author: ROBERTS, J., CARLTON, J.,

text:
    Stephanie Lynn Coward ROBERTS, Appellant v. William Scott ROBERTS, Appellee.
    No. 2011-CA-01147-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.

      Kelley Mitchell Berry, Elise Berry Munn, attorneys for appellant.
    William Scott Roberts, appellee, pro se.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Stephanie Roberts appeals the Claiborne County Chancery Court’s decision that her ex-husband, Scott Roberts, was not in contempt for failing to pay child support according to the agreement they had entered incident to their divorce. Stephanie also appeals the chancellor’s decision to deny her request for attorneys’ fees. According to Stephanie, the chancellor also erred when he awarded her half of the child support that Scott had agreed to pay her, despite the fact that Stephanie and Scott had agreed that their thirteen-year-old son, Tristan, could live primarily with Scott during the school year while their daughter, Carleigh, would remain primarily with Stephanie. Additionally, Stephanie claims the chancellor erred when he modified Scott’s child-support obligation. Finally, Stephanie argues that the chancellor incorrectly modified her and Scott’s original agreement and awarded Scott primary physical custody of Tristan.

¶ 2. We find that the chancellor correctly held that Scott owed Stephanie $2,700 in unpaid child support rather than $5,400. We also find that the chancellor did not abuse his discretion when he modified child custody so that neither Scott nor Stephanie was obligated to pay child support. However, the chancellor erred when he did not find Scott in contempt, declined to award Stephanie attorneys’ fees related to proving that Scott was in contempt, and modified child custody without first finding that there had been a material change in circumstances that was adverse to Tristan’s best interest. Consequently, we affirm the chancellor’s judgment in part, reverse and render in part, and remand for further proceedings consistent with our instructions below.

FACTS AND PROCEDURAL HISTORY

¶ 3. Scott and Stephanie Roberts were married in May 1992. They had three children. However, in March 2010, they divorced based on their irreconcilable differences. Scott and Stephanie obtained a draft of a property-settlement and child-custody agreement off of the internet and attempted to tailor it to suit their needs. Although their agreement says otherwise, neither Scott nor Stephanie consulted with an attorney before they executed it.

¶ 4. The agreement states that Scott and Stephanie would have joint physical custody of their two minor children, Carleigh and Tristan. Even so, some of the terms of the agreement operated as though Stephanie had primary physical custody of the children. For example, the agreement provided that during the school year, Scott would only have Carleigh and Tristan every other weekend and one night each week. But the agreement does not describe Scott’s time with the children as visitation. Scott also agreed to pay Stephanie $150 per week in child support.

¶ 5. In any event, Tristan approached Scott during July 2010 and said he wanted to try to live primarily with Scott during the school year. Scott relayed Tristan’s request to Stephanie and Stephanie consented. However, Stephanie later testified that Tristan still stayed with her during an uncertain number of school nights. Car-leigh continued living primarily with Stephanie. Carleigh and Tristan continued to alternate weekends between Scott and Stephanie. Although they alternated weekends, Carleigh and Tristan were together each weekend regardless whether they were with Scott or Stephanie.

¶ 6. Scott stopped paying Stephanie child support soon after Tristan began to live primarily with him. Despite Stephanie’s willingness to accept one-half of the child support contemplated by the agreement, Scott reasoned that he should not have to pay her child support because Tristan was living primarily with him and Carleigh was living primarily with Stephanie. In May 2011, Stephanie sued Scott and claimed he was in contempt of their original judgment of divorce because he owed her $5,400 in unpaid child support. Scott denied that he was in contempt and filed a “counter[-]motion to modify.”

¶ 7. After hearing Stephanie’s claim and Scott’s counterclaim, the chancellor found that Scott and Stephanie had entered an extra-judicial agreement to modify custody of Tristan. The chancellor declined to find Scott in contempt, but the chancellor also held that Scott owed Stephanie $2,700 in unpaid child support, which was one-half of the amount that Stephanie sought. The chancellor reasoned that Scott only owed half of the unpaid child support because Stephanie had agreed to accept one-half of the contemplated figure after Tristan began to live primarily with Scott.

¶ 8. Additionally, the chancellor granted Scott’s request to modify custody of Tristan. The chancellor also modified child support for both children so that neither Stephanie nor Scott was obligated to pay child support. Stephanie appeals.

STANDARD OF REVIEW

¶ 9. This Court will not disturb the findings of a chancellor unless the chancellor abused his discretion, erroneously applied the law, or committed a manifest error. Sullivan v. Sullivan, 942 So.2d 305, 306 (¶5) (Miss.Ct.App.2006). We will affirm the chancellor’s findings if there is substantial evidence to support them. Id. However, we review questions of law de novo. Id.

¶ 10. Scott did not file a brief. That does not mean that we are required to automatically reverse the chancellor’s judgment. N.E. v. L.H., 761 So.2d 956, 962 (¶ 14) (Miss.Ct.App.2000) (citing Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998)). “[W]hen matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee.” Id. (citations and internal quotation omitted). Otherwise, we generally have two options that hinge on the state of the record and the quality of the appellant’s brief.

¶ 11. If the record is large or complicated and Stephanie “thoroughly briefed” the issues, provided “applicable eitation[s] of authority,” and presented an “apparent case of error,” then we should consider Scott’s failure to file a brief as his confession of error and reverse the chancellor’s judgment. Sullivan, 942 So.2d at 307 (¶ 7). But if “the record can be conveniently examined,” and the record “reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed,” then we should disregard the fact that Scott failed to file a brief. Id. (quotation marks omitted).

ANALYSIS

I. CHILD-SUPPORT ARREARAGE

¶ 12. Stephanie claims the chancellor erred when he held that Scott owed her $2,700 in unpaid child support. Stephanie argues that the chancellor should have awarded her $5,400. The chancellor’s calculation was based on the concept that Scott owed Stephanie thirty-six child-support payments of $75. Stephanie notes that Scott voluntarily agreed to pay her $150 per week in child support even though it was possible that Tristan might choose to spend a majority of his time with Scott. Stephanie also claims Scott should not have been relieved of his contractual obligation to pay her $150 per week in child support, because Scott had agreed to pay that figure so that he could expedite their divorce, thereby making it possible for Scott to move in with his girlfriend.

¶ 13. “Courts award child support to the custodial parent for the benefit and protection of the child.” Smith v. Smith, 20 So.3d 670, 674 (¶ 13) (Miss.2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “[C]ourt-ordered child-support payments vest in the child as they accrue[,] and [they] may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extrajudicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.

¶ 14. In Varner v. Varner, 588 So.2d 428, 434 (Miss.1991), the Mississippi Supreme Court instructed:

Without doubt or hesitation, we encourage post-divorce detente that parents may cooperate in rearing their children. It follows that, from time to time, adjustments can and should be made without burdening the courts. The law remains firm that court-ordered child[-]support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.

(Internal citation omitted). In Bryant v. Bryant, 924 So.2d 627, 630-31 (¶¶ 9-10) (Miss.Ct.App.2006), this Court affirmed a chancellor’s decision that an extra-judicial agreement merited modification of a parent’s child-support obligation where the parents agreed that the father would not have to pay child support for two children who moved in with him after the original divorce judgment.

¶ 15. We find that the chancellor did not abuse his discretion. Stephanie does not claim that the chancellor erred by finding that she and Scott had reached an extra-judicial agreement regarding child support. Stephanie testified that she told Scott, “As far as the [agreement] says[,] you still owe me the full amount [of child support,] but since you have Tristan and I have Carleigh[,] then I’ll take the $75.” Stephanie further testified that she agreed to accept $75 per week in child support “[t]o try to be fair.” It was within the chancellor’s discretion to find that Stephanie had agreed to accept one-half of the child support contemplated by the agreement. Consequently, we find no merit to Stephanie’s claim that the chancellor erred when he ordered Scott to pay Stephanie $2,700 in unpaid child support instead of the $5,400 that Stephanie requested.

