” Expert testimony established that Richardson shot Quilon at close range, “somewhere in the range of 30 inches from the end of the barrel to the man’s skin where the bullet went in.”

¶ 6. Despite Richardson’s version of the facts and claim of self-defense, the State had him indicted for murder and then filed a motion in limine, seeking to prevent him from introducing evidence of Quilon’s prior bad acts. The State argued that the convictions would be improper impeachment evidence under Mississippi Rule of Evidence 609 because they did not involve an element of dishonesty and were more than ten years old, and that the probative value of the convictions was greatly outweighed by the risk of prejudice. And during the pretrial hearing on the State’s motion, the prosecutor moved ore tenus for the trial court to redact from the 911 transcript a reference to Quilon being a felon.

¶ 7. Richardson’s counsel responded by making it clear that he did not intend to use Quilon’s prior bad acts, including his convictions, for impeachment purposes. Instead, he pointed out that the evidence of Richardson’s knowledge of Quilon’s violent criminal history was critical to his defense and was necessary for the jury to assess the reasonableness of his actions on the night of the shooting.

¶8. Also, Richardson’s counsel played the recording of the 911 call for the trial judge and then argued:

[Ajbout midway through the transcript, she [the 911 operator] says did he have a weapon, and he says what? She said, you just said you shot a man, did he have a weapon? And he was trying to explain that he was coming at him in a threatening way, and that he said don’t do that, I will take care of you. And by that he means, and at that point that goes back to his criminal felony convict mentality and the way they act. “I’ll take care of it,” means like when he was a convict and he would brag about it. He would say things like. They wanted me to kill this person and take a hit out and I took care of it. I’ll take care of this. Taking care of it wasn’t just a kind expression of intent to do something innocuous [sic]. It was a menacing threatening thing coming out of his mouth. When he took care of something, it had a lot more emphasis and intent. It was a very loaded statement that required explanation.

¶ 9. Instead of responding to Richardson’s argument, the State returned to its Rule 609 argument concerning impeachment, after which the trial judge granted the State’s motion in limine without reservation, stating “with regard to the state’s motion in limine to exclude the victim’s priors, which also included, ore tenus, a portion of the 911 tape .... [t]hat motion is sustained or granted.”

¶ 10. Defense counsel then voiced concern as to whether the trial judge’s ruling merely prohibited reference to Quilon’s convictions or also precluded the defendant’s testimony that Quilon had bragged about his crimes to instill fear in the defendant, which affected his state of mind on the night of the killing. The trial judge noted the necessity of showing an overt act before the victim’s propensity became relevant. Defense counsel responded that the trial judge had heard sufficient evidence of an overt act.

¶ 11. The trial judge did not address or assess Richardson’s argument. Instead he referred back to Rule 601’s impeachment standard, stating that Quilon’s convictions were too remote in time to be relevant and that their probative value was outweighed by their prejudicial impact. Defense counsel then proffered Richardson’s testimony, which included his account of how Quilon had bragged about his violent past to instill fear in Richardson as a means of manipulation. Richardson also explained the reasons why he had sought to remove Qui-lon from his home on the night of the killing, and how Quilon had come out of the storage shed with his hand concealed behind his back, advancing toward him and refusing to stop, even after Richardson verbally had warned him and had fired a warning shot into the ground.

¶ 12. After hearing Richardson’s proffer, the trial judge stated that his original ruling would stand. Richardson was tried and convicted of murder.

ANALYSIS

¶ 18. We review the trial judge’s decision to admit or exclude evidence for an abuse of discretion, but we apply de novo review to a trial judge’s analysis and application of the law. The State’s erroneous argument concerning Rule 609 needs little analysis. Rule 609 allows a party, within certain limits, to use a witness’s prior criminal convictions to impeach the credibility of that witness. Since Quilon was dead, he was not going to be a witness, so Rule 609 had no application whatsoever to his prior bad acts. The trial judge committed error in applying Rule 609. But, even if the trial court had based his ruling on the law related to use of a victim’s criminal history in self-defense cases, his ruling still would have been incorrect.

