author: COLEMAN, Justice,

text:
    William GRAY, Individually, and on Behalf of the Wrongful Death Beneficiaries of William T. Gray. v. ARCH SPECIALTY INSURANCE COMPANY.
    No. 2013-CA-01124-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2014.
    Jason D. Herring, Michael S. Chapman, Tupelo, attorneys for appellant.

      Everett White, William N. Reed, Marle-na P. Pickering, Jackson, Monica A. Frois, attorneys for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

• ¶ 1. The Monroe County Circuit Court granted summary judgment in favor of Arch Specialty Insurance Company, finding that Arch’s general liability policy did not provide coverage for the claims asserted by the 'wrongful death beneficiaries of William Gray. The Grays’ claims of negligent hiring, negligent training, and failure to implement appropriate triage protocols arose from the performance of or failure to perform medical services, which the general liability policy excludes. The Grays appealed. We affirm.

Factual Background

¶ 2. William Gray was in a car wreck on April 8, 2006, and paramedics employed by Emergystat, Inc. and Southland Health Services, Inc. responded. William died shortly thereafter. On April 7, 2009, William’s wrongful death beneficiaries (the Grays) filed suit against Emergystat, Southland, and various employees. The Grays claimed that William was alive when the paramedics arrived and that he “remained alive for one hour before properly being attended, treated[,] and cared for[.]” They alleged that Emergystat and South-land were negligent in rendering medical care to William, resulting in his death. They also alleged negligent hiring, negligent training, and failure to implement .appropriate triage protocols. The defendants did not answer the complaint, and the Grays filed an entry of default.

¶ 3. Two days before filing the entry of default, the Grays’ attorney notified Arch Specialty Insurance Company of the suit and advised that a policy Arch had issued to Emergystat and Southland could be implicated. Arch investigated the claim and informed Emergystat and Southland that the policy did not provide coverage. In December 2009, the trial court entered a default judgment against Emergystat and Southland for $1,251,822. Six months later, the Grays filed a writ of garnishment against Arch in an attempt to collect under the insurance policy. Arch denied that the Grays were entitled to collect and filed a motion for summary judgment. The circuit court granted Arch’s motion, finding that the policy did not provide coverage. The Grays appealed.

Discussion

¶ 4. The issue on appeal is whether the Arch general liability policy, issued to Emergystat and Southland, covers the Grays’ claims of negligent hiring, negligent training, and failure to implement appropriate triage protocols. “The proper construction of an insurance contract provision is a question of law[,] which we review de novo.” Farmland, Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 717 (¶ 10) (Miss.2004) (citation omitted). The Court also reviews a trial court’s grant of summary judgment de novo. S. Healthcare Servs., Inc. v. Lloyd’s of London, 110 So.3d 735, 743 (¶ 17) (Miss.2013). Summary judgment is appropriate if the moving party proves “there is no genuine issue as to any material fact.” Miss. R. Civ. P. 56(c).

I. The Arch Insurance Policies

¶ 5. Arch issued an umbrella policy to Emergystat and Southland for the period of November 9, 2002, to December 1, 2007. The umbrella policy provided two types of coverage: professional liability and general liability. The Professional Liability Policy was a “elaims-made” policy, which afforded coverage for damages arising from “medical professional injury” that resulted “from acts or omissions in the providing of or failure to provide ‘health care professional services’ by or for an insured.” The General Liability Policy covered damages for bodily injury and property damage caused by an “occurrence” during the coverage period, but it specifically excluded damages resulting from “the performance of or failure to perform ‘health care professional services.’” The term “health care professional services” had the same definition in both policies. Thus, in Arch’s words, the General Liability Policy excluded what the Professional Liability Policy included.

¶ 6. Arch moved for summary judgment, claiming that the Grays were not entitled to payment under either policy. Arch maintained that the Professional Liability Policy did not provide coverage because it was a “claims made” policy, which covered only claims made during the policy period, and the Grays did not make a claim during the policy period. Arch asserted that there was no coverage under the General Liability Policy because William’s death was the result of the failure to perform medical services, so the “healthcare professional services” exclusion applied. The circuit court agreed. On appeal, the Grays seek payment under the General Liability Policy only.

¶ 7. The allegations in the Grays’ complaint became fact when the Grays obtained the default judgment. Capital One Servs., Inc. v. Rawls, 904 So.2d 1010, 1018-19 (¶ 30) (Miss.2004) (quoting Journey v. Long, 585 So.2d 1268, 1272 (Miss. 1991)). Thus, taking the facts in the com-' plaint as true, it was the paramedics’ failure to provide proper medical care that resulted in William’s death. The General Liability Policy excludes from coverage “ ‘[bjodily injury or ‘property damage’ that result from the performance of or failure to perform ‘health care professional services.’” The policy defines “health care professional services” as follows:

a. Medical, surgical, , dental, x-ray, nursing, mental, or other similar health care professional services or treatments.
b. Providing or dispensing of food, beverages, medications or medical supplies or appliances in connection with services described in Paragraph a. above.
c. Handling or treatment of dead bodies, including autopsies, organ donation or harvesting, or other procedures.
d. The work of your formal accreditation, standards review or equivalent professional board or committee, done for any insured while:
(1) Evaluating the professional qualifications or clinical performance of any provider of health care professional services; or
(2) Promoting and maintaining the quality of health care professional services being provided.
e. The execution, or failure to execute, a decision or directive of your formal accreditation, standards review or equivalent professional board or committee.

The paramedics were providing medical services or treatment to William, and their conduct falls under section A of the “health care professional services” exclusion. The Grays do not dispute that section A excludes medical services, but they assert that their claims for negligent hiring and training are not excluded under that section.

II. Negligent Hiring and Training Claims

¶ 8. The Grays assert that the “health care professional services” exclusion does not exclude their claims for negligent hiring, negligent training, and failure to implement appropriate protocols. The Grays’ argument is difficult to follow, so we quote it verbatim from their brief:

Section “A” of the “health care professional services” definition does not apply to claims for negligent hiring, negligent training[,] and failure to implement appropriate protocols because Sections “D” and “E”, which specifically reference such types of claims, must be given effect since they were included in the drafting of the definition. In the General Policy, Section “D” of the “health care professional services” definition only excludes claims for negligent hiring, negligent training[,] and failure to implement appropriate protocols when the insured has met the required condition to have a formal accreditation, standards review[,] or equivalent professional board or committee involved in its hiring and training process. There was no evidence in the lower court to support any work or involvement of a formal accreditation, standards review!,] or equivalent professional board or committee in the hiring, training!,] or supervising process. Therefore Section “D” does not provide an exclusion to coverage under the General Policy.

To summarize, the Grays maintain that sections D and E are conditional, so that “health care professional services” claims are excluded only if the insured met the requirement of having a formal accreditation, standards review, or an equivalent board involved in its hiring and training process. In the alternative, the Grays argue that section A, which excludes damages resulting from the performance or failure to perform medical services, should not exclude independent causes of action like negligent hiring, training, and supervising. They did not cite any caselaw to support that argument.

¶ 9. Arch maintains that a plaintiffs legal theory does not determine the applicability of exclusions; if an exclusion applies, then it applies to all theories of liability. We agree. The Court has held that, if the injury would not have resulted “but for” the excluded service, then the exclusion applies to all theories of liability. See Meyers v. Miss. Ins. Guar. Ass’n, 883 So.2d 10, 16 (¶ 26) (Miss.2003); Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (¶¶ 18-19) (Miss.2002). Both Meyers and Titan dealt with injuries that resulted from automobile accidents, and the policies at issue had auto exclusions. In Titan, the Court held:

Although the Estes family argues that the other proximate causes asserted are not so intertwined with the use or maintenance of the fire engine to fall within the auto exclusion, we disagree. Coverage under the CGL policy should not vary depending upon the theories of liability asserted. This Court will not recognize a strained interpretation of a policy. Allstate Ins. Co. v. Moulton, 464 So.2d 507, 510 (Miss.1985); Warren v. United States Fid. & Guar. Co., 797 So.2d 1043, 1045 (Miss.Ct.App.2001) (quoting Love v. McDonough, 758 F.Supp. 397, 402 (S.D.Miss.), aff'd mem., 947 F.2d 1486 (5th Cir.1991)).
The Estes family would not have been damaged but for the collision between the fire engine and Hailey’s vehicle. Therefore, given the clear and unambiguous language of the auto exclusion, the Court finds that the auto exclusion forecloses coverage under the CGL policy.

