text:
    Tanisha Hervey MARTIN, Appellant v. Marquis J. STEVENSON, Appellee.
    No. 2012-CA-01768-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.
    Rehearing Denied June 3, 2014.

      Alsee McDaniel, Indianola, attorney for appellant.
    David L. Calder, Oxford, attorney for appellee.

      Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Tanisha Martin appeals an order by the Lafayette County Chancery Court granting a child-custody modification to Marquis Stevenson. Tanisha raises the following issues: (1) whether Marquis satisfied his burden of proof to establish the elements required for child-custody modification; (2) whether the chancellor properly applied the Albright factors and made sufficient findings of fact under those factors; (3) whether the chancellor erred by modifying the child-custody agreement; (4) whether the chancellor erred by excluding evidence of Marquis’s past acts of domestic violence; (5) whether the chancellor erred by finding Tanisha’s report of abuse frivolous and imposing sanctions against her; and (6) whether the chancellor erred by ordering Tanisha to pay attorney’s fees. Finding no error, we affirm.

FACTS

¶ 2. Marquis and Tanisha were married on June 4, 2001, in Oxford, Mississippi. The couple had one minor child, Haylea. The couple separated around March 1, 2009, and entered into a property-settlement and child-custody agreement. On October 21, 2009, the Lafayette County Chancery Court entered a final judgment granting the couple an irreconcilable-differences divorce. The divorce decree approved and incorporated by reference the property-settlement and child-custody agreement wherein the parties agreed to joint legal custody of Haylea, with Tanisha maintaining primary physical custody subject to Marquis’s reasonable visitation rights.

¶ 3. On February 4, 2011, Marquis filed a petition in chancery court to hold Tanisha in contempt for frustrating his attempts to exercise his visitation and for refusing to allow him any contact with Haylea since January 2, 2011. Tanisha then filed a counterclaim for contempt based on an arrearage in child-support payments and for alleged damage to Hay-lea’s hair. The chancellor found that Tanisha lacked standing to bring the claims raised in her counterclaim and therefore dismissed her counterclaim without prejudice. The chancellor further found Tanisha in contempt for denying Marquis his visitation with Haylea, and the chancellor ordered Tanisha to pay attorney’s fees to Marquis.

¶ 4. On May 16, 2011, Tanisha filed a civil lawsuit in Lafayette County Circuit Court on Haylea’s behalf for damages against Marquis and his friend LaShae Walker. The lawsuit alleged that Haylea had suffered personal injuries due to hair styling performed by Walker. Tanisha also filed a motion for a temporary restraining order and a preliminary injunction to prevent Walker from further styling or treating Haylea’s hair. Marquis and Walker filed a joint motion to dismiss all claims and for summary judgment, or in the alternative, to transfer the case to chancery court. The circuit court judge subsequently transferred the case to chancery court based on lack of subject-matter jurisdiction, and the case was consolidated with a complaint filed by Marquis in chancery court on June 22, 2011, for modification of custody, for citation of contempt, and for other relief.

¶ 5. In his June 22, 2011 petition, Marquis asserted that since the divorce decree substantial and material changes in circumstances adverse to Haylea’s health and welfare had occurred to warrant a modification of the custody arrangement. Specifically, Marquis alleged that Tanisha had engaged in ongoing behavior and actions to alienate Haylea from him and to frustrate his visitation attempts with Haylea. As a result, Marquis requested that the chancellor: (1) award him sole legal custody and primary physical custody of Haylea, with reasonable visitation rights for Tanisha; (2) find Tanisha in contempt for her failure to abide by the terms of the divorce decree; (3) order Tanisha to pay the costs of reasonable attorney’s fees, service-of-process fees, and other court costs; (4) order Tanisha to cooperate with Marquis in obtaining counseling for Haylea; and (5) appoint a guardian ad litem (GAL) for Haylea and require Tanisha to share an equal part of the cost for the GAL’s representation.

¶ 6. The chancellor entered an order on July 8, 2011, stating that the appointment of a GAL was not appropriate at that time. However, he reserved the right to revisit the issue should the need arise. The chancellor also noted that the parties had already agreed to counseling for Haylea with Dr. Heather Hartwell, who would be actively engaged in assessing Haylea’s emotional well-being and recommending ways that the parties could alleviate outside stressors on Haylea’s life.

¶ 7. On October 11, 2011, the chancellor entered another order to address issues arising during a hearing held on September 28, 2011. With regard to Tanisha’s lawsuit originally filed in circuit court, the chancellor noted that he had specifically directed Tanisha at the last hearing in the case in March 2011 to bring any future issues related to Haylea’s hair back to the chancery court. Because Tanisha failed to come before the chancery court to get prior authorization before filing the lawsuit in circuit court, the chancellor found the lawsuit void ab initio and dismissed the claims without prejudice. The chancellor also provided Tanisha with a thirty-day window to file a petition in chancery court to explain her justification for filing a personal-injury lawsuit on Haylea’s behalf. As to Marquis’s request for attorney’s fees and expenses related to the circuit court lawsuit, the chancellor found the filing of the lawsuit in circuit court improper and awarded Marquis the full amount of his attorney’s fees and expenses incurred in defending the lawsuit.

¶ 8. The chancellor further found that “material changes in circumstances adverse to the best interest of the minor child ha[d] occurred in the home of the primary custodial parent” since the entry of the divorce decree. Regarding the stability of the custodial home, the chancellor observed that Tanisha was currently six months pregnant and unmarried, though she was engaged to be married. The chancellor also stated that the parties had previously agreed on certain extended visitation periods for Marquis but that Tanisha had “unilaterally reduced and virtually eliminated” them. The chancellor further found that Tanisha had interfered with Marquis’s relationship with Haylea and that Dr. Hartwell’s testimony revealed that the lack of contact with Marquis, as well as Tanisha’s hostile attitude toward him, had adversely affected Haylea. The chancellor reserved his ruling on the issue of modification of physical custody and ordered the parties to continue counseling with Dr. Hartwell. The chancellor also increased Marquis’s visitation with Haylea.

¶ 9. Following a hearing on December 6, 2011, the chancellor entered another order on February 6, 2012, in which he: (1) addressed a petition for contempt filed by Marquis for Tanisha’s failure to pay attorney’s fees awarded at the September 28, 2011 hearing; and (2) reviewed the temporary custody and visitation arrangement established at the earlier hearing. The chancellor found Tanisha in contempt for failing to pay attorney’s fees to Marquis and ordered her to pay an additional $500 in attorney’s fees for Marquis’s expenses incurred in filing the petition for contempt.

¶ 10. During the hearing the chancellor heard testimony from the parties, Haylea’s third-grade teacher, Katie Pearson, and Haylea’s principal, Latonya Robinson. He also reviewed an interim report submitted by Dr. Hartwell. Tanisha claimed that Haylea was having difficulty adjusting to the additional visitation with Marquis. She further alleged that the problems were so severe that she felt the need to schedule additional counseling for Haylea with the elementary-school counselor. Tanisha arranged for this additional counseling without notifying Marquis.

¶ 11. Despite Tanisha’s allegations, the chancellor found that the testimony provided by Pearson and Robinson failed to corroborate her claims. Pearson testified that Haylea performed well in school and that her conduct was that of a typical third-grade student. Pearson also testified that she and Marquis communicated via email about Haylea and that he often ate lunch with Haylea and picked her up from school. According to Pearson, Hay-lea had not exhibited any signs of stress or anxiety. The chancellor also found that Robinson’s testimony failed to corroborate Tanisha’s claims “that [Haylea] has suffered in any way, shape[,] or form from the current custody and visitation arrangement.”

¶ 12. The chancellor found that Haylea had not experienced any problems due to Marquis’s increased visitation with her. Instead, the chancellor stated that any problems existed “because of conflicts between the parents, and the [e]ourt specifically finds that [Tanisha] is causing most of the problems. The [c]ourt finds that [Tanisha’s] testimony is not credible in many areas.” The chancellor ordered the parties to continue their counseling sessions with Dr. Hartwell and found that Haylea’s best interests would be served if she had an additional extended weekend of visitation each month with Marquis. The chancellor also decided to reserve his final ruling on permanent custody, visitation, and child support issues until he received Dr. Hartwell’s recommendations as to what she believed would be in Haylea’s best interest.

¶ 13. On the morning of April 4, 2012, the date scheduled by the chancellor for review of the temporary custody and visitation schedule, Tanisha filed a report with the Department of Human Services (DHS). In her report, Tanisha alleged that two weeks earlier Marquis had physically abused Haylea by hitting her with a softball during softball practice. Because of the child-abuse allegations, the chancellor appointed a GAL, Robin Minyard, to investigate the claim and to make a recommendation as to what was in Haylea’s best interest. The chancellor also ordered the parties to share Minyard’s fees, to continue their counseling sessions, and to continue a temporary visitation schedule. Because Dr. Hartwell temporarily closed her practice for maternity leave, the chancellor ordered the parties to agree on a replacement, and if they could not agree, Minyard was to select a replacement who would submit her recommendations to the chancellor.

¶ 14. Following a final hearing on July 30, 2012, the chancellor entered an opinion on October 6, 2012. In the opinion, the chancellor found that at the final hearing Minyard made the following recommendations: (1) Tanisha’s DHS report of physical abuse by Marquis against Haylea was completely unsubstantiated; (2) due to Tanisha’s interference with Marquis’s visitation and her attempts to undermine his relationship with Haylea, a material change in circumstances adverse to Hay-lea’s best interest had occurred; and (3) the only resolution to the co-parenting conflicts was to grant the parties “joint physical custody, with alternating weeks, so that each would have an equal amount of time” with Haylea.