II. CONTEMPT

¶ 16. The chancellor found that Scott was “technically” in contempt of the child-support provisions of the agreement. However, the chancellor declined to find that Scott was in contempt because, according to the chancellor, Scott’s decision to withhold child support was based on his “good[-]faith misunderstanding of Mississippi law.” The chancellor also declined to find Scott in contempt because Scott was unable to fulfill his child-support obligation due to financial difficulty. Stephanie claims the chancellor erred. We agree.

¶ 17. “In a contempt action concerning past-due child support, when the custodial parent introduces evidence that the noncustodial parent who is required to pay the support has failed to do so, a prima facie case of contempt has been made.” Smith, 20 So.3d at 674 (¶ 14). The burden then shifts to the defending party, who may avoid being found in contempt by demonstrating by clear and convincing evidence that there was payment or some other defense. Id. at 674-75 (¶ 14).

Clear and convincing evidence is ... that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact[-]finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Moran v. Fairley, 919 So.2d 969, 975 (¶ 24) (Miss.Ct.App.2005). “Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Id. “To rebut a prima facie case of contempt, a defendant must show an inability to pay, that the default was not willful, that the provision violated was ambiguous, or that performance was impossible.” Evans v. Evans, 75 So.3d 1083, 1087 (¶ 14) (Miss.Ct.App.2011) (citation and internal quotation omitted).

¶ 18. Stephanie proved that Scott was required to pay child support and that he had failed to do so. Accordingly, Scott bore the burden of proving, by clear and convincing evidence, that he was not in contempt. Scott did not claim the child-support provision was ambiguous or that it was impossible for him to perform his obligation to pay child support. Furthermore, Scott intentionally chose not to pay any child support to Stephanie because Tristan was living primarily with him and Carleigh was living primarily with Stephanie. It follows that Scott’s only avenue to avoid contempt was to claim that he was unable to pay child support.

¶ 19. As Stephanie notes, there was evidence that Scott went on five or more trips to Lake Washington near Greenville, Mississippi. Scott paid for his own travel expenses, and he bought his own beer when he went on those trips. Scott also traveled to Oklahoma for his girlfriend’s niece’s wedding. Again, Scott paid for the gas so that he and his girlfriend could travel to Oklahoma. Scott also testified that he won a trip to Orlando, Florida. But Scott testified that he paid $200 in gas to travel to Orlando. He also paid $80 to visit Universal Studios while he stayed in Orlando. According to Scott, although he had not planned to meet his live-in girlfriend in Orlando, she just happened to be there. Scott testified that he paid for her food while they were both in Orlando. Scott conceded that he could have used the money he spent on trips to catch up on his child-support obligation.

¶ 20. At the time Scott and Stephanie divorced, Scott had been earning approximately $1,000 per week. He testified that he quit working as a self-employed construction framer in August or September 2010 because of “the economy.” He then began working for DirecTV. Scott did not testify that he was out of work for an extended period. He worked for DirecTV for “about three or four months,” and he earned twelve dollars an hour. Scott quit working for DirecTV because he was expected to work at night during a storm, and he “wasn’t making enough money for the time that [he] didn’t get to spend with [Carleigh and Tristan] because [he] had to work every weekend.” After Scott quit his job with DirecTV, he was out of work for approximately a month. He then began working for a construction company. Scott earned between fifteen and eighteen dollars an hour. Scott quit that job and began remodeling apartments for his father, who is the superintendent of the apartment complex. Scott testified that as of the time of the hearing, his “take-home” pay was between $700 and $1,000 per week.

¶21. There was some evidence that Scott had experienced financial difficulty. Scott testified that his four-wheeler had been repossessed. Scott also testified that he had to borrow $3,500 against a vehicle to pay for the children’s Christmas presents. Upon further examination, Scott testified that $1,100 of the money he borrowed went to vehicle payments. He also paid $1,000 toward his rent, despite his earlier testimony that his rent obligation was $425 per month since he and his live-in girlfriend each paid one-half of their rent and the utilities. Scott further testified that he spend $50 of the borrowed money on his girlfriend’s Christmas present. Scott could not remember how much of the remaining $1,350 actually went toward the children’s Christmas presents.

¶ 22. All things considered, we do not find substantial evidence that Scott sufficiently rebutted Stephanie’s prima facie case that he was in contempt. Scott was obligated to present prima facie evidence that he was unable to pay Stephanie $75 per week in child support. There was evidence that Scott could afford to take multiple trips, including trips to Oklahoma and Florida. And although there was evidence that Scott had changed employment, there was no evidence that Scott’s earnings had significantly changed since he and Stephanie divorced. Suffice it to say, Scott failed to present clear and convincing evidence that he could not have satisfied his obligation to pay Stephanie $75 per week in child support. It follows that we find the chancellor erred when he declined to find Scott in contempt. Consequently, we reverse the chancellor’s judgment in part and render judgment for Stephanie as to this issue.

III. ATTORNEYS’FEES

¶ 23. Stephanie claims the chancellor erred when he did not order Scott to pay her attorneys’ fees. We agree. “When a party is held in contempt for violating a valid judgment of the court, attorney[s’] fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Gregory v. Gregory, 881 So.2d 840, 846 (¶ 28) (Miss.Ct.App.2003). When a party has been held in contempt, attorneys’ fees “may be properly assessed against the offending party without regard to the recipient’s inability to pay.” Evans, 75 So.3d at 1089 n. 8. “Fees awarded on this basis, though, should not exceed the expense incurred as a result of the contemptuous conduct.” Id.

¶ 24. Because we have found that the chancellor erred when he declined to find Scott in contempt, we reverse the chancellor’s decision that Scott was not obligated to pay Stephanie’s attorneys’ fees. However, we are unable to determine what portion of those fees were specifically related to proving that Scott was in contempt due to his failure to pay child support. Accordingly, we must remand this matter to the chancery court for further proceedings to determine that figure. Additionally, “[t]his Court has generally awarded attorneyfs’] fees on appeal in the amount of one-half of what was awarded in the [trial] court.” Makamson v. Makamson, 928 So.2d 218, 222 (¶ 18) (Miss.Ct.App.2006). Once the chancellor determines the appropriate amount of Stephanie’s attorneys’ fees that were attributable to proving that Scott was in contempt due to his failure to pay child support, the chancellor is directed to add an additional fifty percent in attorneys’ fees related to this appeal.

IV. MODIFICATION OF CHILD SUPPORT

¶ 25. Next, Stephanie claims the chancellor erred when he modified child support so that Scott was no longer obligated to pay her any child support. Stephanie specifically claims the chancellor should not have modified child support while Scott had “unclean hands.” “The clean[-]hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss.1998) (citing Calcote v. Calcote, 583 So.2d 197, 199-200 (Miss.1991)). The supreme court has instructed:

A husband may not petition for modification of the original decree without showing either that he has performed it or that his performance has been wholly impossible. However, a husband may exonerate himself from failure to make alimony or child[-]support payments as ordered, because of his inability to pay, but his evidence must be made with particularity and not in general terms.

Id. (quoting Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967)). In Bailey, an ex-wife had missed two child-support payments when she moved to modify child support. Id. The supreme court found the chancellor erred when he modified the ex-wife’s child support, because she had presented no specific evidence of her inability to pay other than her own decision to quit earning a living. Id. The supreme court held that the chancellor erred by modifying child support while the ex-wife was in arrears. Id.

