author: GRIFFIS, P.J.,

text:
    Christopher Daniel LEE, Appellant v. Nikki G. LEE, Appellee.
    No. 2013-CA-00609-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2014.

      M. Devin Whitt, Ridgeland, attorney for appellant.
    Lisa Jenkins Chandler, Natchez, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Christopher D. Lee appeals the judgment of divorce granted in favor of Nikki G. Lee. He argues that the chancellor erred when he found that there was sufficient evidence to grant Nikki a divorce on the ground of habitual drunkenness, and that Chris was required to pay for transportation costs for visitation. We find no error and affirm.

FACTS

¶ 2. Chris and Nikki met in 2006 and dated for two years. They were married on May 31, 2008. At the time, Nikki worked at Corr-Williams, and Chris worked offshore.

¶ 3. Their son, Will, was born on July 31, 2009. Chris had a child from a previous relationship. Shortly after Will’s birth, Chris changed jobs and started work as a contractor for Denbury. This gave him more time at home, even though he still worked seven days on and seven days off.

¶ 4. On May 3, 2011, Nikki filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. After the trial, the chancellor granted Nikki a divorce on the ground of habitual drunkenness. The chancellor awarded sole physical custody to Nikki, “reasonable” visitation to Chris, and joint legal custody to both. The chancellor also divided their property. Because of Nikki’s planned relocation to Wisconsin once the divorce was final, the responsibility of paying transportation costs for visitation exchanges between Wisconsin and Mississippi fell to Chris. It is from this judgment that Chris now appeals.

STANDARD OF REVIEW

¶ 5. The scope of review in domestic cases is limited by the substantial evidence/manifest error rule. Jundoosing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss. 2002) (citing Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). This Court will not disturb a chancellor’s findings unless they were manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Id. (citing Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss. 1994)).

ANALYSIS

I. Whether the chancellor committed manifest error in the grant of a divorce to Nikki on the ground of habitual drunkenness.

¶ 6. Chris asserts that it was error for the chancellor to grant Nikki a divorce on the ground of habitual drunkenness. Chris argues that Nikki did not meet her burden in proving habitual drunkenness. Alternatively, Chris argues that Nikki’s knowledge of his drinking habits prior to their marriage barred the suit.

A. Burden of Proof

¶ 7. On appeal, Chris argues the chancellor erred in finding sufficient grounds for divorce. “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So.3d 576, 583 (¶ 30) (Miss.Ct. App.2011).

¶ 8. In Sproles v. Sproles, 782 So.2d 742, 744-45 (¶¶ 4, 7) (Miss.2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So.2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.

¶ 9. At trial, Nikki testified that Chris often made negative comments about her weight. While drunk once, ' Chris told Nikki that he only finds her attractive and wants to have sex with her when he is intoxicated. On a separate occasion, Chris woke Nikki by urinating on her leg, and, when Nikki protested, Chris started laughing. Chris testified that he had never heard of this incident until trial. On another night, Chris and Nikki got into an argument, and Chris took Will into the house so Nikki could cool off outside. When Nikki decided to go back inside, she found the door locked. After she called Chris and knocked on the door with no answer, she was forced to crawl inside through a back door. She found Chris passed out on their waterbed, with Will face down and wedged between the corner of the bed.

¶ 10. Nikki testified that Chris often drank five to six beers per day. Chris worked offshore for extended periods of time. When he would return home, he would always have alcohol in his hand. Nikki also testified that on several occasions, Chris would pass out drunk and not remember anything that happened. Finally, Nikki testified that being with Chris after awhile made her depressed, and when they separated, she felt happy again.

¶ 11. Chris contends that he did not drink as much as Nikki claimed he did. He argues that because Nikki’s testimony was not corroborated by any other witness, it is “wildly inconsistent at best.” However, Nikki’s father, Thomas God-leske, testified that on an ice-fishing trip Chris drank so much that he passed out in a stranger’s vehicle. Further, Chris testified that he continued to drink at the time of the trial.

¶ 12. Where there is conflicting testimony, the chancellor is the trier of fact and adjudicates the credibility of each witness. Bowen v. Bowen, 982 So.2d 385, 395 (¶ 42) (Miss.2008). “An appellate court is to affirm findings of fact by chancellors in domestic cases when they are ‘supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Robison v. Lanford, 841 So.2d 1119, 1122 (¶ 9) (Miss.2003) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

¶ 13. In review of the record, we find that the chancellor had sufficient evidence to grant Nikki a divorce on the ground of habitual drunkenness: Chris’s alcohol consumption, combined with the negative impact it had on the family, and his continued drinking at the time of trial. Additionally, the chancellor, as the trier of fact, was in the best position to determine each witness’s credibility and to weight the conflicting testimony. Because the evidence supports the chancellor’s findings, we find that he did not commit manifest error in his findings on this issue.

B. Condonation and Antenuptial Knowledge

¶ 14. Next, Chris argues that Nikki’s condonation of his drinking served as a defense to divorce on the grounds of habitual drunkenness. Chris, in the alternative, contends Nikki knew of Chris’s drinking habits before marriage, she married him in spite of this knowledge, and this antenuptial knowledge barred any divorce proceedings on habitual drunkenness. Regardless of these contentions, Chris failed to assert these affirmative defenses in his pleadings or raise them at trial. Therefore, this issue is barred.

¶ 15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So.3d 505, 511 (¶ 27) (Miss.2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So.2d 204, 212 (¶23) (Miss.Ct.App.2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashbum, 970 So.2d at 212 (¶ 23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So.2d 1064, 1077 (Miss.1995)).

¶ 16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

See also Lahmann v. Hallmon, 722 So.2d 614, 619 (¶ 15) (Miss.1998).

¶ 17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled: “Chris did not plead con-donation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.

¶ 18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.

¶ 19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “ ‘that a new issue was being litigated at trial.’ ” Mabus v. Mabus, 890 So.2d 806, 814 (¶ 32) (Miss.2003) (quoting Setser v. Piazza, 644 So.2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’ ” Id. (citation omitted).

¶ 20. At trial, the following cross-examination of Nikki occurred:

Q: Yeah. Those two years before you got married y’all had, you and Chris had a good relationship? Did he drink back then?
A: Yes.
Q: He did?
A: Yes.
Q: Did he drink a lot back then?
A: Yes.
Q: Did he drink basically the same amount you’ve testified he drinks to now?
A: Yes.
Q: And you still married him with that?
A: Yes.
Q: Before you got married[,] Chris’[s] behavior was pretty much the same as you’ve testified today as during the marriage. It was the same behavior prior to the marriage? I’m talking about going down to his parents’ house and going to a friend’s house or something like that and drinking?
A: Yes.
Q: He hasn’t changed, has he?
A: No.

In response to her cross-examination, Nikki did not make any objections to this line of questioning.

¶ 21. Here, the record fails to demonstrate that both parties knew Chris asserted the defense of condonation or antenup-tial knowledge during trial. As Nikki’s testimony illustrated, she knew of Chris’s habitual drunkenness prior to their marriage, but decided to go forth with the marriage anyway. However, Nikki’s testimony regarding Chris’s drinking habits served as relevant evidence for the asserted ground for divorce. The line of questioning about Chris’s habitual drunkenness did not place Nikki on notice of any defense and directly related to the alleged ground for divorce. Because Chris failed to properly raise any defense of condonation or antenuptial knowledge, either through his pleadings or consent at trial, this issue has no merit.

II. Whether the chancellor committed manifest error in requiring Chris to bear the burden of all transportation costs in exercising his visitation rights.

¶ 22. In his second issue on appeal, Chris argues the chancellor erred by placing the entire burden of transportation costs for his visitation on him rather than dividing the costs. Chris asserts that Nikki agreed in court to share the transportation costs and the best interests of the child necessitate the division of costs. Nikki counters that Chris failed to raise the issue at trial and the chancellor did not abuse his discretion in requiring Chris to bear the costs of his visitation.

¶ 23. This Court cannot review an issue on appeal if the parties failed to present the issue to the chancellor at trial. In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 418 (¶ 19) (Miss.Ct.App.2008) (citing Birrages v. Ill. Cent. R.R, 950 So.2d 188, 194 (¶ 18) (Miss. Ct.App.2006)). However, an appellant may preserve an issue outside of the pleadings, transcripts, or rulings for appeal if he raised the issue in a motion for a new trial. Moore v. State, 131 So.3d 1228, 1231 (¶ 7) (Miss.App.Ct.2013).

