text:
    Wendy Michelle CHEATHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00090-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorneys for appellee.
    Before LEE, GRIFFIS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. This ease presents for review the denial of a motion for new trial filed by Wendy Michelle Cheatham. On January 11, 2008, the Circuit Court of Leake County denied the motion, and Cheatham now appeals arguing that the verdict is against the overwhelming weight of the evidence. We find that the verdict was not against the overwhelming weight of the evidence and affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 29, 2007, Cheatham was indicted, along with Jason McKee and Malcolm Allen, for possession of methamphetamine pursuant to Mississippi Code Annotated section 41-29-139(c)(l)(E) (Rev. 2005). The indictment stemmed from the execution of a search warrant on McKee’s camper. The search warrant was executed on April 11, 2007. Once officers gained entry to the camper, they found Cheat-ham, McKee, and Allen inside.

¶ 3. Inside the small camper, officers discovered approximately 170 grams of methamphetamine scattered throughout the camper. A portion of the methamphetamine was found in plain view on the dining room table just inside the entrance to the camper. Another portion of the methamphetamine was found in a bedroom not far from the table, while another portion was found in the bathroom adjacent to the table. Consequently, Cheatham, McKee, and Allen were taken into custody.

¶ 4. The next day, April 12, 2007, Officer Clay McCombs, a narcotics investigator with the Leake County Sheriffs Office, interviewed Cheatham in the presence of Sarah Thames, an employee of the facility in which Cheatham was being detained. Officer McCombs gave Cheatham a Miranda warning, and Cheatham signed a waiver of her rights. Cheatham then confessed that the methamphetamine found inside the camper was hers. When asked where she obtained the methamphetamine, Cheatham stated she manufactured the methamphetamine. Despite this voluntary confession, Cheatham later claimed it was not true and attempted to prove such at trial.

¶ 5. On October 31, 2007, Cheatham entered a plea of not guilty in the Circuit Court of Leake County. At trial, in addition to her own testimony denying the truthfulness of her confession, Cheatham offered the testimony of McKee who testified that the methamphetamine recovered did not belong to Cheatham. On January 8, 2008, the jury convicted Cheatham of possession of more than thirty grams of methamphetamine, and the court sentenced her to ten years in the custody of the Mississippi Department of Corrections, with four years suspended and four years of post-release supervision. On January 11, 2008, Cheatham filed a motion for a new trial challenging the weight of the evidence, which was denied that same day. Cheatham timely appealed on January 11, 2008.

STANDARD OF REVIEW

¶ 6. “When reviewing a denial of a motion for a new trial[,] [we] will only disturb a 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) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The scope of this Court’s review is limited: all the evidence must be viewed in a light most favorable to the verdict, and this Court will reverse only when we are convinced that the circuit court abused its discretion. Herring, 691 So.2d at 957. “Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Howery v. State, 809 So.2d at 761, 763 (¶ 7) (Miss.2002) (quoting Hughes v. State, 724 So.2d 893, 896 (¶ 14) (Miss.1998)).

LAW AND ANALYSIS

¶ 7. The circuit court jury convicted Cheatham of constructive possession. With regard to constructive possession, supreme court precedent provides:

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself [it] is not adequate in the absence of other incriminating circumstances.

Curry v. State, 249 So.2d 414, 416 (Miss.1971). Further, as in this case, when the illegal substances are found on premises not owned by the particular defendant, physical proximity, by itself, is not enough to prove constructive possession. Hamm v. State, 735 So.2d 1025, 1029 (¶ 18) (Miss. 1999). In such a case, the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession. Fultz v. State, 573 So.2d 689, 690 (Miss.1990).

¶ 8. These rules were applied in Buie v. State, 761 So.2d 892 (Miss.Ct.App.2000) to facts involving constructive possession and a disputed confession. In Buie, the defendant lived in a house with three other individuals, and while the defendant was not at home, police executed a search warrant on the house. Id. at 892-93 (¶ 2). The search revealed drugs, weapons, and large sums of cash in what police believed was Buie’s bedroom. Id. at 893 (¶ 2). After turning himself in to the police the next day, the defendant initially confessed that the drugs were his, but later he denied making the confession. Id. at (¶ 3). Based on the defendant’s proximity to where the drugs were found and his confession, he was found to be in constructive possession of the contraband. Id. at (¶10).

¶ 9. The defendant then unsuccessfully moved for a new trial. Id. On review, this Court, taking as true the evidence supportive of the guilty verdict, upheld the trial court’s denial finding the testimony as to the defendant’s confession provided competent evidence to support the jury’s finding of constructive possession, despite the lack of fingerprint analysis or other physical evidence of possession. Id. at 894 (¶¶ 10-11). Significantly, the Court found that the confession was “an additional incriminating fact connecting [the defendant] to the contraband.” Id. at (¶ 10). The dispute over the confession “conjures a credibility issue” within the realm of the jury, and the issue was “obviously resolved” by the jury in favor of the State. Id.

¶ 10. Yet another case finding constructive possession despite a disputed confession is Stewart v. State, 921 So.2d 1287 (Miss.Ct.App.2006). The defendant in Stewart was arrested for possession of cocaine when he was pulled over while driving a car belonging to someone else. Id. at 1288 (¶2). The cocaine was found in plain view in the driver’s side door pocket, and Stewart stated at the police station, with regard to the cocaine: “I guess it’s mine.” Id. at 1288 (¶ 4). The trial court considered this to be a confession, and Stewart was found to have constructively possessed the cocaine despite denying ever making the admission. Id. at 1289 (¶¶ 4-5).

¶ 11. On appeal, the defendant challenged the verdict arguing that it was against the overwhelming weight of the evidence. Id. at (¶ 8). Upholding the verdict, this Court found that the confession provided an incriminating circumstance in addition to mere proximity to the cocaine. Id. at 1290 (¶ 11). Of substantial importance, we noted the dispute surrounding Stewart’s confession was a question of fact to be resolved by the jury. Id. at (¶ 12).

¶ 12. Returning to the case at bar, taking as true the evidence which supports the verdict finding Cheatham guilty, there are both proximity and an additional incriminating circumstance — Cheatham’s confession — as was the case in both Buie and Stewart. Under our limited review, this Court must accept as true the testimony demonstrating Cheatham was in close proximity to the methamphetamine. See Herring, 691 So.2d at 957. Specifically, Cheatham knew that methamphetamine was present in the small camper the night the search took place and that a portion of the methamphetamine was found in plain view on the dining room table in close proximity to where Cheatham was standing when officers entered the camper. Having established close proximity, we must also take as true the additional incriminating circumstance: Cheatham’s voluntary confession to Officer McCombs that the methamphetamine belonged to her. Such was enough for the jury to weigh the evidence in favor of conviction. Accordingly, we conclude that the guilty verdict does not lead to an unconscionable injustice and find that the circuit court correctly denied the motion for a new trial.

¶ 18. We find that Cheatham’s confession was voluntary. Consequently, it was entirely within the prerogative of the jury to determine the weight and credibility to be assigned to Cheatham’s voluntary confession. “[T]he weight and credibility of an accused’s confession is for the jury to decide.” Lee v. State, 457 So.2d 920, 922 (Miss.1984) (citing Wilson v. State, 451 So.2d 724, 726 (Miss.1984)). The jury heard testimony from Officer McCombs, Thames, and even from Cheat-ham herself, and, in reaching a guilty verdict, the jury found the confession credible.

¶ 14. In an attempt to distance herself from her voluntary confession, Cheatham offers two principal arguments, but neither argument requires the sort of relief Cheat-ham seeks. First, Cheatham posits that her confession was uncorroborated, and thus her conviction cannot stand. Cheatham cites Anderson v. State, 184 Miss. 892, 894, 186 So. 836, 836 (1939) in support of her argument. That ease involved an escaped prisoner whose handcuffs were removed at some time between his escape and capture. Id. The defendant was charged with aiding the escaped prisoner based on the defendant’s alleged confession that he removed the escaped prisoner’s handcuffs. Id. Besides the absence of the handcuffs, there was no other evidence corroborating the defendant’s alleged confession. Id.

¶ 15. Based on the facts of the case at bar, Anderson is inapplicable. Cheatham’s confession must be considered in light of the physical evidence and her own testimony. The officers conducting the search found nearly 170 grams of methamphetamine in the small camper in which Cheat-ham was present. The methamphetamine was found strewn about the small camper: in the bedroom, in the bathroom, and in plain view on the dining room table. Moreover, Cheatham testified she was aware of the presence of the methamphetamine on the evening in question. Accordingly, the Court is not faced with such an uncorroborated confession.