Accordingly, the trial court erred in finding that the CGL policy applied. Titan, 825 So.2d at 656 (¶¶ 18-19) (emphasis added). Likewise, in Meyers, the Court used the “but for” language in reasoning that coverage was not available under the policy:

The present GCL policy provides coverage for bodily injury damages but excludes such coverage for damages arising out of the use of an automobile. Meyers contends that the theories of liability asserted, negligent hiring and failure to maintain adequate safety programs[,] allow recovery under the GCL for auto accident injuries despite this auto-exclusion.... There is no question that the tractor-trailer truck involved in the present case is an automobile. There is also no question that Meyers would not have been injured but for the collision between the truck and his vehicle.
Coverage under a GCL policy with an auto-exclusion for injuries arising out of the use of an automobile “should not vary depending upon the theories of liability asserted.” Titan[,] 825 So.2d [at] 656[.] ...
The controlling case law in Mississippi is clear: claims of negligent entrustment, negligent supervision, and failure to train will not be recognized as independent acts of negligence sufficient to allow coverage underinsurance policies, whether homeowners or GCL policies, with an auto-exclusion where the damages arise out of the use of an automobile. More broadly, application of the exclusion is not dependent on the theory of liability asserted. [Love, 758 F.Supp. at 402]; Titan, 825 So.2d at 656.

Meyers, 883 So.2d at 13-14, 16 (¶¶ 19-20, 26) (emphasis added). . Both Meyers and Titan cited a case from the Southern District of Mississippi that had addressed the same issue: Love by Smith v. McDonough, 758 F.Supp. 397 (S.D.Miss.1991).

¶ 10. In Love, the plaintiff’s bodily injury arose out of the defendant’s daughter’s “use of a motor vehicle,” so the defendant’s homeowner’s insurance policy did not cover the plaintiffs claim. Love, 758 F.Supp. at 400. The court held that the “[plaintiffs flawed theory is that the bases of liability against [the defendant], negligent entrustment, negligent supervision, and statutory liability pursuant to Section 63-1-25, are unrelated to the use of the automobile by [defendant’s daughter].” Id. The issue in Love was one of first impression, and the southern district court was “Une-bound” to predict how the Mississippi Supreme Court would have ruled. Id. That court wrote:

There is one salient question that is the key to determining whether coverage is provided by policies using exclusions worded as the one before the Court. Did the plaintiffs injuries arise out of the use or ownership of an automobile by an insured? If they did, then there is no coverage under the policy. The Supreme Court of Mississippi has made its position clear that it will not recognize “strained interpretations” of policies in order to create otherwise nonexistent coverage. Allstate Insurance Co. v. Moulton, 464 So.2d 507, 510 (Miss.1985). The Court, thus, has no reason to believe that the Mississippi Supreme Court would adopt the reasoning urged by [p]laintiff.
... The Court reiterates that the subject policy provision clearly and unequivocally excluded coverage for bodily injury arising out of the ownership and use of a motor vehicle owned or operated by any insured. Asserting a different theory of liability to perform an end-run around the exclusion strains the clear and unambiguous language of the provision out of all bounds, and this the Court refuses to do. Application of the exclusion is not dependent on the theory of liability asserted.

Id. at 402. Although Titan, Meyers, and Love dealt with automobile exclusions, rather than &■ health care professional services exclusion, the same rationale applies here.

¶ 11. Due to the entry of default judgment, the Court takes as true the allegation that William’s death resulted from the paramedics’ performance of or failure to perform medical services. The General Liability Policy does not provide coverage for claims that arise from health care professional services. The policy is unambiguous; sections D and E are not applicable to the facts at hand, no matter how the Grays framed the issues. The Grays would not have been damaged but for the paramedics’ failure to provide medical attention, which is an excluded service under section A. Therefore, the exclusion applies to damages arising from the failure to provide medical services regardless of the theories of liability asserted. See Meyers, 883 So.2d at 16; Titan, 825 So.2d at 656. Arch’s general liability insurance policy does not cover the Grays’ claims for negligent hiring, negligent training, and failure to implement appropriate protocols.

Conclusion

¶ 12. Application of an exclusion in an insurance policy does not depend on the plaintiffs theory of liability. If the injury would not have resulted “but for” the excluded service, then the exclusion applies to all theories of liability. The “health care professional services” exclusion excluded the Grays’ claims from coverage. We affirm the circuit court’s grant of summary judgment.

¶ 18. AFFIRMED.

WALLER, C.J., DICKINSON .AND RANDOLPH, P.JJ., LAMAR,- KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.

      . Claims brought under the Professional Liability Policy had to be filed during the policy period (November 9, 2002-December 1, 2007) to be covered. The Grays filed their complaint on April 7, 2009. Thus, the claims were not covered. The Grays do not dispute the lack of coverage, and they seek payment under the General Liability Policy only.

      . See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . At least one Texas court has held that a "health service or treatment” exclusion in a general liability policy precluded coverage for claims of negligent hiring, training, supervision, and failure to institute adequate policies and procedures. Duncanville Diagnostic Ctr., Inc. v. Atlantic Lloyd’s Ins. Co., 875 S.W.2d 788, 792 (Tex.App.1994). Texas courts apply the same principles as Mississippi courts to determine if coverage is afforded: To determine whether an exclusion applies, Texas courts "examine the factual allegations showing the origin of the damages rather than the legal theories asserted by the plaintiff.” Canutillo Indep. Sch. Dist. v. Nat'l Union Fire Ins. Co., 99 F.3d 695, 703-04 (5th Cir.1996) (citations omitted). If a claim "would not exist ‘but for' conduct explicitly excluded by the policy, the dependent claims are also not covered under the policy.” Id. at 704.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Russell Gary O’BRIEN, Appellant v. Teri Suzanne O’BRIEN, Appellee.
    No. 2012-CA-00660-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.
    Rehearing Denied Sept. 2, 2014.
    Certiorari Denied Oct. 23, 2014.

      Carol Ann Estes Bustin, Hattiesburg, attorney for appellant.
    Jonathan Michael Farris, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Russell Gary O’Brien appeals the chancellor’s judgment of divorce. He argues that the decree “reads like a honky tonk chorus,” and he refers to Jerry Reed’s hit song “She Got The Goldmine (I Got The Shaft).” We affirm in part and reverse and remand in part.

FACTS

¶ 2. Russell and Teri Suzanne O’Brien were married on January 2, 2002, and separated in October 2010. Russell and Teri both had children from prior marriages, who are now adults.

¶ 3. On February 2, 2011, Teri filed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and in the alternative, irreconcilable differences. Russell answered and filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment. The chancellor entered a temporary order on child custody, child support, spousal support, payment of bills and medical expenses, and homestead rights.

¶ 4. Russell and Teri agreed to withdraw their fault grounds and proceed with an irreconcilable-differences divorce. They submitted certain issues for the chancellor to decide. The trial was held in March 2012.

¶ 5. Russell testified that he worked as a welder. In his 2011 tax return, Russell’s adjusted gross income was $121,483 (his gross income was reduced by $4,500 for alimony paid), and his taxable income was $68,814. He also testified that he had been unemployed but recently began work in the pipeline business.

¶ 6. Teri testified that she was a high-school graduate who completed one semester of studies in electronics. She worked off and on during the marriage as a pharmacy technician, medical assistant, substitute teacher, and part-time cashier. At the time of the trial, she was working at Fred’s pharmacy and as a part-time tutor at the Lamar County Schools. She testified that her gross income was $1,567.91 per month, and she received $1,900 per month from Russell, pursuant to the temporary support order.

¶ 7. In the final judgment, the chancellor granted a divorce on the ground of irreconcilable differences. The chancellor also adopted Russell and Teri’s agreement on the issues of child custody and visitation; Teri and Russell would share joint legal custody of their minor child, Teri would have physical custody, and Russell would be allowed reasonable visitation based on his uncertain work schedule. The judgment divided the marital property and debt, it awarded Teri periodic alimony in the amount of $600 per month, and it awarded Teri child support of $900 per month. The chancellor also made other awards that are not contested here. It is from this judgment that Russell now appeals.

STANDARD OF REVIEW

¶ 8. In domestic-relations cases, normally, this Court “will not disturb a chancellor’s judgment when it is supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard[.]” Rolison v. Rolison, 105 So.3d 1136, 1137 (¶ 4) (Miss.Ct.App.2012) (citations and quotations omitted). “If the chancellor’s findings are supported by substantial evidence, then we will affirm.” Id. (citation omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss.Ct.App. 2009).

ANALYSIS

1. Whether the chancellor erred in finding Russell in contempt for violating the temporary support order.

¶ 9. Russell argues that it was error to find him in contempt for violating the temporary support order. Russell claims that the chancellor did not rule on his motion for relief from the temporary support order before the final divorce decree was entered.