¶ 24. While the issue of costs for visitation if Nikki gained primary physical custody of Will and relocated to Wisconsin arose through Nikki’s testimony, Chris did not address the issue at trial. Chris, however, argued against the chancellor’s ruling regarding transportation costs in his motion to reconsider, which the chancellor treated as a motion for a new trial. The chancellor subsequently denied Chris’s motion.

¶ 25. When a chancellor denies a motion for a new trial, this Court shall reverse the decision only if the chancellor committed an abuse of discretion. Smith v. Crawford, 937 So.2d 446, 447 (¶ 5) (Miss. 2006) (citations omitted).

¶ 26. The chancellor applied the proper legal analysis in determining that under Mississippi Rule of Civil Procedure 59, Chris failed to demonstrate a basis for a new trial. Additionally, the chancellor evaluated the motion under Mississippi Rule of Civil Procedure 60, in the event Chris intended to seek relief under this rule, and found no merit to the motion under that rule as well. Therefore, the chancellor did not abuse his discretion.

¶ 27. Even if Chris successfully raised the issue of the burden of transportation costs on appeal, “[t]he chancellor enjoys substantial discretion in deciding visitation issues, guided essentially by the consideration of what arrangement is in the child’s best interests.” Ballard v. Ballard, 843 So.2d 76, 80 (¶ 15) (Miss.Ct.App. 2003) (citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss.1970)). While Mississippi law does not mandate the noncustodial parent bear the burden of transportation costs, a relocation by the custodial parent does not require a division of costs. Id. Ballard is instructive for this case.

¶ 28. In Ballard, the noncustodial father sought a modification of the child-visitation arrangements regarding travel costs to exercise his visitation rights. Id. at (¶ 3). After the mother and child relocated across the state, the father argued the voluntary relocation by the mother required her to bear a portion of the costs incurred by the father. Id. While the chancellor awarded the father liberal visitation rights, the chancellor also found that compelling the mother to bear any of the transportation costs would not support the best interests of the child. Id. at (¶ 12). In affirming the decision, this Court determined the chancellor did not abuse his discretion and that any contribution to transportation expenses by the mother would detract from her financial support of the child. Id. at (¶ 15).

¶ 29. Also, the Court alluded to the possibility that if the father showed that the expense of additional travel would prevent the exercise of his visitation, then a modification could occur. Id. However, the father in Ballard, just as Chris in this case, failed to demonstrate that the costs of transportation would adversely affect his visitation rights. Id. Chris claims that in order to exercise- his rights, he would have to spend four days and over $1,000 each visitation period for travel. While Chris explains his commercial driver’s license limits the number of hours he can drive each day, which would potentially extend travel time to and from Wisconsin to four days, he does not show how each visit would cost $1,000. Additionally, Chris fails to show how these costs would substantially burden or preclude his visitation or would go against the best interests of the child.

¶ 30. Because the chancellor did not abuse his discretion in denying Chris’s motion for a new trial, and Chris failed to prove the transportation costs placed an unfair burden on the exercise of his visitation rights, we affirm.

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

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Herman SCOTT, Individually and as Administrator of the Estate of Stewart Scott, Jr., Deceased, Appellant v. ANDERSON-TULLY COMPANY, Appellee.
    No. 2013-CA-00533-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2015.

      Patricia Ann Catchings, Jackson, attorney for appellant.
    Landman Teller Jr., Lauren Roberts Cappaert, Vicksburg, attorneys for appel-lee.
    Before IRVING, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Herman Scott (Scott) filed suit seeking damages after Anderson-Tully Company removed timber from a twenty-acre parcel of land Scott claimed to own. Scott also sought to quiet and confirm title and to enjoin Anderson-Tully from entering the land. The chancellor dismissed Scott’s claim, finding that Anderson-Tully had acquired title to the twenty acres through adverse possession. Scott appeals, arguing the chancellor erred. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1925, brothers Stewart Scott Jr. and Willie Scott inherited an undivided one-half interest in a 584.6-acre tract of land in Jefferson County, Mississippi. The brothers’ respective estates now each own the undivided one-half-interest shares in the property (collectively referred to as “the estate”). Scott, the plaintiff, is the administrator of Stewart Scott Jr.’s estate.

¶ 3. On March 19, 2010, Scott filed suit on behalf of the estate in Jefferson County Chancery Court, alleging that its adjacent landowner to the east, Anderson-Tully, was trespassing on a portion of the estate’s property. Scott sought damages for the removal of timber, and he sought an order enjoining Anderson-Tully from entering onto or cutting and removing timber from the property. An amended complaint sought to quiet and confirm title. The disputed property is a somewhat triangular-shaped tract of land located in the northeastern corner of Section 28, Township 10 North, Range 1 East in Jefferson County. Scott claims that the estate owns all property in Section 28, including the disputed acreage east of the wire fence, up to the section line between Sections 28 and 30.

¶ 4. Anderson-Tully answered the complaint and counterclaimed to quiet and confirm its own title. Anderson-Tully claimed that according to its deed, it owned the disputed twenty acres in Section 28 east of the wire fence. Alternatively, Anderson-Tully argued that it acquired title to the property by adverse possession through its possession and use of the land from 1969 to 2010.

¶ 5. A trial was held, at which Scott presented the testimony of Richard T. Logan of Logan Engineering Company. Scott had hired Logan in 2003 to determine the estate’s acreage after Scott became concerned that he was paying taxes on more property than the estate owned. Logan found that the estate owned all of Section 28, including the disputed twenty acres. Logan relied on his personal inspection of the property and a plat prepared in 1944 by B.G. Miller, the county surveyor for Jefferson County at that time. Miller’s plat was prepared for a timber deed from the Scotts, and is the only recorded description of the Scotts’ land in evidence. Miller’s plat reflects difficulty in surveying the area, noting that the southern line of the Scotts’ tract “has never been accurately determined but will not vary as much as 5 acres.” Miller found that the Scotts’ property line on the east ran along the section line between Section 28 and Section 30. He noted the wire fence on the east side of the Scotts’ property and found that the “20 1/10 [acres] outside of fence is included in total acreage.” However, Miller also made a note on the plat, within the twenty acres, which states that the property is “outside of fence & may be disputed.” ■ Logan agreed with Miller’s finding that the section line, not the fence line, was the property’s border and that the twenty acres belonged to the Scotts. Logan walked the disputed property and stated that the terrain to the east of the fence was “very rough.” He found the wire fence was never intended to establish the property’s border, but rather was a “convenience fence,” or “tree[-]line fence,” built to contain livestock. Although other witnesses testified to seeing blue paint along the wire fence that was indicative of Anderson-Tully’s ownership, Logan testified that he did not recall seeing any blue paint when he surveyed the property. However, he also testified that he no longer had his field notes and was relying on his memory. Logan examined Anderson-Tully’s deed and found no conveyance of any land in Section 28 to Anderson-Tully.

¶ 6. Richard Scott, an heir of Stewart Scott Jr., lived on the Scott property from his birth in 1938 until 1953. He testified he rebuilt the old wire fence on the east side of the property in 1954 because it was in need of repair. When he rebuilt the fence, he moved it a foot or two to the west, along the tree line, because the posts had rotted and he wanted to avoid digging new post holes. According to Richard, the fence was built to contain livestock and was not the property’s border. After moving from the property in 1953, he returned every week or two to visit his father. Up until 2010, he would ride horses around the property when he visited, and would sometimes make repairs to the fence. He never saw anyone using the disputed twenty acres.

¶ 7. Anderson-Tully presented the testimony of its company surveyor and forester, E.C. Burkhardt. Burkhardt worked for Anderson-Tully from the early 1950s to 1981. Burkhardt testified that Anderson-Tully came into possession of the disputed tract on February 12, 1969, though quitclaim deed. The deed does not contain a metes-and-bounds description or plat. According to Burkhardt, when Anderson-Tully expressed interest in buying the Jefferson County land in 1969, no one, including the land’s owners, knew the acreage. Burkhardt explained that the acreage was unclear because the land in Jefferson County was some of the first land south of Ohio to be surveyed by the United States government in 1805. After complaints about irregularities, the government retraced the original lines to get the correct acreage, and it established the sectional descriptions. After this, the “southwest part of Mississippi more or less reverted to the metes[-]and[-]bounds system.” But Burkhardt testified that because the section lines are irregular, determining property lines can be difficult. So, according to Burkhardt, when surveying in the area, the “best evidence is what you find out there on the ground.... You’ve got to pay attention to the lines on the ground, evidence of possession; and quite often that’s all you’ve really got to go by to determine boundary lines.” Burkhardt’s 1969 survey found that the boundary line between the Scotts’ and Anderson-Tully’s properties ran along the wire fence, making the disputed twenty acres part of Anderson-Tully’s property. Burkhardt placed flags and stakes and used blue paint to mark the boundary line along the fence. Burkhardt’s field notes reference conversations with neighboring property owners, including a Scott family member, none of whom objected to his placement of flags and stakes during his survey.

