author: CARLTON, J.,

text:
    April FAERBER, Appellant v. Robert Edward FAERBER, Appellee.
    No. 2008-CA-00236-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      William B. Jacob, Meridian, attorney for appellant.
    Robert D. Jones, Brookhaven, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.

      . The chancellor deducted the $183,377 loan for CPA from the value of the family home and also the value of CPA. A lien should not be deducted from the value of two different assets. The valuation of the marital property should reflect one satisfaction of a lien from the appropriate asset.

   CARLTON, J.,

for the Court.

¶ 1. On January 14, 2008, the chancellor granted April and Robert (Bobby) Faer-bers’ divorce, after ten years of marriage, on the ground of Bobby’s uncondoned adultery. April appeals, alleging that the chancellor erred when he: (1) failed to correctly apply the Ferguson factors in determining the equitable distribution of the couple’s marital property; (2) considered the business, College Park Auto (CPA), as Bobby’s separate property; (3) failed to award April permanent alimony; (4) failed to award April attorney’s fees; and (5) reduced Bobby’s child support obligations. Upon review, we find that the chancellor erred in his application of the law and abused his discretion in the manner that he: (1) classified April’s and Bobby’s property, (2) structured April’s lump-sum alimony, and (3) determined Bobby’s adjusted gross income for purposes of child support. Therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. April and Bobby were married on July 7, 1995. According to April, the couple separated on February 11, 2005, when she discovered Bobby had engaged in an affair. At the divorce trial on December 4-5, 2007, Bobby admitted that he had engaged in three adulterous relationships during the couple’s marriage. On January 14, 2008, the chancellor granted April and Bobby a divorce on the ground of Bobby’s uncondoned adultery.

¶ 3. April and Bobby have two children, Jenna and Landon. Bobby did not seek physical custody of either child. As a result, the chancellor granted April custody of both children and set a visitation schedule for Bobby. The focus in this case concerns the manner in which the chancellor classified the property at issue, structured April’s lump-sum alimony award, and determined Bobby’s adjusted gross income.

I. The Chancellor’s Distribution of April’s and Bobby’s Property

¶ 4. The chancellor summarized the equitable division of the marital estate in that April would receive the following property: (1) equity in the former family home, $55,000; (2) furniture in the former marital home, $32,950; (3) 2002 Ford Expedition, $6,600; (4) 1992 GMC Z-71, $2,000; (5) April’s jewelry, $7,000; (6) Roth IRA, $425; and (7) Honda ATV proceeds, $3,500. The chancellor determined that April’s distribution of the marital estate totaled $107,475.

¶ 5. In turn, the chancellor awarded Bobby the following marital property: (1) equity in the former marital home, $55,000; (2) furniture in the former marital home, $3,600; (3) 1981 Ford Bronco, $1,500; (4) shotguns and rifles, $4,500; (5) tractor, $10,500; (6) lawnmower, $5,150; and (7) Roth IRA, $425. The chancellor determined that Bobby’s distribution of the marital estate totaled $80,675.

¶ 6. The chancellor classified and valuated the following items as Bobby’s separate property: (1) the family home; (2) CPA, $298,000; (3) furniture Bobby acquired after the couple’s separation, $19,200; (4) 2002 Volkswagen Jetta, $8,750; and (5) one-half interest in a 2006 Dodge pickup truck, $14,500. The chancellor valued Bobby’s total separate estate at $340,450. The chancellor found April owned no separate property.

¶ 7. In evaluating the chancellor’s classification of the property and the factors he considered, we now turn to the chancellor’s specific findings regarding CPA, alimony, attorney’s fees, and child support.

A. The Business, CPA

¶ 8. The chancellor classified CPA as Bobby’s separate property. The chancellor found that CPA constituted Bobby’s separate property based on the following reasons: (1) on December 14, 1995, Bobby’s father gave Bobby, via inter vivos gift, CPA and the real property on which CPA operates; (2) April did not directly contribute to CPA; (3) April did not work at CPA on a regular basis; (4) April did not prove that any appreciation in CPA’s value during the marriage would have been divisible property; and (5) both April and Bobby considered CPA to be Bobby’s separate property before the marriage.

¶ 9. As to CPA’s valuation, the chancellor found that since the parties failed to present the business-evaluation expert’s report as evidence, he was left with the testimony of the witnesses to determine the value of the business. The chancellor stated that Bobby had agreed on paper that his equitable interest in the business was approximately $298,000, which Bobby arrived at by valuing of all the business assets at $412,000 less $114,000 in debt.

¶ 10. The chancellor found that April had estimated that Bobby’s equity in CPA amounted to $400,000, but the chancellor stated that April had failed to take into account the $114,000 in debt. The chancellor, finding no evidence to dispute Bobby’s valuation of CPA, accepted Bobby’s testimony that Bobby’s equitable interest in CPA amounted to $412,000 less the $114,000 outstanding debt from Bobby’s $183,377 loan for CPA — -for a total value of $298,000.

B. Alimony

¶ 11. The chancellor ordered Bobby to pay April $55,000 in lump-sum alimony at a monthly rate of $1,000, until paid in full. However, the chancellor ordered that for every month April resided in the family home, Bobby would not be required to make his $1,000 monthly lump-sum alimony payment. Per the chancellor’s order, April’s lump-sum alimony, in the amount of $55,000, represented her share of the $111,000 of equity in the family home.

¶ 12. At trial, Bobby admitted that he fraudulently obtained a loan by having a girlfriend sign April’s name to a $183,377 loan for CPA by using the $225,000 family home as collateral. April had refused to sign such a loan. Despite Bobby’s admission regarding the fraudulent nature of the loan, the chancellor calculated the equity in the family home by subtracting $114,000, which was the amount remaining on Bobby’s $183,377 loan, against the family home’s value of $225,000, to arrive at $111,000 in equity. Then, the chancellor divided this figure of $111,000 in half in determining that April’s and Bobby’s shares of the equity in the family home each amounted to $55,000.

¶ 13. However, as noted above, the chancellor determined that April’s $55,000 of equity in the family home constituted her lump-sum alimony; however, Bobby’s $55,000 of equity in the family home constituted his portion of the marital estate.

C. Attorney’s Fees

¶ 14. The chancellor found that April’s monthly income of $2,579, along with her distribution of the marital estate, provided April “ample resources with which to pay her attorney.” The chancellor also noted that “Bobby has his own attorney to pay.” As a result, the chancellor denied April an award of attorney’s fees.

II. Child Support

¶ 15. Bobby did not seek custody of his two children. Therefore, the chancellor ordered Bobby to pay child support. The chancellor ordered Bobby to pay child support in the amount of $376 per month, which amounted to twenty-five and three/ tenths percent of his reported self-employment adjusted gross income of $1,880 per month. The chancellor also ordered Bobby to pay half of his children’s medical expenses. The chancellor determined Bobby’s adjusted gross income for purposes of child support solely upon the basis of what Bobby reported as his self-employment income.

STANDARD OF REVIEW

¶ 16. Generally, a chancellor’s findings in domestic cases will not be reversed unless they are manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Smith v. Smith, 994 So.2d 882, 885(¶ 7) (Miss.Ct.App.2008).

DISCUSSION

I.Distribution of April and Bobby’s Marital Property

¶ 17. Marital property consists of assets acquired or accumulated during the course of the marriage. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). In contrast, separate property consists of property acquired before or outside of the marriage. MacDonald v. MacDonald, 698 So.2d 1079, 1082-83 (Miss.1997) (citation omitted).

¶ 18. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the supreme court provided a number of guidelines for chancellors to follow in equitably distributing property. The chancellor must: (1) classify the parties’ assets as marital or separate; (2) value those assets; and (3) equitably divide the marital assets pursuant to the Ferguson factors. Id. The Ferguson factors include the following:

1. [A spouse’s] substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family, duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and emotional value of assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse[.]
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution!]]
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties[.]
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning eapac- %[.]
8. Any other factor which in equity should be considered.

Id. Below, we address several of the Ferguson factors pertinent to this appeal.

A. Contribution and Accumulation of Marital Property

¶ 19. We find that the chancellor erred in his application of the law and abused his discretion in his consideration of the Ferguson factors wherein he: (1) classified, valuated, and distributed CPA; (2) classified and distributed the family home; and (3) determined the accumulation and dissipation of April and Bobby’s marital assets.

1. Classification, Valuation, and Distribution of CPA

¶ 20. The chancellor classified the business, CPA, as Bobby’s separate property because: (1) Bobby’s father gave CPA and the real property on which CPA operates to Bobby via an inter vivos gift; (2) April did not work regularly at CPA; (3) April failed to prove that any appreciation in CPA’s value during the marriage could be considered divisible; (4) April made no direct contribution to CPA; and (5) both April and Bobby considered CPA to be Bobby’s separate property before the marriage.

¶21. In Hankins, we dealt with the issue of the classification and equitable division of the husband’s business. Hankins v. Hankins, 866 So.2d 508, 511-12 (¶¶ 11-20) (Miss.Ct.App.2004). In Han-kins, the wife argued on appeal that her husband’s chicken farm, although his separate property upon entering the marriage, constituted marital property at the time of the couple’s divorce because the capital purchases made in furtherance of the chicken farm “were acquired during the marriage.” Id. at 511(¶ 15).