¶ 10. Mississippi Code Annotated section 93-5-17(2) (Rev.2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So.2d 1052, 1055 (¶ 15) (Miss.Ct.App.2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So.2d 672, 674-675 (Miss.1978). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So.2d 740, 742 (Miss.1991).

¶ 11. The chancellor determined that Russell owed Teri the sum of $7,439.05, which was the arrearage of the temporary support order. The chancellor also determined that Russell was not in wilful contempt, and Russell was ordered to pay the $7,439.05 arrearage in payments of $200 per month. We find that the chancellor was within his discretion when he found Russell in contempt for violating the temporary support order. Russell admitted in his testimony that he did not pay the credit-card debts, child support, or medical costs not covered by insurance as mandated in the temporary support order. Apparently, the chancellor considered Russell’s unemployment as a basis to not hold him in wilful contempt and to permit the arrearage to be paid in monthly installments. As to this issue, we find no merit to Russell’s claims. We affirm the chancellor’s finding on contempt.

2. Whether the chancellor erred in the award of child support.

¶ 12. Mississippi Code Annotated section 43-19-101(4) (Rev.2009) provides that “[i]n cases in which the adjusted gross income ... is more than Fifty Thousand Dollars ($50,000.00) ... the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” (Emphasis added). Here, the chancellor determined Russell’s income to be $68,000 per year and awarded child support in the amount of $900 per month. Russell argues that it was reversible error for the chancellor to fail to make written findings as to the application of the child-support guidelines.

¶ 13. Teri concedes that the chancellor made no written findings to justify the child-support award. However, Teri argues that the award should be affirmed because Russell failed to accurately disclose his financial information.

¶ 14. This Court was confronted with a similar issue in Peters v. Peters, 906 So.2d 64, 71 (¶ 32) (Miss.Ct.App.2004). In Peters, an award of child support was- affirmed when this Court found that the appellant was in no position to complain about possible inaccuracies in the income amount used by the chancellor to calculate the child-support award, as those inaccuracies were due to the appellant’s lack of candor in disclosing his financial condition. Id. (citing Dunn v. Dunn, 695 So.2d 1152, 1156-57 (Miss.1997)).

¶ 15. We begin with Mississippi Code Annotated section 43-19-101(4), which requires the chancellor to “make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” Here, the chancellor made the following findings as to child support:

[T]he court is not certain what Mr. O’Brien’s exact take-home pay is. The court — at one point he testified or produced evidence showing that — maybe on his income tax return that his income may be $68,000 per year. Mrs. O’Brien through her attorney sought to say that most of those deductions were paper deductions; that Mr. O’Brien had some control over how his taxable income is reduced, depending upon the information that he chose to give to his tax preparer. The court does look at those and take them into consideration.
The court determines the child support award will be $900 per month.

¶ 16. The record here includes Russell’s 2011 tax return. His adjusted gross income was $121,483 (his gross income was reduced by $4,500 for alimony paid), and his taxable income was $68,814 (reduced by $35,654 in job-related itemized deductions). Although it appears that the $68,000 comes from Russell’s net income, after expenses, not just his adjusted gross income, this is the exact situation where this Court needs the chancellor to make a written finding as to the amount of income upon which the award of child support was based and the reason that the amount awarded is reasonable. For example, if the chancellor used $68,000 as the amount of income and applied the statutory percentage (fourteen percent), the monthly child support would be $793. To arrive at $900 per month, we would have to assume the chancellor used an approximate income of $77,000 multiplied by the statutory amount.

¶ 17. We find that the chancellor’s statement was not enough to satisfy the requirements of section 43-19-101(4). To be sufficient, the chancellor should disclose the basis for the calculations. This would require the chancellor to state whether the award was based on the statutory child-support guidelines (section 43-19-101(1)) and discuss the reasonableness of the award. Therefore, we reverse the chancellor’s award of child support and remand for further proceedings consistent with this opinion.

3. Whether the chancellor erred in determining the alimony award based on the consideration of fault.

¶ 18. Russell next argues that it was reversible error for the chancellor to allow evidence of fault to be admitted. He argues that evidence of fault in the dissolution of the marriage was not relevant because the fault grounds of divorce were withdrawn and an irreconcilable-differences divorce was granted.

¶ 19. Teri offered evidence that Russell had been involved in inappropriate relationships on social media and through dating-referral services. Teri also claimed that both she and her son had discovered Facebook solicitations to Russell from a female who displayed suggestive photos. Based on this evidence, the chancellor found that the breakup of the marriage was caused by Russell’s “outside relationships with other women.”

¶ 20. First, to determine alimony, the chancellor must consider the Armstrong factors. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Factor ten is “[f]ault or misconduct.” As a result, evidence of marital fault is relevant evidence when there is a claim of alimony. Second, in Singley v. Singley, 846 So.2d 1004, 1008 (¶ 10) (Miss.2002), the supreme court held “fault should be considered by the chancellor in determining equitable distribution of a marital estate.”

¶ 21. Evidence of marital fault or misconduct is relevant and admissible when the court considers equitable, distribution of property or alimony. Thus, we find no error under this issue.

A Whether the chancellor erred in his division of marital property and award of alimony.

¶ 22. Russell challenges the chancellor’s equitable division of marital assets and the award of alimony. The supreme court has established certain factors for the chancellor to consider in the equitable division of marital assets. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The factors are:

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

¶ 28. In Johnson v. Johnson, 650 So.2d 1281,1287 (Miss.1994), the court outlined the process chancellors are to follow in applying the Ferguson factors. First, the chancellor is to classify the parties’ assets as marital or non-marital based on Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). Johnson, 650 So.2d at 1287. Second, the chancellor is to value and equitably divide the marital property employing the Ferguson factors as guidelines, in light of each party’s non-marital property. Id. at 1287. Third, if the marital assets, after equitable division and in light of the parties’ non-marital assets, will adequately provide for both parties, then “no more need be done.” Id. Finally, if an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony should be considered. Id.

¶ 24. The supreme court has also established certain factors for the chancellor to consider in the award of alimony. Armstrong, 618 So.2d at 1278. The factors are:

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

Id. at 1280.

¶25. Russell argues that the chancellor did not equitably divide the marital property and debt. First, Russell complains that the chancellor considered some but not all of the Ferguson factors. We note that the chancellor is not required to consider all of the Ferguson factors in order to equitably divide the marital estate and may only considers those factors that are applicable. Owen v. Owen, 22 So.3d 386, 388 (¶ 5) (Miss.Ct.App.2009). “Equitable distribution does not mean equal distribution.” Lauro v. Lauro, 924 So.2d 584, 590 (¶ 23) (Miss.Ct.App.2006) (citing Chamblee v. Chamblee, 637 So.2d 850, 863-864 (Miss.1994)). Rather, the chancellor’s equitable distribution of marital assets must be supported by findings of fact and conclusions of law to be upheld by this Court. Id.

¶ 26. Here, the chancellor provided specific findings of fact and conclusions of law as to the Ferguson and Armstrong factors. The chancellor stated the correct specific procedure he was required to follow to divide and distribute • the marital assets. The chancellor did make findings that addressed factors that he found applicable. He also identified specific relevant testimony and other evidence upon which he based his findings. We find there is no merit to the Russell’s contention that the chancellor failed to consider the proper factors.

¶ 27. Next, Russell argues that the division was not equitable. This is where he references the song “She Got The Goldmine (I Got The Shaft).”

A.The House

¶ 28. The chancellor ordered, that Teri would have exclusive use and possession of the marital home. The chancellor valued the home at $93,000, found the debt owed to be $73,000, and concluded the parties had equity of $17,000. The chancellor split the equity in the house, with Russell and Teri each to receive $8,500. The chancellor then gave Teri a judgment against Russell in the amount of $8,500, with interest at the rate of eight percent per annum, to be paid when the home is sold. The chancellor then awarded Teri the exclusive use and benefit of the home until the later of the minor child’s eighteenth birthday or his graduation from high school. At that time, Russell could sell the home and pay the judgment owed Teri for her equity.

B. Teri’s Personal Property

¶ 29. Teri was awarded the Chevrolet Trailblazer (value of $10,370; note of $11,000, equity of $630), riding lawn mower (value of $800), garden tiller (value of $500), and Montana tractor (value of $12,000). She was also awarded some household furnishings. (The total value of all household furnishings was $3,000.)

C. Russell’s Personal Property

¶ 30. Russell was awarded the Dodge truck (value of $55,000; note of $44,000; equity of $11,000), travel trailer (value of $33,000), welding equipment and tools (value of $10,000), and pressure washer (value of $300). He was also awarded some household furnishings.