¶ 8. Anderson-Tully admitted Burk-hardt’s description, which is set out in its deed, does not specifically mention a conveyance of any land in Section 28 — the location of the disputed property. But it argues the property “is included in the description ... by reference” in the “catch-all portion of the description for the Hollywood Tract....” Anderson-Tully’s deed refers to its property as the “Pruitt” or “Hollywood” tract. Burkhardt testified that it was the seller’s intention to include the entire Pruitt or Hollywood tract in the sale of the land and that the tract included the disputed twenty acres. He testified this intention was reflected in the following “catch-all” provision in the deed:

The entire “Pruitt” place or “Hollywood” place, as now constituted, and being all of the original place except the portion thereof lying in the sixteenth or school section, is intended to be and is hereby conveyed, regardless of whether the above description be accurate and correct or not.

¶ 9. Anderson-Tully alternatively argued that if the deed did not convey the property, it owned the property through adverse possession. Starting at the time of purchase in 1969, Anderson-Tully marked its perceived boundary line along the wire fence with a particular shade of blue paint — a practice started by the company in the 1920s. The line was repainted in 1986 and 1998. Witnesses testified that the blue line along the fence was visible continuously .from 1969 through 2010, when Scott filed suit. Witnesses also testified that the particular shade of blue paint was commonly known in the community as that of Anderson-Tully. From 1969 to 2010, Anderson-Tully maintained the disputed acreage and cut and harvested timber in 1990, 1999, and 2010. The company also issued five hunting licenses to the property. Burkhardt testified that from 1969 until the end of his employment with Anderson-Tully in 1981, no one objected to his survey or interfered with Anderson-Tully’s ownership or use of the disputed tract. Burkhardt testified that if someone had regularly crossed the blue line, he would have been notified. He was never notified that the line had been crossed by anyone.

¶ 10. Wilbur Nations, upon whom much of the chancellor’s decision relied, testified for Anderson-Tully in regard to its adverse-possession claim. Nations was ninety years old when he testified, and “sharp as a tack,” according to the chancellor. Nations, coincidently, was a licensed surveyor in Alabama. Nations testified that he grew up on what he referred to as the .Hollywood tract, just east of the Scotts’ land. He lived there from 1929 to 1942, and after that would return on weekends to visit through the mid 1950s. According to Nations, the wire fence was recognized by the community as the property line, and Anderson-Tully was the owner of the property to the east of the fence. Nations testified that the Scotts had never used the disputed tract. His family, however, had used the Hollywood tract, including the disputed twenty acres, to run cattle, and they had cut timber on it. Nations recalled that as late as 1993, the Scotts cut timber up to and west of the fence line, but they never cut east of the fence line. He saw blue paint marking the property’s boundary along the fence in 1980 and 1985, and again three weeks before trial. He recognized the paint color as that used by Anderson-Tully to mark its borders.

¶ 11. In 1982, Nations joined the Linwood Hunting Club, which leased hunting land from Anderson-Tully beginning in 1972. Nations was present on the property yearly during hunting season (November-January) and throughout the year on the weekends working on roads and deer stands. He testified that the hunting-club members recognized the fence as the boundary line and were aware of the blue paint used by Anderson-Tully to mark its property’s borders. From 1995 to 2007, Linwood also leased a portion of the Scotts’ property. In 2007, Scott informed Linwood that he would not renew the lease for the 2007-2008 hunting season. A dispute arose between a Linwood member ■and Scott as to the ownership of the twenty-acre tract to the east of the fence line. Subsequently, in December 2008, Anderson-Tully’s attorney sent Scott a letter stating Anderson-Tully was the owner of the disputed tract. Scott consulted an attorney in 2009, but no legal action was taken at that time. Anderson-Tully continued to treat the land as its own, and harvested timber there in early 2010. Scott approached a logger who was on the disputed tract and told him to stop harvesting the timber on the land. The logger replied that he would need something in writing to prove Anderson-Tully was not the owner and then continued harvesting. This led to Scott’s complaint filed on March 19, 2010.

¶ 12. After reviewing the parties’ property descriptions, the chancellor concluded that neither “accurately describe[s] the disputed tract to any certainty so as to read the various descriptions and know which party is the record title owner of the property.” However, the chancellor found that “the evidence overwhelmingly support[ed]” a finding of adverse possession in favor of Anderson-Tully. Scott filed a Mississippi Rule of Civil Procedure 60(b) motion for relief from judgment or, alternatively, for a new trial. A hearing was held, at which new evidence — a thirty-two-page 1984 title abstract — was admitted. After the hearing, the chancellor denied the motion. Scott appeals, arguing the chancellor erred in finding Anderson-Tully adversely possessed the disputed property.

STANDARD OF REVIEW

¶ 18. This Court “must defer to a chancery court’s findings of fact unless they are manifestly wrong or clearly erroneous.” Double J Farmlands Inc. v. Paradise Baptist Church, 999 So.2d 826, 829 (¶ 13) (Miss.2008). “[WJhenever there is substantial evidence in the record to support the chancellor’s findings of fact, those finding must be affirmed[.]” Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992) (quoting Smith v. Dorsey, 599 So.2d 529 (Miss.1992)).

DISCUSSION

¶ 14. Scott argues Anderson-Tully presented insufficient evidence to prove a claim of adverse possession. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) states:

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

“[F]or possession to be adverse[,] it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So.2d 134, 136 (¶ 15) (Miss.2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). The claimant must prove each element by clear and convincing evidence. Id.

1. Claim of Ownership

¶ 15. To stake a claim of ownership, the possessor must “fly [his] flag over the property” in such a way as to put the actual owner on notice that the property is “being held under an adverse claim of ownership.” Apperson v. White, 950 So.2d 1113, 1117 (¶ 7) (Miss.Ct.App.2007) (citing Walker v. Murphree, 722 So.2d 1277, 1281 (¶ 16) (Miss.Ct.App.1998)). The quality, not the quantity, of acts must be considered. Id. at (¶ 8). “The mere presence of a fence, without more, [is not] sufficient to sustain a claim of adverse possession.” Double J, 999 So.2d at 829 (¶ 15).

¶ 16. After purchasing the Jefferson County property in 1969, Anderson-Tully marked its borders with its recognizable company blue paint. The blue paint ran along the wire fence erected by the Scott family and included the disputed twenty acres in Section 28. Multiple witnesses saw the paint lines between 1969 and 2010, and knew the lines marked the boundary of Anderson-Tully’s property. Thomas Middleton, a forester, performed a timber cruise at Scott’s request in 2010 to establish damages for Anderson-Tully’s removal of trees from the disputed acreage. He testified that the fence line was “distinctly painted” with blue paint. The blue paint was two different shades, indicating to him that the line had been repainted at some point. He was familiar with the blue boundary lines in the area, and he knew that the paint color was the one used by Anderson-Tully to mark its property lines. Anderson-Tully’s company records show that it painted the blue line in 1969, and repainted it in 1986 and 1998. Anderson-Tully cut and harvested timber in 1990, 1999, and 2010. It also conducted timber-stand improvements to clear the land of unwanted trees, and granted five hunting licenses to the property. The hunting licenses contained maps, which described the disputed twenty acres as part of the lease.

¶ 17. Scott asserts that regardless of Anderson-Tully’s actions, the estate has a possessory claim because he began paying property taxes on the disputed tract in 1993. The chancellor found Scott presented insufficient evidence to support his claim that he paid taxes on the disputed property. Regardless, the payment of taxes alone “is not dispositive of the claim of ownership.” Nosser v. Buford, 852 So.2d 57, 61 (¶ 17) (Miss.Ct.App.2002). Thus, we cannot find the chancellor erred in finding no merit to Scott’s argument. We find the evidence sufficient to support the chancellor’s finding that Anderson-Tully staked an ownership claim to the property from 1969 to 2010.

2. Actual or Hostile

¶ 18. “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed,” Wicker v. Harvey, 937 So.2d 983, 994 (¶ 34) (Miss.Ct.App.2006) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So.2d 826, 829 (1952)). The adverse possessor must possess the property without the owner’s permission, because permission defeats any claim of adverse possession. Apperson, 950 So.2d at 1118 (¶ 12).