¶ 15. The chancellor also found that Tanisha had engaged in inappropriate discussions with Haylea regarding the ongoing litigation over custody and visitation-rights issues. Furthermore, the chancellor found that Tanisha had repeatedly placed all the blame on Marquis for her conflict with him and had thus refused to “acknowledge any responsibility on her part for these conflicts and difficulties in co-parenting.” Because Tanisha had provided contradictory statements as to the adverse effect on Haylea caused by increased visitation with Marquis, the chancellor found Tanisha’s testimony on the issue not credible. He noted that this finding was supported by the testimony of others, which failed to corroborate Tanisha’s allegations.

¶ 16. With regard to Tanisha’s income, the chancellor found: (1) that her net adjusted gross monthly income was $2,808; (2) that she worked as a registered nurse; (3) that she admitted to working on an as-needed basis; (4) that she maintained control over whether or not she wanted to work; and (5) that, on average, she worked only twelve to twenty-four hours a week. Based on these findings, the chancellor found that Tanisha was “voluntarily under-employed in regard to the total amount of income that she [wa]s capable of earning on a full-time basis as a registered nurse.” As to Marquis’s income, the chancellor found that his net adjusted gross monthly income was $4,983.

¶ 17. The chancellor noted that Andrea Griffin, the DHS social worker who investigated Tanisha’s report of physical abuse, had concluded that under DHS’s definition of “physical abuse” the incident failed to constitute abuse against Haylea. The investigation was therefore dismissed “because the allegation of abuse was totally unsubstantiated.” On Griffin’s suggestion, however, Marquis had taken steps to securely store two guns in his possession. Based on the investigation conducted by Griffin and Minyard, the chancellor found that Tanisha’s report of physical abuse “was not only totally unsubstantiated, but it was also a frivolous filing that was designed to delay the hearing in this case, and cause [Marquis] to incur substantial additional expenses in the form of attorney’s fees.” The chancellor also stated that the “frivolous report” was the only reason a GAL and substitute counselor were appointed.

¶ 18. Following these findings, the chancellor conducted an analysis of the Albright factors. The chancellor found that while Haylea was in excellent physical health, she was prone to clinical levels of anxiety and depression when her parents were in conflict with each other. The chancellor found that, because Tanisha engaged in ongoing behavior that exacerbated the conflict with Marquis, this factor weighed in Marquis’s favor.

¶ 19. Because Tanisha received primary physical custody of Haylea following the parties’ divorce, the chancellor found that this factor regarding continuity of care prior to (and after) the parties’ separation weighed slightly in Tanisha’s favor. However, the chancellor found that the factor pertaining to parenting skills weighed strongly in Marquis’s favor. Marquis no longer used corporal punishment, but Tanisha did. In addition, Marquis had demonstrated concern for every aspect of Haylea’s life, while Tanisha had exposed Haylea to “adult issues concerning the court proceedings^] which reflected extremely poor judgment and parenting skills, and which was detrimental to the best interest of the child.” Also, the chancellor found that Tanisha’s action of filing a frivolous DHS report had exposed Haylea to interviews with strangers about her family life, and that Tanisha had shown no regard for the effect this event would have on Haylea.

¶ 20. The chancellor found that the following factors weighed equally in both parties’ favor: (1) willingness and capacity to provide primary childcare; (2) employment responsibilities of the parent; (3) physical and mental health and age of the parent; (4) emotional ties between the parent and the child; (5) home, school, and community record of the child; and (6) stability of the home environment and employment responsibilities of the parents.

¶ 21. As to the parties’ moral fitness, the chancellor found that this factor weighed slightly in Marquis’s favor. When Haylea visited, Marquis did not have overnight guests of the - opposite sex. However, at the time of the original petition for modification of child custody, Tanisha cohabited with her fiancé, whom she had since married, and she gave birth to another child during the proceedings. Taking into account any other relevant factors, the chancellor observed that Min-yard’s GAL report noted “instances where[,] upon returning from [Tanisha’s] care, Haylea’s appearance was disheveled and substandard, whereas, when she is in [Marquis’s] care, the child is always well-dressed and neatly groomed.”

¶ 22. The chancellor concluded that the Albright factors weighed more heavily in Marquis’s favor, supporting a modification of custody. The chancellor also found that a material change in circumstances adverse to Haylea’s best interest had occurred in Tanisha’s home. The chancellor therefore modified the divorce judgment and granted primary physical custody of Haylea to Marquis, with Tanisha having visitation on alternating weeks so that the parties could essentially’ share equal time with Haylea. The chancellor also terminated Marquis’s monthly child-support payments, finding that Tanisha should no longer receive them since the parties would each have Haylea approximately fifty percent of the time and since Tanisha was underemployed.

¶23. As a result of his findings, the chancellor ordered Tanisha to pay: (1) attorney’s fees to Marquis incurred when the April 4, 2012 hearing was delayed; (2) all counseling fees charged by Dr. Hartwell; (3) all counseling fees charged by Dr. Love, the replacement counselor; and (4) all attorney’s fees charged by Minyard. The chancellor denied Marquis’s request that Tanisha pay his attorney’s fees incurred at the final hearing; however, the chancellor did order Tanisha to pay Marquis for the preparation of the transcripts incurred in the proceedings. Feeling aggrieved by the chancellor’s judgment, Tanisha appeals.

STANDARD OF REVIEW

¶ 24. When supported by substantial evidence, a chancellor’s findings will not be disturbed on appeal unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss.1993).

DISCUSSION

I. Whether Marquis satisfied his burden of proof to establish the elements required for child-custody modification.

II. Whether the chancellor properly applied the Albright factors and made sufficient findings of fact.

III. Whether the chancellor erred by modifying the child-custody agreement.

¶ 25. Tanisha first argues that Marquis failed to establish the required elements under the legal standard for child-custody modification. She also argues that the chancellor improperly applied the Albright factors and made insufficient findings of fact under the factors. As a result, Tanisha further contends that the chancellor erred by modifying the parties’ child-custody agreement. For the sake of brevity and clarity, we will discuss Tanisha’s first three arguments together.

¶ 26. “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one ... parent showing that a material change in circumstances has occurred.” Miss.Code Ann. § 93-5-24(6) (Rev.2013). “The party who petitions for modification of child custody bears the burden of proof by a preponderance of the evidence.” Mercier v. Mercier, 11 So.3d 1283, 1286 (¶ 7) (Miss.Ct.App.2009) (citation omitted). In the present case, only Marquis sought modification of the child-custody order. Therefore, as the noncustodial parent, Marquis bore the burden of proving: “(1) that a material change of circumstances ha[d] occurred in the custodial home since the most recent custody decree, (2) that the change adversely affected] the child, and (3) that modification [was] in the best interest of the child.” Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citation omitted). Furthermore, “[mjodification must be based on conduct of the custodial parent that poses a danger to the mental or emotional health of the child.” Id. “In determining whether a material change in circumstances has occurred, the chancellor must consider the totality of the circumstances.” Id. We recognize that as the trier of fact the chancellor possesses “the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003). “[T]he chancellor is in the best position to make this determination because it is his role to ascertain whether witnesses and evidence are credible and the weight to give to each.” Id. at 1014 (¶ 37) (citation and internal quotation marks omitted). As previously acknowledged, this Court will not disturb a chancellor’s findings of fact when they are supported by substantial credible evidence. Herring Gas Co., 616 So.2d at 894.

¶ 27. In his October 11, 2011 order, the chancellor found that a material change in circumstances adverse to Haylea had occurred in Tanisha’s home, which was the home of the primary custodial parent. In support of this finding, the chancellor identified Tanisha’s extramarital relationship with her fiancé as one factor contributing to the material change in circumstances adversely affecting Haylea and the stability of her home environment. Specifically, the chancellor noted that at the time of his October 2011 order Tanisha was six months pregnant and unmarried. In addition to this consideration, the chancellor found that Tanisha had not only “unilaterally reduced and virtually eliminated” Marquis’s extended visitation periods with Haylea but had also attempted to interfere with the relationship between Marquis and Haylea. The chancellor also heard testimony from Dr. Hartwell, Haylea’s court-appointed counselor, who stated that Hay-lea had been adversely affected by her lack of contact with Marquis and by Tanisha’s hostile attitude toward him. Based on these findings, the chancellor found that a material change in circumstances had occurred since the divorce decree.

¶28. Having previously found that a material change in circumstances adverse to Haylea had occurred in Tanisha’s home, the chancellor proceeded to determine in his October 6, 2012 opinion whether modification of custody would be in Haylea’s best interests. The chancellor considered the testimony of the parties, the testimony and recommendations provided by Hay-lea’s court-appointed GAL and counselor, and the testimony of the DHS worker assigned to investigate the report of physical abuse.

¶ 29. Based on an investigation by Griffin, the DHS worker, and Minyard, Hay-lea’s court-appointed GAL, the chancellor found that Tanisha’s report of physical abuse was completely unsubstantiated and constituted a frivolous filing. Minyard also recommended that Tanisha’s attempts to interfere with Marquis’s visitation and to interfere with his relationship with Hay-lea had created a material change in circumstances adverse to Haylea’s best interests, and the only solution involved joint physical custody, with Haylea spending alternating weeks with the parties. The chancellor also conducted an analysis of the Albright factors in his opinion, and he concluded that the factors weighed more heavily in Marquis’s favor. He therefore granted a modification of child custody in favor of Marquis.