D. Debts

¶ 31. The chancellor determined Russell was responsible for the debts incurred from eight credit cards; the mortgage;the notes on both vehicles, the travel trailer, and the tractor; and the BancorpSouth loan. The balance owed on the debts assigned to Russell was $110,522.58. Considering the fact that Russell must also pay the home mortgage of $73,000, he was assigned almost $184,000 in marital debt. Teri was ordered to pay two discount-store credit cards. The balance owed on .the debts assigned to Russell was $690.42. The values used here were from Teri’s Rule 8.05 financial statement. Also, as part of this award, the chancellor determined that Russell had paid Teri’s attorney’s fees when he paid one of the credit cards that Teri had used to retain her attorney.

¶ 32. Clearly, the marital or separate assets do not exceed the marital liabilities. Russell argues that the chancellor’s award was not equitable because he was ordered to pay for Teri’s home and car (approximately $1,230 per month), credit-card payments (approximately $2,000 per month), alimony ($600 per month), and child support ($900 per month), for a total monthly obligation of $4,730 per month. Based on his take-home income, Russell claims that the chancellor left him with only $300 per month to pay his living expenses and monthly obligations.

¶ 33. In the determination of child sup-' port, the chancellor only discussed Russell’s annual income of $68,000. In determining the alimony award, the chancellor, stated that it was difficult to determine the exact amount of Russell’s income. Yet the chancellor based his consideration of equitable division and alimony on Russell’s alleged monthly income of $13,000, which would amount to an annual income of $156,000 after taxes. There is no evidence in the record to support a finding that Russell was making $156,000 per year. Further, the conflict between the income figures used for child support and for equitable division and alimony must be corrected.

¶ 34. Therefore, we find the chancellor’s Ferguson and Armstrong analysis regarding Russell’s income and his ability to pay the debt assigned was clearly erroneous. We reverse the chancellor’s judgment in part and remand this issue for further proceedings consistent with this opinion.

¶ 35. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Miss.Code Ann. § 43-19-101(1) (Rev.2009).

      . UCCR 8.05.


author: BARNES, J.,

text:
    In the Matter of the DISSOLUTION OF the Marriage of Lecia Elizabeth SPRIGGS and Kurt Alan Buechler: Lecia Elizabeth Spriggs, Appellant .. v. Kurt Alan Buechler, Appellee.
    No. 2012-CA-01180-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Rehearing Denied July 29, 2014.
    Certiorari Denied Oct. 23, 2014.

      Michele Dawn Biegel, B. Ruth Johnson, Jackson, attorneys for appellant.
    David Bridges, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Lecia Spriggs and Kurt Bueehler were married in 1989, while they were both medical residents at the Mayo Clinic in Minnesota. A few months after they were married, Kurt attended a rehabilitation program for drug and alcohol dependency and was treated for depression. The couple had two children born of the marriage: Connor, born on June 7, 1992, and Killian, born on May 26, 1994. Shortly after Killian’s birth, the couple moved to Mississippi. Lecia joined Surgical Anesthesia Group, where she was employed as an anesthesiologist. Kurt began working as a psychiatrist at the Mississippi Neu-ropsychiatric Clinic. Kurt still works at the clinic and is a partner in the practice. Kurt also speaks nationally for various pharmaceutical companies.

¶ 2. In 1998, Kurt started drinking again, and the couple sought counseling from Dr. Mary Brown. In 2002, it was determined that Lecia suffered from lumbar spondylosis, and she resigned from her practice as an anesthesiologist due to her back issues. In January 2003, Lecia began collecting disability payments, totaling $8,222 a month, through four insurance policies underwritten by Northwestern Mutual Life Insurance (Northwestern). Under the terms of her policies, Lecia may collect full disability benefits if she is unable to perform the principal duties of her occupation, anesthesiology, until age sixty-five. After she reaches sixty-five years of age, Lecia must be determined to be “totally disabled” to continue to receive benefits.

¶ 3. In 2009, it was revealed that Kurt had committed adultery during the marriage, and the couple again sought counseling from Dr. Brown. However, on August 12, 2010, Lecia and Kurt filed a joint complaint for divorce, citing irreconcilable differences. In January 2011, when Kurt suspended all financial support to Lecia, Lecia filed an amended complaint for divorce on fault grounds of uncondoned adultery and habitual cruel and inhuman treatment. She also sought custody of the couple’s minor children and temporary relief in the form of alimony and child support. Kurt responded, admitting that Le-cia was “entitled to divorce on the ground of adultery,” but denying any habitual cruel and inhuman treatment. A temporary order was entered on June 27, 2011, awarding joint legal custody of the minor children to Kurt and Lecia, but sole physical custody of the children to Lecia. Kurt was also ordered to provide temporary support for the children, including insurance and medical expenses, transportation expenses, educational expenses, and child support of $1,000 per month to Lecia and each child. Lecia was not awarded temporary alimony, although Kurt was ordered to reimburse Lecia for household expenses (including homeowner’s dues, yard-maintenance expenses, and insurance premiums).

¶ 4. Soon thereafter, Lecia filed a motion to amend her complaint, requesting that she be allowed to withdraw her petition for divorce and, instead, be awarded separate maintenance. Kurt filed a counterclaim for divorce on the following grounds of fault: willful, continued and obstinate desertion for one year; habitual and excessive drug use; and habitual cruel and inhuman treatment; or, in the alternative, irreconcilable differences. The chancery court denied Lecia’s motion to amend her complaint on September 30, 2011.

¶ 5. A hearing was held October 17-19, 2011, during which the parties stipulated to divorce on the ground of uncondoned adultery by Kurt. The chancellor entered a final opinion on February 8, 2012, equitably dividing the marital assets using the factors set forth in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Lecia was awarded both the marital residence and the couple’s vacation townhome in Key West, Florida, which was valued at $590,000. Lecia was ordered to sell the marital home, however, once Killian graduated from high school. Lecia received marital assets of approximately $1.2 million; the chancellor did not award any alimony. Kurt was ordered to continue to provide child support as set forth in the temporary order, with the chancellor specifically noting that the child-support payments of $1,000 per month to Lecia and the children were to terminate upon the children’s emancipation.

¶ 6. Lecia filed a motion to clarify and to amend the judgment on February 22, 2012, citing several issues. Pertinent to this appeal was Lecia’s request to clarify Kurt’s obligation to pay the children’s educational expenses, and her assertions that the denial of alimony and the chancellor’s exclusion of Dr. Brown’s records constituted an abuse of discretion. In its order addressing Lecia’s motion, the chancery court determined that, absent an express agreement between the parties, it had “no authority to require Kurt to provide college support [for the children] beyond emancipation.” The order also denied Le-cia’s claims regarding alimony and Dr. Brown’s records.

¶ 7. Lecia now appeals the chancery court’s judgment, and finding no error, we affirm.

DISCUSSION

I. Whether the chancery court abused its discretion by denying excluding Dr. Brown’s records.

¶8. Throughout their marriage, Lecia and Kurt intermittently sought marital counseling. Lecia sought to introduce notes and records from the couple’s therapist, Dr. Brown, at trial. Kurt’s counsel objected since the records had not been produced in accordance with the June 8, 2011 scheduling order, which stated that the parties were required “to serve documents which they have agreed or been ordered to produce, and also all written discovery responses (including amended and supplemental discovery responses) no later than Friday, August 5, 2011.” The order further required the designation of expert witnesses by August 26, 2011. However, since Dr. Brown’s records were not provided to Kurt until October 2011, the chancery court sustained Kurt’s objection to the admission of the records. Le-cia claims that the chancellor abused her discretion in excluding this evidence.

We will only reverse a trial court’s ruling on discovery matters if it constitutes an abuse of discretion. Palmer v. Volkswagen of Am., Inc., 904 So.2d 1077, 1090 (¶ 54) (Miss.2005). In Palmer, the Mississippi Supreme Court concluded that the trial court’s exclusion of testimony was not an abuse of discretion “based upon the failure of plaintiffs to provide expert infor-inforin response to either the interroga-interrogafiled by [the] defendants [or] the trial court’s scheduling order.” Id. at (¶ 55). In Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037,1042 (¶ 14) (Miss. 2003), the supreme court held:

[T]rial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

¶ 10. While Lecia’s counsel argued that Dr. Brown had been designated as an expert witness in accordance with the deadline in the scheduling order, she admitted that Dr. Brown would not be testifying; rather, Lecia would be relying on the records/documents. Those records were not produced until approximately two weeks prior to the hearing and well after the deadline set forth in the scheduling order. Therefore, we find no abuse of discretion in the chancery court’s decision to exclude the evidence of Dr. Brown’s records due to Lecia’s failure to abide by the discovery guidelines in the scheduling order.