¶ 16. Second, Cheatham places great emphasis on McKee’s testimony that the methamphetamine belonged to him rather than Cheatham. Such emphasis, however, is misplaced. “Factual disputes are properly resolved by the jury and do not mandate a new trial.” McNeal v. State, 617 So.2d 999, 1009 (Miss.1993) (citing Temple v. State, 498 So.2d 379, 382 (Miss.1986)). If anything, McKee’s testimony creates a factual dispute between Ms testimony and Cheatham’s voluntary confession. Echoing Buie and Stewart, such a dispute was within the jury’s purview to resolve, and the jury resolved this dispute by finding Cheatham guilty. Consequently, the jury’s resolution of this factual dispute does not provide a ground for a new trial.

CONCLUSION

¶ 17. We find that the circuit court did not abuse its discretion in denying Cheat-ham’s motion for a new trial. Specifically, the guilty verdict was not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citations omitted). We, therefore, affirm the circuit court’s denial of Cheatham’s motion for a new trial.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED AND FOUR YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring defendants be informed of the right to consult with an attorney before and during questioning, the right against self-incrimination prior to questioning by police, and that defendants not only understand these rights, but voluntarily waive those rights).


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    James Allen OWENS, Jr., Appellant v. Martha Sue OWENS, Appellee.
    No. 2007-CA-01808-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Phillip M. Whitehead, attorney for appellant.
    Elizabeth Fox Ausbern, attorney for ap-pellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. James Allen Owens Jr. appeals from an order of the Chickasaw County Chancery Court awarding him one-fourth of his former wife’s Walmart retirement plan. James asserts that the chancellor committed manifest error and abused his discretion in finding that he was entitled to only one-fourth of her retirement plan.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶3. This is the second time that this case has been before this Court. Our initial opinion is reported at Owens v. Owens, 950 So.2d 202 (Miss.Ct.App.2006) (Owens I). In Owens I, the chancellor equitably divided the parties’ marital assets, including Martha’s Walmart retirement plan. Id. at 213(¶ 43). James was awarded a little over one-sixth ($10,000) of the retirement plan, which was valued at $59,398.27. Id. This Court reversed and remanded after determining that the chancellor had applied an erroneous legal standard during his division of the retirement plan. Id. at 215(¶ 49).

¶ 4. We specifically instructed the chancellor as follows: (1) to address all relevant Ferguson factors, making sure to discuss the factor which relates to the parties’ respective incomes and their ability to provide for themselves; (2) not to consider factors that bear no relevance to the equitable distribution of the retirement plan, particularly Martha’s intent to use the fund to educate her children and James’s inability to pay child support payments; and (3) to determine the parties’ domestic/non-economic contributions. Id. at 213-15 (¶¶ 40-49).

¶ 5. On remand, the chancellor addressed all applicable Ferguson factors in his determination of the distribution of the retirement plan; however, he also mentioned Martha’s contribution toward one of the children’s college expenses while addressing one of the Ferguson factors. Ultimately, the chancellor awarded James one-fourth ($14,849.57) of the retirement plan.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. In reviewing property division and distribution in divorce cases, our standard of review is limited. Owen v. Owen, 928 So.2d 156, 160(1110) (Miss.2006) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). The chancellor’s decision in property division will be upheld if it is supported by substantial credible evidence. Id. (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). An appellate court “will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Id. at (¶ 11) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)).

¶ 7. “[A] chancellor may divide marital assets, real and personal, as well as award periodic and/or lump[-]sum alimony, as equity demands.” Savelle v. Savelle, 650 So.2d 476, 479 (Miss.1995) (quoting Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994)). However, this division does not require a fifty-fifty split. Id.

¶ 8. In Ferguson, 639 So.2d at 928, the Mississippi Supreme Court established a list of factors that should be considered when determining the equitable distribution of marital property:

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
e. 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 in which equity should be considered.

¶ 9. James asserts that the chancellor’s decision to award him only one-fourth of the retirement plan was in part, negatively influenced by a factor that this Court, in Owens I, instructed the chancellor not to consider — Martha’s contribution toward the children’s college expenses. James further asserts that the chancellor did not consider his domestic or non-economic contributions toward the household and argues that he is entitled to one-half of the retirement plan.

¶ 10. The record reflects that the chancellor mentioned Martha’s contribution toward the children’s college expenses while addressing one of the Ferguson factors. However, there is no evidence that the chancellor was negatively influenced by her contribution in his division of Martha’s retirement plan. We, therefore, affirm the chancellor’s decision to award James only one-fourth of the retirement plan, as the chancellor made adequate findings to support his decision in this regard during his analysis of the Ferguson factors. We now turn to the chancellor’s discussion of those factors.

(a) Substantial contribution to the accumulation of the property: Direct or indirect economic contribution to the acquisition of marital property.

¶ 11. In the judgment of divorce, the chancellor only considered Martha’s economic contributions under this factor and concluded that she contributed more than James. On appeal, this Court instructed the chancellor to consider the parties’ non-economic contributions as well. On remand, the chancellor found that Martha made greater economic contributions, as well as greater domestic contributions to the acquisition of the Walmart retirement plan. The judgment on remand reflects the following findings made by the chancellor:

From the day of the marriage, Martha worked full time and performed virtually all of the domestic duties. Until the separation, she prepared all the meals and did 75 percent of the housework. Martha managed all of the money and paid all of the family bills. After James became disabled, he tended to the laundry and washing of the dishes. He became disabled when Magen was two and Jamie was [nine]. He provided daycare for Magen until she went to school and provided transportation for both children to school.
* * * *
Apparently, according to the Mississippi Workers’ Compensation Commission, James is partially disabled.
James has only applied for employment two times since his disability. He mows the lawn, works on automobiles and did some of the remodeling on the home after his alleged total disability. Therefore, Martha has made greater economic and domestic contributions to the acquisition of the Wal-Mart Plan.
(b)Substantial contribution to the accumulation of the property: Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

¶ 12. The chancellor found that both parties have been supportive of each other in their respective occupations during the marriage, except for James’s disruption at Martha’s place of employment.

(c) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any property distribution of such assets.

¶ 13. Here, the chancellor found that this factor was not applicable because neither party had disposed of nor expended any marital assets.

(d) The market value and emotional value of the assets subject to distribution.

¶ 14. In addressing this factor, the chancellor determined that Martha had more emotional attachment to the Wal-mart retirement plan because she had worked there for more than twenty years. However, the court recognized that James’s helping out with the children allowed Martha to maintain her employment with Walmart and thereby acquire the retirement plan.

(e) Tax and other economic consequences.

¶ 15. The chancellor found this factor inapplicable.

(f) 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.

¶ 16. Here, the chancellor found that the retirement plan could be divided in such a manner to avoid future friction between the parties.

(g) The needs of the parties and their income and earning capacities.

¶ 17. In addressing this factor, the chancellor acknowledged that he was “particularly criticized by the Appeals Court for not making this consideration.” The chancellor found that Martha’s expenses were outweighed by her income and that James’s income was more than his expenses. As previously mentioned, despite this Court’s instruction to “take care to not take into account factors that bear no relevance to an equitable division of the retirement fund,” the chancellor went on to discuss Martha’s contribution to one of the children’s college expenses.

¶ 18. After applying the Ferguson analysis, the chancellor awarded James one-fourth ($14,849.57) of the retirement plan. Although the chancellor considered a factor that had no bearing on the division of the retirement plan, we will not reverse the chancellor’s award. As mentioned above, we defer to a chancellor’s factual findings when he applies the correct legal standard and there is substantial evidence to support his findings. We also note that equitable distribution does not demand that an asset be divided equally.

¶ 19. The chancellor applied every applicable Ferguson factor. Although we find that the chancellor should not have mentioned Martha’s contribution toward the children’s college expenses while discussing the needs of the parties and their income and earning capacities, we find no harm inured to James’s detriment. As stated, the chancellor made adequate findings to support his division of Martha’s retirement account. The chancellor favored Martha in every factor except those that are not applicable to the retirement plan. The chancellor also found that James was responsible for one-fourth of the non-economic contribution to the acquisition of the retirement plan — an amount proportionate to the amount of the retirement plan awarded to him. Although none of the Ferguson factors favored James, the chancellor, on remand, increased James’s share of the retirement plan from a little over one-sixth ($10,000) to one-fourth ($14,849.57). Accordingly, this contention of error is without merit.

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

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

      . We list and address these factors later in our analysis and discussion of the issue.


author: MYERS, P.J., for the Court.

text:
    Raymond BOWLING, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00135-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Raymond Bowling, Sr., Pro Se, appellant.
    Office of the Attorney General by Laura Hogan Tedder, for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J., for the Court.