¶ 19. Anderson-Tully marked, managed, harvested timber, and issued hunting licenses on the disputed property from 1969 to 2010. Anderson-Tully did not seek anyone’s permission to use the property. Nations testified that everyone, including the Scotts, treated the wire fence as the dividing line between the properties as early as the 1980s. He recalled that as late as 1998, the Scotts cut timber only to the west of the fence line, but not to its east. The testimony established that after 1969, only Anderson-Tully used the disputed property.

¶ 20. Scott argues Anderson-Tully did not actually or hostilely possess the property because it did not care for or improve the land on a regular basis. “As a general rule, either actual or constructive occupation, cultivation or residence or use is necessary to constitute adverse possession.” Kayser v. Dixon, 309 So.2d 526, 528-29 (Miss.1975). However, “[possesso-ry acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.” Ap-person, 950 So.2d at 1117 (¶ 8) (internal quotation marks and citation omitted). The property in question is undisputedly wild or unimproved land. Thus, “the quantum of proof necessary ... to establish adverse possession over the disputed parcel is measurably lower than had the property been improved or developed.” Id. “Possession of such [undeveloped] property may be established by a continued claim evidenced by public acts of ownership.” Kayser, 309 So.2d at 529. Anderson-Tully marked the fence line with blue paint in 1969,1986, and 1998. It cut and harvested timber in 1990, 1999, and 2010. It performed timber-stand improvements, and it issued five hunting licenses. We find the chancellor had substantial support in the evidence to find that these acts were public acts of ownership sufficient to establish an actual or hostile claim of ownership.

3. Open, Notorious, and Visible

¶ 21. For possession to be open, notorious, and visible, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Roberts v. Young’s Creek Inv. Inc., 118 So.3d 665, 670 (¶ 13) (Miss.Ct. App.2013) (quoting Wicker, 937 So.2d at 994 (¶ 35)).

¶ 22. The chancellor found Anderson-Tully openly and notoriously possessed the land from 1969, when it painted its boundary lines blue, until 2010, when Scott filed suit. The possession was visible, as evidenced by eyewitnesses who saw the blue paint along the fence line between 1969 and 2010. The possession was also notorious, as the fence and blue paint were recognized in the community as the dividing line between the properties. In addition to marking its borders with blue paint, Anderson-Tully cut and harvested timber, performed timber-stand improvements, and issued hunting licenses on the property. All of which were open, notorious, and visible to the public. Glynn Brown, Anderson-Tully’s regional manager over land in Jefferson County, testified that in 1990 and 1999, when timber was cut, Anderson-Tully accessed the disputed property through the Scotts’ property. Each time, the timber-cutting process took approximately a month. No one objected to their entering or cutting timber on the property. Nations testified that when loggers came onto the property, he could hear the timber being cut “a half a mile” away. This evidence supports the chancellor’s finding; that Anderson-Tully’s use was open, notorious, and visible.

A Continuous and Uninterrupted for a Period of Ten Years

¶ 28. Adverse possession requires continuous and uninterrupted possession of a disputed property for at least ten years. Miss.Code Ann. § 15-1-13(1). Even if a party is mistaken as to the calls of his deed, “if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession^]” Pittman v. Simmons, 408 So.2d 1384, 1386 (Miss.1982) (quoting Alexander, 214 Miss. at 357, 58 So.2d at 829).

¶24. Anderson-Tully’s possession began upon issuance of its deed in 1969. After marking its perceived boundary lines with blue paint, it proceeded to maintain the property, harvest timber, and issue hunting licenses. Nations testified that everyone, including the Scotts, treated the fence as the dividing line and that the Scotts never used the property east of the fence. Burkhardt testified that during his employment with . Anderson-Tully from 1969 to 1981, he was never notified that anyone other than Anderson-Tully crossed the blue line.

¶ 25. Scott argues the possession was not continuous and uninterrupted because he disputed Anderson-Tully’s possession in 2003. The chancellor recognized Scott’s objection in 2003. The chancellor also noted that at some point, Scott painted an orange line along the fence line, although it was unclear when this was done. Finally, the chancellor found Scott made an indirect claim of ownership in 2007, when he cancelled the Linwood Hunting Club lease. However, the chancellor found these actions of no consequence, as Anderson-Tully’s adverse-possession claim had ripened before Scott made the first objection in 2003. The evidence supports the chancellor’s finding that Anderson-Tully’s possession was continuous and uninterrupted for ten years.

5. Exclusive

¶ 26. “Exclusive possession means that the possessor ‘evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising the dominion of a sole owner.’ ” Roberts, 118 So.3d at 671 (¶ 15) (quoting Wicker, 937 So.2d at 995 (¶ 40)). Exclusive possession “does not mean that no one else can use the property.” Id. (citing Apperson, 950 So.2d at 1119 (¶ 15)).

¶ 27. No testimony was presented that the Scotts or anyone other than Anderson-Tully used the property on the east side of the fence after 1969. Scott argues Anderson-Tully “allowed the Scott [family] to lease the disputed 20 acres to [the Linwood Hunting Club].” However, no evidence was presented to support this argument. To the contrary, Anderson-Tully maintained that it leased the twenty acres to the hunting club, and it provided evidence of contracts with plats attached that included the twenty acres. Nations maintained that the Scotts only used the property to the west of the fence line; and Burkhardt testified he would have been notified if anyone had regularly crossed the blue line onto the twenty acres during his employment at Anderson-Tully. No one did. Thus, the evidence supports the chancellor’s finding that the possession for the statutory ten-year period was exclusive.

6. Peaceful

¶ 28. An adverse possessor’s use of a claimed property must be peaceful. Miss. Code Ann. § 15-1-13(1). “[E]xpected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful.” Roberts, 118 So.3d at 671 (¶ 16). Burkhardt testified that from 1969 to 1981, no one objected to his survey or interfered with Anderson-Tully’s ownership or use of the disputed tract. Scott argues Anderson-Tully’s possession was not peaceful because it acted without consent in removing the timber. However, as stated, the first time Scott disputed Anderson-Tully’s use of the land was in 2003, well after Anderson-Tully’s adverse-possession claim had ripened. Thus, we find sufficient evidence in the record to support the chancellor’s finding that Anderson-Tully’s possession was peaceful.

CONCLUSION

¶ 29. Anderson-Tully openly and notoriously possessed the disputed twenty-acre tract in Jefferson County from 1969 until Scott’s complaint was filed in 2010. It marked its perceived boundary line with blue paint when it purchased the property in 1969, and repainted the boundary line in 1986 and 1998. It managed timber uninterruptedly from 1969 to 2010 and harvested timber in 1990, 1999, and 2010. No testimony was presented that the Scotts or anyone else used the disputed property after 1969. We find substantial evidence in the record to support the chancellor’s finding that Anderson-Tully proved adverse possession by clear and convincing evidence. Therefore, we find the chancellor did not abuse his discretion and affirm.

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

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

      . Due to the fact that the property is situated in a non-standard township, a more thorough description of the property would be more of a hindrance than help to the reader. For example, Sections 28 and 30 abut each other for a short distance, and Section 29 lies below them at an angle.


author: FAIR, J.,

text:
    Margaret JONES, Appellant v. David BROWN, Appellee.
    No. 2013-CA-01769-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2015.

      Harry Jones Rosenthal, Natchez, attorney for appellant.
    Levoy Bryant Agnew IV, Jackson, Lee B. Agnew Jr., Terry, attorneys for appel-lee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. “Margaret Jones” and “David Brown” had a daughter, “Christina,” out of wedlock. After they broke up, David took Christina and sued for custody. Margaret’s mother intervened, contending that neither natural parent was fit because of their histories of drug use. The chancery court found the natural-parent presumption intact and awarded custody to David. Margaret appeals. As the chancellor’s findings are supported by substantial evidence, we affirm.

FACTS

¶ 2. Margaret and David began an “on again, off again” romantic relationship in 2008. Christina was born in November 2011. The extent of David’s attention to the pregnancy was disputed. However, a few months after Christina was born, the parties moved into a house together in Jackson. They lived there until September 2012, when David took the child and left. Prior to trial, the Hinds County Chancery Court ordered temporary joint custody alternately on a weekly basis.

¶ 8. David admitted he had a history of substance abuse going back twenty years or more. He testified that he had successfully completed rehabilitation in 2010 and was no longer using drugs; but Margaret was still addicted to prescription medicines and crystal methamphetamine. Margaret denied ever abusing drugs, but during the course of the litigation, she did not fully cooperate with court-ordered drug testing and on one occasion tested positive for crystal methamphetamine. Margaret alleged that David was physically and mentally abusive and was still addicted to drugs. She claimed that David had been passing drug tests by using someone else’s urine.