¶ 22. However, we found the that chicken farm remained the husband’s separate property because the husband alone obtained loans for the chicken farm; the wife did not contribute financially to the chicken farm; and the wife did not work on the chicken farm. Id. at 512(¶ 19). As a result, we concluded that “[t]he farm and the value of the equipment remain[ed] [the husband’s] separate property and should not have been included as part of the marital estate.” Id. However, we continued our analysis as to the distribution of the chicken farm’s value in the following manner:

As the supreme court has repeatedly discussed, the relationship between a wage-earning spouse and a homemaking spouse is symbiotic. We presume that the efforts of each make the contributions of the other possible. The contributions are to be considered equal. Hemsley, 639 So.2d at 915. [The wife] is not entitled to a portion of the business itself or of the value of equipment but she is entitled to that which she helped to create. She is entitled to an equitable distribution of “the accumulated portion, or the increase in value” of the business during the course of the marriage. Craft [v. Craft], 825 So.2d [605,] 609(¶ 14) [ (Miss.2002) ].... It is this increase in value which should have been included in the calculation of the marital estate.

Id. at 512(¶ 20).

¶ 23. In the case at bar, we find that when the chancellor classified CPA as Bobby’s separate property, he failed to consider how Bobby’s present $183,377 loan for CPA — as well as past loans secured by the family home — impacted the value of April’s equity in the home. See id. All of Bobby’s loans, unlike the loans made solely by the husband in Hankins, placed liens on the family home. Id. Hence April’s equity in the home was utilized in support and furtherance of CPA.

¶ 24. Additionally, the chancellor failed to properly consider April’s contributions as a homemaker when he found that April possessed no marital stake in CPA. Id. Hemsley explains that the contributions of the spouses are considered equal. Hemsley, 639 So.2d at 915. Thus, under Hemsley, April is entitled to an equitable distribution of any increase in the value of CPA during the marriage. Id.

¶ 25. The chancellor stated that neither party in this case provided a valuation of CPA. However, the record does contain several years of CPA’s tax records, 8.05 financial statements, and testimony of the parties. The chancellor in his opinion cited Dunaway v. Dunaway, 749 So.2d 1112, 1121(¶ 28) (Miss.Ct.App.1999), for the proposition that where parties provide inadequate proof of an asset’s value, a chancellor’s valuation with some evidentiary support will be upheld. Therefore, in finding no evidence to dispute Bobby’s valuation of CPA, the chancellor accepted Bobby’s testimony that Bobby’s equitable interest amounted to $412,000 less the $114,000 outstanding debt from Bobby’s $183,377 loan for CPA — for a total value of $298,000. However, we find that in the case at bar, unlike in Dunaway, the chancellor failed to fully explore the available proof at trial in valuating the property at issue. Id.; see also Smith, 994 So.2d at 886(¶ 11) (finding that the chancellor did not abuse her discretion in equitably distributing the value of improvements and labor expended during the marriage to husband’s separate property).

¶ 26. Hence, on remand, the chancellor should consider the contributions of both spouses, the effect of any loans made for the benefit of CPA, and the potential commingling of personal assets and expenses with CPA’s assets and expenses. See Dunaway, 749 So.2d at 1121(¶ 28); Smith, 994 So.2d at 887(¶ 11); Hankins, 866 So.2d at 512(20).

2. Classification, Valuation, and Distribution of the Family Home

¶ 27. The chancellor determined that the family home belonged to Bobby as his separate property. The chancellor stated the following in his opinion:

The former marital residence is the property of Bobby, but that [sic] April does have an equitable interest in it acquired through the use as the family home for more than [twelve] years. All of the debt on the property was paid with income from the business, and income from the business is marital property. Bobby used April’s valuable homestead rights to [fraudulently] acquire loans against the property, and she is entitled to compensation.

¶ 28. We find that the chancellor erroneously applied the law and abused his discretion in finding that the family home was Bobby’s separate property when he failed to properly consider: (1) the family’s use of the home, (2) April’s separate contributions to the home, and, (3) April’s contribution as a homemaker. See Hemsley, 639 So.2d at 915 (finding homemaker’s contributions equal those of wage-earning spouse); Lockert v. Lockert, 815 So.2d 1267, 1269 (¶¶ 7-8) (Miss.Ct.App.2002) (finding that the couple’s home converted from wife’s separate property to the couple’s marital property through the family’s use of the home and the husband’s substantial contributions). Moreover, according to the supreme court, the family-use doctrine will almost always convert a separately owned “marital” home to marital property. See Stewart v. Stewart, 864 So.2d 934, 938-39(¶ 16) (Miss.2003).

¶ 29. April and Bobby built the family home in 1995. Bobby testified that he paid for the home. April and Bobby and their children lived in this home until April and Bobby separated in February 2005, thus, triggering the family-use doctrine. See Lockert, 815 So.2d at 1269(¶¶ 7-8). April stated that she and Bobby finished the interior of the home themselves except for the plumbing and the electrical work. April also testified that she financially contributed to finishing the home’s interior by cashing in her retirement fund, selling her former residence and car. The chancellor found that she invested the proceeds from these sources into the home. In sum, April testified that she separately contributed to the home’s equity in three ways: homemaker contributions, sweat equity, and financial investment. See id.

¶ 30. The chancellor noted that neither party provided the court with an appraisal of the family home. April’s 8.05 financial statement showed a value of $286,000 with no debt, but she admitted that due to needed repairs the home was worth approximately $225,000. In contrast, Bobby’s 8.05 financial statement showed a value of $300,000, a mortgage of $130,160 that was paid by CPA at $3,000 a month and a resulting equity of $169,840. The court then concluded that the value of the former marital residence was $225,000, the mortgage debt was $114,000, and the equity was $111,000.

¶ 31. On remand, consistent with the authority cited herein, the chancellor should consider the contributions of both spouses, the impact of the family-use doctrine, and any liens on the family home when he classifies, valuates, and distributes the family home.

3. Accumulation and Dissipation of Marital Assets

¶ 32. Bobby left the family home in February 2005. On July 5, 2005, a previous chancellor entered a temporary support order. Under our governing case law, marital property continues to accumulate until the court enters a temporary support order. Stone v. Stone, 824 So.2d 645, 648(¶7) (Miss.Ct.App.2002). Hence, April and Bobby’s marital property continued to accumulate until the July 5, 2005, temporary support order. See id.

¶ 33. This case presents some confusion in addressing the accumulation of marital property and dissipation of assets. Such confusion takes root from several sources in the record, including CPA’s tax records, Bobby’s reported self-employment income, both parties’ testimony, the conflicting 8.05 financial statements, and the assertion of the commingling of CPA’s expenses with personal expenses.

¶ 34. With respect to the dissipation of marital assets, we note that ordinary and reasonable living expenses used during separation generally do not constitute a dissipation of marital assets. See Childs v. Childs, 806 So.2d 273, 275-76 (¶¶ 13-20) (Miss.Ct.App.2000); Pittman v. Pittman, 791 So.2d 857, 865(¶ 22) (Miss.Ct.App.2001). We classify debts incurred for the benefit of the marriage as marital debt. See Prescott v. Prescott, 736 So.2d 409, 418(¶ 48) (Miss.Ct.App.1999) (stating that chancellor properly ordered husband to pay wife’s credit card debt for items purchased for the marital home). Additionally, we consider debts incurred by a spouse before marriage or for individual purposes and not used for the general welfare of the marriage as separate debt. See, e.g., Garriga v. Garriga, 770 So.2d 978, 984(¶ 27) (Miss.Ct.App.2000) (stating that funds used by the wife for extramarital relationship constituted dissipation and required reimbursement to the marital estate).

¶ 35. We note that April’s 8.05 financial statement asserts that Bobby possesses various personal assets, including a $35,000 motorcycle; a $52,000 boat; and a $8,500 Gator. To determine if the above expenses constituted separate, marital, or business property, the chancellor must consider whether the assets were acquired with marital or separate funds and whether they were acquired after the demarcation in the marriage or outside of the marriage. See Childs, 806 So.2d at 275 (¶¶ 11-20); Strong v. Strong, 981 So.2d 1052, 1055(¶17) (Miss.Ct.App.2008); Garriga, 770 So.2d at 984(¶ 27); Prescott, 736 So.2d at 418(1148).

B. Alimony

¶ 36. We find that the chancellor committed reversible error in the manner in which he structured April’s lump-sum alimony. A “chancellor may divide marital assets, real and personal, as well as award ... alimony, as equity demands.” Ferguson, 639 So.2d at 929. “[T]he purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Holley v. Holley, 892 So.2d 183, 185(¶ 7) (Miss.2004) (citation omitted). Accordingly, the chancellor should consider alimony only after the equitable division of the marital property. Lauro v. Lauro, 924 So.2d 584, 588(¶ 9) (Miss.Ct.App.2006) (stating that alimony recedes when equitable distribution expands).

¶ 37. Here, the chancellor determined that April’s share of equity in the family home amounted to $55,000. The chancellor then ordered Bobby to pay April her share of equity in the family home in the form of lump-sum alimony at a monthly rate of $1,000, until paid in full, while at the same time crediting Bobby this monthly amount for every month that April resided in the family home. See Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988) (providing factors for chancellors to consider when awarding lump-sum alimony). Lump-sum alimony is a final settlement that vests when awarded and is not subject to modification. Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995). A chancellor may order one party to make third-party payments as part of some types of alimony, but not with lump-sum alimony. See id.

¶ 38. As stated above, April’s lump-sum alimony award of $55,000 represented her share of the equity in the family home. Additionally, the chancellor ordered that for each month April resided in the marital home, Bobby would not be required to pay April her share of her lump-sum alimony for that month. However, as we noted above, lump-sum alimony vests when ordered and cannot be modified. Id. Therefore, the chancellor abused his discretion and committed reversible error when he awarded April lump-sum alimony in this manner. See Miller v. Miller, 874 So.2d 469, 474-75 (¶¶ 14-16) (Miss.Ct.App.2004).