¶ 1. Raymond Bowling, Sr., pleaded guilty to fondling. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with eight years suspended. Bowling filed a motion for post-conviction relief, which the trial court denied. Aggrieved from the denial, he appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or about August 2, 2005, Bowling was indicted pursuant to Mississippi Code Annotated section 97-5-23 (Rev.2000) for fondling a child under the age of sixteen. On January 26, 2006, Bowling withdrew his not guilty plea and entered a plea of guilty. Following the recommendation of the State, the trial court sentenced Bowling to fifteen years in the custody of the MDOC, with eight years suspended. Due to the nature of the crime, the trial court sentenced the remaining seven years of Bowling’s sentence to be served day-for-day. The court also fined Bowling $1,000 and ordered him to pay court costs in the amount of $476.50. Furthermore, the court placed him on post-release supervision for five years once he was released from incarceration, and he was ordered to register as a sex offender.

¶ 3. On or about September 21, 2006, Bowling filed a motion for post-conviction relief and motion to vacate, set aside, or correct Ms sentence in the Circuit Court of Itawamba County. The trial court denied Bowling’s motion for post-conviction relief. Aggrieved from the denial, Bowling filed his appeal in a timely manner. On appeal, Bowling alleges five errors: (1) his rights were violated when he was sentenced to serve his time day-for-day; (2) his guilty plea was not knowing and voluntary; (3) his sentence was outside the statutory limits; (4) his indictment was faulty; and (5) he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 4. It is well settled that “[w]hen reviewing a lower court’s decision to deny a petition for post[-]eonviction relief [,] [the appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Lambert v. State, 941 So.2d 804, 807(¶14) (Miss.2006). “However, where questions of law are raised[,] the applicable standard of review is de novo.” Id.

DISCUSSION

¶ 5. Bowling’s motion for post-conviction relief in the trial court only contained two issues: whether Bowling’s sentence was legal, and whether he received ineffective assistance of counsel. On appeal, he raises the five issues listed above. Therefore, we will only address the issues that were raised in his motion for post-conviction relief to the trial court. See Lockhart v. State, 980 So.2d 336, 340(¶ 14) (Miss.Ct.App.2008) (additional issues raised on appeal that were not raised in the motion for post-conviction relief at the trial court are proeedurally barred).

I. Sentence

¶ 6. Bowling argues that he was improperly sentenced because he was sentenced to serve his time day-for-day. Mississippi Code Annotated section 97-5-23 states that a person convicted under this section shall receive a sentence of imprisonment of not less than two years and not more than fifteen years. Bowling was sentenced to fifteen years, with eight of those years suspended. The remaining seven years were to be served day-for-day.

¶ 7. “[T]he imposition of a sentence, if it is within the limits prescribed by statute, is a matter left to the sound discretion of the trial court.” Hersick v. State, 904 So.2d 116, 128(¶49) (Miss.2004) (quoting King v. State, 857 So.2d 702, 731 (¶ 107) (Miss.2003)). “[A] sentence will not be disturbed on appeal as long as it does not exceed the maximum term allowed by statute.” Williams v. State, 936 So.2d 387, 390(¶17) (Miss.Ct.App.2006). Clearly, as Bowling’s sentence is within the prescribed limits of Mississippi Code Annotated section 97-5-23, we find that it does not exceed the maximum term allowed by statute. Accordingly, this argument is without merit.

II. Ineffective Assistance of Counsel

¶ 8. A claim of ineffective assistance of counsel is judged by the standard stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), The two inquiries under that standard are: (1) whether counsel’s performance was deficient, and if so, (2) whether that deficient performance was prejudicial to the defendant’s defense in the sense that the defendant was deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. “To show prejudice, the claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability that a different result would have occurred.” Watts v. State, 981 So.2d 1034, 1039(¶ 12) (Miss.Ct.App.2008). “This standard is also applicable to the entry of a guilty plea.” Roland v. State, 666 So.2d 747, 750 (Miss.1995). The burden of proving both prongs of Strickland is on the defendant, “who faces a ‘rebutta-ble presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance.’ ” Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997) (citation omitted).

¶ 9. Bowling argues that his attorney was ineffective because she failed to object to the indictment. Bowling argues that his indictment was faulty because it did not contain a provision that discussed the eligibility of parole for prisoners pursuant to Mississippi Code Annotated section 47-7-3 (Rev.2004). In Richardson v. State, 769 So.2d 230 (Miss.Ct.App.2000), this Court faced the exact same argument that Bowling is making in the present case. In a separate issue section, the Richardson court held that a valid indictment does not have to contain language regarding whether a person will be eligible for parole, holding “[t]he only deficiency that survives waiver by a guilty plea is not including the essential elements of the crime or lack of jurisdiction.” Id. at 233(¶ 5). Using this ruling, the Richardson court addressed the defendant’s ineffective assistance of counsel argument, holding that “[a]n attorney cannot be expected to object to a valid indictment.” Id. at 234-35(¶ 11).

¶ 10. The same analysis applies here. Bowling’s indictment was not faulty for its failure to contain a provision for his eligibility for parole because it is not an essential element of the crime or has no effect on jurisdiction. Applying the rule in Richardson, Bowling’s attorney was not ineffective for her failure to object to a valid indictment.

¶ 11. Bowling also argues that his attorney was ineffective because she represented Bowling’s ex-wife in their divorce. He states that this caused a conflict of interest, which the court should have resolved.

¶ 12. This Court in Lawrence v. State, 970 So.2d 1291, 1297(¶ 13) (Miss.Ct.App.2007) faced a similar argument and ruled that the defendant must prove that his attorney was “actively representing a conflicting interest” and that the conflict of interest adversely affected his attorney’s performance.

¶ 13. Bowling does not provide any evidence that the possible conflict of interest affected his attorney’s performance. In fact, during his guilty plea, Bowling stated that he was satisfied with the assistance his attorney had provided and that she had represented his best interest in the case. “We give ‘great weight ... to statements made under oath and in open court during sentencing.’ ” Id. at (¶ 15) (citation omitted). “Statements made during guilty plea hearings are made under oath; as such, ‘there should be a strong presumption of validity.’ ” Id. (citation omitted).

¶ 14. Furthermore, Bowling had not provided any proof that the outcome of his case would have been any different if his counsel would have objected to the indictment and a court would have resolved the alleged conflict of interest. Accordingly, this assignment of error is without merit.

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

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


author: LEE, P.J., for the Court.

text:
    Armenia FAIR, Appellant v. BEAU RIVAGE RESORTS, INC., Appellee.
    No. 2008-WC-01352-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    James Kenneth Wetzel, Gulfport, attorney for appellant.
    Tristan R. Armer, Harry J. Schmidt III, Pascagoula, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On February 21, 2004, Armenia Fair (Fair) was working at the Beau Rivage Resort, Inc., (the Employer) in Biloxi, Mississippi, when she suffered an injury to her right shoulder. Fair had a history of problems with her right shoulder. Fair filed a claim for workers’ compensation. After a hearing, the administrative law judge (ALJ) ordered the Employer to pay temporary disability benefits from the date of the injury until the date of maximum medical improvement. The Employer filed an appeal to the Mississippi Workers’ Compensation Commission. Upon review, the Commission reversed the ALJ in part, finding that Fair’s accident was a temporary aggravation of her pre-existing condition, and that, by September 1, 2004, the injury had ceased to be disabling. The Commission ordered the Employer to pay Fair’s temporary disability benefits from February 21, 2004, the date of the injury, to September 1, 2004, the date Fair returned to her pre-injury condition.

¶ 2. Fair appealed the Commission’s decision to the Harrison County Circuit Court, alleging that the Commission’s decision was not based upon substantial evidence. The trial court affirmed the decision of the Commission, finding that it was supported by substantial evidence. Fair now appeals, asserting two issues that we combine as follows: the trial court erred in affirming the Commission’s decision as it was not supported by substantial evidence.

FACTS

¶3. At the time of her accident, Fair was employed as a gift shop cashier at the Beau Rivage Casino. Fair assisted customers and operated the cash register, but she was not required to lift heavy objects. On the day of the accident, Fair testified that while she was walking down a hallway, carrying two bags of money which weighed approximately seven pounds each, she stumbled on the carpet and the right side of her body fell against the wall. Fan-notified her supervisor of her accident, and a security guard escorted her to the hospital.

¶ 4. Prior to her accident, Fair was being treated by two physicians for her right-shoulder problems. Dr. Reza Mo-takhaveri had been Fair’s primary physician since 2000. Dr. Motakhaveri had diagnosed Fair with a rotator-cuff injury to her right shoulder as early as October 24, 2001. In the years prior to her accident, Fair had been treated several times with medication and injections to treat her shoulder injury. On October 27, 2003, Dr. Motakhaveri examined Fair and noted that her right-shoulder pain returned a few months after each injection. Dr. Motak-haveri then referred Fair to Dr. George Salloum, an orthopaedic surgeon.