¶ 4. The chancellor did not find Margaret’s allegations credible, and awarded custody to David based on his rehabilitation, steady employment, and superior living conditions.

¶ 5. Margaret’s mother abandoned her claims of neglect or abuse when she testified at trial, and she has not appealed the denial of her petition.

STANDARD OF REVIEW

¶ 6. The standard of review in domestic-relations cases is limited. Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss.Ct.App.2012) (citing In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010)). This Court will not reverse a chancellor’s findings concerning modification of custody unless the chancellor was manifestly wrong or clearly erroneous, or applied an improper legal standard. In re E.C.P., 918 So.2d 809, 822 (¶ 58) (Miss.Ct.App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)).

¶ 7. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App. 2009) (citing Hensarling, 824 So.2d at 587 (¶8)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)).

DISCUSSION

¶ 8. We have rearranged Margaret’s three issues for the purpose of our analysis.

1. Guardian Ad Litem

¶ 9. Because there were allegations of neglect, the chancellor appointed a guardian ad litem for Christina. The chancellor chose a law student from Mississippi College School of Law, Thujee Lhendup, who was admitted to limited practice under the supervision of Shirley Kennedy, a professor who is also a licensed attorney. Lhendup was assigned to investigate the allegations and make recommendations as to Christina’s best interest, as an arm of the court. The chancellor was very complimentary of Lhendup’s performance, describing him as exceptionally energetic and thorough. The record bears that out.

¶ 10. Margaret takes issue not with the guardian ad litem’s execution of his duties, but with the nature of his assignment. She contends that the chancellor was required to appoint a guardian ad litem to act as an attorney for Christina, not one who would investigate and make recommendations as an arm of the court. Margaret’s argument is based on the Mississippi Supreme Court’s decision in S.G. v. D.C., 13 So.3d 269, 280-81 (¶ 47) (Miss. 2009), where the court discussed the importance of clearly defining the role of the guardian ad litem:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court — to investigate, find facts, and make an independent report .to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Margaret latches onto language from another case, In re R.D., 658 So.2d 1378, 1384 (Miss.1995), where the supreme court held minors had a due process right to “representation by” a guardian ad litem when abuse or neglect was alleged. See also Miss. Code Ann. § 93-5-23 (Rev. 2013); Miss.Code Ann. § 43-21-121 (Rev. 2009). From this Margaret argues that the chancery court was required to appoint a guardian ad litem to represent Christina as her attorney and not as an arm of the court.

¶ 11. This argument is erroneous and relies on cherry picking language from In re R.D. In fact, the court there repeatedly stated that (in the context of a termination of parental rights proceeding where abuse or neglect is at issue) the guardian ad litem had a duty to represent the child’s best interest. See id. at 1382-83, 1386. The court cited with approval cases outlining the role of a guardian ad litem as an arm of the court. See id. at 1383 (citing Short v. Short, 730 F.Supp. 1037, 1038 (D.Colo.1990); Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (Ct.App. 1990)).

¶ 12. Moreover, the supreme court in S.G. v. D.C. made a point of emphasizing that prior dictates of that court had been confusing or ambiguous on the proper role of a guardian ad litem. The court urged chancellors to make it clear what was expected:

We find no fault with any of these diverse duties and responsibilities a chancellor might assign to a guardian ad litem in a particular case. However, we encourage chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings. To avoid potential problems regarding confidential communications and other expectations, chancellors should make clear: (1) the relationship between the guardian ad litem and the children, incompetent, or other ward of the court; (2) the role the guardian ad litem will play in the trial; and (3) the expectations the trial judge has for the guardian ad litem. The role a chancellor expects a guardian ad litem to play should be set forth clearly in the written order of appointment. Doing so will make the guardian ad litem’s relationships and general responsibilities clear to each of the parties (including those wards old enough to comprehend), the attorneys, the court, and to the guardian ad litem.
S.G., 13 So.3d at 281 (¶48). The Court also acknowledged that the chancellor must have discretion and flexibility in defining the guardian’s duties on a case-by-case basis:
Setting out such expectations should not permanently bind the court should needs change as .the litigation progresses. Judges may revise these expectation by order as the need arises, so long as the guardian ad litem is not required to breach client confidences .or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, and the role of the guardian ad litem should at all times be clear.

Id. at (¶ 49).

¶ 13. Furthermore, in distinguishing between the two roles of a guardian ad litem, the S.G. court cited a case involving allegations of abuse or neglect as its example of an instance where the guardian ad litem should serve the role of investigator and arm of the court. See id. at (¶ 43) (citing S.N.C. v. J.R.D. Jr., 755 So.2d 1077, 1082 (¶¶ 15-17) (Miss.2000)). The example where the guardian ad litem should act more strictly as the child’s fiduciary or attorney was a will contest in which the child was a beneficiary. Id. (citing In re Prine’s Estate, 208 So.2d 187, 192 (Miss. 1968)). The court in S.G. also discussed potential concerns about confidentiality, but that was clearly not an issue in this case, as Christina was not old enough to meaningfully communicate with someone she believed was her attorney. See id. at 282 (¶¶ 53-54).

¶ 14. The record reflects that the guardian ad litem in this case was properly directed to act as an arm of the court in representing the best interest of the child, and he executed that duty faithfully. This issue is without merit.

2. Domestic Violence

¶ 15. Next, we consider Margaret’s argument that David should have been found “unfit” based on her allegations of domestic violence. She points out that David pled guilty to misdemeanor domestic violence relating to an incident with Margaret in 2010. David admitted that he and Margaret had fought on various occasions, but he characterized the fighting as mutual and without a significant physical dimension. Margaret’s claims of severe violence were largely generalized and never corroborated. The guardian ad litem also noted an incident where, during the pendency of this custody dispute, Margaret had falsely accused David of violence in an apparent attempt to avoid a drug test.

¶ 16. Margaret raises this issue for the first time on appeal, and her argument is cursory. She cites only foreign authority and erroneously states that Mississippi does not have a statutory scheme relating to domestic violence in custody cases. In fact, Mississippi Code Annotated section 93-5-24(9)(a) (Rev. 2013) covers exactly that, providing in relevant part:

In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.

¶ 17. We note that the chancellor did not make written findings regarding either Margaret or David’s allegations of domestic violence by the other. However, given the nature of the allegations and the parties’ failure to directly raise the issue before the chancery court, we do not find it to be reversible error in this instance. This issue is without merit.

3. Albright Factors

¶ 18.. Finally, we consider Margaret’s argument that the chancellor erred in awarding custody of Christina to David based on her application of the familiar Albright factors. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 19. In Albright, our supreme court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93-5-24. In determining the best interest of the child in custody disputes, it is the court’s duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶ 20. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Al-bright, 437 So.2d at 1005.

¶ 21. The chancellor is required to address each of the Albright factors that is applicable to the case before her. See Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss.2001). However, she need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So.2d 408, 411 (¶ 12) (Miss.Ct.App.2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way [s]he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 22. The chancellor acknowledged that this case was difficult because of the past misconduct of the parties, particularly their drug use. She found it decisive that David admitted his prior drug addiction and had a record of recent rehabilitation, a steady job, and a home; while Margaret was unemployed, planned to move in with her mother, and denied using illegal drugs despite significant evidence of her drug use, including her testing positive for crystal methamphetamine during the pendency of the custody dispute. The chancellor found most of the Albright factors nominally neutral,- though often favoring David to some extent. The exceptions were the age and sex of the child, which favored Margaret, and the willingness/capacity to provide child care and stability of the home environment, which favored David. The chancellor also acknowledged her reluctance to separate Christina from her five-year-old half-sister, who was in Margaret’s custody.

¶ 23. The chancellor concluded by saying that this was a difficult case given the parties’ histories, but: “[David] at this point in time is financially stable, has exhibited rehabilitation from his previous lifestyle, [and] has exhibited an attitude more so than [Margaret] to ensure that there is a relationship between the parents.”

¶ 24. On appeal, Margaret takes issue with the chancellor’s findings on two of the Albright factors. First, she claims the chancellor did not consider continuity of care; but this is clearly belied by the record. She also argues the chancellor had to find that this factor favored her, but the testimony at trial was that she and David had moved in together shortly after Christina was.born. Numerous witnesses described David as Christina’s primary caregiver while the parents were together, and it was David who took Christina after the breakup. During the pendency of the litigation, custody was shared between the parties on alternating weeks. Margaret also alleges that David should not be credited with caring for Christina because he “gave [her] to his mother” after the breakup, but this seems to be unsupported by the record.