¶26. However, a judgment for the amount of an arrearage operates to “clean” the hands a party who would have otherwise had unclean hands for failure to pay that arrearage. Andres v. Andres, 22 So.3d 314, 320 (¶¶ 27-28) (Miss.Ct.App.2009) (citations omitted). The chancellor held that Scott and Stephanie had an extra-judicial agreement that Scott could pay Stephanie $75 per week in child support for Carleigh. The chancellor held that Scott owed Stephanie $2,700 in unpaid child support. That judgment effectively “cleaned” Scott’s hands. It follows that the chancellor did not err when he modified Scott’s child-support obligation and rejected the concept that Scott had unclean hands. Furthermore, Scott and Stephanie agreed that Tristan could live primarily with Scott, and Carleigh would continue to live primarily with Stephanie. Because each parent had primary physical custody of one child, we do not find that the chancellor abused his discretion when he held that neither Scott nor Stephanie was obligated to pay child support. We find no merit to this issue.

V. MODIFICATION OF CHILD CUSTODY

¶ 27. Finally, Stephanie claims the chancellor erred when he modified custody of Tristan and awarded Scott primary physical custody. According to Stephanie, Scott did not adequately plead for a modification of child custody. Stephanie also claims the chancellor erred when he modified custody of Tristan without first finding that there had been a material change in circumstances that was adverse to Tristan since the original divorce judgment.

¶ 28. First, we find that Scott’s “counter[-]motion to modify” was sufficient to request a modification of child custody. Scott’s “counter[-]motion to modify” could be considered somewhat ambiguous in that it does not directly request that the chancellor modify custody of Tristan. However, Scott requested that the chancellor modify Scott’s child-support obligation. Scott also stated that “hereafter, each party should be responsible for child support of the child in their respective custody with neither party responsible for future support of the other.” Scott’s “counter[-]motion” also stated that because Tristan had moved in with Scott on a full-time basis, there had been a material change in circumstances that warranted modification of the final judgment of divorce, so neither Scott nor Stephanie should be obligated to pay child support.

¶ 29. “All pleadings shall be so construed as to do substantial justice.” M.R.C.P. 8(f). “The rule allows the claims to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel.” M.R.C.P. 8 cmt. We find that Scott’s “counter[-]motion to modify” adequately requested that the chancellor modify custody of Tristan. To find otherwise would be the equivalent of favoring form over substance.

¶ 30. Next, Stephanie claims the chancellor erred by modifying custody of Tristan without first finding that there had been a material change in circumstances adverse to Tristan’s best interest. “The Mississippi Supreme Court [has] held that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” McMurry v. Sadler, 846 So.2d 240, 243 (¶ 13) (Miss.Ct.App.2002) (citing Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996)). “[F]or the custody order to be modified so as to transfer custody to the non-custodial parent, the non-eustodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the minor child’s welfare.” Id. at 244 (¶ 13). “Therefore, in order for the court to proceed on a matter for custody modification, the pleadings must contain allegations that a material change has occurred which adversely affects the child.” Id. It is inappropriate to modify child custody when the non-custodial parent did not file a motion that specifically stated or alleged that there had been a material change in circumstances that adversely affected a child. Id. at (¶ 14).

¶ 31. Scott did not claim that there had been a material change in circumstances or that such a change was adverse to Tristan. Furthermore, the chancellor merely held that there had been a material change in circumstances. The chancellor did not find that a material change in circumstances was adverse to Tristan. Furthermore, the chancellor did not conduct an Albright analysis to determine which parent should have custody of Tristan.

This Court has held that when considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.

Thornell v. Thornell, 860 So.2d 1241, 1243 (¶ 6) (Miss.Ct.App.2003) (quoting Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶19) (Miss.Ct.App.2001)) (quotation marks omitted). Here, we can only guess why the chancellor found that a material change in circumstances was adverse to Tristan’s best interest. Furthermore, the chancellor did not conduct an Albright analysis before he found that it was appropriate to award custody of Tristan to Scott. In Thornell, 860 So.2d at 1243 (¶¶7-8), this Court reversed a chancellor’s decision to modify child custody, because the chancellor failed to identify a specific change in circumstances that adversely affected the welfare of the child, and the chancellor failed to conduct an on-the-record analysis of the Albright factors. This Court concluded that it was appropriate to reverse the chancellor’s judgment and remand the matter to the chancellor for further proceedings. Id. at (¶¶ 8-9). Following Thomell, we remand this matter to the chancellor for further proceedings regarding how Tristan’s decision to live primarily with Scott amounted to a material change in circumstances adverse to Tristan’s best interest in light of the fact that Scott and Stephanie agreed that they would have joint physical custody of Tristan and Car-leigh.

¶ 32. THE JUDGMENT OF THE CLAIBORNE COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 33. I concur with the majority’s opinion except for the majority’s reversal of the chancellor’s finding of contempt and sanctions. In my opinion, the majority exceeds our appellate standard of review by reversing the chancellor’s decision as to the contempt and sanctions. Appellate courts possess a limited standard of review with respect to consideration of a trial court’s finding of contempt to enforce the rights of private litigants or an order of a court, and precedent reflects that such findings are subject to manifest-error review. Dennis v. Dennis, 824 So.2d 604, 608 (¶ 7) (Miss.2002); Broome v. Broome, 841 So.2d 1204, 1207 (¶ 10) (Miss.Ct.App.2008). See Miss.Code Ann. § 11-51-12 (Rev.2012).

¶ 34. The discretion of the trial court must be respected in fact-heavy decisions, such as findings of contempt and awards of sanctions. Such decisions require that the trial court assess facts and credibility, the intent to comply with court orders, and willfulness of any non-compliance. Without the ability to assess such facts and to find contempt when appropriate, the trial court lacks ability to enforce its own orders and achieve compliance in the face of continued defiance. See Matter of Estate of Hollaway, 631 So.2d 127, 132-35 (Miss.1993) (finding that the court can assess magnitude and character of harm threatened when determining effectiveness of sanctions in light of continued defiance). To avoid judgment of contempt upon a showing of contempt, the defendant must show with particularity that he is -without ability to pay. Id. at 132.

¶ 35. Based on the foregoing, I concur in part and dissent in part with respect to the majority’s opinion.

      . Scott and Stephanie’s oldest child was not a minor when Scott and Stephanie divorced. Carleigh was fifteen years old. Tristan was thirteen years old.

      . The agreement provided that the children would spend equal time with Scott and Stephanie during the spring, fall, Christmas, and summer breaks from school.

      . See McDuffie v. McDuffie, 21 So.3d 685, 692 (¶ 23) (Miss.Ct.App.2009) (contempt matters are committed to the trial court’s "substantial” discretion); Weeks v. Weeks, 29 So.3d 80, 88 (¶ 32) (Miss.Ct.App.2009) (“Whether a party is in contempt is left to the chancellor’s substantial discretion.").


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Mark Andrew FORTUNE a/k/a “Andy”, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01057-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.

      William Paul Starks II, Starkville, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Mark Fortune was convicted of fondling his brother’s eleven-year-old stepdaughter and sentenced to two years in the custody of the Mississippi Department of Corrections (MDOC). He appeals the conviction, claiming the circuit court erred in denying his jury instruction for “legal unconsciousness due to involuntary intoxication.” Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Fortune, a United States Marine, was deployed to Iraq in 2006. Four months later, he was injured by an improvised explosive device and suffered a concussion and injuries to his back, lower abdomen, and left arm. He was diagnosed with “traumatic brain injury, post-traumatic stress and memory loss” and granted a medical discharge from service. Fortune returned home to Columbus, Mississippi, and resided with his wife, Nikki, at his stepfather’s home. As a result of his injuries, Fortune suffered short-term memory loss and migraines. He took various medications for his symptoms, including Am-bien to help him sleep.