¶ 5. Dr. Salloum examined Fair on December 17, 2003. Dr. Salloum’s notes indicate that Fair told him that she had injured her rotator cuff in a fall approximately seven years ago. Fair indicated to Dr. Salloum that her right-shoulder pain was constant and registered eight out of ten in severity. Dr. Salloum believed Fair had a right-shoulder rotator-cuff tear with severe impingement; he ordered an MRI and scheduled Fair for a “shoulder decompression.” That same day, Dr. Salloum sent a letter to Dr. Motakhaveri, in which he reported the results of his examination of Fair. Dr. Salloum stated that he “had discussed surgical intervention with [Fair] to include a decompression, a distal clavicle resection, and rotator[-]cuff repair if necessary. [Fair] is willing to proceed with this.” However, Fair testified that she only remembered Dr. Salloum telling her that she had arthritis in her shoulder. The MRI results indicated a rotator-cuff tear and severe degenerative joint disease.

f 6. During this time, Fair was diagnosed with breast cancer. Fair had surgery on March 11, 2004, and she then underwent chemotherapy for several months. Fair did not return to work at the Beau Rivage Casino.

¶ 7. After her work injury, Fair saw Dr. Motakhaveri again on March 3, 2004, for treatment of her right shoulder, and Dr. Motakhaveri ordered another MRI and referred her back to Dr. Salloum. Dr. Sall-oum examined Fair and reviewed her MRI, finding that she had a “massive rota-tor[-]cuff tear with retraction.” Dr. Sall-oum reported that he had reviewed both of Fair’s MRIs and found them “very similar in nature with similar findings.” Dr. Sall-oum noted that Fair was “still a candidate for surgery.” In his notes after a followup visit, Dr. Salloum stated that Fair was concerned because he had “made a statement to workers’ compensation about her having a prior rotator[-]cuff tear.” Dr. Salloum again stated that the March 2004 MRI revealed the same findings as the December 2003 MRI. Dr. Salloum noted that Fair had a chronic rotator-cuff tear as of December 2003, but “most likely,” her shoulder had “calmed down and [she] had an exacerbation of a pre-existing condition.”

¶ 8. After being released by her oncologist, Fair began working in February 2005 as a greeter at Walmart. Shortly after Hurricane Katrina, Fair was transferred to another Walmart where she worked in the ladies department for forty hours per week.

STANDARD OF REVIEW

¶ 9. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). If the Commission’s decision and findings of fact are supported by substantial evidence, then we are bound by them even if we would have been convinced otherwise. Spann v. Wal-Mart Stores, 700 So.2d 308, 311(¶ 12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 10. Fair’s chief contention on appeal is that the Commission’s decision was not supported by substantial evidence. Fair claims that she proved that she suffered more than a temporary aggravation of her pre-existing condition. In Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 594, 115 So.2d 674, 676 (1959), the supreme court held the following:

The rule in this State is that when a preexisting disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. A corollary to the rule just stated is that when the effects of the injury have subsided, and the injury no longer combines with the disease or infirmity to produce disability, any subsequent disability attributable solely to the disease or infirmity is not compensable.

¶ 11. The evidence clearly established that Fair had a pre-existing right-shoulder injury and that it was aggravated by the accident on February 21, 2004. According to Dr. Motakhaveri, he began treatment on Fair’s right shoulder in October 2001, and he continued treating Fair for “rota-tor[-]cuff symptoms/tendonitis” for the next two years. As of October 2003, the injections Fair had been receiving to treat her right shoulder were no longer effective. Dr. Salloum noted that the December 2003 MRI showed a rotator-cuff tear and severe degenerative disease. Dr. Sall-oum’s notes from the December 17, 2003, examination state that Fair complained of the following:

She complains of difficulty lifting the shoulder. She complains of pain when driving and pain when holding her arms out in front of her, pain with lifting objects and pain at night. She has difficulty sleeping. She states it is a constant aching pain, worse with any lifting. It is 8 out of 10 in severity.

Dr. Salloum also noted that Fair told him that she had injured her right shoulder approximately seven years ago. Dr. Sall-oum’s notes indicate that the two MRIs, one pre-injury and one post-injury, were “very similar in nature with similar findings.” Although Fair testified that the pain in her right shoulder felt different after the injury, she told Dr. Salloum that the pain level was eight out of ten in severity, the same level as told to Dr. Salloum in December 2003.

¶ 12. Fair emphasizes that, in a letter dated December 2, 2004, Dr. Salloum noted that her pain had been “unrelenting.” Fair concludes that Dr. Salloum changed his opinion on her injury. However, we reiterate that Dr. Salloum noted that her pain prior to the injury was described as “a constant aching pain.” In a response, dated September 1, 2004, to a questionnaire sent by the Employer’s attorneys, Dr. Salloum answered that it was his opinion that Fair could have returned to work by then with no lifting or use of her right-upper extremity. Fair could not return to work at the time because she was undergoing chemotherapy treatments for her breast cancer. At the time of the hearing before the ALJ, Fair testified that she was not currently receiving any treatment for her right shoulder.

¶ 13. The Commission found substantial evidence that Fair’s need for right-shoulder surgery was not related to her accident on February 21, 2004, but it was attributable to pre-existing right-shoulder problems dating back more than seven years prior. We agree and find that the Commission’s decision is supported by substantial evidence. This issue is without merit.

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

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


text:
    LLOYD G. OLIPHANT & SONS PAINT CO., INC., Appellant v. Barry S. LOGAN, Appellee. Barry S. Logan, Appellant v. Overly Electric Company, Appellee.
    No. 2008-CA-00669-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Martha Bost Stegall, Tupelo, attorney for appellant Oliphant.
    Reagan David Wise, Tupelo, attorney for appellee Overly.
    John Kristopher White, Claude F. Clayton, Tupelo, attorneys for appellant/appel-lee Logan.
   MYERS, P.J., for the Court.

¶ 1. Barry Logan filed suit in the Oktib-beha County Circuit Court against Overly Electric Co. (Overly) and Lloyd G. Oli-phant & Sons Paint Co., Inc. (Oliphant) alleging their negligence caused him to fall down a unlit stairwell on a construction site. Both defendants moved for summary judgment. The trial court granted full summary judgment to Overly and partial summary judgment to Oliphant only on the issue of punitive damages. Logan now appeals the trial court’s grant of summary judgment to Overly, while Oliphant appeals the trial court’s denial of summary judgment to it on the issue of negligence. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶2. Logan was employed by Jody Plumbing and Mechanical (Jody). Jody was one of several subcontractors working on the renovation of the Cresswell dormitory on the campus of Mississippi State University. Overly was the electrical subcontractor; Oliphant was the painting subcontractor for this renovation. Cresswell is a five-story dormitory. It has three stairwells — two on the outside and one in the interior of the building. The two outside stairwells were lit by natural light; the interior stairwell was lit by artificial lighting.

¶ 3. On May 20, 2002, at approximately 12:80 p.m., Logan entered the interior stairwell. He was returning to the outside of the building from the third floor. He testified that the artificial lighting in the interior stairwell was out that day. He stated that the interior stairwell was so dark “that you could not see your hand in front of your face.” His description of the lighting in the stairwell was corroborated by another construction worker on the job site. While descending the stairwell, Logan reached the platform between the first and second floors, where he allegedly stepped on a piece of conduit, causing him to fall down the remaining stairs. He was knocked unconscious. Logan’s unconscious body was later discovered when another worker stepped on him.

¶ 4. Logan testified that the fall caused him several injuries requiring surgeries, and the effects have ultimately altered his lifestyle. Logan filed suit against Overly and Oliphant arguing that their negligence caused his accident. In particular, Logan argues that Overly was negligent when: (1) it failed to properly light the interior stairwell by removing or disconnecting the artificial lighting, and (2) one of its employees left a piece of conduit in the stairwell that Logan slipped on causing him to fall. Logan contends that Oliphant was negligent when one of its employees left a piece of conduit in the stairwell that Logan slipped on causing him to fall, and it was negligent when its employees removed the lighting from the stairwell;

¶ 5. After discovery, Overly and Oliphant filed separate motions for summary judgment. In its motion, Overly argued that Logan’s claims were based on conjecture and speculation; Logan had no proof that Overly removed or disconnected the lighting or that Overly knew the lighting was off in the interior stairwell. Oliphant’s argument was very similar; Logan produced no evidence that an Oliphant employee left the item in the stairwell that caused him to fall. After considering each party’s argument, the trial court issued two summary judgment orders: one granting full summary judgment for Overly, and the other granting partial summary judgment for Oliphant on the issue of punitive damages, but denying its motion on the issue of negligence. Aggrieved, Logan appeals the trial court’s grant of summary judgment for Overly, and Oliphant appeals the trial court’s denial of summary judgment to it on the issue of negligence.