Quilon’s prior bad acts were relevant and admissible.

¶ 14. Evidence with “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by” the rules of evidence.

¶ 15. Although relevant, character evidence — also referred to as prior bad acts — may not be used “for the purpose of proving that [a person] acted in conformity therewith on a particular occasion.” But this rule has several exceptions, one of which is “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused....” Another exception is where the evidence is not offered for character purposes, but rather for some other purpose.” In this case, both exceptions apply.

¶ 16. Rule 404(a)(2) — which allows a defendant to admit evidence of a “pertinent trait of character of the victim of the crime” — applies on its face. The character trait at issue — violence—is certainly “pertinent” to Richardson’s claim of self-defense. And Rule 404(b) — which allows character evidence to be introduced for “other purposes” — applies because Richardson clearly and forcefully attempted to use the prior criminal history, not to show propensity, but to show his state of mind, that is, that at the time of the shooting, he feared Quilon, and that his fear was reasonable.

¶ 17. Murder requires deliberate design. A killing in self-defense requires an objectively reasonable belief that lethal force was necessary to prevent death or serious bodily harm. Richardson’s claim of self-defense not only allows, but requires evidence of the defendant’s state of mind at the time of the killing. So, evidence showing Richardson’s knowledge of Quilon’s prior violent criminal history was quite clearly relevant under Rule 401’s standard and admissible under the standards of Rule 404(a)(2) and Rule 404(b).

¶ 18. Prior to our adoption of the rules of evidence, our cases held that, “[o]rdi-narily the character or reputation of the deceased person is not involved as part of the issue in a murder case, and proof relative thereto is generally inadmissible.” This holding was predicated on the view that the unprovoked killing of a bad person is no less murder than the unprovoked killing of an innocent one. And before the accused could present evidence of the victim’s bad character, self-defense had to be at issue. Self-defense was not considered to have been at issue until the defendant produced some evidence of an overt act by the victim that could be construed as aggression. These holdings were designed to accomplish today’s Rule 401 and 404 purposes.

¶ 19. Today, the admissibility of evidence is controlled by the Mississippi Rules of Evidence, which include no specific requirement of an overt act. But even assuming our rules included the requirement of an overt act of aggression, there was ample evidence for the jury to find one here. Through Richardson’s testimony and the 911 recording, Richardson stated several times that Quilon had emerged from the shed and had kept coming towards him in a menacing way, despite repeated warnings to stop. Richardson added that Quilon was coming from a storage shed and had concealed his left hand behind his back. And the evidence clearly established that Richardson did not shoot Quilon until the two were in close proximity.

¶ 20. So, even were we to apply our pre-rules caselaw, the trial judge should have allowed Richardson to introduce evidence of his knowledge of Quilon’s violent criminal history. The dissent seems to believe that the trial judge would have allowed Richardson to testify about his knowledge of Quilon’s criminal conduct and violent past. Nothing in the trial judge’s rulings suggests this is so. Indeed, after the trial judge granted the State’s motion to exclude evidence of Qui-lon’s violent past, Richardson proffered the testimony he "wished to provide concerning his fear of Quilon because of his violent past. At the conclusion of the proffer, the trial judge reaffirmed his ruling excluding the evidence:

The court’s ruling remains. I will also note that the defendant stated that the last statement to that effect allegedly made by the victim was days before the incident for the basis of the indictment that we are here for today. So based on the remoteness of time, as well as the prejudicial effect, the ruling stands.