IL Whether the chancery court erred in denying Lecia permanent alimony.

[3] 11. Lecia contends that the chancery court erred in not awarding her permanent alimony. Instead, the chancel-chancelawarded Lecia a greater portion (51.4%) of the marital estate in order “to eliminate a need for permanent, rehabilita-rehabilitaor lump sum alimony.” The total assets awarded to Lecia were valued at approximately $1.2 million. Among those assets were the couple’s marital home and their vacation home in Key West, which was valued at $590,000.

[4] 12. A chancery court “enjoys wide discretion in fashioning the financial aspects of the dissolution of a marriage” and will only be reversed on appeal if it abused that discretion. Avery v. Avery, 864 So.2d 1054, 1056 (¶9) (Miss.Ct.App. 2004). Using the factors set forth in Arm-Armv. Armstrong, 618 So.2d 1278 (Miss. 1993), the chancellor determined that ali-aliwas not warranted in this case.

1. The income and expenses of the parties

¶ 13. Lecia receives $8,222 per month in disability payments (approximately $98,000 annually). This amount is not subject to cost-of-living increases. Lecia takes issue with the chancellor’s finding that she had no intention of supplementing her disability income; she contends that there was no evidence that she was able to supplement her disability income. Regardless, there is no dispute that Lecia should continue to receive $8,222 a month under her disability policies, unless she is later deemed able to work. Under the terms of her disability policies, Lecia also has the ability to supplement her disability income until age sixty-five, as long as she does not work as an anesthesiologist.

¶ 14. Since Lecia was ordered to sell the marital home after Killian graduates, the chancellor observed that Lecia’s proposed monthly expenses, which were listed at $11,189, should soon decrease, as she will be relieved of her, mortgage debt. On appeal, Lecia claims that the chancery court “required Lecia to move her residence to the Key West property to reduce her monthly expenses[.].” However, we find the court issued no such requirement in its order. The chancellor, in her analysis of the Ferguson factors, merely noted that Lecia “indicated ... her intention” to move to the couple’s Key West home, which would free her from any mortgage expenses, since the townhome was not encumbered by a mortgage. We do not find an abuse of discretion in the chancellor’s findings. At trial, Lecia testified that she wanted to stay at the marital home only until Killian went to college, although Le-cia also said she did not “have any intention of moving anytime really soon.” The townhome was currently rented, and Lecia stated that she does not “really have any reason to get in a hurry to get down there.” Further, Lecia acknowledges that the plan was for her to sell the marital home, relieving herself of its monthly mortgage payment of $1,125, along with the incidental expenses such as insurance and maintenance. Additionally, although not discussed by the chancellor, we note that Lecia has the ability to sell the Key West home and use the proceeds as she sees fit.

¶ 15. Kurt’s net monthly income was approximately $20,000. His monthly expenses were listed at $10,285, but he testified that his expenses are actually less than that amount. However, the chancellor anticipated that the monthly expenses would increase when Killian attends college. In fact, it was noted that Kurt was currently paying approximately $6,000 a month for the children’s educational expenses.

2. The health and earning capacity of the parties

¶ 16. Lecia has been diagnosed with lumbar spondylosis, and she is collecting disability payments. The chancellor noted that if Lecia were later found not to be disabled, she had the education and training to earn an income greater than her disability income. The terms of her disability policy also allow her to work in another field or capacity until age sixty-five, although Lecia claims that her required pain medication makes it unlikely she could obtain malpractice insurance. She stated that she takes 100 milligrams of Oxycontin daily, as well as Adderall and Prozac. Lecia also notes that she has been out of the medical field for nine years, although she admitted at trial that she was still a licensed physician.

¶ 17. Kurt is still gainfully employed and in good health, although his speaking engagements and income appear to be declining.

3. The needs of each party

¶ 18. As noted, Lecia requires prescription medication for her back problems/pain management.

k. Obligations and assets of each party

¶ 19. Lecia was awarded a greater portion of the marital estate; she was awarded all of the couple’s real property, including the Key West townhome, which is free of indebtedness. The chancellor determined that Lecia’s financial obligations should lessen once she sells the marital domicile, and she is to receive-one-half of the proceeds from the sale of the home. Lecia was also awarded one-half of Kurt’s interest in his clinic, which was paid to her in a lump-sum amount of $40,156. She was awarded the Toyota Highlander, and was responsible for its monthly note of $1,097.

¶ 20. Kurt is responsible for the minor children’s “educational and support obligations.” The court noted that these ongoing expenses related to the children’s education were “extensive.”

5. Length of marriage

¶ 21. The couple were married in 1989; they separated in 2009.

6. Presence or absence of minor children in the home

¶ 22. At the time of the trial, the oldest child, Connor, was nineteen years old and attended Yale University; Killian was a high-school senior at St. Andrews Episcopal School. The chancellor noted that Kil-lian would likely attend college and not reside at home.

7. The age of the parties

¶ 23. Lecia was forty-nine years old; Kurt was forty-eight years old.

8. Standard of living of both parties, both during the marriage and at the time of the support determination

¶ 24. Both parties enjoyed a very comfortable style of living while married, and the chancellor acknowledged that Kurt’s income provided Lecia with “the flexibility to work around their children’s schedules.” The couple employed a weekly maid service, and both children attended private school. The family traveled often, and the couple owned a vacation property in Key West. They had approximately $120,000 of equity in the marital home. Since the couple separated, Kurt had been living in an apartment, while Lecia remained in the marital home with the children.

9. Tax consequences

¶ 25. Lecia’s disability payments are not taxable income. Any award of alimony would be subject to tax.

10. Fault or misconduct

¶ 26. Although Lecia continues to allege that Kurt was emotionally abusive, the parties stipulated that Kurt’s uncondoned adultery was the basis for the divorce.

11. Wasteful dissipation of assets by either party

¶ 27. The chancellor did not find Kurt’s investments and trading activities to be wasteful. However, she did conclude that Kurt’s expenditure of $5,000 on his girlfriend was “wasteful in nature.”

¶ 28. After its thorough consideration of the Armstrong factors, the chancery court determined that there was no need for alimony. “[W]hether to award alimony and the amount of the award are matters left to the chancery court’s discretion.” Mauldin v. Mauldin, 107 So.3d 176, 180 (¶ 21) (Miss.Ct.App.2013) (citing Vaughn v. Vaughn, 798 So.2d 431, 436 (¶ 20) (Miss.2001)). “The chancellor should consider the lifestyle to which the wife has become accustomed, the value of her assets and income, and the husband’s ability to pay.” Gambrell v. Gambrell, 650 So.2d 517, 524 (Miss.1995) (citing Brennan v. Brennan, 638 So.2d 1320, 1324 (Miss.1994)).

■ ¶ 29. In Pecanty v. Pecanty, 97 So.3d 1263, 1266-67 (¶22) (Miss.Ct.App.2012), this Court held:

If the divided assets, when considered with each party’s non-marital assets, will adequately provide for both parties, no more need be done. A wife is generally entitled to periodic alimony when her income is inadequate to allow her to maintain her standard of living and when her husband is able to pay.

(Internal citations and quotations omitted). In Pecanty, this Court upheld the chancellor’s decision to award rehabilitative alimony since, “[w]ithout alimony, [the wife would have] suffered] a disparity in income and a decline in her standard of living following the equitable division of marital assets.” Id.

¶ 30. Kurt cites Byrd v. Byrd, 100 So.3d 443 (Miss.2012), to support the chancellor’s decision that the equitable division of marital assets was sufficient to provide for Lecia and that no alimony was warranted. In Byrd, the wife was given almost $1 million in assets; she was a nurse and had an earning potential of almost $100,000 annually. Id. at 451 (¶ 26). Therefore, the supreme court could not say that the chancery court erred in finding the wife’s needs were sufficiently met by the equitable division of assets.

¶ 31. Similarly, in the present case, Le-cia received $1.2 million in marital assets. Even assuming that she is unable to supplement her disability income by working in another capacity, her disability income is over $98,000 annually (non-taxable). This is not a situation where the denial of alimony renders Lecia destitute. While Kurt was indeed the “breadwinner” in the household during the last few years of the marriage, Lecia is not financially dependent upon him for her personal expenses.