¶ 39. Moreover; when we reverse a court’s division of marital property, we must also reverse any accompanying award or denial of alimony. Lauro, 924 So.2d at 588(¶ 9). On remand, if the chancellor determines that either April or Bobby suffers a deficit after he equitably divides April’s and Bobby’s property pursuant to the controlling precedent, he should then consider the issue of alimony pursuant to the Armstrong factors. See Ferguson, 639 So.2d at 928-29.

C. Any Other Factors

¶ 40. The chancellor denied April an award of attorney’s fees. The chancellor possesses the discretion to award attorney’s fees. Spahn v. Spahn, 959 So.2d 8, 15(¶ 18) (Miss.Ct.App.2006). Upon remand, the chancellor should consider each party’s financial ability when deciding whether to award attorney’s fees. Id. The chancellor can consider assets received as part of an equitable distribution when determining a party’s ability to pay attorney’s fees. See Hankins v. Hankins, 729 So.2d 1283, 1286(¶ 13) (Miss.1999) (reversing and remanding for chancellor to consider the $210,000 award in equitable distribution in determining the party’s ability to pay attorney’s fees). Since we remand this case regarding equitable distribution, alimony, and child support, the chancellor should consequentially reconsider this issue as well. See Lauro, 924 So.2d at 588(¶ 9).

II. Child Support

¶ 41. Bobby did not seek custody of his two children. The chancellor ordered Bobby, as the non-custodial parent, to pay $376 a month in child support, which amounted to twenty-five and three/ tenths percent of Bobby’s reported self-employment income of $1,880. The chancellor also ordered Bobby to pay half of his children’s medical expenses. However, the record does not substantially support the chancellor’s child support award in light of Mississippi Code Annotated section 43-19-101(3)(a)-(b) (Rev.2004).

¶ 42. Section 43 — 19—101 (3)(a) — (b) provides the parameters for determining a party’s adjusted gross income for child support purposes in the following manner:

(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self[-]employment; income from commissions; income from investments ...; interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; ... annuity and retirement benefits ...; any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income ...
(b) Subtract the following legally mandated deductions:
(i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions^]

(Emphasis added).

¶ 43. Here, the chancellor accepted Bobby’s asserted monthly self-employment income reflected on his tax documents as $1,880 without considering the potential commingling of CPA’s assets and expenses with personal assets and expenses, all of Bobby’s income sources, and without considering the generally recognized test for determining self-employment income. Generally, self-employment income amounts to gross income less ordinary and reasonable expenses incurred in producing the income. See, e.g., Henderson v. Henderson, 952 So.2d 273, 279(¶ 18) (Miss.Ct.App.2006) (stating that chancellor properly deducted medical malpractice premiums from a physician’s income to arrive at adjusted gross income).

¶ 44. On remand, the chancellor should consider the potential commingling of business and personal expenses, all of Bobby’s income sources, and the manner in which Bobby determined his self-employment income when calculating Bobby’s adjusted gross income for child support purposes. Miss.Code Ann. § 43-19-101(3)(b); Henderson, 952 So.2d at 279(¶ 18).

III. Other Considerations on Remand

¶ 45. During the proceedings below, April filed a motion to recuse the chancellor due to alleged bias in favor of Bobby in this case. On appeal, April fails to designate this issue as a separate assignment of error, but she does argue that the chancellor’s findings display bias. The chancellor denied April’s motion. Upon review, we find that April failed to provide this Court with sufficient proof that the chancellor abused his discretion when he failed to recuse himself from this ease. However, since this Court remands this case for reconsideration by the chancellor, the issue of recusal may be also revisited on remand.

¶ 46. A judge’s decision regarding recusal is reviewed under an abuse of discretion standard. Miss. United Methodist Conference v. Brown, 929 So.2d 907, 908(114) (Miss.2006). Canon 3E(1) of the Mississippi Code of Judicial Conduct states that judges “should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances ...” This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. Hathcock v. S. Farm Bureau Cas. Ins. Co., 912 So.2d 844, 848(¶ 9) (Miss.2005) (citation omitted). This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified. Id. (citation omitted).

¶ 47. April argues in her brief that the chancellor exercised bias toward Bobby as shown in the chancellor’s findings and ultimate judgment in the case. April argues that the chancellor showed bias as a result of the following circumstances: (1) Bobby’s attorney, Robert Jones, supported the chancellor’s election campaign; (2) Bobby supported the chancellor’s campaign as evidenced by an invitation to a post-election appreciation gathering sponsored by Bub-ba Hampton that was mailed from Jones’s law firm as indicated by the invitation’s return address; (3) statements and activities allegedly attributable to Bobby; and (4) Hampton’s service as co-chair of the chancellor’s election campaign.

¶ 48. When April discovered the invitation to the post-election appreciation gathering for the chancellor addressed to Bobby, she filed a motion for judicial recusal, which the chancellor denied. As stated, April failed to designate the chancellor’s bias as a separate assignment of error on appeal. However, this Court could review the recusal issue in this case under the plain-error doctrine if April had presented sufficient evidence to warrant such review. “The plain-error doctrine has been construed to include anything that ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Pickle v. State, 942 So.2d 243, 246(¶ 13) (Miss.Ct.App.2006) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

¶ 49. However, April has failed to show any evidence beyond a reasonable doubt that the chancellor in this case was biased or unqualified thereby requiring his recu-sal in this case. See Hathcock, 912 So.2d at 848(¶ 9); see also Code of Judicial Conduct 3E(2) (“A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge.”).

¶ 50. We find the chancellor’s opinion, and not evidence presented by April, actually sheds the most light on this issue. In response to April’s motion for recusal, the chancellor stated the following in his order:

This judge takes notice that the law firm of counsel for [Bobby] was actively involved in this judge’s campaign, but that involvement was primarily on the part of [Jones’s] partner, since [Jones] as a [m]unicipal [j]udge, was restricted in political activity. This judge also takes notice that [Jacob], attorney for [April], expressed his support for this judge’s candidacy during the campaign.

From the above facts, the chancellor concluded that “there [was not a] reasonable basis to form a conclusion that there [was] a question of the court’s impartiality in this case.”

¶ 51. From the record before us, we find that April has failed to present sufficient evidence that the chancellor was biased beyond a reasonable doubt in this case. See id.; Brown, 929 So.2d at 908(¶ 4). Nonetheless, since we reverse and remand this case on other grounds, this issue may be revisited on remand.

¶ 52. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.

      . The record reflects that in 1996, April signed a deed of trust on the family home so that Bobby could borrow money for CPA, but she refused to sign any more loans after that date.

      . CPA's tax records for 2006 reflect the following expenses and net profit: car and truck expenses, $30,046; mortgage paid to bank, $15,080; unspecified contributions, $2,860; and a net profit of $3,781. In 2004, CPA’s tax records indicate the following: car and truck expenses, $9,999; mortgage paid to bank, $9,042; unspecified contributions, $1,405; "miscellaneous expenses,” $1,114; and a net profit of $18,494. In 2003, CPA tax records reflect the following: car and truck expenses, $9,317; mortgage paid to bank, $10,725; unspecified contributions, $4,000; "miscellaneous expenses,” $14,047; and a net loss of $530. In 2002, CPA’s tax records include the following: bus purchased, $84,410; truck purchased, $13,444; car and truck expenses, $8,344; mortgage paid to bank, $4,938; and a net profit of $14,025. The record contains no determination as to whether the assets and expenses that Bobby claimed belonged to CPA actually constituted personal expenses, and if so, there is no consideration of the impact of such on the valuation of the business and marital property.

      . April disputes the credibility of CPA's assets and expenses as evidenced by her 8.05 financial statement. For example, in April’s 8.05 financial statement, she includes the following regarding "other personal property”: (1) 1998 Eagle Motor Home, $175,000; (2) motorcycle, $35,000; (3) boat, $52,000; (4) backhoe, $75,000; (5) tractor, $13,000; (6) Gator, $8,500; (7) dump truck, $6,000; (8) bulldozer, $30,000; (9) rollback wheeler, $13,000; (10) travel trailer, $10,000; (11) lawnmower, $20,000; (12) vehicles used in CPA, $200,000; (13) household furniture, $6,000; (14) guns, $4,500; and (15) tools, $7,000.
      In comparison, Bobby’s unsigned 8.05 financial statement shows none of the following personal expenses: (1) mortgage/rent, (2) oil and gas, and (3) car payments. However, Bobby claims all three of these items on CPA’s tax records. Bobby claims as "other personal property” on his 8.05 financial statement, the following assets: (1) furniture, $16,000; (2) patio furniture, $1,700; (3) television and stereo equipment, $1,500; (4) lawnmower and weed eater, $300; (5) backhoe, $12,000; (6) guns ("some non-marital”), $4,500; and (7) tractor ("non-marital”), $8,000. As shown, Bobby’s 8.05 financial statement conflicts with April’s 8.05 financial statement as to what constitutes personal versus business property.

      . See supra notes 2-3.

      . See supra note 2.

      . Bobby testified that CPA bought a Caterpillar backhoe purchased before the separation valued at approximately $12,000. The record does not reflect the date of purchase, but Bobby testified that he also bought a Harley Davidson chopper motorcycle, but he sold it four months before the divorce hearing at a loss. The business also bought, on a trade, Bobby’s father's household furniture consisting of a couch and love seat. Bobby explained also in his testimony that the motor home, which is listed as a bus on CPA's tax returns, helps him on his taxes because the business assets are depreciated. So, CPA’s tax returns show no profit even though it has assets, and Bobby and his father take salary draws from CPA.