STANDARD OF REVIEW

¶ 6. We review the trial court’s grant of a motion for summary judgment under a de novo standard. Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 190(¶ 9) (Miss.2000). “The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Hosey v. Mediamolle, 963 So.2d 1267, 1269(¶ 3) (Miss.Ct.App.2007) (citation omitted). Issues of fact are present when one party swears to one version of the matter and another says the opposite. Cook v. Children’s Med. Group, 756 So.2d 734, 739(¶ 15) (Miss.1999). “Where there is the slightest doubt over whether a factual issue exists, the court should resolve [the questions] in favor of the non-moving party.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1142(¶ 25) (Miss.2004) (citing Cothern v. Vickers, Inc., 759 So.2d 1241, 1245(¶6) (Miss.2000)). “[T]his Court must review all the eviden-tiary material before it in a light most favorable to the party against whom the motion was granted.” Dominquez v. Palmer, 970 So.2d 737, 739(¶ 10) (Miss.Ct.App.2007) (citing Pride Oil Co., 761 So.2d at 190(¶ 9)). “Motions for summary judgment are to be viewed with a skeptical eye, and if the trial court should err, it is better to err on the side of denying the motion.” PDN, Inc. v. Loring, 843 So.2d 685, 688(¶ 8) (Miss.2003).

WHETHER THE TRIAL COURT ERRED IN ITS SUMMARY JUDGMENT RULINGS

¶ 7. These two appeals were consolidated into one because they stem from the same facts and complaint. However, we will discuss each appeal separately.

A. Oliphant’s appeal

¶ 8. Oliphant moved for summary judgment arguing that Logan had failed to provide sufficient proof that the item Logan slipped on was negligently left by an Oliphant employee. The trial court did not agree with Oliphant’s contention and denied its summary judgment motion. However, the trial court did grant partial summary judgment on Oliphant’s request that it not be assessed punitive damages.

¶ 9. As neither party raised this issue on appeal, we will address whether the trial court’s order is appealable on our own initiative. See Gilchrist v. Veach, 754 So.2d 1172, 1173(¶ 5) (Miss.2000). “A partial summary judgment is not a final ap-pealable order unless the trial court certifies the judgment as final under Rule 54(b) of the Mississippi Rules of Civil Procedure or the supreme court grants permission for an interlocutory appeal under Rule 5 of the Mississippi Rules of Appellate Procedure.” In re Estate of Thomas v. Wilson, 962 So.2d 141, 144(¶ 11) (Miss.Ct.App.2007).

¶ 10. Logan commenced the present action against Overly and Oliphant alleging that each company’s negligence caused his fall. Thereafter, both defendants moved for summary judgment. Pursuant to these motions, the trial court granted full summary judgment to Overly and only partial summary judgment to Oliphant on the issue of punitive damages. The issue of Oliphant’s negligence still remains to be adjudicated by the trial court. There is neither a Rule 54(b) certification in the record with regard to Oliphant, nor is there a petition for an interlocutory appeal. Therefore, we find that the order is not appealable as a final judgment, and we must dismiss for lack of jurisdiction.

B. Logan’s appeal

¶ 11. Logan appeals the trial court’s order granting summary judgment to Overly. Overly petitioned for summary judgment arguing that Logan’s negligence claim against it is pure speculation. Overly argued in its motion, and again on appeal, that Logan provided no proof that Overly actually removed or disconnected the lighting and that Logan provided no proof that Overly knew the temporary lighting was removed or disconnected. Based on these contentions, the trial court granted Overly’s motion for summary judgment.

¶ 12. “As with any negligence case, a plaintiff must prove: ‘(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) damages; and (4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages.’ ” Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368(¶ 11) (Miss.2008) (citation omitted).

1. Duty

¶ 13. Overly admits in its brief that it had a duty to Logan, and all other workers at this particular site, to provide and maintain the temporary lighting in the stairwell.

¶ 14. “The general rule is that a general contractor on a construction job who is in control of the premises is burdened with the duty to use ordinary care to provide a safe place for employees of a subcontractor to work.” Oden Constr. Co. v. McPhail, 228 So.2d 586, 588 (Miss.1969) (citation omitted). This Court has extended this rule to include subcontractors. See Ainsworth v. Capform, Inc., 784 So.2d 1008 (Miss.Ct.App.2001). In Ainsworth, the plaintiff was an employee of Midwest Drywall, a subcontractor working on the Beau Rivage Hotel and Casino in Biloxi, Mississippi. Id. at 1009(¶ 2). He sued Capform, Inc., another subcontractor on the site, alleging negligence after he tripped over rebar that jutted out of the ground, and caused him to injure his foot and back. Id. The trial court granted summary judgment to Capform, but that ruling was later reversed by this Court. Id. at 1012(¶ 13). In reversing the summary judgment, this Court found a material issue of fact existed with regard to whether Capform owed the plaintiff a duty. Id. In reaching its conclusion, this Court stated “the fact that the ... prime contractor was required to provide a safe working environment for Ainsworth ... does not absolve subcontractor Capform from liability for its own acts of negligence that cause harm or injury to employees of other subcontractors.” Id. at 1011(¶ 9).

¶ 15. We find that Overly had a duty to all employees at the job site to furnish and maintain the temporary lighting in the interior stairwell. Next, we turn to whether Overly breached that duty.

2. Breach

¶ 16. Both parties devote a large portion of their argument to this issue. Overly makes three separate arguments on this issue: (1) Logan provided no proof that Overly removed or disconnected the lighting; (2) Logan provided no proof that Overly knew the lighting was removed or disconnected; and (3) Logan provided no proof that Overly left the piece of conduit Logan slipped on in the stairwell. Logan counters with an overarching argument that Overly breached its duty to provide and maintain the lighting because the lights were not functioning at the time of his fall, and that the lights had been out for approximately three and one-half to four hours prior to his fall.

¶ 17. Overly is correct in that Logan failed to provide any proof that Overly left the piece of conduit, which caused him to fall, in the stairwell. Logan does not argue this on appeal. He dedicates the majority of his argument to whether Overly breached its duty by disconnecting or removing the lights, and whether it breached its duty by failing to supply lighting when it had knowledge that the interior stairwell was unlit. “The failure ... to properly brief this issue obviates the necessity of our review.” King v. State, 857 So.2d 702, 717(¶ 25) (Miss.2003).

¶ 18. The next two arguments advanced by both parties is whether Overly removed or disconnected the lights, and whether Overly knew the lights were disconnected or removed. We will address these arguments together.

¶ 19. As correctly stated by Overly, Logan admits that he does not believe Overly removed the lighting in the stairwell. The following party admission occurred in Logan’s deposition:

Q: And you’re not making a claim in this lawsuit that Overly Electric removed the temporary lighting, correct?
A: No, I’m not saying they did it.
Q: Okay. So it’s your claim that the painters removed the temporary lighting?
A: Yes, sir
Q: Not — not that Overly Electric removed the temporary lighting?
A: Correct.

¶ 20. Logan admits, plainly and unambiguously, that he is claiming that Oli-phant, not Overly, removed the lighting. He goes on to admit that it was common knowledge around the construction site that the painters, Oliphant, had removed the lighting from the stairwell. Therefore, Overly is correct in its assertion that Logan failed to provide proof that Overly removed the lighting from the stairwell.

¶21. The most contested issue is whether Overly had knowledge the lights were off in the interior stairwell when Logan fell. Overly’s corporate designee maintained that Overly was not aware the lights were off at the time of Logan’s accident. At the end of his deposition, Logan stated that he did not have any reason to believe that Overly knew the temporary lighting had been removed in the stairwell. This is in stark contrast to his statements earlier in the deposition.

¶ 22. Logan testified that, although he personally did not notify Overly’s personnel that the lights were out, Overly’s foreman knew the lights were out in the stairwell prior to Logan’s fall. Logan stated that during a break that morning, at approximately 9:00 a.m., Overly’s foreman told him that the painters had removed the lighting. However, the lights were still out when Logan fell at approximately 12:30 p.m. This establishes that the lights were off in the stairwell three to four hours before Logan’s accident.

¶ 23. In addition to the lights being out for approximately three to four hours before Logan’s fall, the testimony of Mark Isley also establishes that the lights were operable at the time of the accident. Isley was a co-worker of Logan’s at Jody on the Cresswell renovation project. He testified that after Logan fell, other workers at the job site came to the bottom of the stairwell to attend to Logan. However, it was completely dark, and no one could see the extent of Logan’s injuries. Someone then connected a florescent light to a fixture to supply light in that area. This establishes that the lighting fixtures were connected and working at the time of Logan’s accident. However, no lighting was provided in the stairwell at the time of Logan’s accident.

¶ 24. One must also add to this melting pot the affidavit of an employee of the general contractor. James Young signed an affidavit stating that it was not possible for the temporary lighting to simply be turned off at the Cresswell renovation project. He stated that the temporary lights would have to be disconnected or removed because the lights were wired directly into the temporary electric panel and did not have a switch on them; Overly would have been the only subcontractor that would have had access to this temporary panel; thus, Overly would have had control over turning off the temporary lighting. These statements by Young were corroborated by Overly’s representative stating that no other subcontractor but Overly did the electrical work on this project.