¶ 25. She next argues the chancellor failed to properly consider the moral fitness of the parties, based on David’s admitted history of drug use and the fact that he had two other children from prior marriages that had been adopted, with David’s consent, by members of his family. But contrary to Margaret’s allegation, the chancellor expressly noted this during her analysis. She did not give it much negative weight, however, because it was uncontested that the adoptions had been in the children’s best interest at the time. At any rate, it is clear that the chancellor considered the consequences of David’s history of drug use, including its impact on his older children.

¶ 26. After reviewing the record, we are satisfied that the chancellor’s award of custody to David is not manifestly erroneous and is supported by substantial evidence. Margaret’s arguments to the contrary are without merit.

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

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

      . Because there are allegations of neglect or abuse of a child, we have changed the names . of the individuals involved.

      . She also contends that David has three convictions for driving under the influence, but this does not seem to be substantiated in the record.

      . The guardian ad litem testified that Margaret claimed she could not take the drug test because she was filing domestic violence charges. However, the charges were not actually filed until some time later. At trial Margaret admitted there had been no physical violence in that incident, but she alleged that the charges were substantiated by David’s entry into her home. David testified at trial that a mutual friend had told him Margaret was passed out and that Christina and her older half-sister were unattended. David had called the guardian ad litem and the police before the friend let him into the house. He found the house in a state of disorder and was unable to wake Margaret, although the police officer who arrived ultimately did. Margaret claimed she was just napping after staying up late taking care of a sick child the night before. She also alleged that David had gone through her things before the police officer arrived.
      . Margaret eventually consented to have her hair tested for drug use. The technician who took the sample testified that Margaret appeared to have altered her hair in an effort to produce a false negative result. Ultimately, the sample was lost in transit to the laboratory and was never tested.

      . Margaret claimed the results were a false positive caused by her use of a validly prescribed medication, but she did not offer any expert testimony to that effect. The technician who took the sample testified that the test was specifically for illegal crystal methamphetamine and that prescription medicines could not produce a false positive.


text:
    Henry LAWSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00641-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2015.

      William C. Stennett, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Prentiss County grand jury returned a four-count indictment against Henry Lawson for various charges related to his operating a “chop shop” in Prentiss County, Mississippi. The counts included operating a chop shop (Count I), two counts of possession of vehicles with altered or mutilated vehicle identification numbers (VIN) (Counts II and IV), and possession of a stolen vehicle (Count III). A jury convicted Lawson on Count II, but was unable to reach a verdict regarding the other counts, resulting in a mistrial on those counts. The trial court sentenced him to five years in the custody of the Mississippi Department of Corrections as a habitual offender, and ordered him to pay a fine of $5,000, with $4,000 suspended. On appeal, Lawson raises three issues: (1) evidence stemming from an invalid search and seizure of Lawson’s property in 2007 was improperly admitted; (2) the grant of the State’s motion to amend the indictment to include a habitual status was improper; (3) the weight and sufficiency of the evidence did not support the verdict. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. The Prentiss County Sheriffs Office received information that led to the execution of a search warrant on May 31, 2007, for all of Lawson’s “sheds, vehicles, and curtlidge thereto.” Lawson’s residence was at the end of a dead-end road in Jumpertown, Mississippi, near Booneville, Mississippi. During this search, the officers seized several parts from various vehicles (such as a truck frame, a truck bed, a truck cab, doors, and a hood), and VIN plates, all of which were documented by notes and photographs.

¶ 3. In 2009, after receiving information from a confidential informant, the sheriffs department obtained a warrant to search the residence of Lawson’s brother-in-law, Bennie Burcham, in Booneville. On June 22, 2009, the warrant was executed, and investigators seized several items from Burcham’s property, including a gold 2001 Chevrolet four-door extended-cab pickup, which had been reported stolen from Tu-pelo, Mississippi. The informant told Sheriff Randy Tolar that Lawson switched the VIN on this truck and sold it to Burc-ham. Burcham confirmed to officers executing the warrant that he had obtained the vehicle from Lawson. Sheriff Tolar explained that during his investigation, he determined the VIN attached to the gold 2001 Chevrolet pickup had previously been attached to a salvage vehicle — a 1999 General Motors pickup — which had been seen and photographed during the 2007 search of Lawson’s property.

¶ 4. The results of Burcham’s search and investigation led the sheriffs department to obtain a second search warrant for Lawson’s property, executed on June 23, 2009. During this search, several items were seized, including numerous vehicle parts and car tags. Further investigation led to a third search warrant of Lawson’s property, executed on July 10, 2009. Numerous vehicle parts and items were again seized, including a 2008 white Chevrolet four-door rollback truck.

¶ 5. After a four-day trial, the jury found Lawson guilty of Count II, possession of a vehicle (the 2008 white Chevrolet rollback) with an altered or mutilated VIN, in violation of Mississippi Code Annotated section 63 — 25—5(3)(a) (Rev.2013). Lawson now appeals his conviction and sentence.

DISCUSSION

I. 2007 SEARCH WARRANT

¶ 6. In a pretrial motion hearing, the trial court heard argument and testimony relating to Lawson’s motion to exclude evidence stemming from what he claims was an illegal search of his property on May 31, 2007. The trial court denied Lawson’s motion. Lawson argues that the search was illegal because the search warrant that law enforcement officers presented to Lawson was unsigned, and thus invalid. Lawson reasons that all evidence derived from this initial search warrant is “fruit of the poisonous tree,” and inadmissible.

¶ 7. The standard of review for the admission or exclusion of evidence is abuse of discretion. Stallworth v. State, 797 So.2d 905, 908 (¶8) (Miss.2001). Article 3, Section 23 of the Mississippi Constitution and the Fourth Amendment of the United States Constitution provide that citizens have the right against unreasonable searches and seizures, no warrants shall be issued without probable cause, and the warrant must be supported by an oath. Additionally, “for a search warrant to be valid it must be issued by a neutral and detached magistrate.” Ormond v. State, 599 So.2d 951, 958 (Miss.1992). “Most technical deficiencies which exist on the face of the warrant will not result in suppression unless it is clear that the defect defeats probable cause or authorizes a general search.” William E. Ringel, Searches & Seizures, Arrests & Confessions § 7:8 (2d ed.2014). “A search warrant that is not signed by the magistrate is void on its face, and any search and seizure thereunder is unauthorized and illegal.” 68 Am.Jur.2d Searches & Seizures § 211 (2010) (citation omitted). “However, a warrant supported by probable cause and otherwise valid is not void merely because of an inadvertent failure to sign it, as a mere clerical error does not void an otherwise valid warrant.” Id.; see also State v. Huguenin, 662 A.2d 708, 710 (R.I. 1995) (issuing judge’s inadvertent failure to sign a search warrant-did not render the warrant invalid where the evidence showed that the judge intended to sign the warrant).

¶ 8. Lawson is illiterate, but claims that he was never presented with a signed search warrant giving the sheriffs department authority to search his home or the surrounding premises on May 31, 2007. Lawson testified during his examination by defense counsel:

Q. [C]an you recognize a document in its form?
A. Yeah.
Q. Okay. I’m going to show you a document. Does this appear to be the document that you were presented with on the day your home was searched?
A. Yes, sir.
Q. Okay. And I notice the document was not signed. Was it signed on the day you were — it was presented to you?
A. No, sir.
Q. Is this an accurate copy of the document that was given to you on that day?
A. Yes, sir, looks like it.

The defense entered a copy of an unsigned search warrant into evidence. During his examination by the State, Lawson was handed a signed search warrant dated May 31, 2007. Lawson stated he could not “say for sure” if that was the same search warrant as the unsigned one. However, during Sheriff Tolar’s testimony, the State entered into evidence a warrant signed by Judge Bill Sartain at 2:00 p.m. on May 31, 2007, as well as an affidavit and statement of underlying facts signed on the same date and time. Sheriff Tolar maintained that this signed warrant was the actual search warrant he executed on May 31, 2007, at Lawson’s shop. We find no merit to Lawson’s argument. A copy of an unsigned warrant entered into evidence does not establish that a proper, signed warrant was not obtained prior to the search of Lawson’s property.