      . See supra note 3.

      . For example, Bobby testified at the divorce trial that he purchased two trucks for $56,000 on February 11, 2005, through CPA. He also testified that he purchased $30,000 in furniture by "decreasfing] a debt that Wrangler furniture owed CPA.” Additionally, the record contains testimony by Bobby that he used the motor home, identified on CPA's tax documents as a bus, to entertain potential customers and take them to the races and trips to entice them to use his garage instead of his competitors' garages.

      . See supra note 3.

      . We note that in determining the alimony award, the chancellor provided in his opinion that Bobby’s separate estate was substantial and that Bobby possessed assets that were not essential to his business which he could liquidate to pay April's lump-sum alimony. However, the chancellor’s findings did not set forth any resolution or evaluation of these non-essential assets.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . Bobby’s testimony reveals that he generally does not show a profit or pay taxes for CPA, even though he makes a monthly draw from the business and has assets that CPA owns, because of the depreciation of assets. In his opinion, the chancellor notes April's assertion that Bobby understated his income and that during the marriage he provided her with $1,500 a month to run the household, as well as a gas card and a credit card, all paid by CPA. The chancellor concluded that Bobby's tax returns were commensurate with what he reported on his 8.05 financial statement. The chancellor stated that if April was indeed paying the household bills with the $1,500 per month provided by Bobby, then Bobby must have been turning over most of his paycheck to her for the mutual benefit of the household. He noted that Bobby reported expenses were $1,835 per month and that his expenses did not appear to be overstated. However, the chancellor failed to determine if the expenses attributed to CPA were indeed for the benefit of CPA or were personal in nature.

      . See supra notes 2-3.

      . The chancellor did not provide the name of Jones's law partner in his order denying April’s motion for recusal.


source: Caselaw Access Project

author: ROBERTS, J., KING, C.J.,

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT EMPLOYMENT SECURITY, Appellant v. Raymond CLARK, Appellee.
    No. 2008-CC-00582-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Leanne Franklin Brady, attorney for appellant.
    Raymond Clark, Appellee, pro se.
   ROBERTS, J.,

for the Court.

¶ 1. The Mississippi Department of Employment Security (MDES), appeals from a judgment of the Circuit Court of Leake County, Mississippi that reversed the decision of the MDES Board of Review (Board of Review), which denied unemployment benefits to Raymond Clark. The MDES contends that the circuit court erred by finding that Clark’s employer, Peco Foods of Sebastopol, Mississippi (Employer), failed to prove by substantial evidence that Clark committed disqualifying misconduct pursuant to Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp.2008), when he reported to work under the influence of alcohol, thereby violating the Employer’s zero-tolerance policy. After determining that there was substantial evidence to support the findings of fact and opinion of the Administrative Law Judge (ALJ), which was adopted by the Board of Review, we reverse the judgment of the circuit court and reinstate the decision of the Board of Review.

FACTS AND PROCEDURAL HISTORY

¶ 2. From July 5, 2006, until August 14, 2007, Clark worked for the Employer as a maintenance technician. He was terminated on August 14, 2007, for reporting to work under the influence of alcohol, which was in violation of the Employer’s zero-tolerance policy prohibiting any employee from reporting to work under the influence of any intoxicating substance. Clark filed a claim for unemployment benefits on August 20, 2007, and he and a representative for his Employer were interviewed by a claims examiner. The Employer’s representative told the claims examiner that the Employer had a reasonable suspicion that Clark had reported to work under the influence of alcohol, so the Employer, in accordance with the company’s policy, administered an alcohol and drug test on Clark. The Employer’s representative told the claims examiner that Clark failed the alcohol test, but he passed the drug test. Clark told the claims examiner that he was terminated because of his “medical history and accus[ation] of being intoxicated at work.” He did admit to the claims examiner that he “had [drunk] a few beers[,] maybe 3 hours prior to [going] to work.” The claims examiner determined that Clark’s actions of reporting to work under the influence of alcohol amounted to misconduct connected to work. Therefore, Clark was disqualified from receiving unemployment benefits.

¶ 3. Clark appealed the decision, and a telephonic hearing was held before the ALJ on October 27, 2007. Clark and William Gully, the personnel director for the Employer, participated in the hearing. Gully testified that the Employer had a policy that called for a “reasonable suspicion test” if there was an employee at work who appeared to be under the influence of alcohol. The company policy required that two different management personnel observe the employee and fill out a checklist related to characteristics such as the smell of alcohol or the employee acting “differently.” Gully testified that, after management smelled alcohol on Clark, Clark submitted to a drug and alcohol test, which revealed elevated alcohol levels in Clark’s body. Gully testified that these results were in direct violation of the Employer’s behavior guidelines and substance-abuse policy. He also testified that every employee at Peco Foods gets an employee handbook, which contains the zero-tolerance policy. He also testified that they are required to sign a form, which states the date they received the policy, and he stated that the employee gets a copy of that form. A copy of the Employer’s policy was presented at the hearing, and it states, in pertinent part, that:

The intention of this policy is to provide a safe, productive work place free from the influence of prohibited chemical substances. To accomplish this[,] disciplinary action may be necessary. Therefore, any employee found to be in violation of this policy will be subject to appropriate disciplinary action, including discharge.
The company may also include the periodic testing of the blood and/or urine samples to detect the use or presence of alcohol, illegal drugs, and other prohibited substances.
Any employee who, as a result of testing, is found to have indefinable levels of illegal drugs, alcohol or other prohibited substances in his or her system, regardless of when or where these substances entered his or her system, will be considered in violation of this policy and subject to disciplinary action, usually immediate discharge.

(Emphasis added). In other words, the Employer had a zero-tolerance policy for allowing any employee to arrive at work, or be at work, under the influence of any intoxicating substance.

¶ 4. Clark testified that he was not given a copy of the policy. However, when asked by the ALJ if he knew, before the incident, what was the Employer’s policy regarding the use of alcohol and drugs, he stated that he was aware the Employer had such a policy. To be precise, Clark stated that “[he] didn’t know exactly what [its] policy was, but he was pretty sure that [it][had] one.” Refuting Clark’s testimony, Gully testified that he possessed a signed copy of Clark’s receipt of the company policy. Gully testified that all new hires received a copy of the employee handbook which contained the company’s policy on substance abuse. Clark testified before the ALJ that he had drunk about four or five twelve ounce beers on the evening before he was tested at work. However, this statement was contradictory to the statement he made to the claims examiner, just days after being discharged from his employment, wherein he stated that he had consumed maybe three beers before going to work that day.

¶ 5. Clark takes issue with the fact that the Employer did not provide him with a copy of the laboratory report reflecting his alcohol levels. Gully testified, and Clark admitted, that he did show Clark the results, but he was unable to give Clark a copy of the laboratory report due to the company’s policy and procedure. Clark was instructed that he should request a copy of the laboratory results directly from the laboratory at Laird Hospital in Union, Mississippi.

¶ 6. The ALJ determined that, although the Employer should have provided documentation of the test results which showed the level of alcohol detected, Clark’s admission to consuming the alcohol before work attested to the fact that the claimant violated the Employer’s zero-tolerance policy. Finding that the Employer had discharged Clark for misconduct connected to work, the ALJ affirmed the decision of the claims examiner.

¶ 7. Clark filed an appeal of the ALJ’s decision to the Board of Review on November 6, 2007, and the Board of Review adopted the findings of fact and opinion of the ALJ. Clark filed an appeal to the Circuit Court of Leake County, and the circuit court reversed the decision of the Board of Review. The circuit court stated that the decision was arbitrary and capricious, and then it made the conclusory statement that “there was not substantial evidence in the record to support [the Board of Review’s] decision.” Aggrieved, MDES now appeals to this Court.

STANDARD OF REVIEW

¶ 8. The standard of review relating to the findings of the Board of Review is well settled:

The standard of review of a trial court’s decision to affirm or deny the [MDES] Board of Review’s findings and decision is abuse of discretion. Further, section 71-5-531 of the Mississippi Code provides that in any judicial proceedings to review a [MDES] Board of Review decision, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Therefore, if the [MDES] Board of Review’s decision was supported by substantial evidence and was not arbitrary or capricious, the circuit court and this Court must affirm that decision. Substantial evidence has been defined by the Mississippi Supreme Court to be such relevant evidence as reasonable minds might accept as adequate to support a conclusion or to put it simply, more than a ‘mere scintilla’ of evidence. An act is arbitrary and capricious when done without reason, ... implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles. If an agency’s decision is found to be unsupported by substantial evidence, it necessarily follows that the decision is arbitrary and capricious.

Howell v. Miss. Employment Sec. Comm’n, 906 So.2d 766, 769(¶ 7) (Miss.Ct.App.2004) (internal citations and quotations omitted).

ANALYSIS OF THE ISSUE

¶ 9. First, we note that Clark has not filed a brief with this Court. ‘We are not obligated ‘to look to the record to form an opinion against the appellant where the appellee has [not] filed ... [a] brief outlining his opposing position.’ ” Miss. Employment Sec. Comm’n. v. Wesley, 928 So.2d 934, 937(¶ 11) (Miss.Ct.App.2006) (citation omitted). “This Court has long held that an appellee’s failure ‘to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error.’” Id. (citation omitted). After carefully evaluating the entire record and the brief of the Appellant, we are unable to say with confidence that the trial court did not err. Therefore, we are constrained to conclude that Clark’s failure to file a brief will be taken as a confession of error by Clark.