¶ 25. The summation of this evidence is that: (1) the lights were out in the interior stairwell for approximately three to four hours before Logan’s accident; (2) Overly’s foreman knew the lights were out in the stairwell prior to Logan’s fall; (3) the light fixtures were connected on the day of the accident; and (4) Overly was the only subcontractor who could have turned off the temporary lighting. Viewing this evidence in the light most favorable to Logan, there is a genuine issue of material fact about whether Overly knew the lights were out in the interior stairwell on the day of the accident. Therefore, we find that summary judgment was improper, and this case must be remanded back to the trial court to determine whether Overly breached its duty to provide and maintain the temporary lighting in the interior stairwell.

C. Assumption of Risk

¶26. Although the issue was not responded to by Overly, Logan argues in his brief that the trial court erroneously applied the assumption of risk doctrine as part of its basis for granting summary judgment. We will address his contention for clarification on remand.

¶ 27. The defense of assumption of the risk has been abolished in Mississippi and subsumed in the comparative fault doctrine. Weems & Weems, Mississippi Law of Torts, § 3:26 (citing Wilks v. Am. Tobacco Co., 680 So.2d 839 (Miss.1996)). Any action on the part of the plaintiff which might be characterized as an assumption of the risk should be considered by the jury in the context of comparative negligence. Id. A jtiry is also free to conclude that a plaintiffs action in voluntarily encountering a known risk was the sole proximate cause of his injuries and, thus, acts as a complete bar to recovery. Id.

¶ 28. A jury could decide that Logan was negligent in the events that led to his accident. Logan and his co-worker, Isley, used the unlit stairwell earlier that day, prior to his fall. Logan testified that he and Isley went up the interior stairwell after their morning break at 9 a.m., and he testified that the lights were out at this time. After Logan returned from lunch, he used the outside stairwell to go up to the third floor. He checked in the bathroom area where Jody was working that day, and he decided to go back downstairs to complete some more work there. Instead of walking to either end of the third floor where he knew the stairwell was lit, he decided to use the interior stairwell for convenience, knowing that the lights were out in it and that it would be dangerous to descend three flights of stairs in the dark.

¶ 29. However, Logan’s negligence should not operate as a complete bar to his recovery. A jury should decide what percentage of fault to attribute to Logan’s negligence, as well as whether Logan was fully at fault for this accident.

CONCLUSION

¶ 30. Logan sued both Oliphant and Overly alleging that both companies were negligent in causing him to fall down a flight of stairs while working on the Cress-well renovation project. The trial court entered a partial summary judgment for Oliphant and a full summary judgment for Overly. Oliphant’s appeal is not properly before this Court because the issue of Oli-phant’s negligence has not been adjudicated by the trial court. There has not been a Rule 54(b) certification of a final judgment or a petition for interlocutory appeal with regard to Oliphant; thus, we find that its appeal must be dismissed. Overly has admitted that it had a duty to Logan to provide and maintain the temporary lighting in the stairwell. A jury question exists as to whether Overly breached this duty. There is evidence to establish that Overly knew the lights were out that morning, yet it failed to remedy the problem. There is also evidence to support Overly’s contention that it did not have knowledge the lights were out in the stairwell that morning. Reviewing the evidence in a light most favorable to Logan, an issue of material fact — where one party swears to one version of the matter and another says the opposite — exists as to whether Overly was negligent and breached its duty by failing to provide and maintain the temporary lighting. Therefore, the judgment granting summary judgment to Overly is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

¶ 31. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT GRANTING SUMMARY JUDGMENT AS TO OVERLY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE APPEAL IS DISMISSED FOR LACK OF JURISDICTION AS TO OLIPHANT. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN LLOYD G. OLI-PHANT & SONS PAINT CO., INC. AND OVERLY ELECTRIC COMPANY.

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

      . Logan was Jody’s foreman on this particular job.

      . Logan and a co-worker had previously descended the interior stairwell at approximately 9:00 a.m. and noticed that the lights were completely out.

      .Logan has pruned his claims against Overly and Oliphant. He now focuses his claims against Overly for being negligent for failing to provide lighting in the stairwell and Oli-phant for being negligent when one of its employee left a piece of conduit in the stairwell causing him to fall.

      . Rule 54(b) of the Mississippi Rules of Civil Procedure provides as follows:
      (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . We have stated that contradictory statements by a witness go to the weight and credibility of that witnesses’s testimony, not its sufficiency, and a summary judgment motion does not place the trial court in the role of weighing testimony and determining the credibility of witnesses. Giles v. Brown, 962 So.2d 612, 617—18(¶ 20) (Miss.Ct.App.2006) (citing Stegall v. WTWV, Inc., 609 So.2d 348, 352-53 (Miss.1992)).

      . It should be noted that Overly’s corporate designee testified in his deposition that, under a normal configuration, the electricity to the lights could be turned off by tripping the breaker or by an electrical overload.

      . The jury should also determine if Overly's potential breach of their duty proximately caused his fall, and what, if any, damages Overly should be assessed. See Andrews v. Jitney Jungle Stores, Inc., 537 So.2d 447, 450 (Miss.1989) ("The issues of proximate cause, negligence and contributory negligence are for the jury to decide under proper instructions from the court”).


author: IRVING, J, for the Court. MYERS, P.J.,

text:
    Laurin Jones KAY, Appellant v. Gregor Thomas KAY, Appellee.
    No. 2007-CA-02258-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      L. Anne Jackson Hodum, attorney for appellant.
    Alexander Ignatiev, attorney for appel-lee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J, for the Court.

¶ 1. The Lamar County Chancery Court granted Laurin Jones Kay a divorce from Gregor Thomas Kay (Greg) on the ground of uncondoned adultery. The chancellor divided the marital estate and ordered Greg to pay child support for their two children. Feeling aggrieved, Laurin appeals and asserts: (1) that the chancellor erred in deviating from the statutory child support guidelines, (2) that the chancellor erred in ordering her to pay twenty percent of Greg’s student loan debt, (3) that the chancellor erred in not ordering that the debt on a vehicle purchased during the marriage be paid with proceeds from the sale of the marital home, and (4) that the chancellor erred in declining to award her alimony.

¶ 2. We find, as we explain below, that the chancellor failed to factor in all of Greg’s income when ordering him to pay $650 per month in child support. We also conclude that the chancellor failed to determine Greg’s gross or adjusted gross income. Therefore, we reverse the chancellor’s order requiring Greg to make monthly child support payments of $650 and remand the case for further proceedings consistent with this opinion.

FACTS

¶ 3. Laurin and Greg were married on October 3, 1992, and separated on December 6, 2006. They have two children, Hardin Thomas Kay, born on August 6, 2001, and Keller Grant Kay, born on December 20, 2006. On April 20, 2007, Laurin filed a complaint for divorce on the ground of adultery or, alternatively, irreconcilable differences. She sought full legal and physical custody of the children and asked that Greg be awarded reasonable visitation. She also requested that Greg be ordered to pay child support and alimony.

¶ 4. Greg filed an answer and counterclaim wherein he alleged that he was entitled to a divorce on the ground of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Greg sought joint legal and physical custody of the children or, alternatively, temporary care, custody, and control of the children with reasonable visitation awarded to Lau-rin. Further, he requested that Laurin be ordered to pay child support.

¶ 5. The Lamar County Chancery Court heard the case on October 11, 2007. Greg admitted that he had been unfaithful to Laurin with several different women and that he was living with his paramour at the time of the hearing.

¶ 6. As for his employment, Greg testified that he has been employed as an assistant professor at the University of Southern Mississippi for the previous five years. Greg stated that he works full-time during the nine-month school year and earns $45,000 per year. He also stated that, in addition to his regular employment, he has taught summer school every year since he has been employed with the university. Greg’s 8.05 financial disclosure form reflects that he earns $3,750 per month in gross income, pursuant to his nine-month contract. Greg testified that he received $4,500 in overload pay and $5,000 in grant money in 2007.

¶ 7. On cross-examination, Greg explained why his 2006 income tax return showed that he earned a gross income of $47,653.05 and a net income of $35,299.78. Greg stated that his overload pay was factored into that figure.

¶ 8. Following the hearing, the chancellor granted Laurin a divorce on the ground of uncondoned adultery. The chancellor then awarded the parties joint legal custody of the children, with Laurin receiving primary physical custody and Greg receiving reasonable visitation. Further, the chancellor ordered Greg to pay $650 per month in child support, concluding that his net take home pay was approximately $3,200. The chancellor also ordered that the marital home be sold and that the first $2,500 of the proceeds be applied toward Laurin’s attorney’s fees and that the next $2,000 be used by Laurin for relocation expenses. Then, the chancellor ordered that the next portion of the proceeds be used to pay joint marital bills that the parties had accumulated. Laurin was also awarded exclusive use and benefit of the home until it was sold. Greg was ordered to assume responsibility for eighty percent of a debt to Sallie Mae that he had incurred in student loans, while Laurin was ordered to pay twenty percent of the debt or $100 per month as long as the debt is being paid in installment payments. The chancellor denied Laurin’s request for alimony.