¶ 30. After reviewing the record, we find no abuse of discretion in the chancellor’s determination that Marquis met his burden for modification of the parties’ child-custody order. We also find substantial support in the record for the chancellor’s determination that a material change in circumstances had occurred and that modification would be in Haylea’s best interests. The record further supports the chancellor’s application of the Albright factors and that his findings of fact were supported by substantial credible evidence. Accordingly, we find no abuse of discretion in the chancellor’s decision to modify the prior child-custody arrangement in the divorce decree in Marquis’s favor. We therefore find that Tanisha’s first three arguments regarding these issues lack merit.

IV. Whether the chancellor erred by excluding evidence of Marquis’s past acts of domestic violence.

¶ 31. Under this assignment of error, Tanisha argues that the chancellor erred in not considering evidence of past acts of domestic violence committed by Marquis. She contends that the issue of Marquis’s past acts of domestic violence was relevant, and evidence on this issue should have been admitted and considered by the chancellor in making his determination regarding custody modification.

¶ 32. We review a trial judge’s decision of whether to admit or exclude evidence under an abuse-of-discretion standard of review. Rushing v. Rushing, 724 So.2d 911, 914 (¶ 11) (Miss.1998) (citations omitted). In Lackey v. Fuller, 755 So.2d 1083, 1085 (¶¶ 6-7) (Miss.2000), the parties obtained an irreconcilable-differences divorce, and the wife later asked for modification of the final judgment. At the hearing, the chancellor allowed into evidence testimony regarding the wife’s pre-divorce conduct. Id. at 1086 (¶ 11). In its discussion of res judicata as it applies to divorce proceedings and child-custody issues, the Mississippi Supreme Court stated:

We begin with the principles of res judi-cata[,] which command that a final judgment preclude[s] thereafter all claims that were or reasonably may have been brought in the original action. The familiar rule that a judgment for alimony, custody!,] or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.

Id. at (¶ 13) (citations omitted). The supreme court concluded that the wife’s pre-divorce conduct was res judicata and that the only evidence the chancellor should have admitted was evidence pertaining to post-judgment conduct. Id. at 1087 (¶ 18).

¶ 33. In the present case, the record shows that at the September 28, 2011 hearing, Tanisha’s attorney tried to question Marquis about charges that arose pri- or to the divorce proceeding. Upon the objection of Marquis’s attorney, the chancellor asked Tanisha’s attorney whether there had been any continuation of Marquis’s conduct since the divorce decree and stated: “[U]nless you can tie some current conduct to that past conduct, I’m going to have to sustain the objection.” Because Tanisha’s attorney could not provide any evidence of domestic violence by Marquis since the divorce, the chancellor found the evidence not relevant and sustained the objection. The issue arose again during Tanisha’s testimony, and the chancellor again explained that he would sustain the objection as to any matters that occurred prior to the divorce decree but would allow testimony regarding any actions since that time.

¶ 34. Based on the record and applicable law, we find no abuse of discretion in the chancellor’s exclusion of evidence of Marquis’s past acts of domestic violence. At the hearing for modification of custody, Tanisha was only able to offer proof of acts that occurred during the marriage and pri- or to the parties’ divorce. Tanisha failed to offer any evidence of current conduct occurring since the divorce. Because Tanisha failed to properly raise this claim for consideration in the original divorce decree, she is barred from raising the issue now. This assignment of error therefore lacks merit.

V. Whether the chancellor erred by finding Tanisha’s report of abuse frivolous and imposing sanctions against her.

¶ 35. Tanisha next argues that the chancellor erred in finding her report of abuse frivolous and imposing sanctions against her. Because of the repercussions of Tanisha’s DHS report, the chancellor imposed sanctions against her after finding that her report of abuse was unsubstantiated. The chancellor ordered Tanisha to pay all fees charged by Dr. Hartwell and Dr. Love, and he further ordered her to reimburse Marquis for the portion of these fees that he had paid.

¶ 36. This Court reviews the decision to impose monetary sanctions against a party for abuse of discretion. See In re Spencer, 985 So.2d 330, 336-37 (¶ 19) (Miss.2008) (citation omitted). “In the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors, the judgment of the court’s imposition of sanctions will be affirmed.” Wyssbrod v. Wittjen, 798 So.2d 352, 357 (¶ 17) (Miss.2001) (citation and internal quotation marks omitted). Rule 11(b) of the Mississippi Rules of Civil Procedure permits a court to impose sanctions against a party. The rule states that “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party ... to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.” M.R.C.P. 11(b). The supreme court has recognized “that a pleading is frivolous only when, objectively speaking, the pleader or movant has no hope of success.” In re Spencer, 985 So.2d at 339 (¶ 28) (citation and internal quotation marks omitted). Furthermore, “[a] motion or pleading is filed for the purpose of harassment or delay when the party does not have a viable claim.” Id.

¶ 37. The record contains evidence to support the chancellor’s finding that Tanisha’s report of physical abuse, which she filed the morning of the April 4, 2012 hearing, was frivolous and “totally unsubstantiated.” As previously discussed, the chancellor considered both Minyard’s and Griffin’s statements regarding their investigation of the incident. Minyard, who served as Haylea’s court-appointed GAL, recommended that the report of abuse was unsubstantiated, and Griffin, the DHS worker assigned to the claim, dismissed her investigation because the incident failed to constitute abuse under DHS standards. As a result, in his final judgment entered October 16, 2012, the chancellor imposed sanctions against Tanisha for:

[H]er frivolous filing of the report of physical abuse, which delayed the final hearing in this case, triggered a DHS investigation, required this [c]ourt to appoint a[GAL], and required the parties to begin counseling with [Dr.] Love, who was designated to replace Dr. Hartwell. These sanctions are imposed under the [c]ourt’s inherent powers, because of [Tanisha’s] wrongful conduct in filing a frivolous report, and in attempting to interfere with [Marquis’s] relationship with [Haylea].

¶ 38. The chancellor ordered Tanisha to pay all fees charged by Dr. Love and to pay Marquis $190, the share of his fees paid to Dr. Love thus far, since Dr. Love’s services would not have been necessary but for Tanisha’s filing of the frivolous DHS abuse report. The chancellor also ordered Tanisha to pay all fees charged by Dr. Hartwell and to pay Marquis $950, the share of his fees charged by Dr. Hartwell, since her services would not have been necessary but for Tanisha’s attempts to alienate Haylea from Marquis and to interfere with their relationship.

¶ 39. Because the record contains evidence to support the chancellor’s determination that Tanisha’s report constituted a frivolous filing, we find no abuse of discretion by the chancellor in making such a finding. In addition, pursuant to Rule 11 of the Mississippi Rules of Civil Procedure, we affirm the chancellor’s imposition of sanctions against Tanisha for filing the frivolous DHS report. This issue therefore lacks merit.

VI. Whether the chancellor erred by ordering Tanisha to pay attorney’s fees.

¶ 40. We next consider whether the chancellor committed manifest error by ordering Tanisha to pay attorney’s fees to Minyard, Haylea’s court-appointed GAL, and to pay Marquis’s attorney’s fees. “Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal.” Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss.1997) (citations omitted). The fees “should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.” Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992) (citation omitted). “[W]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney’s fees and expenses should be awarded to the wronged party.” State v. Blenden, 748 So.2d 77, 87 (¶ 33) (Miss.1999) (citation omitted).

¶ 41. The chancellor discussed the fees charged by Minyard, the court-appointed GAL, in the amount of $3,725. Pursuant to the standards set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the chancellor found that the fees were reasonable and necessary. He further found that Minyard was qualified and competent to serve as GAL and that her “hourly rate and total amount charged reflected her skill and standing in the legal community, and the nature of the issues raised in regard to the allegations of child abuse that she investigated.” In addition, the chancellor noted that Minyard’s fees reasonably reflected the time and labor required to fulfill her duties as GAL and that she promptly completed those duties. The chancellor also found Min-yard’s rates to be reasonable based on the “usual and customary charges for attorneys performing similar services in the local community.” He further noted that Minyard’s acceptance of the GAL appointment had prevented her from accepting other employment because of the case’s time commitments. Following a discussion of these relevant factors, the chancellor ordered Tanisha to pay the full amount of Minyard’s attorney’s fees and to pay Marquis $750, which represented his one-half share of the initial retainer that he paid to Minyard.

¶ 42. In addition to Minyard’s attorney’s fees, the chancellor ordered Tanisha to pay Marquis’s attorney’s fees amounting to $2,400, which were incurred when the April 4, 2012 hearing was postponed due to the filing of the DHS report. The chancellor stated the following as to Marquis’s attorney’s fees:

[Marquis’s] counsel has submitted to the [c]ourt a Motion for Approval of Attorney’s [F]ees, which contains an itemization of those fees totaling $2,400.00, based on an hourly rate of $200.00 per hour, and a total of twelve hours spent in preparation for and in attending the hearing on April 4, 2012[,] that was postponed due to [Tanisha’s] conduct. The [c]ourt finds that the fees charged ... were reasonable and necessary under the standards set forth in McKee .... Specifically, the [cjourt finds that [Marquis’s] attorney has been practicing law for twenty-six (26) years, and he provided competent representation to [Marquis], and his hourly rate and the total amount charged reflect his skill and standing in the legal community. Furthermore, the fees requested are reasonable based on the nature of the issues raised in regard to the allegations of child abuse that were raised throughout this litigation. The fees requested by [Marquis’s] attorney reasonably reflect the time and labor required to prepare for the hearings in this case, and the acceptance of this case precluded [Marquis’s] counsel from accepting other employment due to the time commitments required by this case.