¶ 10. The MDES argues that the circuit court erred when it found that the Board of Review’s decision was not supported by substantial evidence. The circuit court, in its order reversing the decision of the Board of Review, noted that the “Administrative Appeals Officer found that' the employer had discharged the claimant for violation of the employer’s alcohol policy.” The circuit judge opined that “[t]he record of this case presented] no substantial evidence to support [the] finding.” The circuit judge then found “that [Clark] was discharged for conduct that [did] not amount to misconduct under Miss.Code Ann. [§ ] Tl — 5—513(A)(1)(b); .... therefore, [Clark] should not be disqualified from receiving unemployment benefits under the Unemployment Compensation statute.” We disagree.

¶ 11. “[W]e have held that an employee would be disqualified from receiving unemployment benefits where the employee violated an employer’s policy or otherwise failed to meet a required condition of employment.” Halbert v. City of Columbus, 722 So.2d 522, 526-27(1119) (Miss.1998) (citation omitted). “The violation of an established policy of the employer can, in and of itself, constitute willful misconduct. To prove willful misconduct by showing such violation of the policy, the employer must prove both the existence of the policy and the violation thereof by the employee.” Id. at 527(¶ 20) (citation omitted). After hearing the testimony relating to the facts presented above, the ALJ determined that the Employer had proven the existence of such a policy and that Clark had indeed violated the policy. The ALJ noted that Clark was “discharged for reporting to work under the influence of alcohol, and that his actions of consuming the amount of alcohol ... before reporting to work showed a disregard to the [E]mployer’s interest.” The ALJ went on to state that “[Clark’s] admission to consuming the alcohol attested] to the fact that [he had] violated the [E]mployer’s zero-tolerance policy [relating to alcohol or other substance abuse].” After reviewing the record, we find that the ALJ’s decision was supported by substantial evidence.

¶ 12. During the hearing, Gully testified that the company had a zero-tolerance policy in place prior to Clark’s alcohol-related incident at work, and all employees were given a copy of the policy during their new hire orientation. He also testified that he had a copy of an acknowledgment, which was signed by Clark, wherein Clark acknowledged that he had received the employee handbook. When asked by the ALJ why he had not submitted the acknowledgment as an exhibit at the hearing, Gully testified that:

He did not think that [Clark] would not remember receiving that because that was part of all of his new hire orientation[s]. Every employee at Peco Foods gets an employee handbook with this information in it. And[,] they sign a form in their file saying the date they received it and get a copy of it.

Despite Clark’s testimony that he did not have a copy of the handbook, he did testify that he knew that there was a company policy in place concerning use of intoxicating substances. There was substantial evidence before the ALJ that there was a company policy and that Clark was aware of it.

¶ 13. Gully testified that, in accordance with the Employer’s company policy and the employee handbook, Clark was required to submit to a drug and alcohol test after it was determined that he had arrived at work smelling of alcohol. Gully testified that Clark’s alcohol level was found to be 106.3 milligrams, which was in violation of the company’s policy. Gully also testified that the test was administered by a nurse in the Employer’s first-aid office at its facility, and the company had a chain of custody procedure in place regarding the transportation of the employee’s samples to the testing laboratory. He testified that the company administered these tests on various employees on a daily basis. Although Clark testified that Gully would not give him a copy of the printed laboratory results, both he and Gully testified that Clark was shown the results. Clark testified that it was against company policy and procedure to release medical or personnel records from the employee’s personnel files to an employee because they were company property. However, Gully testified that he told Clark, on multiple occasions, that Clark could request a copy of the laboratory report from the testing hospital. Clark did not acquire a copy of the report, nor did he or Gully present a copy of the laboratory report to the ALJ. Yet, Gully told the ALJ that he had a copy of the results, and he could submit them to the ALJ, if he had a medical-records release from Clark.

¶ 14. As stated, Clark gave conflicting statements to the ALJ and the claims examiner. Clark told the claims examiner that he had drunk a few beers several hours before reporting to work, but after being denied benefits for disqualifying misconduct, he later changed his story and told the ALJ that he drank the beers the night before work. Disputing the test results, during the telephonic hearing before the ALJ, Clark asked Gully if Gully had falsified his laboratory report. Gully responded that he had no reason to lie and that the laboratory report was available to Clark. Clark also told the ALJ that the company did not terminate his employment because of alcohol consumption. Rather, he believed that it was because he could not wear a tool belt due to a back problem and because he had been written up for “personality problems.” Clark has produced no evidence to support his self-serving accusations. As a result, they are simply that, accusations. We are mindful that, when reviewing the findings and decisions of administrative agencies, our standard of review is very deferential. “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise" Curtis v. Miss. Employment Sec. Comm’n., 878 So.2d 1094, 1094(¶12) (Miss.Ct.App.2004) (quoting Allen v. Miss. Employment Sec. Comm’n., 639 So.2d 904, 906 (Miss.1994)) (emphasis added). We find that Clark did not meet “his burden of proving otherwise” before the circuit court.

¶ 15. The circuit judge correctly recognized that it was the employer that bore the burden of showing that the employee’s conduct warranted disqualification from eligibility for benefits by substantial, clear and convincing evidence, but the judge did not offer any opinion about what substantial evidence was missing from the record. Although we can only offer conjecture about what the circuit judge’s thoughts were, perhaps he took issue with the Employer’s failure to place Clark’s laboratory results into evidence without a signed medical-release from Clark. However, we, nor the circuit court, are called upon to be a “super personnel department” and second guess a company’s established business procedure. Moreover, we do not find it to be an unreasonable practice by the company. The record does not indicate that Clark refused to sign a medical-records release. However, if Clark truly believed that he had not failed the alcohol test, he simply could have signed the medical-records release, so the Employer would release his record. Or, he could have obtained a copy of his laboratory test results from the hospital that did the testing to verify his assertion that the Employer had inaccurately stated the results. Furthermore, we have been unable to find any case law that requires a laboratory report be admitted into evidence at a telephonic administrative hearing to prove that an employee had a prohibited substance in his system, as opposed to relying on an employer’s testimony. Based upon the record, we conclude the ALJ was justified in accepting the sworn testimony of Gully, the Employer’s personnel director.

¶ 16. The Mississippi Supreme Court has defined “ ‘misconduct’ as used in the unemployment statute, [as] conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Corinth v. Cox, 565 So.2d 1142, 1143 (Miss.1990) (citing Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982)). We are of the opinion that the decision of the MDES was supported by substantial evidence. The Employer had an established policy in the employee handbook, which prohibited an employee from being at work under the influence of any intoxicating substance; Clark had signed a form stating that he had received the Employer’s company handbook; Clark arrived at work smelling of alcohol; the Employer maintained that Clark failed an alcohol test; and Clark admitted to the claims examiner that he had drunk a few beers within hours of arriving at work. We find that, the ALJ’s decision that Clark’s actions qualified as “misconduct” was not arbitrary nor capricious. According to Wheeler, Therefore, we find that the decision of the MDES was supported by substantial evidence and Mississippi law. Accordingly the judgment of the circuit court is reversed, and judgment is rendered to reinstate the decision of the MDES. See Miss. Employment Sec. Comm’n. v. Martin, 568 So.2d 725, 729 (Miss.1990).

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS REVERSED AND RENDERED REINSTATING THE DECISION OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY.

LEE, P.J., GRIFFIS, BARNES, ISHEE, CARLTON and MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J.

KING, C.J.,

Dissenting:

¶ 18. With respect to the majority, I dissent. I believe it is error to reverse the circuit court’s ruling because the board of review’s decision was not supported by substantial evidence.

¶ 19. The majority notes that Clark did not file a brief with this Court, which is true. Normally, a party’s failure to submit a brief on appeal is equivalent to a confession of the errors alleged by the opposing party. See Mahaffey v. Miss. Employment Sec. Comm’n, 912 So.2d 496, 497(¶ 6) (Miss.Ct.App.2005). However, the Court may elect to review the case for error. Id. Thus, this Court is not required to automatically reverse the trial court’s decision based on Clark’s failure to submit a brief on appeal.

¶20. The MDES argues that the circuit court erred by reversing the board of review’s decision to deny Clark unemployment benefits, finding that it was not supported by substantial evidence. The majority states that the circuit court failed to indicate what substantial evidence was missing from the record. However, it is quite obvious what is missing from the record — corroborating evidence that Clark was intoxicated on the job.

¶ 21. The board of review denied Clark’s unemployment benefits pursuant to Mississippi Code Annotated section 71-5-513 A(l)(b) (Supp.2006), which provides that a claimant will be disqualified from unemploymeht compensation if he was terminated based on acts of misconduct that occurred on the job. Section 71-7-13(3) specifically provides, in relevant part, that “[a]n employee discharged on the basis of a confirmed ... alcohol test ... shall be considered to have been discharged for willful misconduct.” (Emphasis added). “The employer bears the burden of proving misconduct by clear and convincing evidence.” Coahoma County v. Miss. Employment Sec. Comm’n, 761 So.2d 846, 851(¶ 14) (Miss.2000) (citing Miss.Code Ann. § 71-5-513 A(1)(c) (Supp.1999)).