¶ 3. On December 12, 2008, the two stepchildren of Fortune’s brother had a sleepover at Fortune and Nikki’s home. “Chris” (age six) had visited with the couple numerous times; however, “Alice” (age eleven) had only been over at their house a couple of times prior to this occasion. Late that evening, Fortune and the two children sat down in the living room to watch a movie. Right before the movie started, Fortune took Gabapentin, a muscle relaxant, for a migraine and back pain. He also took Ambien, as he had been suffering from insomnia for a couple of days.

¶ 4. Chris, who was lying alone on the loveseat, quickly fell asleep after the movie started. Alice was lying on the couch, and Fortune proceeded to lie down behind her. He later explained that he did so because he was “groggy from the medication[.]” Alice closed her eyes in an attempt to sleep. Fortune took off Alice’s eyeglasses and put them on the nearby table. According to Alice, Fortune began to touch her breasts over her clothing. Alice, who was not asleep, kept her eyes closed and remained still. Fortune lifted her shirt and training bra and resumed touching her breasts. Opening her eyes slightly, she saw Fortune looking at her breasts. She noted that Fortune would occasionally stop and take sips from his tea, which was on the nearby table. He eventually moved her hand down to the outside of his pants near his genitals. Alice moved her hand away, but Fortune kept moving her hand back. She said the fondling ceased when the movie ended and Fortune went to bed.

¶ 5. Alice said nothing about the incident to Fortune or Nikki. However, the next day, she told her mother what had happened. Alice’s mother immediately contacted law enforcement and filed a complaint against Fortune, who was arrested. Investigator James Ferris with the Lowndes County Sheriffs Department interviewed Fortune, who did not deny touching Alice, but said: “When I take my medication!,] I don’t remember a lot. I could have probably confused her for my wife because she is about the same size. I don’t remember if I touched her, because when I am on my medication!,] I do things I don’t remember.”

¶ 6. Fortune was indicted for fondling. At trial, Fortune testified on his own behalf. He stated that, initially, he and Alice were sitting on the couch, but when the medication he had taken before the movie made him “groggy,” he suggested that they “lay down.” Fortune claimed that the influence of the medication made him unable to remember what happened that night, stating:

I’d like to say that I didn’t [touch Alice], but being on my medication not knowing the exact things that happened, I can’t say if I did or not. But me as a person, if I wasn’t on it, I kn[o]w for a fact I would not touch her.
I was flabbergasted with the whole ordeal that was going on. I was trying to put in my mind the best way to explain it. The possible way that it could only happen.

Later, he contradictorily stated that he did not believe that he touched her. Upon further questioning, when asked if he thought Alice was lying, he admitted that although he would like to say she was, he could not “because [he] cannot remember the exact details of that evening.” Fortune continued to assert that the medication rendered him unconscious of his actions.

Q. And are you saying that the medication made you do something?
A. Possibly, yes.
Q. Do you know if the medication made you do anything?
A. I do not know.
Q. Were you conscious when she says you were touching her?
A. When she says that I’ve touched her that night?
Q. Yes.
A. No, I was not conscious.

¶ 7. Nikki, his wife, claimed that Fortune had occasional memory lapses. However, she also testified that she did not believe that Fortune touched Alice, even under the influence of medication. Nikki stated that she was constantly present in or near the living room during the movie, although she later admitted to folding laundry in the adjacent bedroom for part of the evening. Alice testified that Nikki was not present in the living room; in fact, Alice thought Nikki had gone to bed.

¶ 8. To advance Fortune’s claim that the medication rendered him unconscious of his actions, the defense submitted into evidence the “medication guide” regarding Ambien use and its possible side effects, one of which includes performing acts without being aware of one’s actions. Specifically, the medication guide noted that a “serious side effect” of Ambien is that a person “may get up out of bed while not being fully awake and do an activity that [he] do[es] not know [he is] doing.” Reported activities include “driving a car,” “having sex,” and “sleep-walking.” The State objected to the admission of this evidence “on the basis that voluntary intoxication is not a defense.” The State also argued that the evidence was “misleading” and “irrelevant.” Over the State’s objection, the circuit court allowed Fortune to submit the medication guide regarding Ambien’s side effects into evidence.

¶ 9. During the jury-instruction phase of the proceedings, the issue of Fortune’s alleged unconsciousness was addressed further. Fortune submitted Jury Instruction D-2A, which instructed the jury on the defense of “legal unconsciousness.” The proposed instruction stated:

The defendant, is not guilty of fondling if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. Someone may be unconscious even though able to move. Unconsciousness may be caused by certain conditions such as epileptic seizures, blackout, sleepwalking, or by certain medicines.
The State must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have reasonable doubt that he was conscious, you must find him not guilty.

The judge denied the instruction and also denied Jury Instruction S-3, which concerned voluntary intoxication. The circuit court, however, did grant Jury Instruction D-3 over the State’s objection. The instruction stated:

The word[ ] “willfully,” as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with [a] ' bad purpose either to disobey or disregard the law.

The circuit judge explained his reasoning for denying Jury Instruction D-2A and S-3:

[Fortune] says that he lacked the intent to do that which the State is charged him with doing. But more importantly, I think the real theory is that if I did it, I don’t know I did it because I was under the influence of a prescription drug. That’s what I see. It’s the willfulness of the act that he’s accused of doing. A specific intent. And I’ve granted your instruction on that issue and defined what the willful conduct of someone that is charged like that is, what the intent is and define[d] what willful is for them.
You can argue willful all you want to to the jury, and lack of specific intent, and that he was on medication prescribed by a physician or nurse practitioner, VA, or whomever. Those are all good points that I think you can argue to a jury on the issue of willfulness. I will not comment on the evidence, however, by way of a jury instruction.

¶ 10. Fortune was convicted and sentenced to two years in the custody of the MDOC. He was also fined $1,000. Fortune filed a motion for a new trial, which the circuit court denied. Fortune now appeals, claiming that it was error for the circuit judge to deny Jury Instruction D-2A. Finding no error, we affirm.

DISCUSSION

I. Whether the circuit court erred by denying Jury Instruction D-2A, which presented a defense theory of “legal unconsciousness.”

¶ 11. Fortune argues that the circuit judge erred in denying Jury Instruction D-2A. In reviewing a circuit court’s grant or denial of a jury instruction, we examine the jury instructions “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Jackson v. State, 68 So.3d 709, 712-13 (¶ 12) (Miss.Ct.App.2011) (quoting Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010)). “[I]f all [the] instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Id. Although a defendant is entitled to jury instructions “which present his theory of the case, ... the [circuit] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Ford v. State, 52 So.3d 1245, 1247 (¶ 10) (Miss.Ct.App.2011) (quoting Hager v. State, 996 So.2d 94, 97 (¶ 9) (Miss.Ct.App.2008)).

¶ 12. On appeal, Fortune claims that he “was operating in a state of automatism or unconsciousness” and that “[t]he jury should have been able to properly consider [his] defense of legal unconsciousness due to his involuntary intoxication.” Mississippi has not recognized legal unconsciousness or automatism as a defense. There are only two cases in Mississippi that address the issue of a defendant’s involuntary intoxication-neither concerns whether a defendant may make a defense of involuntary intoxication. Thus, the issue of whether a criminal defendant may assert a defense of legal unconsciousness or automatism based upon use of a prescribed narcotic is one of first impression for Mississippi courts.

¶ 13. Defense counsel informed the circuit judge that Jury Instruction D-2A was “a model jury instruction from the State of California.” In fact, the term “legally unconscious” is confined to California jurisdictions. The California Supreme Court has stated that “[u]neonsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge.” People v. Halvorsen, 42 Cal.4th 379, 64 Cal.Rptr.3d 721, 165 P.3d 512, 538-39 (2007). “If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense.” Id. at 539.