¶ 43. Following these findings, the chancellor addressed Marquis’s request that Tanisha pay his attorney’s fees incurred at the final hearing, in the amount of $3,800, and the cost of preparing the transcripts for the proceedings, in the amount of $1,374.50. While the chancellor granted the request that Tanisha pay Marquis $1,374.50 for the cost of preparing the transcripts, he denied Marquis’s request for the additional attorney’s fees.

¶ 44. Based on applicable case law and the evidence in the record, we find that the chancellor did not manifestly err by ordering Tanisha to pay attorney’s fees. Therefore, this issue also lacks merit.

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

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

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

      . On November 9, 2011, Tanisha filed a petition for authority to file a claim on Haylea’s behalf, and on November 29, 2011, she filed a motion asking the chancellor to reconsider and set aside the order dismissing her complaint for damages and injunctive relief. In an order entered December 6, 2011, the chancellor denied Tanisha’s motion, finding that the motion was not well taken. Further, in an order entered February 6, 2012, the chancellor stated that Tanisha’s motion was untimely and that it should also be "denied on the merits because none of die relief requested ... is justified under the proof in this case.” Finally, in an order entered March 8, 2012, the chancellor noted that Tanisha had issued new subpoenas to Marquis and Walker in an attempt to reassert the same issues previously dismissed by the chancery court. The chancellor found Tanisha’s actions untimely and denied her request to reassert the claims.

      . After the parties failed to agree on a replacement for Dr. Hartwell, Minyard selected Dr. Gillian Love as a replacement.

      . See McCarty v. McCarty, 52 So.3d 1221, 1229 (¶ 38) (Miss.Ct.App.2011) (affirming the chancellor's determination that a material change in circumstances had occurred and his analysis of the Albright factors in determining that a change in custody was in the children’s best interest).

      . Id. at 1224-25 (¶ 11) (discussing the limited standard of review on appeal for cases involving child custody).

      . The chancellor acknowledged that he appointed a GAL after Tanisha filed a DHS abuse report claiming that Marquis physically abused Haylea at softball practice. However, the report was found to be unsubstantiated.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Carl E. SANDERS, Appellant v. Gary SANDERS, Appellee.
    No. 2012-CP-02035-COA.
    Court of Appeals of Mississippi.
    April 22, 2014.

      Carl E. Sanders, appellant, pro se.
    Gary Sanders, appellee, pro se.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Carl Sanders filed a complaint against Gary Sanders in the Circuit Court of Humphreys County. The circuit court dismissed the lawsuit without prejudice. Carl appeals. Finding no error, we affirm.

FACTS

¶ 2. At issue here is the estate property of Isaac Sanders, identified as Lot 6, Fri-ley’s Estate, located in Section 34, Township 14, Range 3 West, Humphreys County, Mississippi (Estate Property). Isaac died intestate and was survived by ten children, including Carl and Gary. Isaac’s estate was never administered. On April 12, 2002, the putative heirs of Isaac’s estate, including Gary, executed a durable power of attorney (DPA) appointing Carl as attorney-in-fact to represent their interest in the Estate Property.

¶ 3. On May 23, 2011, attorney Jason Hadley sent Carl a letter informing Carl that his law firm represented Tanya Hoover, Gary’s daughter. The letter informed Carl that Gary had appointed Tanya as his attorney-in-fact and that any future correspondence concerning Gary’s interest in the Estate Property should be directed to Hadley’s law firm. On June 8, 2011, Carl sent Hadley an email with a proposal to “buy-out Gary[’s] ... interest in [the] Isaac Sanders Estate Property and let him live there as long as the estate exists.” Hadley responded via email conveying the following:

Attached please find the Power of Attorney of Gary Sanders appointing Tanya Hoover on May 9, 2011. Although I see no formal offer attached [to your email], Gary Sanders is not interested in selling his interest in the Estate [P]roperty. Gary Sanders is also not interested in entering the subject property into any [USDA] CRP or related program .... [P]lease refrain from sending [communications] directly to Gary Sanders as I have previously notified you of our representation. If there is an heir that has not received notification of our representation, please provide [his or her] name and contact information so that we may confirm the same.

¶ 4. On November 2, 2011, attorney Michael McKay sent a letter to Gary informing him that McKay had been retained by Carl and other heirs of Isaac. The letter informed Gary that a “number of issues” had arisen between Gary and the other hems, alleging that Gary had used the Estate Property for commercial agricultural purposes to the exclusion of the other heirs; failed to cooperate in enrolling the land in the CRP program; and wrongfully interfered with the other heirs’ use of the property. McKay advised Gary that his clients had decided to file a partition action in chancery court, and asked if Gary would voluntarily agree to divide the property.

¶ 5. Carl entered into a commercial-farm lease agreement with Charles V. Allen on February 21, 2012, leasing the Estate Property to Allen for the farming of soybeans and wheat. Carl sent Gary a letter informing him that “the entire crop portion of the estate has been leased to [Allen] for the year 2012 .... Please do not interfere with [Allen] because he has a legal lease.” The letter further informed Gary that “both parcels of the wood land, 8 acres behind your house and the 43 acres across the road, have been leased to the USDA’s WHIP and it will start this year.”

¶ 6. Carl filed a complaint against Gary in the Circuit Court of Humphreys County on May 1, 2012. In the complaint, Carl asserted a breaeh-of-contract claim against Gary, alleging that Gary was in “willful breach of the durable power of attorney contract.” The complaint alleged that Gary “farmed the crop land of the estate with soybeans in [the] year 2011 against [Carl’s] instructions,” and “the net result of [Gary’s] action[s] is that he lied, farmed the land in 2011[,] ... and kept all the proceeds for himself ....[, which] was a clear breach of the Durable Power of Attorney Contract^]” The complaint further alleged that in March 2012, Gary filed a trespass charge against Allen in justice court. Among other things, the complaint requested that the court issue a “cease and desist order and restraining order” to prevent Gary from interfering with Allen’s use of the property, and “immediately order the Liquidation/Partitioning” of the estate similar to the offer made [in the letter dated November 2, 2011.]

¶ 7. Gary filed a motion to dismiss on August 31, 2012. In his motion, Gary argued that Carl’s complaint requested the circuit court to partition heir property, which is a chancery court matter, and attempted to assert a claim against Gary on behalf of Allen, who is not a party to the action. The motion further asserted that no heirship affidavit was filed, nor were the other heirs joined as necessary parties.

¶ 8. A hearing was held on September 18, 2012. At the hearing, the circuit judge told Carl that she did not see an issue for a breach-of-contract claim. Further, the circuit judge informed Carl that actions to establish heirs and partition estate property should be filed in chancery court. The circuit court issued an order of dismissal on September 25, 2012. In the order of dismissal, the circuit judge found that “the case should be dismissed but that [Carl] may bring this action in [c]hancery [c]ourt if he so chooses.” Carl filed a motion for reconsideration, which the circuit court denied. Carl appeals. Finding no error, we affirm.

DISCUSSION

¶ 9. First, we note that both parties are representing themselves. The Mississippi Supreme Court has held that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Burch v. Pomes, 18 So.3d 303, 304 (¶ 4) (Miss.Ct.App.2009) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). However, we should “credit not so well-pleaded allegations so that a pro se prisoner’s meritorious complaint may not be lost because inartfully drafted.” Id. We also give the “same deference to pro se litigants in other civil actions.” Id. (citing Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss.Ct.App.1999)). With these principles in mind, we restate for clarity the issues raised by Carl on appeal: whether the circuit court erred in dismissing Carl’s complaint; and whether the circuit court erred in finding that Carl’s motion for reconsideration was without merit.

I. Whether the circuit court erred dismissing the case without prejudice.

¶ 10. Based on the record and the arguments at the hearing below, there is some confusion as to the basis of Carl’s claim. Carl’s complaint against Gary alleged that Gary was in breach of the “contract of Durable Power of Attorney.” However, elsewhere in the complaint, Gary requests that the court assess damages against Gary for his interference with Allen’s lease of the Estate Property. Further, at the hearing in circuit court, when asked what was the basis of the breach-of-contract claim, Carl responded, “The contract was a contract between [the] Sanders’ estate and [Allen,] ... [who] went over to ... exercise his rights under that contract, and [Gary] filed trespassing charges against him, and he had a bona fide contract.” Like the circuit court, we are at a loss to find a binding legal contract between Carl and Gary. On the face of the complaint, we are unable to ascertain whether Carl alleged a breach of the DPA or a breach of the Allen lease. If the latter, we note Carl is seeking to enforce a claim by a party who has not been joined. Likewise, Carl has failed to join the other heirs to the action.

¶ 11. Still, it is clear that, regardless of Carl’s present assertions, the complaint requests the “partitioning of the estate,” and that any proceeds from Gary’s farming operations be “confiscated and equitably divided among the heirs of the estate.”