¶ 22. During the hearing, Clark admitted that he drank a few beers the night before he reported to work. The majority states that Clark’s statement was inconsistent because he “told the claims examiner that he drank a few beers several hours before reporting to work.” However, the ALJ relied upon the following when making his decision to deny Clark’s unemployment benefits:

The claimant had consumed five (5) 12 ounce cans of beer after 6 pm on August 12, 2007. The claimant reported to work on August 13, 2007, with the smell of alcohol on him. The claimant reported to work at 12:45 pm and was tested at 1:30 pm.

The test results indicated that the claimant’s blood alcohol level exceeded] the cut off amount. The test results were not made available as evidence for the record. The ALJ relied upon Clark’s admission that he drank beer the night before he reported to work. The fact that Clark drank beer the night before he reported to work is not substantial evidence that he may have been intoxicated when he reported, to work the next day.

¶ 23. During the hearing with the ALJ, Gully testified that Peco’s zero tolerance policy called for a reasonable suspicion test. Gully testified that two people in management were to observe the employee and fill out a checklist, which basically notes characteristics of intoxication. There is no checklist in the record. Nor does the record contain any testimony regarding the specific indicators of the checklist and their application to Clark. In regard to characteristics of intoxication, Gully simply testified that he smelled alcohol on Clark’s breath and that Clark’s breathalyzer test results revealed that he had an unacceptable blood alcohol level.

¶ 24. As previously mentioned, Peco did not submit a copy of Clark’s alcohol test results. The majority states that Clark admitted that Gully showed him his alcohol test results. However, Clark explained that Gully gave him a handwritten note, indicating his alleged blood alcohol level. Gully refused to let Clark look at the lab report. Clark testified that he requested a copy of his test results from the lab, but the lab instructed him to obtain his results from Peco. Peco refused to give Clark his results supposedly because of a company policy. However, Gully admitted that this alleged company policy was not contained in the employees’ handbook.

¶ 25. The assertion by Gully, on behalf of Peco, that the lab report containing the test results was company property and could not be given to Clark is beyond incredible. When asked about the lab report by the ALJ, Gully, without restriction, stated that he could provide it to the ALJ. That response would seem to belie the reason that Peco gave for not releasing the lab report. The majority argues that Clark could have signed a medical release form to allow Peco to release the test results. That argument suggests that Peco required Clark’s permission to introduce the lab report. Such a suggestion is absurd and inconsistent with Peco’s statement to the ALJ.

¶ 26. It is clear that formal rules of evidence do not apply to administrative proceedings. McClinton v. Miss. Dep’t of Employment Sec., 949 So.2d 805, 808(6) (Miss.Ct.App.2006). Thus, an administrative agency may consider hearsay evidence in making its decision. See McDerment v. Mississippi Real Estate Comm’n, 748 So.2d 114, 121(22) (Miss.1999). “However, ‘uncorroborated hearsay testimony is insufficient to rise to the required level of substantial evidence.’ ” McClinton, 949 So.2d at 808(6) (quoting Miss. Employment Sec. Comm’n v. McLane-Southern, Inc., 583 So.2d 626, 628 (Miss.1991)).

¶27. Gully simply testified that Clark smelled like alcohol and that his alcohol blood level was 106.3 milligrams. Gully did not administer the breathalyzer test, and no confirmed alcohol test results were made available to the ALJ. During the hearing, The ALJ noted Peco’s lack of evidence, and the ALJ also mentioned Peco’s lack of evidence in his judgment. Gully’s testimony is uncorroborated hearsay evidence that does not rise to the level of substantial evidence necessary to support the board of review’s decision.

¶ 28. Alternatively, the majority argues that Clark could have obtained a copy of the test results and submitted it to the ALJ. Such an argument is disingenuous. That argument is intended to infer that Clark had the obligation to disprove the allegations of misconduct. That argument, whether made explicitly or implicitly, is completely contrary to the law. The burden of proving misconduct was placed squarely, firmly and unalterably upon Peco. See Little v. Miss. Employment Sec. Comm’n, 754 So.2d 1258, 1260 (¶¶9-10) (Miss.Ct.App.1999). While Peco raised questions about Clark’s condition, it wholly failed to meets its lawfully mandated burden of proof. Peco failed to prove misconduct by clear and convincing evidence.

¶ 29. Based on the lack of substantial evidence in the record, the circuit court’s judgment should be affirmed. For the foregoing reasons, I dissent.

MYERS, P.J., JOINS THIS OPINION.

      . The Mississippi Employment Security Commission is now referred to as the Mississippi Department of Employment Security.

      . Due to conflicting statements, it is unclear whether the results shown to Clark were handwritten, or whether Clark was shown the actual printout of the laboratory results. Gully testified that he did show the results to Clark; Clark wanted a copy, which Gully could not give him, and this was "when the blow-up came into effect.” Clark maintains that he was only shown a handwritten copy. Regardless, the dispute over an actual laboratory printout does not disprove the evidence presented to the ALJ: Clark smelled of alcohol at work; a test had been administered; and the Employer unwaveringly maintained that a laboratory report existed, which substantiated that Clark was under the influence of alcohol at work.

      . See Miss. Dep’t of Corr. v. Scott, 929 So.2d 975, 979 (¶ 6) (Miss.Ct.App.2006).


author: LEE, P.J.,

text:
    Dajuan WILLIAMS, Appellant v. TOWN OF FLORA, Appellee.
    No. 2008-KM-01129-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Vanessa J. Jones, Hattiesburg, attorney for appellant.
    Wendy Moore Shelton, attorney for ap-pellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Da Juan Williams was stopped by a police officer in Flora, Mississippi for a suspected window-tint violation. After smelling marijuana and seeing smoke in the car, the police officer searched the car and found a bag of marijuana under the hood. Williams was found guilty by the Municipal Court of Flora of possession of marijuana and driving under the influence (DUI). Williams appealed to the County Court of Madison County, which affirmed his convictions.

¶ 2. In a separate incident that occurred on a different date, Williams was charged with simple domestic violence against La-Toya Kidd. He was found guilty by the Municipal Court of Flora of simple domestic violence, and the County Court of Madison County subsequently affirmed his conviction.

¶ 8. Williams appealed his convictions of possession of marijuana, DUI, and simple domestic violence to the Circuit Court of Madison County. The three causes were combined, and the circuit court affirmed all three convictions. Williams now appeals to this Court.'

¶ 4. Williams asserts the following issues on appeal regarding the possession of marijuana and DUI convictions: (1) his affidavit was materially flawed; (2) his motion to suppress was erroneously denied because his vehiclé was illegally searched; and (8) the verdict was against the overwhelming weight of the evidence. As to the simple domestic violence conviction, Williams asserts that the verdict was against the overwhelming weight of the evidence.

¶ 5. Finding that the proper procedure was not followed for an appeal to this Court, we dismiss this appeal for lack of jurisdiction.

DISCUSSION

¶ 6. Since Williams’s cases originated in municipal court, Williams’s appeal is governed by Mississippi Code Annotated section 11-51-81 (Rev.2002). Section 11-51-81 states, in pertinent part, the following:

[Tjhere shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.

“The presence of a constitutional question and the granting of an appeal by either the circuit judge or a judge of the [sjupreme [c]ourt are both necessary ingredients for a viable appeal to the [sjupreme [cjourt.” Johnson v. State, 879 So.2d 1057, 1060(¶ 7) (Miss.Ct.App.2004) (quoting Davidson v. State, 592 So.2d 1006, 1007 (Miss.1992)).

¶ 7. Williams’s case originated in municipal court, was tried de novo in county court, and was then appealed to circuit court. Williams’s appeal to this Court was not accompanied by the necessary formal allowance of either the circuit judge or a supreme court justice. Id. Therefore, we find that Williams’s appeal is defective and that we lack jurisdiction to hear this matter. This appeal is dismissed for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Williams filed one notice of appeal for all three cases to the trial court, and the trial court assigned the cases the following three cause numbers: 2007-0371-C (simple domestic violence), 2007-0372-C (DUI), and 2007-0373-C (possession of marijuana in a motor vehicle).


text:
    In the Matter of the ESTATE OF Barbara A. PARKER, Deceased. Edward Bourgeois, Jr., Appellant v. Estate of Barbara Parker and Barbara Sloane Rotolo, Administratrix, Appellees.
    No. 2008-CA-00693-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellant.
    Nance Fitzpatrick Stokes, attorney for appellees.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Barbara Parker (Barbara) and her husband, Larry Parker (Larry), owned a plot of land and a mobile home as joint tenants with the right of survivorship. Larry died in a work-related accident, and Barbara received his workers’ compensation benefits. Barbara also received money from a lawsuit related to Larry’s accident and fee simple title to the subject property.

¶ 2. Shortly after Larry’s death, Barbara began a romantic relationship with Edward Bourgeois (Edward), who moved into Barbara’s mobile home. Barbara and Edward lived together unmarried for approximately fifteen years until Barbara died intestate on November 23, 2005. In 1992, Barbara and Edward opened a joint checking account out of which all living expenses were paid. In 1995, Barbara began building a house on her land. Barbara invested between $60,000 and $70,000 in building materials, and Edward withdrew $20,000 from his retirement account to invest in the home. Edward testified that all building expenses were withdrawn from the joint checking account, but he failed to produce receipts to document the expenses at trial. Edward further testified that he and Barbara had an oral agreement that in exchange for investing his funds into building the house, he would have the right to continue to live in the house after Barbara’s death until his own death, at which time the home would pass to Barbara’s children.

¶ 3. Barbara’s illnesses, which included a kidney disorder and cancer, spanned over the last six years of her life. Conflicting testimony arose during trial as to the role Edward played in Barbara’s life toward the end of her battle with cancer.