¶ 14. California, however, has a statute directly on point. California Penal Code section 26 (2008) states: “All persons are capable of committing crimes except those ... [p]ersons who committed the act charged without being conscious[.]” Model Penal Code article 2, section 2.01 also sets forth the requirements of a “voluntary act.” It states that “[a] person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.” Id. A “voluntary act” excludes any “bodily movement during unconsciousness or sleep” or “conduct during hypnosis or resulting from hypnotic suggestion.” Id.

¶ 15. Mississippi, however, has no statute similar to either California’s statute or the Model Penal Code. Therefore, these authorities that rely on the California Penal Code or the Model Penal Code are not applicable. We are mindful, however, that “[a] criminal defendant is entitled to present his defense to the finder of fact.” Jobe v. State, 97 So.3d 1267, 1269 (¶ 9) (Miss.Ct.App.2012) (quoting Keys v. State, 635 So.2d 845, 848 (Miss.1994)).

¶ 16. Automatism is defined as “the state of a person who, capable of action, is not conscious of what he is doing.” Wayne R. LaFave, Substantive Criminal Law § 9.4(b) at 33 (2nd ed.2003) (citation omitted).

It is ... equated with unconsciousness, involuntary action and implies that there must be some attendant disturbance of conscious awareness. Undoubtedly automatic states exist[,] and medically they may be defined as conditions in which the patient may perform simple or complex actions in a more or less skilled or uncoordinated fashion without having full awareness of what he is doing.... [Automatic acts can occur during sleepwalking and hypnagogic states.

Id.

¶ 17. We find LaFave’s treatment of this issue to be extremely helpful to our analysis. He states: “Although the cases in the United States are not substantial in number, they support the proposition that automatism is a defense.” LaFave, § 9.4(b) at 34; see also Haskell v. Berghuis, 695 F.Supp.2d 574, 591 (E.D.Mich.2010) (“Automatism has been recognized by courts as a valid defense bearing on the voluntariness of an otherwise criminal act.” (quoting Haynes v. United States, 451 F.Supp.2d 713, 724 (D.Md.2006))); Riley v. Commonwealth, 277 Va. 467, 675 S.E.2d 168, 175 (2009) (‘Where not self-induced, unconsciousness is a complete defense to a criminal homicide.”); State v. Jones, 137 N.C.App. 221, 527 S.E.2d 700, 706 (2000) (“Unconsciousness is a complete defense to a criminal charge because it precludes both a specific mental state and a voluntary act.”); Fulcher v. State, 633 P.2d 142, 147 (Wyo.1981) (ruling that the defense of unconsciousness “is an affirmative defense”). LaFave continues that while it has been argued that the automatism defense “is best treated as an excuse because ‘it is not qualitatively different from other excusing conditions[,]’ ” the more common automatism case might well be categorized as a “failure of proof’ defense “since ... modern criminal codes treat the voluntary act requirement as a necessary element of each offense[.]” LaFave, § 9.1(b) at 11 (citation omitted).

The basis of the automatism defense is seldom made clear in the cases .... [One] explanation is that the automaton-defendant is not criminally liable because he lacks the mental state which the crime requires, and this appears to be the rationale most commonly hinted at in these cases. However, it is undoubtedly more correct to say that such a person is not guilty of a crime because he has not engaged in an “act” (defined as a voluntary bodily movement)[,] and without an act there can be no crime. This rationale, which is employed in the Model Penal Code, goes well beyond the no-mental-state reasoning, for it would support an automatism defense to a charge of a strict-liability offense. But under either of the[se] two theories the defense, if successful, results in outright acquittal.

LaFave, § 9.4(b) at 36 (emphasis added).

¶ 18. While LaFave disagrees that mens rea is the best rationale for the automatism defense, he acknowledges that it is the “most common[]” rationale utilized by the cases. Id. We find the circuit court properly instructed the jury on the issue of the requisite mens rea and provided Fortune with an opportunity to present his defense that any inappropriate act committed was due to the effects of Am-bien ingestion. Jury Instruction S-l presented the jury with the elements of fondling, and Jury Instruction D-3 set forth the definition of “willfully.” Both the State and Fortune’s counsel argued the issue of the voluntariness of Fortune’s actions to the jury. The State submitted in its closing argument: “We’re not talking about an involuntary act. That this was a purposeful act with the specific intent to do something the law forbids.... I believe that’s really the heart of this case. That’s the issue that y’all are really going to have to decide.” (Emphasis added). Likewise, defense counsel said in its closing arguments: “Now the Court gives you an instruction on whether this is mllful or not. Means that an act was committed voluntarily and purposely with the specific intent to do something the law prohibits.” (Emphasis added). The defense reiterated that Ambien can make a person “do[] activities [they are] not fully aware of,” and concluded that “[if] anything happened that day, it happened in an unconscious/subconscious state and was not intentional.” Fortune was thus afforded an opportunity to negate the element of vol-untariness through the evidence of Am-bien’s side effects in the medication guide that was presented to the jury.

¶ 19. Reading the jury instructions as a whole, we find that the jury “was fully and fairly instructed according to the applicable law.” See Jackson, 68 So.3d at 713 (¶ 12). In this case, it was undisputed that Fortune ingested Ambien prior to the incident, and the jury was fully informed of the side effects of the drug. If the jury believed that Fortune was unconscious due to the effects of Ambien when committing the act of fondling, the jury would have found Fortune “not guilty.” See LaFave, § 9.4(b) at 36 (successful defense under mens rea rationale would “result[ ] in outright acquittal”).

¶ 20. Accordingly, we find no error in the circuit court’s denial of Jury Instruction D-2A.

II. Whether the circuit court erred in denying Fortune’s motion for a new trial.

¶ 21. “A motion for a new trial challenges the weight of the evidence.” Gordon v. State, 76 So.3d 198, 202 (¶ 13) (Miss.Ct.App.2011) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). “We will not set aside a guilty verdict for the reason that it is against the weight of the evidence, unless it is clear that the verdict is the result of bias, prejudice, or is manifestly against the overwhelming weight of the evidence.” Id. (quoting Flanagan v. State, 605 So.2d 753, 757 (Miss.1992)). Thus, unless a verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice,” we will not reverse the verdict on appeal. Id. (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)).

¶22. Fortune argues that “the overwhelming weight of the evidence suggest[s] that [he] was unaware of his actions” and that he lacked the requisite intent to commit fondling. Fortune never denied that he fondled Alice; he merely claimed he did not remember doing so. Fortune confessed: “[W]hen I am on my medication, I do things I don’t remember.” However, we find that Fortune’s loss of memory is not the issue. See Brown v. State, 290 S.W.3d 247, 251 n. 2 (Tex.App.2009) (stating that “loss of memory is not a defense”); Nelson v. State, 149 S.W.3d 206, 212 (Tex.App.2004) (finding defendant not entitled to instruction since he took his prescription medication voluntarily with full knowledge of its effects, and there was no evidence he was unconscious).

¶ 23. Furthermore, the record reflects that Fortune remembered the movie credits rolling when the movie ended. He remembered taking off Alice’s glasses. Alice claimed that Fortune intermittently drank his tea located on the nearby table during the fondling episode. He also remembered getting up from the couch and going to bed. As Investigator Ferris noted in his testimony:

Once he told me about not being able to remember a lot of things, I asked him did he remember what he was wearing. He was able to tell me what he was wearing. I believe he told me about the credits of the TV. In my mind[,] he could remember a lot other than, you know, what she had said he had done.

Fortune testified that he had been taking Ambien since October 2006 and said that this “was [his] first time ever doing anything like that[.]” Fortune admitted the only part of the evening that he could not remember was when he fondled Alice, and there was no evidence presented that he was acting odd, unconscious, or in any type of altered state.

¶ 24. Finding that the jury’s acceptance of Alice’s testimony over Fortune’s testimony was not against the overwhelming weight of the evidence so as to sanction an unconscionable injustice, we affirm the judgment of the circuit court.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . According to its medication guide, Ambien (zolpidem tartrate) "is a sedative-hypnotic (sleep) medicine.” Ambien "is used in adults for the short-term treatment of a sleep problem called insomnia.”