¶ 32. Unless a chancellor’s decision regarding whether to award alimony is “against the overwhelming weight of the evidence or manifestly in error,” we will not reverse the decision on appeal. Cosentino v. Cosentino, 986 So.2d 1065, 1067 (¶ 6) (Miss.Ct.App.2008). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Houston v. Houston, 121 So.3d 283, 287 (IF 12) (Miss.Ct.App.2013) (quoting Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 11) (Miss.2012)). In the present case, the chancellor acknowledged that Lecia was accustomed to a “comfortable” lifestyle. Furthermore, she noted Kurt certainly had ability to pay alimony, although his salary was decreasing slightly, and he was responsible for the “extensive” educational expenses of two children, who both attended private universities.

¶ 33. However, Lecia also receives an annual (non-taxable) income of approximately $98,000, and she was awarded over $1 million in marital assets. Upon review, we find no manifest error in the chancery court’s decision not to award Lecia permanent alimony.

III. Whether the chancellor erred by not reserving jurisdiction over the matter.

¶ 34. Alternatively, Lecia argues that if alimony is not considered to be appropriate, the chancellor should have retained jurisdiction to award alimony in the future. At the hearing on the motion to clarify or amend the court’s order, counsel for Lecia requested that the chancery court, “at a minimum!,] ... award a nominal sum of alimony to [Lecia] or preserve the option of a later award of alimony.”

¶ 35. Regarding Lecia’s contention that a nominal amount of alimony should have been awarded to retain jurisdiction, this Court has recently denounced this type of award in a recent opinion. In Jones v. Jones, 2011-CA-01440-COA, — So.3d —, —, 2013 WL 1800051, at *8 (¶36) (Miss.Ct.App. Apr. 30, 2013), we reversed a chancery court’s award of nominal alimony ($10 per month), stating:

By referring to the award as “nominal” alimony, it does not appear that the chancellor was trying to address an actual deficit in the property award. Rather, he admits he was simply leaving the door open in case future events prove [the wife] has a need and [the husband] has an ability to pay. Such a contingency plan, while well-meaning, simply is not supported by our law. Alimony is to be considered as a remedy to an actual insufficiency in the marital assets, not as a contingency for a possible insufficiency in the future.

¶ 36. We find no merit to Lecia’s argument. “If there are sufficient assets to provide for both parties, then there is no more to be done.” Carter v. Carter, 98 So.3d 1109, 1112 (¶ 8) (Miss.Ct.App.2012). It is only when the division of marital assets results in a deficit for one party that the chancery court should consider alimony. Id. The chancellor found that the distribution of marital assets adequately provided for both parties and that alimony was not warranted. Therefore, we find no error in the chancery court’s failure to reserve jurisdiction over the matter.

IV. Whether the chancery court abused its discretion in excluding the expert testimony of Dennis Horn.

¶ 37. Dennis Horn, an attorney, had provided Lecia with legal advice regarding her disability policies and requirements. Lecia sought to introduce Horn as an expert witness at trial. However, Kurt objected to Horn’s expert testimony at trial, “because the law does not recognize expertise in the practice of law.” The chancellor agreed, finding that testimony by Horn as to how the policy would be applied or interpreted would be “speculative” and “possibly unreliable.” When the chancellor stated that she would allow Horn to testify as a fact witness, Kurt again objected, as Horn had not been listed as a fact witness in discovery. The chancery court sustained the objection based upon “lack of supplementation indicating that this witness would be called not only in expert status[,] but also in fact status and/or with relevant facts with which to add to the presentation^]” The chancellor did allow Horn’s testimony to be proffered.

¶ 38. Lecia argues that Horn’s expert testimony regarding “the normal and customary actions of disability carriers” should have been admitted. Horn was to give his opinion that a van Lecia had observed near her home “was likely someone conducting surveillance of her on behalf of Northwestern.” Lecia also claims that Horn “should have been allowed to testify as to what he advised Lecia to do in order to minimize the possibility of termination of her payments[.]”

¶ 39. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, providing:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

“Relevancy and admissibility of evidence are largely within the discretion of the trial court[,]” and the trial court’s decision will only be reversed “where that discretion has been abused.” Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1128 (Miss.1995) (quoting Hentz v. State, 542 So.2d 914, 917 (Miss.1989)). We agree with the chancery court’s conclusion that the “expert” information offered by Horn (i.e., how litigation concerning disability claims could last up to two years, and how insurance companies often conduct surveillance on claimants) was speculative and not based on any sufficient facts or data or reliable principles or methods. Counsel for Lecia acknowledged at trial: “The purpose of Mr. Horn’s testimony is to discuss his experience in these types of actions and what could happen and what may happen in the event [Lecia] does certain things. And if this does happen, what are her consequences after that?” (Emphasis added). Accordingly, we find no abuse of discretion in the chancellor’s decision to exclude Horn as an expert witness.

¶ 40. Horn was also excluded as a fact witness due to Lecia’s failure to include him as such in the scheduling order. As we have already stated, a trial court has “considerable discretion” in managing pretrial discovery. See Bowie, 861 So.2d at 1042 (¶ 14). Lecia does not dispute that Horn was not listed as a fact witness in discovery according to the scheduling order. Therefore, we find no abuse of discretion in the chancellor’s decision to exclude Horn as a witness.

Y. Whether the chancellor’s finding that Kurt was not obligated to pay educational expenses for the children upon emancipation was manifestly in error.

¶ 41. The chancery court clarified its final judgment, concluding that it had “no authority to require Kurt to provide college support beyond emancipation.” Lecia claims that the chancery court committed manifest error when it found that “absent an express agreement, Kurt could not be required to pay post-majority college expense” for the couple’s children. Kurt maintains that the chancery court’s determination was in accordance with the applicable law.

¶ 42. We find no manifest error in the chancellor’s findings. As the supreme court recently stated in Hays v. Alexander, 114 So.3d 704, 707 (¶ 12) (Miss.2013), a parent has no statutory or common-law duty to support a child who has reached the age of majority. However, the courts’ lack of authority to require that a parent provide post-majority support does not preclude “the enforceability of agreements by the parties providing for the post-emancipation care and maintenance of their children, whether those agreements are separate contracts, or have been incorporated into the divorce decree.” Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989).

¶ 43. Nothing in the record demonstrates that the parties entered into an express contractual agreement that Kurt would be responsible for the children’s educational expenses post-majority. At trial, when asked who should be ordered “to pay for the children’s college expenses through emancipation,” Kurt replied, “I have agreed to previously and continue to want to pay for all of the children’s college expenses.” (Emphasis added). Later, at the hearing on the post-judgment motion to clarify or amend, Kurt’s counsel noted:

“[T]he question isn’t whether Kurt Bue-chler intends to pay but whether the Court should order him to pay.” Counsel further argued that “[a]greeing to pay without restrictions is not an agreement to pay beyond emancipation.”

¶ 44. While the temporary order states that Kurt is to pay for the children’s “continued” educational expenses, it does not state with specificity that Kurt is to provide child support past emancipation. Furthermore, the temporary order cannot be construed as an agreement between the parties; it is a court-imposed judgment. Lecia also acknowledges in her brief that Kurt “impliedly agreed to pay post-majority college expenses[.]” (Emphasis added).

¶ 45. Accordingly, we find no merit to this issue.

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

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

      . Since it was a Mississippi Rule of Civil Procedure 59 motion, Lecia was required to file the motion ten days after the judgment, which was February 18, a Saturday. She filed it on Tuesday, February 22, because Monday, the 21st, was Presidents' Day.

      . Killian later attended Boston College.


author: FAIR, J., CARLTON, J.,

text:
    Jerry WILLIAMS, As Administrator of the Estate of Phillip C. Hosch, Appellant v. MUELLER COPPER TUBE COMPANY, INC. and Mueller Industries, Inc., Appellees.
    No. 2012-CA-01964-COA.
    Court of Appeals of Mississippi.
    April 22, 2014.
    Rehearing Denied Sept. 2, 2014.
    Certiorari Denied Oct. 23, 2014.

      Tyler Charles Vail, Steven W. Couch, attorneys for appellant.
    J. Lawson Hester, Jason Edward Dare, Jackson, attorneys for appellees.
   FAIR, J.,

for the Court:

¶ 1. Philip Hosch was killed in an explosion at work in Fulton, Mississippi. Hosch’s estate brought suit against his employer, Mueller Copper Tube Company, alleging that it “willfully, recklessly, egregiouslyU and intentionally” failed to provide Hosch with a safe working environment, “with an intent to injure.” The estate also sued the employer’s parent corporation, Mueller Industries, essentially contending that it failed to supervise its subsidiary. The trial court granted the Mueller defendants’ Rule 12(b)(6) motion to dismiss and certified the judgment as final under Rule 54(b). Numerous other defendants in the original suit are not parties to this appeal.