¶ 9. Shortly thereafter, Laurin filed a motion to reconsider wherein she requested that the chancellor reconsider his final judgment because she argued inter alia: (1) that the chancellor failed to include her vehicle, a 2005 Chevrolet Equinox, in the final judgment even though the parties had stipulated that all of the marital debt, with the exception of the Sallie Mae loan was to be paid from the proceeds of the sale of the marital home; (2) that the chancellor should reconsider his denial of alimony, because a financial disparity exists between the parties; (3) that the chancellor deviated from the child support guidelines without providing a detailed, written explanation for doing so; and (4) that the chancellor should reconsider his ruling ordering Laurin to pay a portion of Greg’s student loan debt.

¶ 10. On December 19, 2007, the chancellor entered a judgment on Laurin’s motion. The chancellor first addressed Laurin’s argument as it related to the Chevrolet Equinox by stating that “[i]f the debt to Regions Bank for [Laurin’s] vehicle, the Chevy Equinox, is a joint marital debt it will be paid from the proceeds of the home sale; if in the name of [Laurin] alone, she shall underwrite payment thereof.” The chancellor went on to find that the evidence revealed that some of the proceeds from Greg’s student loan were used to support the family and denied further consideration of the matter. As for alimony, the chancellor denied Laurin’s request that he reconsider his decision declining to award her alimony. Finally, the chancellor denied deviating from the child support guidelines and stated that based on the evidence before him, the support that he ordered was based on Greg’s income. It is from this decision that Laurin now appeals.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Child Support

¶ 11. It is well settled that an appellate court’s “review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule.” Parker v. Parker, 641 So.2d 1133, 1137 (Miss.1994) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990)). “[An appellate court] will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Watson v. Watson, 724 So.2d 350, 354 (¶ 16) (Miss.1998) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)).

¶ 12. Laurin first argues that the chancellor erred in deviating from the statutorily imposed child support guidelines without providing justification for doing so. The chancellor made the following finding as it relates to Greg’s income for child support purposes:

Defendant’s net take home pay is calculated to be approximately $3,200.00 including his nine[-]month employment pay and summer wages. (Exhibit 6 at trial). He shall pay child support of $650.00 each month to Plaintiff beginning November 1, 2007, to be paid through the office of the Chancery Clerk of Lamar County, Mississippi, and keep the children covered with dental insurance. Plaintiff shall continue to keep them covered with medical insurance; the parties shall equally pay any uninsured medical or dental expenses of the children.

¶ 13. As evidenced above, the chancellor ordered Greg to pay $650 per month in child support based on Greg’s 2006 W-2 without considering either Greg’s testimony regarding his 2007 income or Greg’s 2007 payroll check stubs that were admitted into evidence. Also, the chancellor did not determine Greg’s gross or adjusted gross income.

¶ 14. As previously noted, Greg earns a salary of $45,000 from his employment with the University of Southern Mississippi for the nine-month school year, which is paid over twelve months. Also, a review of Greg’s payroll check stub for July 2007 indicates that he was paid $3,057.16 each month for three months for teaching summer school. Nevertheless, the chancellor determined that Greg earned $2,653.05 in summer wages. He reached this figure by subtracting Greg’s gross income ($47,-653.05), as reflected on his 2006 W-2, from his salary of $45,000.

¶ 15. Greg’s payroll check stub also reflects that his year-to-date salary in regular pay as of July 31, 2007, was $38,944.34. Thus, as of July 31, 2007, Greg received $3,944.34 above his regular pay because based on a pay rate of $5,000 per month, he would have only received $35,000 up to that point.

¶ 16. After reviewing Greg’s testimony and the exhibits admitted at trial, we conclude that Greg’s gross income for 2007 may be as high as $63,171.48. We arrive at this figure because in 2007, Greg received the following: $9,171.48 for teaching summer school for three months, $9,000 in overload pay for the fall and spring semesters, and a $45,000 salary. Greg also stated that he received a $5,000 grant. When these figures, excluding the grant money, are factored into Greg’s gross income, his adjusted gross income is increased significantly to $63,171.48.

¶ 17. The chancellor based his order of child support on Greg’s adjusted gross income as determined from his 2006 W-2. However, because we conclude that Greg’s gross income for 2007 may be significantly higher than that contemplated by the chancellor, we reverse the chancellor’s decision ordering Greg to pay $650 per month in child support and remand this case to the chancery court for a proper determination of Greg’s adjusted gross income. Then, the chancellor should order child support based on that figure.

¶ 18. The dissent, contending that there is substantial evidence that Greg’s income for 2007 is an anomaly, believes we err in reversing the chancellor on this issue. We find the dissent’s position perplexing, as the dissent does not take issue with the figures used by the chancellor to compute the amount of child support that Greg should pay. As stated, the chancellor utilized Greg’s W-2 for 2006. It is undisputed that the 2006 W-2 includes wages earned for teaching summer school, yet the dissent suggests that this category of income should not be included in computing Greg’s adjusted gross income for child support purposes because it is uncertain “how much income Greg will receive from teaching summer classes” in the future. It is also undisputed that exhibit 7, which was introduced into evidence by Laurin, indicates that Greg would receive three payments of $3,057.16 for teaching summer school in 2007. This data alone indicates that Greg would earn $54,000 for the year 2007, without including any amount for overload pay. If the chancellor utilized Greg’s summer school earnings for 2006, we see no logical reason why they should not be used for 2007. After all, Greg testified that he had taught summer school every year since he had been teaching at the university, that being five years.

¶ 19. The dissent also takes issue with our finding that the chancellor should consider Greg’s overload earnings for 2007. The dissent supports its position with Greg’s testimony that 2007 was the first time that he received overload pay and that he received the pay only because he had to perform double duty because of a shortage of teachers. The dissent further cites Greg’s testimony that “his department was planning to hire a new faculty member, and when this new member was hired, there would not be any need to work overload, and thus, the overload payments would cease.” However, the dissent overlooks further relevant testimony that Greg gave regarding the subject of overload pay. We quote the following from the direct examination of Greg by Laurin’s counsel:

Q. Can you tell me what an overload indicates or what that means with respect to your income?
A. Sure. It’s when faculty are asked to work above and beyond their normal load. A normal load is 100 percent time basically, and overload is 125 percent time.
Q. Is that something you get every year?
A. No. This is the first year that I’ve gotten that. We just lost a faculty member. We had four, and now we have three trying to cover the work load of four.
Q. Does that mean you’re going to get a raise soon? You’re going to be taking a new position or move up?
A. I won’t be getting a raise unless the State decides that. I did get a position within the — there’s three recreation faculty. I’m now the recreation coordinator, and you get an additional release for that, is what they call it. That’s basically the amount of the overload.

Based on Greg’s testimony quoted above, it is clear that, in his new position as coordinator, he will receive the monetary equivalent of the amount that he received for overload pay. There is no indication that his new position as coordinator is temporary. Therefore, we see no reason why the amount of this additional salary should not be considered in figuring the proper amount of child support that Greg should pay.

2. Division of Marital Estate

(a) Student Loan Debt

¶ 20. Laurin also asserts that the chancellor erred in ordering her to pay twenty percent of Greg’s student loan debt. The chancellor determined that Greg’s student loan debt is marital property after finding that “some of the student loan proceeds were expended for family needs.” Greg testified that approximately ninety percent of his student loan debt was accumulated after he and Laurin married. According to Greg, on occasion, they used some of the money for daily living expenses, such as to purchase groceries and gasoline. The chancellor made the factual finding that Greg’s student loan debt was marital property, and there is nothing in the record that refutes Greg’s testimony that a portion of his student loan proceeds were used for living expenses during their marriage. Therefore, this factual finding made by the chancellor is supported by substantial evidence. This issue lacks merit.

(b) Chevrolet Equinox

¶ 21. Laurin also contends that the chancellor erred in failing to order that the debt on the 2005 Chevrolet Equinox be paid off with the proceeds from the sale of the marital home. As noted, the chancellor held in his judgment on Laurin’s motion to reconsider: “If the debt to Regions Bank for Plaintiffs vehicle, the Chevy Equinox, is a joint marital debt it will be paid from the proceeds of the home sale; if in the name of the Plaintiff alone, she shall underwrite payment thereof.”

¶22. Laurin and Greg provided a report pursuant to Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) that was admitted into evidence. In the report, Laurin and Greg stipulated that the Chevrolet Equinox is marital property. Further, there is no dispute that the Chevrolet Equinox was purchased during the marriage. Accordingly, there is nothing for this Court to do because, as stated, the chancellor ordered the debt paid from the proceeds of the sale of the marital home “[i]f the debt to Regions Bank for Plaintiffs vehicle, the Chevy Equinox, is a joint marital debt....”