      . Fictitious names have been used to protect the identities of the minor children involved.

      . The term for having sex while in a sleep-like state is called "sexsomnia.” See 12 J. Gender Race & Just. 687 (Spring 2009).

      . The State later requested the introduction of Fortune’s medical records and testimony by a treating medical provider into evidence; however, the circuit court held that the mere fact that his memory loss was placed in issue did not, by itself, constitute a waiver of Fortune’s medical privilege. Stating that it was a "collateral issue, ... not a central issue,” the judge ruled that the State could call a witness to testily as to the "generally recognized effects” of Ambien but not to testify regarding her specific treatment as Fortune's medical provider. Accordingly, the jury only had Fortune’s testimony that he was, in fact, ever prescribed Ambien. Although Nikki testified Fortune was taking sleep medication, she was not aware of the names of his medications.

      . At trial, the State argued: “[Fortune] voluntarily took [Ambien] knowing what the side effects are.” Fortune confessed he was aware of the warnings for potential side effects of Ambien, testifying that "a list of actions and reactions that could happen while taking the medication” was provided by the pharmacist when he obtained his Ambien prescription. These warnings stated that Ambien should be taken "right before you get in bed, not sooner.” The medication guide submitted to the jury also stated in bold type: "Do not take AMBIEN with other medicines that can make you sleepy.” Fortune admitted to taking Am-bien with a muscle relaxant, Gabapentin. In People v. Mathson, 210 Cal.App.4th 1297, 149 Cal.Rptr.3d 167, 194 (2012), the appellate court found that the defendant was voluntarily intoxicated since he "knew or should have known” Ambien could "cause[] sleep driving,” even though he had not experienced a prior episode. Thus, the California court held that an unconsciousness instruction was not warranted. Id.

      . This instruction correlated to Jury Instruction S-l, which set forth the elements of the crime of fondling. The instruction required the jury to find beyond a reasonable doubt that Fortune "unlawfully, willfully and felo-niously, and for the purpose of gratifying his lust and indulging his depraved, licentious sexual desires,” committed the act for which he was charged.

      . In Foreman v. State, 830 So.2d 1278, 1282 (¶21) (Miss.Ct.App.2002), the Mississippi Supreme Court concluded that the failure to present a defense of "toxic psychosis” versus the traditional defense of insanity did not constitute ineffective assistance of counsel. We note that Fortune made no claim or defense of insanity.
      Further, in Kircher v. State, 753 So.2d 1017, 1023 (¶ 22) (Miss.2000), the supreme court considered a defendant’s claim that his confession should not have been admissible as evidence, as "he was "involuntarily intoxicated” when it was given. He claimed that his prescribed anti-depression medication, as well as the hospital treatment conducted while giving his statement to police, rendered him unable to understand his rights. The supreme court concluded that there was sufficient evidence presented that "the confession was free and voluntary[.]” Id. at 1027 (¶ 42).

      . While there are similarities between an insanity defense and an automatism defense, "the automatism defense may be present notwithstanding the defendant's lack of the 'mental disease or defect[,]’ which insanity requires.” LaFave, § 9.4(b) at 36; see also State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 363 (1975) ("[U]nconsciousness, or automatism, is a complete defense to a criminal charge, separate and apart from the defense of insanity."). "The principal reason for making a distinction between the defense of unconsciousness and insanity is that the consequences which follow an acquittal[] will differ.” Fulcher, 633 P.2d at 145.

      . Fondling, unlike statutory rape, is not a strict-liability crime; it requires specific intent to commit the act "for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires.” Compare Miss.Code Ann. § 97-5-23(1) (Rev. 2006) (fondling) with Miss.Code Ann. § 97-3-65 (Rev.2006) (statutory rape).


author: MAXWELL, J.,

text:
    Brian WILLIAMS a/k/a Bryan Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01482-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.

      Brian Williams, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Brian Williams appeals the dismissal of his second motion for post-conviction relief (PCR). Because we find his motion is successive, not excepted from the procedural bar, and without merit, we affirm the circuit court’s dismissal.

Background

¶ 2. On October 26, 2009, Williams pled guilty to armed robbery and aggravated assault in the Sunflower County Circuit Court. He was sentenced to eighteen years on each charge, with five years suspended and thirteen years to serve, followed by five years of post-release supervision. The court ordered the sentences to run concurrently.

¶ 3. Williams filed his first PCR motion in February 2010. He claimed: (1) his right to a speedy trial had been violated, (2) his attorney had rendered ineffective assistance of counsel by failing to pursue his speedy-trial claim, and (3) the circuit clerk and district attorney had violated his due-process rights by withholding his “motion to dismiss charges for failure to provide a fast and speedy trial” from the court.

¶ 4. In April 2010, Williams filed a motion to stay the proceedings, seeking permission to amend his PCR motion to comply with the procedural requirements of Mississippi Code Annotated section 99-39-9 (Supp.2012) and to correct authorities he had cited in the standard of review. But the trial judge never ruled on this motion.

¶ 5. On May 23, 2010, while awaiting adjudication of his first PCR motion, Williams filed a second PCR motion. This second motion challenged the volun-tariness of his guilty pleas and presented additional arguments supporting his ineffective-assistance-of-counsel claim. Specifically, Williams claimed his attorney was ineffective for coercing him to plead guilty and for allowing him to plead guilty when no factual basis supported the pleas.

¶ 6. In September 2010, the circuit court dismissed Williams’s first PCR motion. The judge first found Williams had provided no legal or factual support for his ineffective-assistance-of-counsel claim. And second, that, contrary to Williams’s assertion, his motion to dismiss on speedy trial grounds had not been withheld from the court. The court’s order did not address the additional issues Williams had raised in his second PCR motion.

¶ 7. Williams appealed, and we consolidated the issues on appeal as follows: (1) whether his guilty pleas were involuntary; (2) whether his attorney had rendered ineffective assistance of counsel by advising him to plead guilty and failing to pursue his speedy-trial claim; and (3) whether the trial judge had violated his federal and state rights to a speedy trial. Williams v. State (Williams I), 98 So.3d 1090, 1092 (¶ 6) (Miss.Ct.App.2012).

¶ 8. Though the trial judge had not ruled on Williams’s second PCR motion, which was still pending when Williams appealed the dismissal of his first motion, this court inadvertently addressed it, ruling on it as if it had been appealed. As to this second motion, we found Williams was barred from challenging the voluntariness of his guilty pleas because he had not raised the issue in his first PCR motion. Id. at 1092 (¶ 12). This procedural bar aside, we found Williams had failed to provide evidence that his guilty pleas had not been voluntarily given. Id.

¶ 9. As to his ineffective-assistance claim, we found Williams was procedurally barred from arguing his attorney had coerced his guilty pleas. Id. at 1093 (¶ 15). Williams had not presented this argument in his first PCR motion, and he provided no evidence to show his attorney’s alleged actions had caused him to plead guilty. Id. We also found, contrary to Williams’s insistence, that the circuit court had indeed considered and denied his speedy-trial motion. Id. at (¶ 16). And we held that, by entering valid guilty pleas, Williams had waived his constitutional and statutory rights to a speedy trial. Id. at (¶ 17). We therefore affirmed the circuit court’s dismissal of Williams’s first PCR motion.

¶ 10. Approximately five months before our decision in Williams I, on September 12, 2011, the circuit court entered an order dismissing Williams’s second PCR motion. Without addressing whether Williams’s motion was successive-writ barred, the circuit court found that Williams’s ineffective-assistance claim was baseless and that his guilty pleas had been freely and voluntarily entered. It is from this dismissal that Williams now appeals.