¶ 4. Prior to her death, Barbara had closed the joint checking account and split the money evenly between her and Edward. Barbara also revoked a prior power of attorney she had given to Edward. She also left a note indicating she wanted her estate to repay Edward for the money he had invested in her home. The note instructed the estate to pay Edward $20,000 from a certificate of deposit. This particular certificate of deposit contained approximately $41,000 with terms stating that upon Barbara’s death, Edward would receive all the funds. Since the payment terms of the certificate of deposit had not been changed prior to Barbara’s death, Edward received all the money from the certificate of deposit. Subsequently, in hopes of continuing to live in Barbara’s home, Edward approached Barbara’s children and asked if he could remain in the home in exchange for $20,000. The heirs refused. Still living in Barbara’s home, Edward began locking the children out of the home which prevented them from accessing Barbara’s papers. When Edward denied the children access to Barbara’s ashes, the children sought to have Edward evicted from the home.

¶ 5. On April 14, 2006, Edward filed a probate claim in the Pearl River County Chancery Court against Barbara’s estate claiming he was entitled to equitable relief in the form of a constructive trust on the proceeds of the sale of Barbara’s real property. After a trial, the chancellor denied Edward’s claims, finding that he had failed to prove by clear and convincing evidence that he was entitled to a constructive trust over Barbara’s real estate. Edward filed a motion for reconsideration, which the chancellor denied. Edward now appeals, asserting the following issues: (1) the chancellor erred in finding that he did not establish a constructive trust, and (2) the chancellor erred in finding that he was not entitled to reimbursement for personal property currently retained by Barbara’s estate. Although Edward’s brief lists two issues, he only briefs this Court on the first issue. Thus, our discussion will be limited to whether the chancellor erred in finding that Edward did not establish a constructive trust. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court will not disturb findings of the chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990). Where there is substantial evidence to support the chancellor’s findings, this Court is without the authority to disturb his conclusions, although this Court might have found otherwise as an original matter. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989). The applicability of a constructive trust is a “pure question” of law; thus, our standard of review is de novo. Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995).

DISCUSSION

¶ 7. Edward argues that the chancellor erred in finding that he did not establish a constructive trust. A constructive trust arises in order to prevent unjust enrichment by a person gaining property that rightfully belongs to someone else. McNeil v. Hester, 753 So.2d 1057, 1064(¶ 24) (Miss.2000). The supreme court has defined a constructive trust as follows:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990) (quoting Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (1963)). A chancellor may “construct a trust for the benefit of the party whose confidence has been abused.” Davidson, 667 So.2d at 620. The existence of a constructive trust must be proven by clear and. convincing evidence. McNeil, 753 So.2d at 1064(¶25).

¶ 8. In support of his argument, Edward claims that a confidential relationship existed between himself and Barbara, and he relied upon that relationship and Barbara’s promises when he provided funds with which to build the house. We do note that, according to Edward’s testimony, he withdrew approximately $20,000 from a retirement account to put into the construction of the house. However, Edward stated that the funds were withdrawn in either 2000 or 2001, well after construction was finished and they were living in the house. For a “confidential relationship to exist between two persons, there must be a relation in which one person is in a position to exercise a dominant influence upon the other.” Tatum v. Barrentine, 797 So.2d 223, 230(¶ 32) (Miss.2001). The chancellor determined that there was absolutely no evidence that Barbara was in a position to exercise a dominant influence upon Edward. Rather, Edward’s testimony attempted to portray Barbara as weak, ill, and in need of constant care. The chancellor found that Edward knew their relationship was ending and made no effort to get Barbara to execute a document leaving him a life estate. Furthermore, the testimony concerning Barbara’s intent to leave Edward a life estate was conflicting at best. We find that the chancellor did not err in finding that Edward failed to prove the existence of a constructive trust by clear and convincing evidence.

¶ 9. Edward also claims that he spent in excess of $150,000 on the construction of the home and should be reimbursed. Edward included a list of expenses, but he produced no receipts. Edward also admitted that many of the expenses were paid from his and Barbara’s joint account. Finding no evidence of a constructive trust, we cannot find that Edward is entitled to reimbursement for expenses relating to the construction of the home.

¶10. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The record does not contain the exact date of Larry’s death, but it indicates he died sometime in 1990.


text:
    Arletha NELSON, Mack Arthur Gandy and Bobby Joe Gandy, Appellants/Cross-Appellees v. Armatha BONNER, Johnnie M. Bonner Simmons, Bennie L. Bonner, Dollie M. Bonner Simpson, Jimmy L. Bonner, Yvonne Bonner, Levoner Bonner, Yonia Bonner, Leon Bonner, Lonnie Bonner, Levester Bonner, Juanita Bonner Jones and Drucilla, Bonner, Appellees/Cross-Appellants.
    No. 2007-CA-00903-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Ross R. Barnett, Jackson, for Appellants.
    Terry L. Caves, Leonard B. Caves, Laurel, for Appellees.

      Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Armatha Bonner, Johnnie M. Bonner Simmons, Bennie L. Bonner (Bennie), Dollie M. Bonner Simpson, Jimmy L. Bonner, Yvonne Bonner, Levoner Bonner, Yo-nia Bonner, Leon Bonner (Leon), Lonnie Bonner (Lonnie), Levester Bonner, Juanita Bonner Jones, and Drucilla Bonner (“the Bonners”) originally filed suit in the Wayne County Chancery Court alleging that Arletha Nelson had trespassed upon their property by moving a mobile home onto their land. Nelson, along with her brothers Mack Arthur Gandy and Bobby Joe Gandy (Nelson and the Gandys will collectively be referred to as “the Gan-dys”), filed a counterclaim for adverse possession. The chancellor denied the Gandys’ claim for adverse possession. The Gandys appealed to this Court, and we reversed and remanded. See Nelson v. Bonner, 829 So.2d 700 (Miss.Ct.App.2002) (Nelson I). We found that the chancellor failed to consider certain evidence relating to the Gandys’ adverse possession claim. Id. at 704(¶ 14). The evidence included testimony from the Gandys concerning their possession of the disputed land, which commenced in 1941. Id. Our opinion noted that the Bonners did not offer any evidence concerning the period of possession from 1941 through 1977. Id. at 706(¶ 21). We further noted that the Gan-dys had failed to present a survey and legal description of the tract of land on which Nelson’s mobile home sat, including the surrounding areas that they claimed to have adversely possessed. Id. at 706(¶ 22).

¶ 2. Following remand, the Bonners filed a motion to amend their complaint, asserting in the alternative that they had acquired the property by adverse possession. The Gandys agreed to the Bonners’ motion to amend their complaint, and an agreed order granting the motion was entered on February 25, 2003. Another trial on the matter was held on October 21, 2005. The chancellor limited the testimony to whether the Gandys adversely possessed the property from 1941 and whether the Bon-ners adversely possessed the property back from the Gandys. In order to make his decision, the chancellor noted that he viewed the subject property, reviewed the transcript from the first trial, conducted a supplemental hearing, reviewed the surveys provided by both parties, and reviewed this Court’s opinion. The chancellor found the following:

It is undisputed, as shown both in the remand order, as well as the testimony presented, that the Bonners were not the titleholders to that portion shown on Exhibit 2 as lying north of the quarter section line being a triangle, approximately 59.12 feet from the corner of the quarter section to the public road, and being approximately 165 feet east of the corner of the 1/4 section and running along said road to complete the triangle. The Bonners, however, are recordhold-ers to the property upon which the mobile home in question is situated. The Court ... is satisfied that no adverse possession occurred prior to 1977 on the triangle in question. However, likewise, the Court is satisfied there has been no adverse possession for a period of ten years on the property upon which the mobile home is located. The Court is satisfied [that] the occupation by Ms. Nelson did not begin until 1996 upon the moving of the mobile home in question, and therefore said land was not adversely possessed by the [Gandys.] The Court is further satisfied that because the Court of Appeals found that there was no evidence contradicting possession from 1941 to 1977 and there was conflicting testimony that the Bonners, likewise, have not adversely possessed that triangle that was previously described and which is shown on Exhibit 2 as parcel 2A. However, the Court is satisfied that the parcel shown as 2B being that property north of the public road has, in fact, been adversely possessed by the [Gandys].
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that parcel 2A and parcel 2B are confirmed in the [Gandys], and that all other property properly before this Court in Exhibit 2 is properly confirmed, title quieted in the Bonners. The [Gandys] shall have 60 days from the date of this order from which to remove the mobile home situated on this property.

¶ 3. The Gandys now appeal, asserting that the chancellor erred by failing to follow the decision of the Court of Appeals on remand. The Bonners filed a cross-appeal, asserting that the chancellor erred in awarding parcel 2A and parcel 2B to the Gandys. Finding error, we affirm in part and reverse and render in part.

STANDARD OF REVIEW

¶4. Absent an abuse of discretion, this Court will not reverse the decision of the chancellor. Martin v. Coop, 693 So.2d 912, 914 (Miss.1997). “This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Id. (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)).

DISCUSSION

I. THE GANDYS’APPEAL

¶ 5. The Gandys’ sole argument on appeal is that the chancellor erred by failing to follow the decision of the Court of Appeals on remand. It is well settled that trial courts are bound on remand by mandates issued by an appellate court. Dunn v. Dunn, 695 So.2d 1152, 1155 (Miss.1997). Furthermore, “[w]here [an appellate court] has already decided a specific issue in a case on a prior appeal, the trial court has been found to be in error where, on remand, it has refused to follow [the appellate court’s] opinion and directions.” Id.