¶ 21. At no point did the trial judge ever indicate he would allow Richardson to testify about Quilon’s violent past. To the contrary, the trial judge made it quite clear that he would not allow Richardson to testify about Quilon’s threats and his knowledge of Quilon’s violent history. Defense counsel then engaged in the following exchange with the trial court:

MR. CROSBY: To what extent will I be allowed to say about his state of mind concerning any bad behavior, not the specifics, but the fact he was a bad guy or he would use—
THE COURT: Yet again, I "will defer to our Supreme Court that stated whether a victim is a good guy or bad guy, it’s irrelevant to the crime. Whether a good man dies or a bad man dies is irrelevant to the charge of the offense.
MR. CROSBY: It is irrelevant he told Mr. Richardson he is [a] bad guy as a way of intimidating Mr. Richardson and to allow him to stay longer?
THE COURT: There may be some relevance, but it is greatly outweighed by the prejudicial effect. And will serve only to confuse this jury.
MR. CROSBY: So I can’t say that he intimidated Mr. Richardson by bragging about anything in the past criminally?
THE COURT: Now that’s a gross generalization. What I’m not going to allow you to bring forth to this jury is the fact that this victim alleged to be a gang member in San Diego.... That he had killed a cell mate by throwing him to the ground and strangling him. And that he had executed a young lady because she was a snitch. Anything further, [Sjtate?

¶ 22. We find the trial court’s ruling to have been quite clear. Richardson was not going to be allowed to present evidence of Quilon’s violent history, either through his own testimony or otherwise.

¶ 23. Due to the importance of the defendant’s state of mind in a self-defense case, the trial judge’s erroneous decision to exclude this evidence significantly hampered Richardson’s ability to present a defense, so we must reverse.

CONCLUSION

¶ 24. The State incorrectly argued that Quilon’s violent criminal history was precluded by Rule 609 — a rule that applies only to impeachment of witnesses. The trial judge committed reversible error by refusing to allow Richardson to defend himself with evidence that tended to show his state of mind at the time of the killing. This evidence was crucial to Richardson’s claim of self defense. We therefore must reverse Richardson’s conviction and remand for a new trial.

¶ 25. REVERSED AND REMANDED.

RANDOLPH, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ„ CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND CHANDLER, J.

PIERCE, Justice,

dissenting:

¶ 26. Because I find no reversible error in this case, I respectfully dissent from the majority’s decision to reverse Harvell Richardson’s murder conviction.

¶ 27. At the outset, the trial court’s ruling was based on a pretrial motion in limine, which by its nature constitutes a tentative ruling, subject to change by the trial court during the course of trial as the evidence fully develops. See State v. Hicks, 806 So.2d 261, 265 (Miss.2002) (noting that “[p]re-trial evidentiary rulings in limine are inherently subject to change depending upon what actually transpires at trial”). The State sought the motion in limine to exclude testimony or reference to the decedent, Rudolpho Quilon’s 1976 and 1985 felony convictions, which, based on the record, Richardson was not aware of until the two prior convictions were disclosed by the State during discovery.

¶ 28. In granting the motion, the trial court stated:

It’s the Court’s ruling that I am going to deny the testimony at this time with regard to ... the two convictions from a 1976 as well as a 1985 conviction. I find them too remote in time to be relevant for this jury to hear.
I also am making a determination at this time that it is extremely prejudicial and greatly outweighs any probative value with regard to any testimony that has been brought up, I’m not going to reiterate it because the record is replete with regard to the victim alleging that he killed people [sic] was a hit man, I think had done something to that effect, while incarcerated. It’s the court’s opinion that that all stems from the two convictions. And accordingly, I’m going to exclude it. I don’t see the relevance at this juncture, and I think it’s prejudicial. That will be the ruling of the court.

(Emphasis added.) Afterwards, the defense requested that it be allowed to proffer Richardson’s testimony regarding Qui-lon’s criminal past, which the trial court allowed. The majority’s fact recitation of the case comes mainly from this proffered testimony.