3. Alimony

¶ 23. Laurin argues that the chancellor erred in declining to award her alimony. The chancellor addressed Laurin’s request for alimony as follows:

With [Greg’s] support obligation deducted from his net income[,] he will have about $2,550.00 monthly to live on, plus the bulk of the marital debt to pay as set forth herein. Plaintiff shows a net monthly income of $1,975.00, which, with the addition of support due from [Greg], gives her $2,625.00 each month to live on, giving the Court pause to deny requests for alimony based on the criteria for awarding alimony.

The total marital debt between the parties is $156,925.64 and consists of (1) $117,000 to Wells Fargo for the mortgage on the marital home, (2) two BancorpSouth accounts which total $1,237.45, (3) two Bank of America accounts which total $23,779.19, (4) $3,978 to Chase, (5) $9,021 to Discover, and (6) $1,910 to Forrest General Hospital. The only real property that the parties own is the marital home, which the chancellor ordered to be sold. The chancellor further ordered the debt to BancorpSouth, Bank of America, Chase, and Discover to be paid from the proceeds of the sale of the marital home. The remaining debt is comprised of Greg’s student loan, valued at $104,980, and the debt to Forrest General Hospital. Finally, the chancellor ordered any remaining proceeds to be equally distributed between the parties.

¶ 24. The chancellor denied Lau-rin’s request for alimony based on his assessment of her post-divorce monthly income. We find no error with the chancellor’s decision, as we also conclude that, based on the evidence, no alimony was warranted. It is well established in Mississippi that “[ajlimony should be considered only ‘if the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party.’” Henderson v. Henderson, 703 So.2d 262, 265 (¶ 18) (Miss.1997) (quoting Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)). Clearly, Laurin is not left with a deficit. This issue lacks merit.

¶ 25. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPEL-LEE AND ONE-HALF TO THE APPELLANT.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS,

CARLTON AND MAXWELL, JJ., CONCUR. MYERS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

MYERS, P.J.,

Concurring in Part, Dissenting in Part:

¶ 26. While I concur with the majority on the division of Greg and Laurin Kay’s marital estate and the denial of alimony to Laurin, for reasons developed below, I dissent from the majority’s decision to reverse and remand on the amount of child support awarded by the chancellor.

¶ 27. Mississippi appellate courts are very deferential to a chancellor’s ruling and will disturb his or her findings only if they are manifestly wrong, clearly erroneous, or he or she applied an erroneous legal standard. Harris v. Hams, 988 So.2d 376, 378 (¶ 8) (Miss.2008) (citation omitted). It is not the function of this Court to second guess the findings of the chancellor or how he or she arrived at his results, as long as there is sufficient evidence to support his findings. McSwain v. McSwain, 943 So.2d 1288, 1294 (¶ 22) (Miss.2006).

¶ 28. Mississippi Code Annotated section 43-19-101 (Rev.2004) dictates how to determine the appropriate amount of child support. It states that the amount due should be based upon the non-custodial parent’s adjusted gross income. A parent’s adjusted gross income should encompass “all potential sources that may reasonably be expected to be available to the absent parent.... ” Miss.Code Ann. § 43-19-101(3)(a) (emphasis added).

¶29. In Johnston v. Johnston, 722 So.2d 453, 461 (¶22) (Miss.1998), the supreme court found that a chancellor erred by including extra income from a one-time event in determining the appellant’s net monthly income for child support purposes. In Johnston, the chancellor included the appellant’s income from teaching a one-time part-time college course. Id. at 460 (¶¶ 20-21). The supreme court concluded that the chancellor erred by including this income for purposes of child support because the appellant had “no contract or expectation for this additional employment to continue.” Id. at 461 (¶ 22). Similarly, in Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 467-68 (¶¶ 14-15) (Miss.Ct.App.1999), this Court concluded that a chancellor correctly included the appellant’s annual bonus in his income because the bonus was received on a regular basis.

¶ 30. It is evident from these cases that the dispositive issue in determining whether income should be included for purposes of child support is whether that income is anticipated to be received regularly in the future.

¶ 31. Turning to the case at bar, the chancellor concluded that Greg’s net take-home pay was approximately $3,200 per month. The chancellor reached this number by using Greg’s W-2 form, which stated that Greg received $47,653.05 in 2006 as income. The majority disagrees with the chancellor’s findings and concludes that Greg’s 2007 income could be as high as $63,171.48. They arrive at this figure by adding Greg’s base salary of $45,000 to $9,000 in overload pay for the entire year and $9,171.48 he would receive in teaching summer school courses.

¶ 32. I find substantial evidence that supports that these increases in Greg’s income cannot be expected to continue in future years for purposes of determining child support and were not properly considered by the chancellor. A portion of Greg’s income is derived from the summer classes that he teaches at the university. Although Greg testified that he had taught classes for the past five summers, he indicated that he was not certain about the future. He testified that summer classes were “hit and miss,” and that he only taught summer classes if they had a sufficient number of students enrolled in them. Greg stated that his department and its program were experiencing “very tough times right now,” and it was “iffy” that the summer courses would continue. Therefore, it is not certain if, or how many classes, Greg will teach in the coming summers; accordingly, there is uncertainty as to how much income Greg will receive in the future from teaching summer classes.

¶ 33. The majority states that I suggest Greg’s income from teaching summer school should not be included in his income. This is not the case. I would find that the chancellor’s finding should be applied, which includes income from Greg teaching summer school. The chancellor based his number on Greg’s 2006 W-2 form rather than an extrapolation of Greg’s 2007 pay stubs. I believe the chancellor’s method to be the more sound approach. Therefore, I find there was insufficient evidence to conclude that the chancellor was manifestly wrong or clearly erroneous in his finding regarding the income Greg would receive from teaching summer courses in the future.

¶ 34. Additionally, testimony indicated that Greg’s overload pay is not reasonably expected to continue. “Overload” are additional duties taken on by a faculty member that are beyond their normal responsibilities. Greg testified that for the first time since he began working at the university, he received an overload payment in 2007. This is because he was overseeing the recreation program at the university. He had to take on this additional duty because the number of faculty members in his department dropped from four to three. Greg stated that his department was planning to hire a new faculty member, and when this new member was hired, there would not be any need to work overload; thus, the overload payments would cease:

Q: Is [overload] available every year?
A: No. We are hoping to hire new faculty because nobody wants to work overloaded. The money is not worth it.
Q: After you hire faculty, there is no need to work overload?
A: Yes.
Q: You would be back to [your customary hours]?
A: Yes.

¶35. The majority states that Greg’s new position as recreation coordinator requires that the amount of overload be added to his salary for determining his income in the future. However, Greg’s pay stubs indicate that he was receiving the same salary in 2007 as recreation coordinator as he did in 2006, prior to his promotion. This finding, coupled with Greg’s statement that his overload payment would terminate upon new faculty member being hired, supports the chancellor’s finding that his future income will be similar to the amount received in 2006.

¶ 36. Given this testimony, I find sufficient evidence to support the chancellor’s findings. While I agree with the majority that Greg’s income for 2007 would be higher than his income in 2006, I find substantial evidence that his 2007 income was an anomaly and not indicative of his normal, annual pay. Once the university hired a new faculty member in Greg’s department, the number of summer classes he taught would revert back to the same number he taught in previous years and would reduce his summer income. Additionally, because the new faculty member would reheve Greg of his additional duties, his overload pay would cease. By deducting these two additional sources from his income, I find that Greg’s salary would be approximately the amount he was paid in 2006. Greg testified to this fact, stating that his income in 2008 would be similar to his income in 2006.

¶ 37. Additionally, the doors of the court will not shut Laurin out permanently. If Greg continues to receive income similar to his 2007 income, Laurin has the option of petitioning the court for an upward modification in the amount of child support.

¶ 38. Accordingly, I find that the chancellor’s ruling on the amount of child support is supported by substantial evidence and is not manifestly wrong or clearly erroneous. Therefore, I dissent.

      . Rule 8.05 of the Uniform Chancery Court Rules requires parties in cases involving do-meslic economic issues or property division to submit a financial disclosure statement.

      . There was no testimony about how the grant money was to be used. Further, Greg stated that he did not expect to receive any grant money for 2008.

      . Greg testified that although he had taught summer school every year, his summer employment with the university is dependent upon whether the classes reach capacity.

      . Only four months of Greg's pay stubs from 2007 were introduced into evidence, February, March, April, and July.

      . I also note that there was no evidence presented that Greg would receive a second overload payment in 2007. The majority assumes that because Greg received an overload payment in the first half of 2007, he will receive an overload payment for the same amount in the second half of 2007.