¶ 12. The circuit court found that it lacked jurisdiction to hear the matter. During the hearing, the circuit judge stated: “[W]hat you have ... is an issue that should be in chancery court. You’re asking this court to partition some property and to establish the heirs. That is in the jurisdiction of chancery court.” However, rather than transferring the matter to the proper court, the circuit judge chose to dismiss the case without prejudice, stating: “[A]s opposed to dismissing your claim, I would transfer it, but you don’t have a proper petition in order to transfer .... [Therefore, I’m going to dismiss it, but you can file it in chancery court.”

¶ 13. Based on the record before us, we agree with the circuit court’s finding that the matter should have been filed in chancery court. Article 6, Section 159 of the Mississippi Constitution vests the chancery court with jurisdiction in matters concerning: “(a) [a]ll matters in equity; (b) [divorce and alimony; (c) [m]atters testamentary and of administration; (d) [manor’s business; (e) [c]ases of idiocy, lunacy, and persons of unsound mind; (f) [a]ll cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.” Article 6, Section 157 instructs that “[a]ll causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court.”

¶ 14. Here, no estate has ever been opened for the late Isaac Sanders, and no determination of heirship has been adjudicated by any court to determine the rightful parties and their interest in the Estate Property. Furthermore, although Carl asserts that he is not seeking a partition of property, his complaint clearly requests that the circuit court partition the Estate Property. Thus, we agree with the judgment of the circuit court that this matter should have been filed in chancery court. We also agree with the circuit court’s decision to dismiss the action without prejudice so that Carl may draft a proper petition and join all necessary parties. Thus, we find that the circuit court properly dismissed the case without prejudice pursuant to Mississippi Rule of Civil Procedure 12(h)(3). Accordingly, we affirm the judgment of the circuit court dismissing the case without prejudice.

II. Whether the circuit court erred in finding that Carl’s motion for reconsideration was without merit.

¶ 15. Both in his motion for reconsideration below and in his brief before this Court, Carl makes allegations of wrongdoing, including “criminal malfeasan[ce] in the form of file tampering.” Upon reviewing the record, we can only conclude that Carl’s accusations of file tampering and wrongdoing are founded upon his misinterpretation of a statement made by the circuit judge during the hearing. During the hearing, the circuit judge stated: “I didn’t see a contract, so I didn’t see the issue for breach of contract.” This prompted Carl to believe that “some rogue person” removed the contract from the record. In his brief, Carl states: “[H]ow could the court not have found a contract in the file ... [?] This should have prompted the court to investigate why the contract was missing! [I have] to conclude that this trial court judge is either grossly incompetent or she is complicit in this criminal activity.” It is clear from the context that the circuit court meant that the documentation that Carl presented did not constitute a legally binding contract.

¶ 16. Carl’s motion for reconsideration makes further allegations of wrongdoing against the circuit court and against the attorneys below, including allegations of “criminal racketeering, criminal malfeas-ant [sic] and abdication of [the] oath of office.” We have reviewed the record and find these allegations to be wholly unfounded. Accordingly, this issue is without merit.

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

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

      . There is some indication in the record that Isaac died in 1972; however, a precise date is not indicated.

      . The DPA authorized Carl to
      exercise, do or perform any rights, power, duty, or obligation whatsoever that [the heirs] now have or may acquire the legal right, power or capacity to exercise, do or perform in connection with: A. [t]he payment of real estate taxes assessed to [Lot 6][;] B. [t]he enforcement of trespass laws, eviction laws or ejectment laws as they relate to [Lot 6][;] C. [t]he rentals of [Lot 6],

      .United States Department of Agriculture's Conservation Reserve Program.

      . Wildlife Habitat Incentive Program.

      . We note that on July 23, 2013, Carl filed a motion arguing that Gary failed to comply with Rule 31 of the Mississippi Rules of Appellate Procedure. The Mississippi Supreme Court passed the motion for consideration with the merits of the appeal. In his motion, Carl does not state with specificity how Gary has failed to comply with Rule 31. We find that the motion is not well taken and is hereby denied.


author: GRIFFIS, P.J.,

text:
    Sedrick JOINER a/k/a Cedric Joiner, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00536-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.

      Office of State Public Defender by George T. Holmes, Erin Elizabeth Prid-gen, attorneys for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Sedrick Joiner appeals his sexual-battery conviction. He argues that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On July 30, 2011, eleven-year-old Lucy visited her grandmother, Ellie, in Marks, Mississippi. Lucy’s nine-year-old cousin, Tammy, was also present. Ellie is Tammy’s aunt.

¶ 3. While at Elbe’s house, Lucy and Joiner spoke on the phone and arranged to meet at the railroad tracks. Joiner is Lucy’s cousin and Tammy’s uncle. Lucy and Tammy went for a walk and met Joiner. They got into Joiner’s car.

¶ 4. Lucy and Tammy both testified to several facts. Joiner picked them up at the railroad tracks. Tammy got in the front passenger seat, and Lucy got in the back seat. Joiner drove them to a nearby wooded area. Joiner then got in the back seat with Lucy, and they had sex. Afterward, Joiner got back in the driver’s seat. Tammy got in the back seat, and Lucy got in the front passenger seat. Joiner dropped them back off at the railroad tracks. Lucy and Tammy walked back to Elite’s house. They did not discuss what had just happened.

¶ 5. Their testimony differs on other facts. Lucy testified that Joiner called her at Ellie’s house and told her to meet him at the railroad tracks. Lucy testified that Joiner drove a red two-door car. Joiner got in the back seat with Lucy, and he pulled her boxers and panties down. He unzipped his pants and stuck his penis inside of her. She testified that this hurt her. She also testified that Joiner ejaculated on the seat and wiped himself off with a towel. Lucy threw away her boxers and panties the next day.

¶ 6. Tammy testified that Lucy called Joiner from Ellie’s house just before they met him at the railroad tracks. Tammy testified that while Joiner was in the back seat with Lucy, Tammy stayed in the front seat. Tammy turned around to get Lucy’s cell phone to play a game. Tammy saw Lucy lying on the back seat with her head against the window. Joiner was on top of Lucy. Tammy was asked on direct examination what happened when Joiner stopped the car. She testified that Joiner “got in the back and pulled down his pants and she [ (Tammy) ] pulled down hers and they started humping in the back seat.” She was then asked if she turned around and saw this, and she answered, “No.” When asked how she knew this was happening, Tammy stated, “Because she had gave me her phone.” Tammy testified that she did not hear any noise from Joiner and Lucy. She also did not know how long Joiner and Lucy were in the back seat together. On cross-examination, however, Tammy testified that she did not actually see Lucy with her boxers and panties pulled down. Tammy stated that she never saw any towel in the car. Tammy saw Lucy and Joiner kiss twice before he dropped them back off at the railroad tracks. Later that afternoon, Tammy told her Uncle Billy what had happened between Joiner and Lucy.

¶ 7. The -next day, Lucy’s mother took Lucy to the hospital for an evaluation. Tony McMillan, a registered nurse, examined Lucy. McMillan testified that there were no signs of bleeding, bruising, or tearing on Lucy’s body. Lucy told McMillan that she had not bathed since the incident occurred. McMillan testified that Lucy’s hymen was no longer intact, and there were possible reasons, other than intercourse, that would explain this. No evidence was found on Lucy’s body that could be collected for a rape kit.

¶ 8. Lucy and Tammy spoke with Detective Darryl Linzy of the Quitman County Sheriffs Department. Detective Linzy photographed the area where Joiner took Lucy and Tammy.

¶ 9. On January 23, 2012, Joiner was indicted for sexual battery, a violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev.2006). Joiner’s trial was held on March 14, 2013. Joiner moved for a directed verdict, which the trial court denied. The jury then convicted him of sexual battery. The trial court sentenced Joiner to serve thirty years in the custody of the Mississippi Department of Corrections (“MDOC”). He was also ordered to register as a sex offender once released from the MDOC’s custody.

¶ 10. Joiner filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied Joiner’s motion.

ANALYSIS

¶ 11. Joiner argues that he should have been granted a new trial. He asserts that there was no corroborating physical evidence to support the sexual-battery claims and very little police investigation.

¶ 12. Joiner offers the following to support his argument that there was no corroborating physical evidence. Lucy told Detective Linzy that the person who had sex with her had a tattoo of a dog on him. Detective Linzy never saw a dog tattoo on Joiner. Lucy’s hymen was no longer intact. McMillan testified that there were possible reasons, other than intercourse, that would explain this. Lucy testified that Joiner wiped himself off with a towel after he finished having sex with her. Tammy never saw any towel while she was in the car. If there was no towel present, Joiner contends, he would have left some DNA evidence in the back of the car. And Tammy’s testimony was not corroborated with physical evidence. She testified that Lucy called Joiner on her cell phone before the girls met up with Joiner. However, Tammy did not tell the police officers this information when she was first interviewed. Detective Linzy testified that had he been informed about the cell-phone call, he would have retrieved cell-phone records.

¶ 18. Joiner offers the following to support his argument that there was very little police investigation. There were no follow-up interviews with any witnesses. Detective Linzy stated that he never saw a dog tattoo on Joiner, nor did he look for one. Detective Linzy never tested for DNA in Joiner’s car. Detective Linzy also never retrieved any cell-phone records.