¶ 9. Lawson also argued that he could only give law enforcement the authority to search his residence, as he did not own or control the surrounding premises, such as the shop behind his house. The search warrant described the area to be searched as “the residence at 49 CR 7149, Booneville, MS,” and included “any and all sheds, vehicles, and curtlidge thereto.” The warrant stated the person who occupied and controlled the location was “Henry Lawson and persons unknown.” The Fourth Amendment and the Mississippi Constitution do not require that the affidavit or warrant name the “owner” of the property to be searched, just that it particularly describe the place to be searched, and the person or things to be seized. Williams v. State, 583 So.2d 620, 624 (Miss.1991). Whether or not Lawson owned or controlled the area of the search warrant does not affect the validity of the warrant. The trial court did not abuse its discretion in denying Lawson’s motion in limine.

II. AMENDMENT TO INDICTMENT

¶ 10. The State filed a motion to amend Lawson’s indictment, four days before trial, to show his status as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp.2014). At the pretrial hearing the day before trial, the State entered into evidence three documents filed in the United States District Court for the Northern District of Mississippi on December 7, 1990, to show Lawson’s prior convictions. Each document had a separate case number. State’s Exhibit 8 established that Lawson pleaded guilty to four counts of possession and possession with intent to sell a stolen motor vehicle with the VIN removed. Lawson was sentenced to three years for each count. State’s Exhibit 9 showed Lawson pleaded guilty to two counts of conspiracy to steal and possess goods, and receipt and possession of goods, from an interstate shipment of freight. Again, Lawson was sentenced to three years for each count. Finally, State’s Exhibit 10 demonstrated that Lawson pleaded guilty to one count of removing, obliterating, tampering with, or altering a VIN, receiving five years of probation.

¶ 11. Defense counsel argued that the State should be barred from amending the indictment at that late date under Rule 7.09 of the Mississippi Uniform Circuit and County Court Rules, because Lawson would be unfairly surprised and unable to formulate a defense 'to his habitual-offender status. The trial judge disagreed and allowed the amendment. On appeal, Lawson argues that allowing the State to amend his indictment to include habitual status the day before trial robbed him of seriously considering any possible plea bargain offered by the State, which could use the habitual status as a punishing tool for his not pleading guilty.

¶ 12. The standard of review for an amendment to an indictment is relatively broad. Spears v. State, 942 So.2d 772, 773 (¶ 5) (Miss.2006) (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (overruled on other grounds)). As it is a question of law, it is reviewed de novo. Id. Rule 7.09 allows indictments to be amended “to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offense justifying such enhancement .... ” URCCC 7.09. Such an amendment is allowed as long as “the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Id.

¶ 13. This Court has held that an amendment requested on the day of trial to add an enhanced penalty was proper where the defendant was “apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense.” Wells v. State, 57 So.3d 40, 48 (¶ 27) (Miss.Ct. App.2011) (citing Williams v. State, 766 So.2d 815, 816 (¶5) (Miss.Ct.App.2000)). It is well established that “a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Williams, 766 So.2d at 816-17 (¶ 5) (quoting Griffin v. State, 584 So.2d 1274, 1275-76 (Miss.1991)). Amending an indictment to charge a defendant as a habitual offender only affects sentencing and not the substance of the charged offenses, and thus is permissible. Id. at 817 (¶ 5) (citing Burrell v. State, 726 So.2d 160, 162 (Miss.1998)). The test for whether an amendment to an indictment will prejudice the defense is whether the initial defense will remain available after the amendment. Id. at (¶7) (citing Griffin, 584 So.2d at 1276).

¶ 14. Here, the amendment is to form rather than substance. No material facts were altered as to the essence of the offense; the amendment only impacted sentencing. Nor did the amendment.change Lawson’s defense in any way, or unfairly surprise him. While the supreme court has held that an amendment to an indictment to reflect habitual-offender status after conviction is an unfair surprise, this amendment was before trial. See Gowdy v. State, 56 So.3d 540, 545 (¶ 19) (Miss. 2011) (defendant not charged as habitual offender for DUI until after guilty verdict, and before trial State was also allowed to add additional crime to elevate defendant’s conviction). Lawson could not have been “surprised” at the habitual-status amendment, as certified copies of his prior indictments were provided to him during discovery two years before trial, making Lawson aware of the State’s intentions. Accordingly, the amendment to the indictment was not untimely.

¶ 15. Lawson also argues that the trial court erred in allowing the State to amend his indictment because the State did not prove that the charges arose out of separate incidents at different times, as required by the statute. Section 99-19-81 provides:

Every person convicted ... of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and ... sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, ... shall be sentenced to the maximum time of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). At trial, however, Lawson did not object to the amendment on these grounds, but to the timing of the motion under Uniform Rule of Circuit and County Court 7.06. It is well established that an objection on one ground waives all other unspecified grounds. DeSalvo v. State, 776 So.2d 704, 710 (1120) (Miss.Ct. App.2000) (citing Carter v. State, 722 So.2d 1258, 1261 (¶ 13) (Miss.1998)). Lawson did not object during sentencing either. Accordingly, this argument is procedurally barred. Further, Lawson’s argument lacks merit. Sentences handed down on the same day are not indicative of counts arising from the same incident, as Lawson argues. Three separate cause numbers were issued for each conviction — CRE89-70-B, CRE-90-47-B, and CRE90^8-B— giving further circumstantial evidence that two of the three crimes were committed in different years. This issue is without merit.

III. WEIGHT AND SUFFICIENCY OF THE EVIDENCE

¶ 16. Lawson claims that the weight and sufficiency of the evidence were inadequate to support his conviction for Count II of the four-count indictment. Count II charged Lawson with “wilfully, unlawfully and feloniously possessing] a vehicle with an altered or mutilated Vehicle Identification Number, being a white Chevrolet rollback [VTN] 1GDJC34KOME509051, with the knowledge that said [VIN] of the motor vehicle was altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated or removed.... ” Lawson argues he had no criminal intent in possessing the Chevy rollback vehicle, which he states was used to carry his racing vehicles to events.

¶ 17. A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). All credible evidence consistent with guilt will be accepted as true. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 18. A motion for a new trial challenges the weight of the evidence. The reviewing court will not disturb the verdict unless allowing “it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be viewed in the light most favorable to the verdict. Id. The role of the jury is to assess the weight and credibility of the evidence and resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005).

¶ 19. Lawson was indicted under section 63-25-5(3)(a), which reads:

Any person who buys, disposes, sells, transfers or possesses a motor vehicle or motor vehicle part with the knowledge that the vehicle identification number of the motor vehicle or motor vehicle part has been altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated or removed shall be guilty of a felony.

The evidence presented at trial shows a rational trier of fact could have found the elements of the charge beyond a reasonable doubt. During the June 23, 2009 search of Lawson’s property, Sheriff Tolar found “automotive parts scattered all over” the basement, such as steering columns, air bags, and even a motor. Saw blades used to cut up vehicles were lying on the floor of the basement. Law enforcement also found a boat registration number on an adhesive strip. The number related to a boat belonging to Jeff Sanders of Tupelo, Mississippi. The Tupelo Police Department discovered that Jeff Sanders was also the victim of an automotive theft of a 2008 white Z-71 4X4 GMC truck. Sanders’s insurance company provided the ignition key to his stolen vehicle, which Sheriff Tolar used to unlock a glove-compartment box found in Lawson’s basement. Sheriff Tolar also found a tailgate and bumper during the search, and was able to unlock the tailgate lock and the bumper lug-lock for a spare tire with this key, indicating all of these parts came from Sanders’s stolen truck. Also found in Lawson’s junkyard was the bed of a white Z-71 4X4 truck consistent with the make and model of Sanders’s truck. Sheriff Tolar also testified that a confidential informant told him that a white rollback truck which Lawson had been seen driving was built from a cut truck. The VIN on the rollback truck showed the truck should have been a two-door standard-cab truck, while the truck was actually an extended-cab truck. The VIN also showed the truck should have been a GMC but the emblems outside the vehicle indicated it was a Chevrolet. A rational jury could infer from this evidence that the rollback truck was put together as a result of a chop shop, made from a cutup truck that belonged to Sanders. The tag of the vehicle was registered to Lawson’s race-car business with his residence’s address. As stated earlier, pieces of the stolen truck were found inside Lawson’s basement, as well as on the property outside of his residence, showing Lawson’s possession of the truck.

¶ 20. The facts and circumstances also establish Lawson’s criminal intent. “Intent, being a state of mind, is rarely susceptible of direct proof, but ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them.” Jones v. State, 920 So.2d 465, 472 (¶ 17) (Miss.2006) (quoting Harris v. State, 642 So.2d 1325, 1327 (Miss.1994)). The evidence was more than sufficient to support the verdict, and allowing the verdict to stand does not sanction an unconscionable injustice.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY OF CONVICTION OF POSSESSION OF A VEHICLE WITH AN ALTERED OR MUTILATED VEHICLE IDENTIFICATION NUMBER AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A FINE OF $5,000 WITH $4,000 SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PRENTISS COUNTY.