Discussion

¶ 11. We review the dismissal of a PCR motion under an abuse-of-discretion standard. Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss.Ct.App.2009). We will only reverse if the circuit court’s decision was clearly erroneous. Id. (citing Moore v. State, 985 So.2d 365, 368 (¶ 9) (Miss.Ct.App.2008)). We review questions of law de novo. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004).

¶ 12. On appeal, Williams argues that the circuit court erred in accepting his guilty pleas where no factual basis was given. He also suggests he received ineffective assistance of counsel. Though neither party addresses the successive nature of Williams’s second PCR motion, we must consider this issue. And after doing so, we find his second motion to be successive and not excepted from the procedural bar. We also find it lacks merit.

I. Successive Writ

¶ 13. Under the Uniform Post-Conviction Collateral Relief Act (UP-CCRA), an order “denying relief ... is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss.Code Ann. § 99-39-23(6) (Rev.2011). The movant bears the burden of “proving] by a preponderance of the evidence that his claims are not barred as successive writs.” Robinson v. State, 19 So.3d 140, 144 (¶ 16) (Miss.Ct.App.2009) (citing Carbin v. State, 942 So.2d 231, 233 (¶ 9) (Miss.Ct.App.2006)).

¶ 14. Williams’s present PCR motion is his second PCR motion. In affirming the dismissal of Williams’s first PCR motion on February 14, 2012, though the question was not properly before us, we found Williams presented no evidence that his guilty pleas were involuntarily given or that his attorney’s alleged actions had caused him to plead guilty. Williams I, 98 So.3d at 1092-93 (¶¶ 12-15). We should not have earlier addressed these issues because the trial judge had not yet ruled on Williams’s second PCR motion when Williams appealed the denial of his first PCR motion. However, it is without question that his second PCR motion is successive to his first. So we now look to see whether he has raised any viable exception to the subsequent-writ bar.

II. Exceptions to the Successive-Writ Bar

¶ 15. When a subsequent PCR motion is filed, “[t]he burden falls on the movant to show he has met a statutory exception.” White v. State, 59 So.3d 633, 635 (¶ 8) (Miss.Ct.App.2011) (citing Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss.Ct.App.2007)). “Errors affecting fundamental constitutional rights are excepted from the procedural bars of the UP-CCRA.” Id. (quoting Rowland v. State, 42 So.3d 503, 507 (¶12) (Miss.2010)). “But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Id. at 636 (¶ 11) (citing Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.Ct.App.2010)). Williams fails to offer any reason that the successive-writ bar should not apply, and we find none. We also find no merit to his claims.

A. Involuntariness of Guilty Pleas

¶ 16. Williams argues his guilty pleas were involuntary because there was no factual basis given. We disagree.

¶ 17. Just as there is more than one way to skin the proverbial cat, there are numerous ways to establish a factual basis for a guilty plea. We have previously noted that a guilty plea may be factually undergirded “by a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant.” Turner v. State, 864 So.2d 288, 292 (¶ 17) (Miss.Ct.App.2003) (citing Corley v. State, 585 So.2d 765, 767 (Miss.1991)). And “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea.” Drake v. State, 823 So.2d 593, 594 (¶ 6) (Miss.Ct.App.2002) (quoting United States v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir.1997) (overruled on other grounds)). To determine whether a factual basis exists, we consider the entire record. Id. at (¶ 5) (citing Corley, 585 So.2d at 767-68).

¶ 18. In Madden v. State, 991 So.2d 1231, 1235 (¶ 16) (Miss.Ct.App.2008), we found the indictment provided a sufficient factual basis for the defendant’s guilty plea, where it included the elements of the crime and alleged that the defendant “knowingly, wilfully, unlawfully!!,] and felo-niously” sold cocaine. Similarly, in Boddie v. State, 875 So.2d 180, 183 (¶8) (Miss.2004), our supreme court found a factual basis to support the defendant’s guilty plea where the defendant had admitted his guilt to the crime alleged in the indictment and had acknowledged his belief that the State could prove his guilt beyond a reasonable doubt.

¶ 19. Here, when asked for a factual basis, the State read Williams’s indictment aloud. As to the armed-robbery count, the indictment charged that on or before August 31, 2006, Williams and three co-conspirators took money from David Gardner and Thomas Lott at gunpoint. The taking was allegedly against the will of the victims, who were placed in fear of immediate injury to their persons by the exhibition of a pistol, a deadly weapon. The aggravated-assault count alleged that Williams and his co-conspirators caused bodily harm to Lott by hitting him with the pistol. After the indictment was read, Williams admitted his guilt on both the armed-robbery and aggravated-assault charges. From this, we find the record contains an adequate factual basis to support Williams’s guilty pleas.

B. Ineffective Assistance of Counsel

¶ 20. Williams also contends his attorney was constitutionally deficient for advising him that, if convicted at trial, he would be sentenced to life imprisonment as a habitual offender, though he had not been indicted as a habitual offender.

¶ 21. The Mississippi Supreme Court has consistently held that the UP-CCRA’s procedural bars “appl[y] to post-conviction relief claims based on ineffective assistance of counsel.” Crosby, 16 So.3d at 78 (¶8) (quoting Chancy v. State, 938 So.2d 267, 270 (¶ 11) (Miss.Ct.App.2005)). An ineffective-assistance claim requires showing: (1) counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Though “[i]t is conceivable that under the facts of a particular case, ... a lawyer’s performance was so deficient, and so prejudicial to the defendant that the defendant’s fundamental constitutional rights were violated[,]” our supreme court “has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.” Smith v. State, 922 So.2d 43, 47 (¶ 9) (Miss.Ct.App.2006) (quoting Bevill v. State, 669 So.2d 14, 17 (Miss.1996)). However, we need not decide that issue today, as we find Williams fails to support his ineffective-assistance-of-counsel claim under Strickland with specific facts to overcome the strong presumption that his counsel’s performance was sufficient.

¶ 22. Undoubtedly, Williams was not charged as a habitual offender. And there is no hint of the enhanced penalty in either the indictment or plea petition. But the trial judge cautioned him that if she accepted his guilty pleas to armed robbery and aggravated assault, these convictions might in the future be used as predicate offenses for habitual-offender status, if Williams committed another felony offense. More pertinently, the record also shows the trial judge correctly informed Williams that if he proceeded to trial, he faced a maximum sentence of life imprisonment on the armed-robbery charge. And Williams acknowledged the same in his sworn plea petition. Thus, even assuming his attorney misspoke, the fact is Williams still faced life imprisonment if convicted at trial. And Williams knew it. So we cannot say any alleged misstatement by Williams’s attorney prejudiced his defense. Therefore, his claim is both procedurally barred and meritless.

¶ 23. Because we find Williams’s claims do not meet an exception to the successive-writ bar and are without merit, we affirm the dismissal of his PCR motion.

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

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

      . Under Mississippi Code Annotated section 99-19-81 (Rev.2007):
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.


author: IRVING, P.J.,

text:
    Thomas Watts SAWYER, Appellant v. Kay Dywana SAWYER, Appellee.
    No. 2011-CA-01828-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.

      Joseph R. Meadows, Gulfport, attorney for appellant.
    Harold 0. Grissom Jr., Gulfport, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. On August 19, 2011, the Harrison County Chancery Court granted Thomas Watts Sawyer (Tom) and Kay Dywana Sawyer (Dywana) a divorce on the ground of irreconcilable differences. The chancery court also granted physical custody of the couple’s minor child to Dywana, made determinations regarding the distribution of the couple’s marital property, and awarded Dywana $2,000 per month in periodic alimony. Feeling aggrieved, Tom appeals and argues that the chancery court erred in awarding Dywana periodic alimony.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Tom and Dywana were married on March 2, 1991. In 1994, the couple had one son, Clint, who was seventeen years old when they divorced. Tom’s daughter from a previous marriage also lived with the couple throughout their marriage. Tom and Dywana separated on July 1, 2007.