¶ 6. The Gandys argue that the sole reason this Court reversed was for the chancellor to consider the evidence presented establishing their occupancy of the land from 1941 through 1977. The Gandys would have this Court reverse and remand for yet another hearing so the chancellor can consider only the record from the original trial. Although our opinion in Nelson I clearly states that the chancellor should consider the evidence regarding possession commencing in 1941, our opinion does not decide a specific issue. We noted that “[h]ad [the chancellor] [considered the evidence] he may or [may] not have found the evidence sufficient.” Nelson, 829 So.2d at 706(¶ 21). We reversed for the chancellor to consider the evidence and determine if the Gandys successfully established adverse possession of the land on which Nelson’s mobile home sat. Id. at 706(¶ 22). Although this Court remanded for a new hearing, this Court did not decide the primary and controlling issue of the lower case. Thus, this issue is without merit.

II. THE BONNERS’ CROSS-APPEAL

¶ 7. In their cross-appeal, the Bonners argue that the chancellor erred in not awarding them title to parcel 2A and parcel 2B by adverse possession. Parcel 2A is a triangular-shaped parcel situated directly north of the north property line of the Bonners’ property. Parcel 2B is a sliver of property bordered on the north by the Bonners’ north property line and on the south by Horseshoe Loop Road. According to the Gandys’ 2003 survey conducted by Charles Dwayne Sharp, the Gandys’ property encompasses parcels 2A and 2B. Adverse possession is statutory in Mississippi. Mississippi Code Annotated section 15-1-13(1) (Rev.2003) provides, in pertinent part, as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

To establish a claim of adverse possession, the Bonners must show by clear and convincing evidence that their possession was: “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991) (quoting Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990)).

¶ 8. In regard to parcel 2A, the chancellor determined that there was insufficient evidence to support the Bonners’ adverse possession claim. The chancellor relied upon the testimony from the first trial and our decision in Nelson I in which we found that the testimony presented by the Gan-dys regarding their possession for the period of time between 1941 and 1977 was un-refuted by the Bonners. Nelson, 829 So.2d at 706(¶ 20). However, our opinion noted that the evidence presented by the Gandys was not overwhelming in support of their position. Id. at 706(¶ 19). Although the chancellor did not make specific findings of fact, we will assume that the chancellor made determinations of fact sufficient to support his judgment. Pace v. Owens, 511 So.2d 489, 492 (Miss.1987).

¶ 9. In this case, the testimony presented by the Bonners in regard to parcel 2A merely established that at some point a fence ran along Horseshoe Loop Road, the road which the Bonners claim borders the north boundary of their property, including parcel 2A and 2B. Lonnie claimed that between 1970 and 1977 he worked for their predecessor in title, Ollie Sterling. Bennie, Lonnie’s father, bought the property from Sterling in 1977. Lonnie testified that they subsequently cut timber from the property. Both Lonnie and Leon, Lonnie’s brother, moved their mobile homes onto the land. Leon moved his mobile home onto the land in 1981, and the home was located near the area where Nelson placed her mobile home in 1996. Lonnie’s mobile home was moved onto the land in 1983 and located further east of his brother’s home. The testimony presented by Lonnie, Leon, and their two witnesses established the Bonners’ ownership of the area near Nelson’s mobile home, but there was no clear and convincing evidence that parcel 2A was adversely possessed by the Bonners.

¶ 10. In regard to parcel 2B, the chancellor stated that “the Court is satisfied that the parcel shown as 2B ... has, in fact, been adversely possessed by the [Gandys.]” However, in their appeal, the Bonners argue that they had adversely possessed parcel 2B even though they hold title to parcel 2B. Regardless, the evidence regarding this sliver of property is sparse. A majority of the testimony concerns the triangular area and the area where Nelson’s mobile home sits. There is no specific testimony regarding the Gandys’ attempt to adversely possess parcel 2B. Therefore, we reverse this determination by the chancellor and render judgment to reflect that the Bonners are the record titleholders to parcel 2B.

¶11. THE JUDGMENT OF THE WAYNE COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANTS/CROSS-APPELLEES AND APPELLEES/CROSS-APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . According to the record, the Gandys own the land north of and adjacent to the Bonners' north property line. The record includes a 2003 survey of the Gandys’ land, which includes the disputed property.

      . Although the Bonners hold title to parcel 2B, they are contending that if the Gandys prove adverse possession of this property, then they have adversely possessed the property back from the Gandys.


author: BOLIN, Justice. STUART, Justice

text:
    Ex parte Johnny M. YOUNG. (In re Johnny M. Young v. State of Alabama).
    1061272.
    Supreme Court of Alabama.
    Sept. 28, 2007.
    Johnny M. Young, pro se.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

We hereby suspend the provisions of Rule 39(g) and (h), Ala. RApp. P., allowing the petitioner and the respondent to file a brief and to request oral argument, and we summarily grant the writ. This Court recently overruled Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), to the extent that it created a limitation on a trial court’s jurisdiction to consider successive § 13A-5-9.1, Ala.Code 1975, motions. See Ex parte Gunn, 993 So.2d 433 (Ala.2007). The Court of Criminal Appeals relied solely on Wells in affirming the trial court’s judgment. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the case for proceedings consistent with Gunn.

WRIT GRANTED; REVERSED AND REMANDED.

SEE, LYONS, WOODALL, SMITH, PARKER, and MURDOCK, JJ., concur.

STUART, J., concurs specially.

COBB, C.J., recuses herself.

STUART, Justice

(concurring specially).

I adhere to my writing in Ex parte Gunn, 993 So.2d 433, 437 (Ala.2007)(Stuart, J., concurring specially).


author:
PER CURIAM.
      WELCH, Judge,

text:
    Johnny M. YOUNG v. STATE of Alabama.
    CR-06-0162.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied May 23, 2008.
    Certiorari Denied Feb. 20, 2009 Alabama Supreme Court 1071228.
    Johnny M. Young, pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

On August 30, 2006, Johnny M. Young filed a § 13A-5-9.1, Ala.Code 1975, motion to reconsider his sentence of life imprisonment without the possibility of parole imposed upon his 1986 conviction for murder pursuant to the Habitual Felony Offender Act. The circuit court summarily denied Young’s motion to reconsider on October 2, 2006. In its order denying Young’s motion to reconsider, the trial court stated:

“This matter is before the Court on [Young’s] petition to modify his sentence pursuant to § 13A-5-9.1, Code of Alabama, 1975. [Young] is presently serving a sentence of Life Without Parole as a Habitual Offender following his Murder conviction in this case.
“Under this statute only those who are ‘nonviolent offenders’ are eligible for [sentence reconsideration]. See Kirby v. State, 899 So.2d 968 (Ala.2004). The statute in question fails to define a crime of violence that would exclude a defendant from its consideration, so the Court looks to other statutes for guidance. The Uniform Firearms Act, Alabama Code § 13A-11-70 et seq., includes among its defined ‘crimes of violence,’ the crime of murder. In this case, [Young] was convicted of murder. The Court finds that [Young] does not meet the requirement of a ‘nonviolent offender’ and is therefore precluded from consideration under this statute. Defendant’s Request for Relief is DENIED.”

(R. 20-21.)

This Court stated in Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006), that the fact that a crime is statutorily defined as a “violent offense” is not binding on a circuit court in determining whether an inmate is a nonviolent offender and that merely because an inmate has committed an offense defined by statute as a violent offense does not mean that that inmate is a violent offender for purposes of § 13A-5-9.1. This Court further stated that although it would find no abuse of discretion if a circuit court determined after considering all the factors presented to it that an inmate who had been convicted of first-degree robbery was a violent offender, a circuit court could not find an inmate to be a violent offender based solely on the fact that he had been convicted of an offense statutorily defined as a “violent offense.”

From the circuit court’s order in the instant case, it is clear that the trial court based its decision solely on the fact that Young had been convicted of an offense statutorily defined as a “violent offense.” As a result of that determination, the trial court found that Young’s petition could not be considered — as opposed to its being considered and then denied.

“When ruling on motions for reconsideration, a circuit court often has only the underlying conviction before it on which to base its ruling. This Court has repeatedly affirmed those judgments. In those instances, however, either the circuit court also examined the facts of the underlying offense or there was nothing in the record to suggest that the circuit court had refused to consider all the information presented to it in determining that the inmate was a violent offender.”

Coats v. State 986 So.2d 1241, 1242 (Ala.Crim.App.2007) (Welch, J., dissenting)

In this case, although the circuit court did not affirmatively state that it could not consider other information before it, the court did conclude that Young’s petition was precluded from sentence reconsideration under § 13A-5-9.1 only because he had been convicted of an offense statutorily defined as a violent offense. There is simply no basis on which to find that the court considered anything except the fact that the crime for which Young was sentenced was a statutorily defined crime of violence, i.e., murder.

In its order, the court held that Young was “precluded from consideration under this statute” and not that his petition had been considered and then denied. (Emphasis added.) Under Holt, the matters contained in the offender’s petition and other attendant circumstances must be considered, not just whether the crime for which the offender was convicted has been statutorily defined as a crime of violence. In refusing to consider Young’s petition, the court failed to follow Holt and limited its review to a determination that the crime of murder was a crime of violence thus precluding sentence reconsideration. In accordance with Holt, supra, I would reverse the circuit court’s judgment and remand this case for the circuit court to set aside its order denying Young’s motion for sentence reconsideration and to consider Young’s motion pursuant to this Court’s ruling in Holt. Thus, I must respectfully dissent.