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

      . For the purposes of this opinion, only the vehicle parts and vehicles related to Lawson's conviction and this appeal will be discussed in detail.

      . At trial, Sheriff Tolar explained that "rollback” trucks "are commonly used by wrecker services.” Unlike a tow truck, where the vehicle to be towed needs to be hooked to cables, the bed of a rollback slides down to the ground, and the vehicle can be pulled onto the bed, and then the bed is raised.

      . In summary, there were three warrants executed to search Lawson’s property: this first one in May 2007, a second warrant executed on June 23, 2009, and a third warrant executed July 10, 2009. All were entered into evidence. Additionally, there was one warrant executed to search Burcham's property on June 22, 2009. Numerous items were seized during each of these searches.


text:
    Harvey HALEY, Appellant, v. Anna JURGENSON, Ageless Remedies Franchising, LLC, Ageless Remedies Medical Skincare and Apothecary and Dr. George E. Abraham, III, Appellees.
    No. 2013-CA-01200-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2015.
    Jennie Austin Eichilberger, Ashley Lekesha Hendricks, Darryl Moses Gibbs, Jackson, attorneys for appellant.
    Chris J. Walker, M. Garner Berry, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES AND ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. In this medical-negligence case, Harvey Haley alleged that he sustained injuries after Anna Jurgenson negligently performed a medical procedure on Haley with a laser device. The circuit court determined that Haley had failed to establish that a genuine issue of material fact existed as to the causation element of his claim and granted summary judgment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Haley alleges that, on December 17, 2008, he went to Ageless Remedies Medical Skincare and Apothecary in Flo-wood, Mississippi, to drop off business cards for his hair-cutting business. When he arrived, he spoke to Anna Jurgenson, an aesthetician. Haley and Jurgenson had previously worked together at Trio Spa and Salon. Haley alleges that Jurgenson offered to perform a medical procedure using a photofacial laser device to remove pimples from his face. Haley further alleged that after the medical procedure, his face was severely burned, leaving scars on his cheek and nose.

¶ 3. On October 26, 2010, Haley filed his complaint against Anna Jurgenson, Ageless Remedies Franchising, LLC, Ageless Remedies Medical Skincare and Apothecary, and Dr. George E. Abraham III. The complaint alleged claims of medical negligence, negligent training and supervision, and negligent infliction of emotional distress. The claims arose out of the alleged injuries he suffered from the professional medical services he received from Jurgenson and Ageless Remedies. The defendants filed their responsive pleadings and denied the averments in the complaint, and discovery ensued.

¶ 4. On January 16, 2013, the defendants filed a motion for summary judgment. The motion included an itemization of material facts relied upon and not genuinely disputed, which not only included deposition testimony from the defendants that established that neither Jurgenson nor anyone at Ageless Remedies performed the medical procedure on Haley, but deposition testimony from Haley himself that established that neither Jurgen-son nor anyone at Ageless Remedies performed the medical procedure on him. Haley testified in his deposition that he initially told Dr. George Abraham at Ageless Remedies that Dr. Donald Faucett of Trio Spa and Salon, his designated physician expert, actually performed the medical procedure. The defendants also presented evidence that Haley stated to his attending physician, Dr. Sam Fillingane, that Dr. Faucett performed the photofacial laser procedure on him. Haley did not provide a sworn affidavit from Dr. Faucett, as part of his response to the motion for summary judgment, that established the standard of care and that the defendants’ breach of that standard of care was the proximate cause of Haley’s injuries.

¶ 5. On May 20, 2013, the circuit court heard arguments on the motion for summary judgment. On June 14, 2013, the circuit court entered an order that granted the motion. Specifically, the circuit court ruled “[t]he prime reason for granting the motion for summary judgment is I find that even at this point the Plaintiff has not provided a — a medical malpractice case, and has not provided an expert doctor’s opinion as to causation here.” It is from this judgment that Haley now appeals.

DISCUSSION

I. Standard of Review

¶ 6. The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss.2013). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. The supreme court has held:

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden- of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks and citations omitted).

¶ 7. The Karpinsky court succinctly clarified this standard in a manner in which we can relate to the parties here:

[W]hile [the defendants] carrfy] the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [Haley] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial. Conversely, because [the defendants] do not carry any burden of production at trial, they also do not cany any burden of production at the summary-judgment stage.

Id. at 89 (¶ 13). In this appeal, we consider whether Haley produced sufficient evidence of the essential elements of his medical-negligence claim.

II. Causation

¶ 8. Haley argues that the circuit court erred when it granted summary judgment in this matter due to Haley’s inconsistent statement in regard to who actually performed the medical procedure in question. He also argues that his remaining claims were improperly dismissed even if summary judgment was proper in his medical-negligence claim.

¶ 9. The circuit court’s order, however, held:

The Court finds and holds that the Defendants have met the burden required of them under the standard for summary judgment and that Defendants’ Motion for Summary Judgment should be granted.
This action is a negligence action, medical malpractice negligence action, and negligent infliction of emotional distress action brought by Plaintiff against Defendants. The Court finds that Plaintiff has failed at this point during the litigation to support his medical negligence action with expert medical testimony on causation. While [P]laintiff argued and asserted that there is no current trial setting and he could have an opportunity to supplement at a later time, the law pertaining to a motion for summary judgment requires Plaintiff to produce sworn testimony from an expert as to the breach of the standard of care, which has not been done here. See Posey v. Barrow [Burrow], 93 So.3d 905 (Miss.Ct.App.2012).
Finally, at this point in the litigation, the evidence and proof as outlined in the motions and pleadings before this Court [are] insufficient for Plaintiff to withstand and overcome the granting of summary judgment as Plaintiff has failed to come forward with sufficient credible evidence upon which a fair-minded juror could find in Plaintiffs favor to support each element of his claim.

¶ 10. Despite Haley’s claim that the grant of summary judgment was based solely on his inconsistent statements and his failure to address the issue of causation in his brief, it is clear that the circuit court based the grant of summary judgment on Haley’s failure to substantiate the causation element of his medical-malpractice claim with expert medical testimony. We agree with the circuit court and find that this issue is dispositive of this case.

¶ 11. This Court has held that in a medical-malpractice claim, “expert testimony must be used.” Posey v. Burrow, 93 So.3d 905, 907 (¶ 8) (Miss.Ct.App.2012) (quoting Burner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). Further, “[n]ot only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted). This Court has further held that “[u]nless the matter is within the common knowledge of laypersons, to establish a prima facie case of medical negligence against a physician, a plaintiff must present competent expert testimony as to the applicable standard of care, breach, and proximate causation.” Langley ex rel. Langley v. Miles, 956 So.2d 970, 976 (¶ 17) (Miss.Ct. App.2006) (citing Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987) (overruled on other grounds)). In Langley, this Court found that the circuit court did not err in granting summary judgment because no sworn medical evidence was produced, and “a sworn affidavit of an expert witness attesting to the standard of care and that the defendants’ treatment of Langleyf, the plaintiff,] breached the standard of care” was required. Id.

¶ 12. Here, we find that Haley failed to create a genuine issue of material fact as to the causation element of his medical-malpractice claim. It is clear from the record that Dr. Faucett, Haley’s designated physician expert, provided opinions that did not articulate the requisite standard of care that was allegedly breached, nor did his opinions establish that any breach of that standard of care by the defendants proximately caused Haley’s injuries. Dr. Faucett did not even provide a sworn affidavit, as part of the response to the summary-judgment motion, that established the requisite standard of care and that the defendants’ breach of that standard was the proximate cause of Haley’s injuries. He was listed in the answer to the defendants’ interrogatories as an expert. However, he is not listed under the interrogatory that identified who would be designated to testify as to the breach of the standard of care. The evidence that Haley submitted alone is insufficient to establish a prima facie case of medical malpractice; therefore, Haley failed to dispute the defendants’ claims in their affidavit and failed to show a genuine issue of material fact as to the proximate cause. Therefore, we find that this issue has no merit.

¶ 13. Because we find that the failure of Haley to create a genuine issue of a material fact as to the elements of his medical-malpractice claim is dispositive of this case, we forgo consideration of the issue of Haley’s contradictory statements as to who performed the medical procedure. We affirm the judgment of the circuit court.

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

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