¶29. After Richardson’s proffer, the following exchange occurred between the trial court and counsel for the respective parties:

THE COURT: And with the statements being he was a gang member in San Diego, that he had killed a cell mate by pushing him down and, I believe, strangling him, and that he had executed a lady because she was a snitch. The court’s ruling remains. I will also note that the defendant stated that the last statement to that effect allegedly made by the victim was days before the incident for the basis of the indictment that we are here for today. So based on the remoteness of time, as well as the prejudicial effect, the ruling stands.
MR. CROSBY: To what extent will I be allowed to say about his state of mind concerning any bad behavior, not the specifics, but the fact he was a bad guy or he would use—
THE COURT: Yet again, I will defer to our Supreme Court that stated whether a victim is a good guy or bad guy, it’s irrelevant to the crime. Whether a good man dies or a bad man dies is irrelevant to the charge of the offense.
MR. CROSBY: It is irrelevant he told Mr. Richardson he is [a] bad guy as a way of intimidating Mr. Richardson and to allow him to stay longer?
THE COURT: There may be some relevance, but it is greatly outweighed by the prejudicial effect. And will serve only to confuse this jury.
MR. CROSBY: So I can’t say that he intimidated Mr. Richardson by bragging about anything in the past criminally?
THE COURT: Now that’s a gross generalization. What I’m not going to allow you to bring forth to this jury is the fact that this victim alleged to be a gang member in San Diego.... That he had killed a cell mate by throwing him to the ground and strangling him. And that he had executed a young lady because she was a snitch. Anything further, [Sjtate?
MR. WARD: Your Honor, we might as well get this out of the way. The defendant stated that immediately prior, allegedly, immediately prior to his killing of the victim in this case, the victim allegedly said if you ever pull a gun on me, I will kill you. It’s clearly hearsay. We would ask that not be admitted.
THE COURT: That ore tenus motion is denied....

¶80. Richardson’s attorney also made the following argument to the trial court:

I’m not trying to talk about [Quilon’s] propensity for violence. The core of our argument here is self-defense based on the state of mind of our defendant.
Now, [the State], to the extent that [the State] says, well, we’ve heard no testimony, so we can’t say that. Well, I mean, that’s the way we are as we proceed in every single case. When the attorneys make an opening statement, they are making that statement based on what they expect the testimony to show. And what I expect the testimony to show is that [Richardson] allowed a man who he knew to have had a bad past, but who he expected and thought through his Christian acts would be able to reform and redeem the man, and that the man resisted that and began to do the opposite of what was expected by [Richardson]. And over the course of five months [sic] had gotten so bad through intimidation of his family members and everything from pornography, to statements to his family that offended Richardson, and [Richardson] took every act from renting a place for ... Quilon to stay, to buying a car, to doing everything he could to get him out of the house, short of forcing him to. And on this night whenever he finally reached a point [sic] where [Quilon] said I want to have sex with your wife, that it became intolerable. And that Mr. Richardson said I’m getting him out of the house, with force if necessary, but he is out now. It’s over. He is going to get out. And that’s what he did to get him out. And his state of mind was based on his past behavior that he had to arm himself because this was a dangerous man based on statements made to Mr. Richardson. I expect the testimony to show everything I just said.
Now, I know [the court has not] heard that yet. You heard some of it. But you haven’t heard it. Of course you haven’t, we haven’t started the trial yet. We haven’t even picked a jury yet. But before I make my statement-and when I voir dire the jury, I need to know that I’m going to be able to defend my client. If I can’t say these things, then what would my defense be? We certainly have been saying this the whole time. It’s self-defense, and we’ve made these — whether we bring a witness to do it or whether we have Mr. Richardson do it, the defendant is not required to reveal his defense ahead of time ever. But we have to be able to say this. If I’m not able to prove what I say, then ... the attorney on the other side can come in and hold me accountable with that with respect to the jury.
But that’s exactly what we expect our client to say, the testimony to be, and without that, if we can’t argue that Mr. Richardson was afraid and armed himself because Mr. Quilon had bragged about his criminal past, then you are basically directing a verdict against us. We won’t be able to defend in trial.