¶ 14. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). This Court must consider the evidence in the light most favorable to the verdict. Id. We do “not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 15. In Sims v. State, 127 So.3d 307, 311 (¶ 13) (Miss.Ct.App.2013), Sims claimed that because there was no physical evidence that the incident occurred, his statutory-rape conviction was based on insufficient evidence. This Court found that there was sufficient evidence to support Sims’s conviction. Id. at (¶ 14). This Court stated:

Sara’s testimony alone is sufficient to support Sims’s statutory-rape conviction. “Any questions regarding the credibility of Sara’s testimony are to be resolved by the jury.” Stevenson v. State, 13 So.3d 314, 319 (¶ 26) (Miss.Ct.App.2008) (quoting Price v. State, 898 So.2d 641, 652 (¶ 25) (Miss.2005)). Sara stated that Sims inserted his penis into her rectum. Although Sims insists that Sara’s testimony is insufficient because there is no physical evidence of the incident, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Williams v. State, 879 So.2d 1126, 1128 (¶ 5) (Miss.Ct.App.2004) (quoting Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss.Ct.App.2002)).

Sims, 127 So.3d at 311 (¶ 14).

¶ 16. Here, Joiner was thirty-six years old, and Lucy was eleven years old. Section 97 — 3—95(1) (d) provides that “a person is guilty of sexual battery if he engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”

¶ 17. Lucy testified that she met Joiner at the railroad tracks. She testified that Joiner pulled her pants down and stuck his penis inside of her. She testified that this hurt her. She also testified that she saw him ejaculate. Lucy stated that Joiner had a towel with him. After they had sexual intercourse, Joiner dropped Lucy and Tammy at the railroad tracks. Tammy also testified to similar facts. There was sufficient evidence to establish that Joiner violated section 97-3-95(1)(d) when he engaged in sexual penetration with a child who is protected by the statute.

¶ 18. We do not find that the verdict was so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, we find no error in the denial of the motion for a new trial. We therefore affirm.

¶ 19. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

LEE, C.J., IRVING, PJ.,'BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . Because of the nature of the charge, the names of those involved have been changed to protect their identities.


author: LEE, C.J.,

text:
    Donald Nolan AINSWORTH, Appellant v. Melanie Reeves AINSWORTH, Appellee.
    No. 2013-CA-00148-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.

      Ottis B. Crocker III, attorney for appellant.
    Harold 0. Grissom Jr., Gulfport, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Donald and Melanie Ainsworth were married in 1991 and had two children during their marriage. Melanie filed for divorce in August 2010. After a trial in the Stone County Chancery Court, the chancellor granted the parties an irreconcilable-differences divorce. The chancellor also divided the couple’s marital property, set visitation, and ordered Donald to pay child support. Donald filed a motion for reconsideration. After a hearing on the motion, the chancellor granted Donald relief in part and issued an amended final judgment of divorce. In her amended judgment, the chancellor revised the findings of facts and the legal analysis on the equitable division of the parties’ marital estate.

¶ 2. Donald now appeals, asserting the chancellor erred: (1) in dividing the marital estate, (2) in considering other sources of his income for child-support purposes, (3) in ordering the parties to be responsible for one-half of the children’s extracurricular activities, and (4) in awarding the tax exemptions for the children to Melanie. Pertinent facts will be discussed as they relate to each issue.

STANDARD OF REVIEW

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

DISCUSSION

I. DIVISION OF MARITAL ESTATE

¶ 4. Donald contends the chancellor erred in dividing the marital estate. Donald specifically argues the chancellor inequitably divided the marital estate and mistakenly characterized her award of the marital estate to Melanie as lump-sum alimony.

¶ 5. First, we note the chancellor made comprehensive findings in classifying the parties’ assets and in dividing the marital estate, including a detailed analysis of the factors outlined in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The Ferguson factors are as follows:

1. 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 the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as 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 capacity; and,
8. Any other factor which in equity should be considered.

Id.

¶ 6. In regard to the first factor, the chancellor concluded that both Melanie and Donald directly and indirectly contributed to the acquisition of property, including the marital home, retirement accounts, and several certificates of deposit. The chancellor found both parties earned employment income during the marriage.

¶ 7. In considering the second factor, the chancellor noted Donald began gambling in the futures market using the parties’ home computer and his credit card. Donald never realized any gains from this activity, instead amassing $150,000 in debt without Melanie’s knowledge. After Donald told Melanie about this debt, the couple sold certain property for $90,000 and sought a home-equity loan of $60,000 to pay off the debt. A few years later, Donald incurred an additional debt of $80,000. When Melanie discovered this, she refused to help Donald pay this debt. The debt was ultimately paid off by Donald’s father. Melanie further learned Donald had used much of their personal property, including his truck, the motorcycle, the tractor, and the lawnmower, as collateral. On another occasion, Donald signed Melanie’s name to a loan application at the Bank of Wiggins (the Bank), where Donald worked, using one of Melanie’s certificates of deposit containing $50,000 as collateral, After Melanie discovered this, Donald agreed to pay the remaining indebtedness on the loan of $31,000.

¶ 8. In evaluating the third factor, the chancellor found Melanie had an emotional attachment to the marital home, mainly because the couple had lived there the entirety of their marriage and raised their daughters there. The chancellor also found Melanie had an emotional attachment to her three certificates of deposit since the money used to fund them was originally given to her by her father.

¶ 9. In analyzing the fourth factor, the chancellor valued Melanie’s separate estate at $42,500. This included her half-interest in several rental homes she co-owned with her father. Donald’s separate estate was valued at $155,169.22. This included the value of Donald’s profit-sharing and pension plans through his employer, the Bank, for the ten years he worked there prior to the parties’ marriage. Donald contends the chancellor was under the mistaken impression that she should “equalize” the parties’ separate estates. In the original judgment, the chancellor valued the parties’ separate estates, noted the disparity between the two, and awarded Melanie an amount of the marital assets to “equalize the two estates.” But after the hearing on the motion for reconsideration, the chancellor issued an amended judgment in which this language was removed, and the award of marital assets to Melanie was recalculated.

¶ 10. The chancellor found there was no evidence presented on the fifth factor.

¶ 11. The chancellor discussed the sixth and seventh factors together. The chancellor determined Melanie’s adjusted gross monthly income to be $3,559, which included her employment income as a teacher and rental income. Donald’s adjusted gross monthly income was $4,562, which included his employment income as a vice president at the Bank, his yearly bonus from the Bank, and profits from vehicle sales. Reiterating that Donald’s income was greater than Melanie’s and his separate nonmarital estate exceeded Melanie’s by $112,662, the chancellor awarded the marital home to Melanie. The chancellor also awarded Melanie the equity in the certificates of deposit. Donald argues the chancellor mischaracterized this as lump-sum alimony. However, the chancellor clearly states she divided the assets in such a way as to avoid the need for alimony.

¶ 12. The chancellor determined the marital estate was valued at $462,418. Much of the estate’s value was from Don-aid’s profit-sharing and pension plans. Melanie was awarded 62.33% of the marital estate, while Donald was awarded 37.67% of the marital estate. The chancellor determined Melanie’s share was $288,222, but also assigned her marital debts of $97,500, leaving Melanie with a total equity of $190,722. Melanie’s share included: the marital home; several certificates of deposit; one-half equity in another certificate of deposit valued at $9,500; an Ameritrade account valued at $6,000; $5,600 in an IRA; her PERS retirement valued at $9,000; one-half of the marital portion of Donald’s profit-sharing plan; one-half of the marital portion of Donald’s pension plan; and her truck, including any indebtedness. Melanie’s debts included the remaining mortgage on the marital home of $75,000, which did not include the home-equity loan of $60,000; $7,000 owed on her truck; and $15,500, representing one-half of a loan taken against a certificate of deposit.

¶ 13. The chancellor determined Donald’s share was $174,190, but assigned him marital debts of $75,500, leaving Donald with a total equity of $98,690. Donald’s share included: all vehicles in his possession, including any indebtedness; one-half equity in a certificate of deposit valued at $9,500; one-half of the marital portion of his profit-sharing plan; one-half of the marital portion of his pension plan; and an interest in real estate valued at $10,500. Donald’s debts included the home equity loan of $60,000 used to pay off Donald’s debts and $15,500, representing one-half of a loan taken against a certificate of deposit.

¶ 14. In dividing the estate, the chancellor considered the following: Donald’s dissipation of the marital estate; Donald’s behavior in hiding his debts from Melanie; Donald’s decision to quit earning extra income to pay off his debts; Donald’s failure to follow the order requiring him to report his vehicle sales and place the profits in the court registry; Donald’s failure to disclose the retirement benefits from his profit-sharing and pension plans, which was only completed after issuing a subpoena duces tecum; the financial disparity between the parties’ incomes and separate estates; and Melanie’s assignment of a greater share of the marital debt.

¶ 15. Here, the chancellor thoroughly analyzed the Ferguson factors, and her findings were not manifestly wrong or clearly erroneous. The chancellor equitably divided the marital estate. Thus, we find no merit to this issue.

II. INCOME FOR DETERMINING CHILD SUPPORT

¶ 16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So.2d 405, 409 (¶ 9) (Miss.Ct.App.2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.

¶ 17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp.2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to.report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.

¶ 18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). Accordingly, we find this issue to be without merit.

III. EXTRACURRICULAR ACTIVITIES

¶ 19. Donald contends the chancellor erred in ordering him to be responsible for one-half of the children’s extracurricular activities. But Donald failed to raise this issue in his motion for reconsideration. So we decline to review this issue on appeal. See Ory, 936 So.2d at 409 (¶ 9).