¶ 4. At the time of the divorce, Dywana was forty-six years old. She had attended Pearl River Community College for one and one-half years, but dropped out after her father’s death. She then worked as a full-time employee at RPM Pizza in various departments. After her marriage to Tom, he requested that she leave her job to become a stay-at-home mom to his daughter. In response to Tom’s request, Dywana quit her job at RPM Pizza but began working part-time at Tom’s insurance agency on an as-needed basis until Clint was born. She had not held a job since Clint’s birth.

¶ 5. In 1998, Dywana’s gynecologist diagnosed her with leiomyosarcoma, a form of cancer that primarily affected her pelvic and uterus areas. The cancer was malignant and was removed in January 1999. Afterwards, Dywana underwent six months of intensive chemotherapy. Although she was cancer free at the time of trial, she is required to have periodic follow-ups. Additionally, Dywana has adult diabetes, thyroid nodules, a fatty liver, high blood pressure, and knee problems. Dywana described the injuries to her knees as a torn ACL, MCL and PCL, and a torn meniscus. The injuries prevent her from descending stairs and, according to Dywana, sitting, standing, or walking for prolonged periods of time. Dywana takes medication daily for her diabetes, a fluid pill for high lipids, blood-pressure medication, and Lexapro. Her internist indicated that she was able to do “some light sedentary work.” Tom did not dispute any of Dywana’s health issues.

¶ 6. Tom, at the time of the divorce, was fifty-eight years old. Before his marriage to Dywana, Tom became the sole shareholder and owner of Sawyer Insurance Agency. In 1992, Tom sold fifty percent of the agency’s shares to Calvin Foster. In 2006, the agency sold its assets to Beecher-Carlson for an initial payment of cash and restricted stock in Beecher-Carlson. The agreement provided for a deferred payout in five years and stated that Beecher-Carlson was obligated to pay Tom an annual salary of $175,000 for five years. As of the date of trial, Beecher-Carlson had decided not to renew Tom’s initial employment contract, choosing instead to retain him as an employee who will be paid on a commission basis. The chancery court valued Tom’s interest in Beecher-Carlson at $1,273,716. The court also determined that $750,697 of Tom’s Beecher-Carlson interest was marital property and subject to equitable distribution.

¶ 7. Tom purchased a fifty percent interest in Gulf Breeze Property LLC during his marriage to Dywana. The court valued Tom’s equity in the company at $50,297. Tom also owns real estate in Costa Rica. His equity in the Costa Rican property is valued at $155,697, which the court determined was a marital asset subject to equitable distribution. The court also determined that the couple’s home in Long Beach, Mississippi, was a marital asset subject to equitable distribution. The court valued the equity in the home at $82,102.

¶ 8. At the conclusion of trial, the chancery court awarded Dywana $843,848.50, to be paid from the Beecher-Carlson payout; sole ownership and possession of the marital home and the equity in the marital home valued at $82,102; the contents of the marital home valued at $25,000; title and possession of Tom’s Steifel IRA valued at $148,613.42; Tom’s Beecher-Carlson 401(k) valued at $46,426; a UBS Financial Services account valued at $7,566; title and possession of her GMC Yukon valued at $10,610; and possession of her jewelry valued at $25,000. The court awarded Tom the following portion of the couple’s marital estate: $343,848.50, received from the Beecher-Carlson payout; equity in Mountain Breeze Properties S.A. valued at $155,697; Tom’s Costa Rican bank account valued at $1,625; equity in Gulf Breeze Properties LLC valued at $50,297; equity in Sawyer Foster Insurance Inc. valued at $11,432; Tom’s guns valued at $7,500; a boat valued at $150,000; a 2006 Mercedes valued at $21,181; a 2007 Nissan valued at $13,500; his jewelry valued at $5,000; and the contents of his apartment valued at $12,000.

¶ 9. The court also required Tom to pay: $2,000 per month in alimony, Dywana’s COBRA health-insurance premiums, child support and a child allowance for Clint, the cost of health insurance for Clint, expenses for the maintenance and repair of Clint’s vehicle, and all of Clint’s college expenses equal to the cost of attendance at a Mississippi state-supported institution.

¶ 10. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 11. Appellate courts will not disturb a chancery court’s factual findings unless the court abused its discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶ 8) (Miss.2002). “In the case of a claimed inadequacy ... of alimony, [appellate courts] 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). Additionally, the Mississippi Supreme Court has stated that “[consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Rogillio v. Rogillio, 57 So.3d 1246, 1250 (¶ 11) (Miss.2011).

¶ 12. Tom contends that the chancery court erred in awarding alimony to Dywa-na. However, we find no error with the chancery court’s award. Prior to awarding periodic alimony, the chancery court throughly examined the guidelines set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), to divide Tom and Dywana’s marital estate equitably. The chancery court noted in its order that both parties had contributed equally to the marriage. Dywana had not been employed full-time since her marriage to Tom, and she had no separate estate. Additionally, while Tom is in good health and able to continue to work to support himself, Dy-wana’s health issues (cancer and a host of issues with her knees) will prohibit her from seeking gainful employment. After the equitable division, Tom received $772,080.60 in marital assets. Additionally, Tom has a sizeable separate estate. Dywana received $689,165.50 in marital assets. The difference between the couple’s estates after the equitable division of marital property was $82,915.10.

¶ 13. Although the court never specifically stated that an equitable deficit existed between the parties after the distribution of the couple’s marital assets, the court, nevertheless, proceeded to consider alimony under the factors outlined in Armstrong. In determining whether an award of periodic alimony is appropriate, the chancery court must examine the following factors: (1) “[t]he income and expenses of the parties”; (2) “[t]he health and earning capacities of the parties”; (3) “[t]he needs of each party”; (4) “[t]he obligations and assets of each party”; (5) “[t]he length of the marriage”; (6) “[t]he 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) “[t]he age of the parties”; (8) “[t]he standard of living of the parties, both during the marriage and at the time of the support determination”; (9) “[t]he tax consequences of the spousal support order”; (10) “[f]ault or misconduct”; (11) “[w]asteful dissipation of assets by either party”; or (12) “[a]ny other factor deemed by the court to be just and equitable in connection with the setting of spousal support.” Armstrong, 618 So.2d at 1280 (citations omitted) (internal quotation marks omitted).

¶ 14. In examining the factors, the chancery court listed each factor and discussed the evidence relevant to each. The court noted that Dywana had no income, and while Tom’s days of receiving a guaranteed salary from Beecher-Carlson were ending, he, nevertheless, remained employed and was capable of obtaining suitable employment. Moreover, Dywana would be unable to afford the expenses associated with the marital property that she received during the equitable division of the marital estate. Of the two parties, Tom, who has no significant health issues, has greater earning capacity, while Dywa-na’s earning capacity is substantially limited given her health issues. The court noted that even if Dywana were able to obtain a minimum-wage job, that type of “employment is not consistent with the lifestyle she enjoyed during the marriage.”

¶ 15. Tom and Dywana were married for approximately twenty years, and although they had a child together, he did not require child care. Also, during the marriage, the parties enjoyed an above-average standard of living, but the lifestyles of both parties had changed since their separation. After discussing these factors, the chancery court awarded Dywa-na $2,000 per month as periodic alimony. Although Tom claims to suffer financial hardship, it is undisputed that he is employed and able to support himself. It is also undisputed that Dywana’s health issues limit her ability to work, and, given her health limitations, she is not likely to generate an income sufficient to support herself.

¶ 16. Based on these facts, we find that the chancery court properly analyzed and applied the Armstrong factors in this case with respect to alimony. Accordingly, the court did not abuse its discretion in awarding alimony to Dywana. This issue is without merit.

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

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