¶ 31. I do not read the trial court’s pretrial ruling as refusing to allow Richardson to defend himself with evidence that tended to show his state of mind at the time of the killing. Indeed, the State acknowledged during the pretrial hearing that Richardson could testify to whatever Richardson wanted to say regarding his state of mind. Clearly, what the State sought to prevent, however, was nonevi-dentiary, prejudicial remarks about Qui-lon’s past being improperly interjected into the case. (Emphasis added.)

¶ 32. The majority finds this “inherently contradictory,” which tells me the majority failed to read and comprehend the rest of my dissent. See Maj. Op. at n. 17. As the aforementioned colloquies illustrate, Richardson’s trial counsel wanted to know how he could introduce evidence of the victim’s character without putting on a defense.

¶ 33. In order to introduce evidence of the victim’s character, for self-defense purposes, Mississippi law requires that there be a question as to who was the initial aggressor. How that question arises depends, of course, on the circumstances attending that particular case. But, how that question does not arise, I am certain, is through comments and statements made by trial counsel during voir dire, opening statements, witness examination, and at closing arguments.

¶ 34. At the pretrial hearing, multiple and conflicting versions of what allegedly transpired between Richardson and Quilon the night of the shooting were presented to the trial court, which may or may not have demonstrated an act of aggression on Quilon’s part. All the trial court was left with was speculation as to which version might evolve at trial. This was what concerned the trial court, and it served as the basis for the court’s ruling. And I find no abuse of discretion therein.

¶ 35. For these reasons, I respectfully dissent.

WALLER, C.J., and CHANDLER, J., join this opinion.

      . Indeed, that would have been impossible. Rule 609 applies only to impeachment of a witness, and Quilon (who was dead) was not going to be a witness.

      . Outerbridge v. State, 947 So.2d 279, 282 (Miss.2006) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)).

      . Smith v. Hollins, 905 So.2d 1267, 1270 (Miss.2005).

      . M.R.E. 609.

      . M.R.E. 401.

      . M.R.E. 402.

      . M.R.E. 404(a).

      . M.R.E. 404(a)(2).

      . M.R.E. 404(b).

      . Miss.Code Ann. § 97-3-19 (Rev.2006).

      . Hart v. State, 637 So.2d 1329, 1340 (Miss. 1994).

      . Shinall v. State, 199 So.2d 251, 257 (Miss. 1967), overruled on other grounds by Flowers v. State, 473 So.2d 164, 165-66 (Miss.1985).

      . Shinall, 199 So.2d at 257 (citing Spivey v. State, 58 Miss. 858 (1881); Chase v. State, 46 Miss. 683 (1872); Jolly v. State, 13 Smedes & M. 223, 1849 WL 2322 (1849); Dowling v. State, 5 Smedes & M. 664, 1846 WL 1617 (1846); 40 CJ.S. Homicide § 222 (1944)).

      . Shinall, 199 So.2d at 257 (citing Spivey, 58 Miss. at 858; Moriarty v. State, 62 Miss. 654, 661 (1885); Smith v. State, 75 Miss. 542, 23 So. 260 (1898); Anderson v. State, 181 Miss. 300, 179 So. 560 (1938); Wesley v. State, 37 Miss. 327, 346 (1859)).

      . Shinall, 199 So.2d at 258.

      . Order Adopting the Mississippi Rules of Evidence (Sept. 24, 1985); see also M.R.E. 1101.

      . The dissent claims it does "not read the trial court’s pretrial ruling as refusing to allow Richardson to defend himself with evidence that tended to show his state of mind at the time of the killing.” And then it says: "Clearly, what the State sought to prevent, however, was nonevidentiary, prejudicial remarks about Quilon's past being improperly interjected into the case.” We find these two statements to be inherently contradictory.