IV. TAX EXEMPTIONS

¶ 20. Donald contends the chancellor erred in awarding the tax exemptions for the children to Melanie. Donald also failed to raise this issue in his motion for reconsideration. We decline to review this issue as well. See id.

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

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . As previously stated, Donald used this certificate of deposit as collateral for a loan in order to pay off his debts.

      . UCCR 8.05.

      . Donald testified his total profit on vehicle sales from the date of the temporary order until trial was $8,830. The first day of trial was July 20, 2011.


author: FAIR, J.,

text:
    Joyce COCKRELL, Appellant v. Carl Langley COCKRELL, Appellee.
    No. 2013-CA-00031-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.

      Gary Goodwin, Columbus, attorney for appellant.
    Carl Langley Cockrell, appellee, pro se.
    Before LEE, C.J., CARLTON, MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This appeal arises from alimony proceedings between Carl and Joyce Cock-rell. Joyce filed a complaint in the Chancery Court of Oktibbeha County, seeking arrearages of alimony with pre-judgment interest, a finding of contempt, and attorney’s fees. Carl filed a counter-complaint for modification, to eliminate his alimony obligation. The chancellor adjudicated a material change in Carl’s circumstances and ordered a downward modification of alimony. Recognizing Joyce was receiving $557 in Social Security benefits based on Carl’s earnings, the chancellor reduced alimony from $750 to $193 a month. Carl was also ordered to pay the full arrearage of $10,500, with interest at five percent per annum. The chancellor found Carl in civil contempt and liable to Joyce for $2,000 in attorney’s fees. Aggrieved, Joyce asserts: (1) the chancellor erred in finding a material change in circumstances, and, alternatively, (2) the downward modification is barred by the doctrine of res judicata. Finding no error, we affirm the decision of the chancellor.

FACTS

¶ 2. Carl and Joyce divorced in 1989 after thirty-five years of marriage. Joyce was awarded $750 per month in periodic alimony. On November 22, 2004, the chancery court held a hearing on Carl’s petition for modification, reimbursement, and partition of real property. On April 11, 2005, the court issued a judgment dividing the real property and ordering Carl to continue his payment of $750 per month in alimony.

¶ 3. Carl made the periodic alimony payments from 1989 until July 2011, when he became ill. In September 2011, Carl was diagnosed with myelodysplastic syndrome and immediately began chemotherapy. On January 3, 2012, Joyce filed a complaint alleging that Carl had failed to pay alimony from July 2011 through December 2011, for a total arreage of $4,500. Joyce also requested that Carl be held in civil contempt and asked for attorney’s fees with post-judgment interest. Carl responded with a counter-complaint, requesting that the court modify his alimony obligation by terminating his monthly alimony payments. He claimed that his disease constituted a material change in circumstances since the original divorce decree.

¶ 4. The court held a hearing on September 17, 2012. Both Joyce and Carl testified. Joyce testified that she did not work during the marriage, nor had she worked since. She is seventy-seven years old. At some point after the divorce, Joyce began receiving monthly payments based on Carl’s past employment — $557 in Social Security and $449.31 in retirement. With Carl’s alimony payment of $750, Joyce had a total monthly income of $1,756.31. Joyce’s Rule 8.05 financial statement showed that her net monthly expenses totaled $1,710.63. She lives in a mortgage-free home and pays no rent. Joyce claimed that Carl’s failure to pay alimony forced her to borrow $4,000 from friends to pay her bills.

¶ 5. Carl was working at the time of the divorce but retired shortly after. He is now eighty years old and remarried to Sheila Cockrell. They own a home together. Sheila is currently employed as a registered nurse. Carl testified that, until recently, he was healthy and able to make his monthly alimony payment of $750; however, he stopped making his monthly alimony payments in July 2011 because he no longer had the resources to pay. Carl explained that, since his diagnosis, he has used all of his savings for medical expenses. He further testified that he has been unable to work due to his illness.

¶ 6. At the hearing, Carl presented the court with a copy of his 2010 federal tax return, a Rule 8.05 financial statement, a copy of his medical receipts, and a copy of a medical treatment letter from one of his physicians. His 2010 tax return, filed jointly with Sheila, reflected a combined household adjusted gross income of $73,904. Carl’s Rule 8.05 financial statement showed that he received $689 in monthly retirement and $1,638 in Social Security payments, for a combined income of $2,327. Carl’s Rule 8.05 statement showed that his monthly expenses amounted to $4,074. He also testified that the expenses listed in his Rule 8.05 statement represented the combined expenses of both himself and Sheila and that Sheila contributes to making some of the payments. Carl listed medical expenses of $3,164 from January 29, 2012, to February 28, 2012. He testified that he receives Medicare and other health coverage from his previous employer, which has helped cover some of his costs. Carl also testified that he takes chemotherapy every twenty-eight days. With this treatment, Carl is expected to live an additional four to eight years.

¶ 7. The chancellor found that Carl’s diagnosis and medical expenses, along with Joyce’s receipt of some of his Social Security payments, constituted a material change in circumstances since the original divorce decree. The chancellor then considered the Armstrong factors, comparing the relative positions of Joyce and Carl at the time of the request for modification to their position at the time of the original decree. See Steiner v. Steiner, 788 So.2d 771, 776 (¶ 16) (Miss.2001).

¶ 8. Relying on the supreme court’s decision in Spalding v. Spalding, 691 So.2d 435 (Miss.1997), the chancellor denominated Carl’s Social Security , payments of $557 as income and credited that amount towards his alimony payment. As a result, Carl’s monthly alimony payments were reduced from $750 to $193. The chancellor also held that the modification was not retroactive, ruling that Joyce was entitled to $10,500 in past-due alimony, plus interest. In addition, Carl was held in civil contempt and ordered to pay Joyce’s attorney’s fees.

STANDARD OF REVIEW

¶9. “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (citation omitted).

¶ 10. Carl failed to file a responsive brief. See M.R.A.P. 28(c). As such, the appropriate standard of review comes from Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citation omitted): “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.”

DISCUSSION

1. Material Change in Circumstances

¶ 11. Joyce argues that Carl failed to meet his burden of proof to show a material change in circumstances for a modification of alimony.

¶ 12. A payor spouse’s alimony obligation may be modified or even terminated if the spouse is able to show a material change of circumstances has occurred since the original divorce decree. West v. West, 891 So.2d 203, 212 (¶21) (Miss.2004) (citation omitted). However, “the material change must be one that was not reasonably anticipated at the time of the original decree.” Clower v. Clower, 988 So.2d 441, 444 (¶ 7) (Miss.Ct.App.2008) (citing Holcombe v. Holcombe, 813 So.2d 700, 703 (¶ 11) (Miss.2002)). A material change in the income and expenses of both parties should be considered in determining any modification of periodic alimony. Austin v. Austin, 766 So.2d 86, 90 (¶ 19) (Miss.Ct.App.2000) (citing Armstrong, 618 So.2d at 1280).

¶ 13. Joyce claims that Carl failed to meet his burden of proof because he did not provide “relevant documentation or testimony” from his current wife. In granting modification, the chancellor found that Carl’s income had materially changed since the original divorce decree in 1989. Specifically, the chancellor gave great weight to the unforseen diagnosis and medical expenses that began around 2011. At the time of the hearing, Carl was seventy-eight years old. The chancellor determined that both Joyce and Carl had no real earning capacity. Carl’s Rule 8.05 financial statement showed that his monthly expenses were nearly twice his monthly income. The chancellor also recognized that both parties began receiving Carl’s retirement payments and Social Security payments after the original decree. Based on the testimony and documents presented at the hearing, the chancellor determined that Carl’s illness and expenses warranted a modification in alimony. The chancellor’s order reflects that he also considered Joyce’s continued sharing of Social Security and retirement benefits earned by Carl during their marriage. After review, we find that the chancellor’s ruling is supported by substantial evidence in the record. The chancellor did not err in determining that a material change in circumstances existed, warranting downward modification of Carl’s alimony obligations. This issue is without merit.

2. Res Judicata

¶ 14. Joyce insists that, because she received Social Security payments at the time of the 2004 hearing, the downward modification of alimony based on those payments is barred by the principles of res judicata.

¶ 15. In Spalding, our supreme court held that a reduction in alimony may be awarded to the alimony payor when the payee spouse receives Social Security benefits as a result of the payor spouse’s employment history. Spalding, 691 So.2d at 438. The record shows that Joyce began receiving Social Security payments sometime after the divorce. The chancellor determined that Carl’s illness, his medical expenses, and Joyce’s receipt of such payments constituted a material change in circumstances. As a result, he reduced Carl’s monthly payment by $557.

¶ 16. “[C]hancery courts retain continuous jurisdiction over final decrees, providing for alimony, custody of children and child support, and may modify a former decree when the circumstances and conditions have changed after rendition of a former decree. Further, no decree of alimony or child support is ever truly a final judgment, but always subject to modification based upon a material change of circumstances.” Austin v. Austin, 981 So.2d 1000, 1005 (¶ 16) (Miss.Ct.App.2007) (internal citation omitted) (quoting Campbell v. Campbell, 357 So.2d 129, 130 (Miss.1978)). However, “[r]es judicata precludes a party from litigating claims that were raised or could have been raised by the party’s prior ... modification petition.” Howard v. Howard, 968 So.2d 961, 973 (¶ 27) (Miss.Ct.App.2007) (citations omitted).