¶ 2. The trial court found that Hosch’s estate, by accepting $2,000 in funeral expenses as workers’ compensation benefits, had made an election of remedies and could not pursue a tort claim against either Mueller defendant. We conclude that the dismissal cannot be upheld under Rule 12(b)(6) because it depends on evidence outside the pleadings. And since both sides agree the trial court did not convert the Rule 12(b)(6) motion to dismiss into a motion for summary judgment, we must reverse and remand this case for further proceedings consistent with this opinion.

DISCUSSION

¶ 3. Our analysis of this issue is hobbled by the parties’ failure to recognize the fundamental difference between motions to dismiss under Rules 12 and 56. “Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted.” Chalk v. Bertholf, 980 So.2d 290, 293 (¶ 4) (Miss.Ct.App.2007). A Rule 12(b)(6) motion to dismiss must be decided on the face of the pleadings alone. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1211 (¶ 15) (Miss.2001). This differs from a motion for summary judgment under Rule 56, which tests the sufficiency of evidence; summary judgment shall be granted “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....” M.R.C.P. 56(c).

¶ 4. The parties contend that this is an appeal from the granting of a Rule 12(b)(6) motion to dismiss. And both sides, in their briefs on appeal, accurately describe a Rule 12(b)(6) motion, what it tests, and how it should be reviewed on appeal. But they nonetheless center their arguments around evidence or assertions not contained in the complaint. This goes all the way back to the original motion to dismiss, to which the Mueller defendants attached the Mississippi Workers’ Compensation Commission file on Hosch’s death as an exhibit. The MWCC file included a “Notice of Final Payment” prepared by Mueller Copper’s insurance carrier, indicating it had paid $2,000 in funeral expenses. The estate countered this by asserting that no meaningful election had occurred because the money had been paid directly to the funeral home.

¶ 5. When presented with a Rule 12(b)(6) motion, there is only one way for the trial court to consider evidence outside the pleadings — converting the 12(b)(6) motion into a motion for summary judgment. Rule 12(c) provides in relevant part that “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in. Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56....” But conversion must be explicit: ‘Whenever a trial judge converts a Rule 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside the pleadings, the judge must give all parties ten days’ notice that he is converting the motion,” Delta MK LLC v. Miss. Transp. Comm’n, 57 So.3d 1284,1289 (¶ 13) (Miss.2011) (citation omitted) (emphasis in original).

¶ 6. The circuit court’s opinion expressly depends on accepting the contents of the MWCC file as “uncontested.” This is evidence outside the pleadings, but we cannot find any indication in record that the court gave the parties notice it intended to convert the 12(b)(6) motion to one for summary judgment.

¶ 7. It might be argued that the estate’s acquiescence (or obliviousness) amounts to a waiver of the notice requirement. However, “[Rule 12]’s requirements are not triggered by which party submits the outside matters, nor does it contain any estoppel or actual-notice language.” Id. at 1290 (¶ 17). And the Mueller defendants have never argued that the trial court granted summary judgment; they steadfastly maintain that the ruling was made under Rule 12(b)(6). They likewise admit that the judgment should be reviewed under Rule 12(b)(6) on appeal.

¶ 8. Therefore, notwithstanding the .ambiguity of the circuit court’s decision, we will take the dismissal as having been made under Rule 12(b)(6). Because the dismissal here depends on evidence outside the pleadings, and such evidence cannot be considered in a 12(b)(6) motion to dismiss, the circuit court erred in finding the estate’s claims barred under the theory of election of remedies.

¶ 9. The estate has raised as a separate issue the question of whether Mueller Industries, which it contends is a third-party defendant, can claim immunity even if Mueller Copper is found to be protected from suit by the workers’ compensation statute. Given our holding on the first issue, that question is moot.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

CARLTON, J.,

dissenting:

¶ 11. I respectfully dissent from the majority’s opinion. Because the pleadings reflect that the Mississippi Workers’ Compensation Act (MWCA) provided the sole remedy in this case, I would affirm the trial court’s dismissal pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure.

¶ 12. The complaint reflects that Hosch, the deceased, was employed by a Mississippi corporation, Mueller Copper Tube Company, in Fulton, Mississippi, when he was killed by an explosion at work. Jerry Williams, the administrator of Hosch’s estate, sued both Mueller Copper and its parent corporation, Mueller Industries. As the majority notes, the complaint alleges that Mueller Copper “failed to provide Hosch with a safe working environment” and that the foreign parent corporation, Mueller Industries, “failed to supervise its subsidiary.” The averments of the pleadings are insufficient to avoid application of the exclusive statutory remedy provided by the MWCA. The pleadings do not allege that Hosch worked for Mueller Industries, and the pleadings do not allege specific facts showing any independent acts engaged in by Mueller Industries to allegedly negligently or intentionally fail to supervise Hosch.

¶ 13. As the pleadings reflect, Mueller Copper constitutes a corporation licensed to conduct business in Mississippi, and Mueller Industries, its parent corporation, is a foreign corporation. The corporations constitute distinct corporate entities, and the pleadings show that Hosch was employed in Mississippi by Mueller Copper, not Mueller Industries, when the explosion occurred. Mississippi case law generally favors the concept that corporations are distinct and separate entities. See Buchanan v. Ameristar Casino Vicksburg Inc., 957 So.2d 969, 977 (¶ 27) (Miss.2007).

¶ 14. In the present case, Hosch’s estate failed to plead sufficient facts to show that Mueller Industries, the foreign parent corporation, acted as an alter ego of its Mississippi subsidiary corporation, Mueller Copper. The pleadings also fail to allege sufficient facts to state an independent claim against Mueller Industries for failure to supervise. The pleadings fail to plead specific facts sufficient to state a claim for relief for an alleged failure to supervise the work environment of a distinct subsidiary corporation’s employees and to pierce the corporate veil. See Castillo v. MEK Constr. Inc., 741 So.2d 332, 342 (¶¶ 26-27) (Miss.Ct.App.1999) (affirming the trial court’s grant of summary judgment where the claimant failed to present sufficient facts to pierce the corporate veil). Thus, Hosch’s estate failed to sufficiently aver facts to state a claim, independent from the MWCA’s exclusive remedy, for allegedly failing to supervise a subsidiary corporation.

¶ 15. The Mississippi Supreme Court, in its opinion in Buchanan, and this Court, in Castillo, both relied upon ten factors used by Mississippi federal courts when applying Mississippi law for alter-ego theories. See Buchanan, 957 So.2d at 976-77 (¶¶ 25-26); Castillo, 741 So.2d at 340 (¶ 20); see also Gammill v. Lincoln Life & Annuity Distrib. Inc., 200 F.Supp.2d 632, 635 (S.D.Miss.2001) (listing ten factors that are relevant when considering whether to pierce the corporate veil). “While these ten factors are instructive on the alter[-]ego theory, [Mississippi courts have] not adopted the factors as applied by the federal courts.” Buchanan, 957 So.2d at 977 (¶ 26). As the supreme court has previously held:

Mississippi case law generally favors maintaining corporate entities and avoiding attempts to pierce the corporate veil. Gray [v. Edgewater Landing Inc.], 541 So.2d [1044,] 1047 [(Miss.1989) ]. “[T]he cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders.” Id. at Í047 ...; see also [N. Am.] Plastics [ ] Inc. v. Inland Shoe [Mfg.] Co. [ ], 592 F.Supp. 875, 877 (N.D.Miss.1984). This rule applies “whether such shareholders are individuals or corporations.” [N. Am.] Plastics, 592 F.Supp. at 877.

Buchanan, 957 So.2d at 977 (¶ 27); see also Johnson & Higgins of Miss. Inc. v. Comm’r of Ins. of Miss., 321 So.2d 281, 284 (Miss.1975) (“The general rule of law basic to the concept of the corporation is that the distinct corporate identity will be maintained unless to do so would subvert the ends of justice”).

¶ 16. The complaint in the present case clearly pleads Hosch’s status as an employee of the Mississippi corporation, Mueller Copper, and that Hosch was working within the course and scope of his employment for Mueller Copper when he was killed. See Miss.Code Ann. § 71-3-7 (Rev.2011); Miss.Code Ann. § 71-3-9 (Rev.2011). To establish liability against a parent corporation for the unsafe working conditions of a subsidiary corporation’s employees, it is not sufficient for a claimant to merely plead that a corporation is a parent corporation responsible for enforcing safety rules and working conditions. To impose liability, the claimant must allege, and the facts must show, that the parent corporation undertook “specifically to safeguard, or to inspect, the particular procedures, or areas, in which the injury occurred, or had generally undertaken overall obligations of this nature.” Brock v. Alaska Int’l Indus. Inc., 645 P.2d 188, 190 (Alaska 1982). See generally Buchanan, 957 So.2d at 979 (¶ 42).

¶ 17. The complaint in this case fails to set forth such facts. Instead, without asserting facts, the complaint asserts bare allegations against the parent corporation, Mueller Industries, for failing to supervise the work environment of the separate and distinct subsidiary corporation. Therefore, without resort to matters outside the pleadings, I would affirm the trial court’s dismissal since the pleadings fail to state a claim, independent from the MWCA’s exclusive remedy, and since the pleadings fail to plead sufficient facts to state a claim against Muller Industries, the separate and distinct parent corporation, by any piercing of the corporate veil. I therefore would affirm the trial court’s judgment.

      . M.R.C.P. 54(b); M.R.C.P. 12(b)(6).

      . The MWCC record also included an acknowledgment that the carrier had paid $500 toward the MWCC second injury fund, as required by Mississippi Code Annotated section 71-3-73 (Rev.2011).

      . See Brock v. Alaska Int’l Indus. Inc., 645 P.2d 188, 190 (Alaska 1982). See generally Buchanan v. Ameristar Casino Vicksburg Inc., 957 So.2d 969, 979 (¶ 42) (Miss.2007) (discussing that a claimant must allege specific acts undertaken by the parent corporation).

      . Additionally, the record reflects that Mueller Copper provided Hosch’s estate with $2,000 in workers' compensation benefits through Zurich American Insurance Company. Thus, Mueller Copper complied with the MWCA’s requirement of providing compensation in accordance with Mississippi Code Annotated section 71-3-9 (Rev.2011). The record further reflects that Hosch’s estate accepted this benefit payment. In my view, Mueller Copper and Mueller Industries argue that the MWCA constituted the exclusive remedy available in this case, and the instant claims raised by the estate are barred by the MWCA's exclusivity provision. See Wingerter v. Bhd. Prods. Inc., 822 So.2d 300, 303 (¶ 8) (Miss.Ct.App.2002) ("The claimant may not collect on the tort claim against his employer ... if the evidence shows that he is entitled to [workers'] compensation.”); Miss.Code Ann. § 71-3-9.

      . See Buchanan, 957 So.2d at 980 (¶¶ 42-43) (finding that the claimant could not pierce the corporate veil in a suit against her employer, its workers’ compensation carrier, and the employer’s parent corporation because she failed to show that the employer’s parent corporation was the employer’s alter ego); but cf. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14, 19 (2012) (liberally construing the Nebraska Workers' Compensation Act to give the claimant prompt relief and allow him to bring a negligence action against the employer’s parent corporation and to join the employer and its workers' compensation insurer).

      . See also Saucier v. Biloxi Reg'l Med. Ctr., 708 So.2d 1351, 1354 (¶ 11) (Miss.1998) (“A motion for summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” (citation omitted)); Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) ("A fact is material if it tends to resolve any of the issues[] properly raised by the parties.” (citation and internal quotation marks omitted)); M.R.C.P. 56(c).


author: FAIR, J.,

text:
    David BURSEY a/k/a David Jermaine Bursey, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00046-COA.
    Court of Appeals of Mississippi.
    April 22, 2014.
    Rehearing Denied Aug. 19, 2014.
    Certiorari Denied Oct. 23, 2014.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before IRVING, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. One night in May 2010, Marquette Profeit awoke to a loud knocking on his apartment door in Columbus, Mississippi. Profeit looked out the window and saw a man he did not know, holding a .40 caliber handgun. Profeit called 911. When the authorities arrived, Officer Kenny Brewer observed David Bursey near the side of the apartment complex. Bursey supplied a false name to Officer Brewer. Bursey also stated that a friend had dropped him off in the area. When Officer Brewer attempted to search Bursey for weapons, Bursey fled. Bursey was eventually found at a nearby home. Police recovered two handguns, a Ruger and a Hi Point, near the side of the apartment complex where Bursey was first seen. Both were .40 caliber pistols. A black t-shirt and overs-hirt were also found around the same area. At trial, Profeit identified Bursey as the armed man he had-seen outside his apartment.

¶ 2. In his own defense, Bursey testified that after leaving a party in Starkville, he took the wrong exit on the way back to Tupelo and ran out of gas in search of a service station. Bursey also testified that when Officer Brewer attempted to pat him down, he fled because he had old fines and a child support warrant. Bursey denied possessing a firearm at any point that night.

¶ 3. The jury acquitted Bursey of attempted burglary and possession of the Ruger .40 caliber, but it convicted Bursey of possession of the Hi Point .40 caliber by a convicted felon. On appeal, Bursey argues that the trial court erred in giving a flight instruction and refusing a circumstantial evidence instruction. Bursey also contends his trial counsel was ineffective and that there was insufficient evidence to support a possession conviction. Finding no reversible error, we affirm.

DISCUSSION

1. Flight Instruction

¶ 4. Bursey argues on appeal that a flight instruction should not have been given, because his flight was explained and the instruction was prejudicial. However, Bursey is proeedurally barred from raising this point of error. At trial Bursey contended that the flight instruction was improper because a flight instruction is only appropriate if the defendant knows he is being charged with a crime. Now Bursey objects on different grounds.

¶5. “Asserting grounds for an objection on appeal that differ[ ] from the ground given for the objection at the trial level does not properly preserve the objection for appellate review.” Woodham v. State, 779 So.2d 158,161 (¶ 12) (Miss.2001). “[T]o preserve a jury instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.” Crawford v. State, 787 So.2d 1236, 1244-45 (¶ 35) (Miss.2001).

¶ 6. Due to Burse/s failure to specifically object on these grounds at trial, this issue is proeedurally barred.

2. Circumstantial Evidence Instruction

¶ 7. Bursey also contends that the trial court erred in refusing a circumstantial evidence instruction. A defendant is entitled to a circumstantial evidence instruction “only when the case against him is based entirely on circumstantial evidence, as opposed to direct evidence.” Grayer v. State, 120 So.3d 964, 968 (¶ 11) (Miss.2013). “Direct evidence includes an eyewitness to the gravamen of the offense charged.” Id.

¶ 8. Profeit awoke to a loud knocking at his dopr. He twice looked out of his window and, at trial, identified Bursey as the man outside his apartment holding a .40 caliber handgun. This eyewitness testimony is sufficient direct evidence to refuse a circumstantial evidence instruction.

3. Ineffective Assistance of Counsel

¶ 9. Bursey claims that his trial counsel was ineffective for failing to properly object to the flight instruction. If “the Court is unable to conclude from the record on appeal that defendant’s trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case.” Read v. State, 430 So.2d 832, 841 (Miss.1983). The defendant may file a post-conviction proceeding raising the ineffective assistance issue. Id.

¶ 10. Ineffective assistance of counsel issues are generally not reviewed on appeal. Shumaker v. State, 956 So.2d 1078, 1084 (¶ 10) (Miss.Ct.App.2007). The Court may consider the ineffective assistance of counsel claim if: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Id.

¶ 11. Neither criterion has been satisfied in this case. Bursey’s claim of ineffective assistance of counsel is dismissed without prejudice so that he may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

4. Sufficiency of the Evidence

¶ 12. Bursey contends that the State presented insufficient evidence to convict Bursey of possession of a firearm by a convicted felon.

¶ 13. The Court must determine whether any rational juror could have found that the State had proved each element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The evidence must be viewed in the light most favorable to the State. Id.

¶ 14. Section 97-37-5(1) of the Mississippi Code Annotated (Supp.2013) states: It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ... unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

¶ 15. It is undisputed that Bursey was a previously convicted felon, and direct evidence was admitted in the form of Profeit’s eyewitness testimony that he clearly saw Bursey outside his apartment holding a .40 caliber handgun. Bursey also ran from Officer Brewer when Officer Brewer attempted to search Bursey for a weapon. A Hi Point .40 caliber pistol was found at the south end of Profeit’s apartment building along with a black shirt.' Both Profeit and Officer Brewer testified that Bursey was wearing a dark colored shirt, and Bur-sey was shirtless when he was found at a nearby house.

¶ 16. Although Bursey claims that the State failed to present sufficient evidence of the serial number of the Hi Point alleged in the indictment, this contention is without merit. “The particular attributes of a firearm are not actual elements of the offense.” United States v. Jackson, 596 F.3d 236, 244 (5th Cir.2010). There was sufficient direct and circumstantial evidence for the jury to convict Bursey of being a felon in possession of a firearm.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF POSSESSION OF A WEAPON BY A PREVIOUSLY CONVICTED FELON AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SIX YEARS TO SERVE, FOUR YEARS SUSPENDED, AND FOUR YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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