¶ 17. Joyce argues that, because she had already begun receiving Social Security payments in 2004, res judicata bars consideration of such payments in determining a material change for the purposes of the 2012 order. However, the record contains no evidence that Joyce’s receipt of Social Security benefits was an issue that was litigated or could have been litigated at the 2004 hearing. In fact, there is nothing in the record evidencing her receipt of any benefit in 2004 based on Carl’s Social Security.

¶ 18. Notwithstanding Joyce’s receipt of Social Security payments, if any, Carl’s illness and medical expenses were a material change in circumstances sufficient to justify a downward modification in alimony. It is uncontested that these cited material changes occurred after the original divorce decree and have never been litigated. Accordingly, this issue is without merit.

¶ 19. Joyce also claims that Carl waived any use of his Social Security payments as a credit towards his monthly alimony payments. However, she fails to cite any authority for her position. A party’s “[fjailure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005). Because Joyce cited no authority to support this argument, it is procedurally barred.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . UCCR8.05.

      .The Armstrong factors are:
      1. The income and expenses of the parties;
      2. The health and earning capacities of the parties;
      3. The needs of each party;
      4. The obligations and assets of each-party;
      5. The length of the marriage;
      6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
      7. The age of the parties;
      8. The standard of living of the parties, both during the marriage and at the time of the support determination;
      9. The tax consequences of the spousal support order;
      10. Fault or misconduct;
      11. Wasteful dissipation of assets by either party; or
      12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

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


text:
    Maureen B. SPEYERER and Paul D. Speyerer, Appellants v. The BOARD Of SUPERVISORS OF MADISON COUNTY, Mississippi, Appellee.
    No. 2013-CA-00068-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.

      Steven Hiser Funderburg, Jackson, attorney for appellants.
    A. Michael Espy, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Maureen and Paul Speyerer appeal a rezoning decision by the Madison County Board of Supervisors. They claim that notice was not proper and the decision to rezone the property was arbitrary, capricious, discriminatory, and without a substantial evidentiary basis. We find reversible error and render a judgment in favor of the Speyerers.

FACTS

¶ 2. The property in question is located in Madison County and is owned by the Minnie J. Bozeman Family Limited Partnership (“Bozeman”).

¶ 3. On February 26, 2010, Bozeman filed a petition to rezone and reclassify the property with the Madison County Board of Supervisors. Richard Skinner, Boze-man’s general partner, signed the petition. The petition asked the Board to rezone approximately seventeen acres of land from a special-use district (SU) to a commercial district (C — 1).

¶ 4. The Board referred the petition to the Madison County Planning and Zoning Commission. The Commission scheduled and held a hearing on April 8, 2010. The Commission approved the petition.

¶ 5. The Speyerers, who are neighboring homeowners, appealed the Commission’s decision to the Board. The Speyer-ers were joined by approximately thirty-seven other homeowners.

¶ 6. The Board held a hearing on June 7, 2010. Skinner spoke on behalf of Boze-man in support of the petition to rezone the property. Maureen Speyerer and other homeowners spoke in opposition. They argued against the need for new gas stations and fast-food restaurants; they presented crime statistics and argued that when there is an increase in gas stations and convenience stores, there is an increase in crime; and they indicated their willingness to withdraw their appeal in ah exchange for an agreement not to pursue the conditional uses listed for C-l in the zoning ordinance, which included fast-food restaurants, service stations, and convenience stores.

¶ 7. The Board approved the petition by a vote of four in favor and one opposed. The Board’s minutes read:

WHEREAS, the Board found, based on the submission of the applicant, that a change in the character of the neighborhood was evident and that there was a need for the change in zoning. The Board also found that [the] change in zoning was consistent with the County’s land use plan, adopted October 24, 2005, which was developed based on the changing character of the area; Supervisor Banks also stated that through his experience (driving through that area every[ ]day) and knowledge of the area, ... a change in the character of the area was self-evident. Moreover, board members also commented on the widening of Gluckstadt Road, which increased traffic capacity and lent the area to more commercial development[,] and that the change in zoning was consistent with the Planning and Zoning Board’s recommendation.

¶8. The Speyerers then appealed the Board’s decision to the Madison County Circuit Court. The circuit court held a hearing on October 22, 2012. The circuit court affirmed the Board’s decision. It is from this judgment that the Speyerers now appeal.

ANALYSIS

I. Whether the Board’s decision to grant the petition to rezone the property was arbitrary, capricious, discriminatory, illegal, or without a substantial evidentiary basis.

¶ 9. In the first issue, the Speyer-ers argue that the decision to rezone the property was not supported by substantial evidence.

¶ 10. We will reverse a zoning authority’s decision only if that decision was arbitrary, capricious, discriminatory, illegal, or not supported by substantial evidence. City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). Thus, if the zoning authority’s decision appears “fairly debatable,” the decision must be affirmed. Id.‘Fairly debatable’ is the antithesis of arbitrary and capricious.” Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987). A board’s action carries a presumption of validity, and the appellants carry the burden of showing that the board’s action was arbitrary, capricious, discriminatory, illegal, or without a substantial evidentiary basis. Drews v. City of Hattiesburg, 904 So.2d 138, 140 (¶ 5) (Miss.2005).

¶ 11. The Mississippi Supreme Court has given the following direction about the evidence needed to support a rezoning decision:

The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above.

Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1224 (¶ 11) (Miss.2000) (quoting Cloverleaf Mall, Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980)).

¶ 12. Here, Bozeman did not argue that there was a mistake in the original zoning. Thus, to rezone the property, Bozeman must prove by clear and convincing evidence that “the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning.” Id. The Speyer-ers argue that the record is devoid of any evidence to support the Board’s decision.

¶ 13. In Town of Florence, the supreme court explained the minimum proof that must be provided to support a rezoning decision:

When a local governing board is presented a request to reclassify property from one zone to another, if there has been a change in the neighborhood and if there is a public need therefor, evidence to support it should not be difficult to produce. To support on appeal a reclassification of zones, the record at a minimum should contain a map showing the circumstances of the area, the changes in the neighborhood, statistics showing a public need, and such further matters of proof so that a rational, informed judgment may be famed as to what the governing board considered. Where there is no such proof in the record we must conclude there was neither change nor public need.

Id. at 1227 (¶ 22) (emphasis added) (quoting Bd. of Aldermen v. Conerly, 509 So.2d 877 (Miss.1987)).

¶ 14. Recently, this Court considered the appeal of a rezoning decision made by the Board. Madison Citizens Against Rezoning v. Madison Cnty. Bd. of Sup’rs, 101 So.3d 711 (Miss.Ct.App.2012). There, we held that “[i]t is impossible to articulate or design a particular test for determining what is sufficient evidence to show a material change and a public need to support rezoning....” Id. at 714-15 (¶ 13) (quoting Town of Florence, 759 So.2d at 1227 (¶ 24)). We also stated that boards are not bound by just the evidence before them; rather, they can consider “their own common knowledge and the familiarity with the ordinance area. Furthermore, hearsay evidence may be admitted and considered by the Board in making its decision.” Id. at 715 (¶ 13) (quoting Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991)).

¶ 15. In Madison Citizens, at the hearing before that Board, significantly more evidence was presented:

[A] map showing nine rezonings — four of which were for PUDs [ (planned unit developments) ]; a position paper that included statistics of population growth rates, traffic counts, and the creation of the Reunion — Annandale Parkway; testimony regarding both public need and public interest; and testimony about the adjoining landowners’ support for the project.

Id. at (¶ 15). The Board approved the rezoning. The circuit court and this Court affirmed the decision.

¶ 16. Here, Bozeman’s petition offered four reasons to support the need for rezoning:

1. Subject property is on the county land[-]use map as C[-]l;
2. The flood way and/or flood plain [ajffects the property in such a way that the highest and best use would be C[-]l;
3. Gluckstadt Road reconstruction is to be a three[-]lane curb and gutter road[,] along with a signalized intersection on the property corner;
4. Location of Entergy substation and transmission line being adjacent to the property.

Skinner appeared at the hearing on behalf of Bozeman. Also, one supervisor stated that “through his experience (driving through that area every[ ]day) and knowledge of the area, ... a change in the character of the area was self-evident.” Other Board members commented on the increase in traffic due to the widening of Gluckstadt Road, which was more conducive to commercial development.

¶ 17. The supreme court has set for the minimum level of evidence that is necessary to support a rezoning decision. Town of Florence, 759 So.2d at 1227 (¶ 22). Specifically, the court in Town of Florence held that “the record at a minimum should contain a map showing the circumstances of the area, the changes in the neighborhood, statistics showing a public need, and such further matters of proof so that a rational, informed judgment may be formed as to what the governing board considered.” Id. The record does not include any evidence that would show a change in the character of the neighborhood. There was no evidence of when the property was initially zoned. The land-use map was not included in the record. Without physical evidence to support a change in the character of the neighborhood and a public need for rezoning, mere comments from the petitioner and individual Board members are not enough.

¶ 18. Here, although the Board’s action carries a presumption of validity, there must be sufficient evidence to conclude that the rezoning decision was fairly debatable. We conclude that such minimum evidence was not included in the record. Therefore, because there is no such proof in the record, we must conclude there was neither change nor public need. See id. at 1227 (¶ 24). We reverse and render the Board’s decision to rezone the property.

II. Whether the Speyerers were given adequate notice.

¶ 19. The Speyerers also argue that the actions of the Commission and Board did not comply with the notice requirement in the zoning ordinance for changes. Since we have reversed and rendered on other grounds, this issue is moot.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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