author: ISHEE, J.,

text:
    Robert RAY, Appellant, v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-00685-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2012.
    Rehearing Denied June 4, 2013.

      James A. Williams, attorney for appellant.
    Albert Bozeman White, Madison, Leanne F. Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Robert Ray was terminated from his employment for assaulting and threatening another employee. Ray then filed for unemployment-compensation benefits with the Mississippi Department of Employment Security (MDES). He was denied benefits due to his misconduct. Thereafter, he appealed the MDES’s decision to the administrative-law judge (ALJ). The ALJ affirmed the MDES’s decision. Ray then appealed to the MDES Board of Review (Board), which also affirmed the decision. Next, Ray filed an appeal in the Lauderdale County Circuit Court. The circuit court affirmed the Board’s decision. Aggrieved, Ray appeals to this Court arguing (1) there was insufficient evidence to support the decision that he was discharged due to misconduct, and (2) his employer committed fraud by wilfully failing to provided the initial witness statements and videotape of the incident. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ray was a substance-abuse counsel- or at the East Mississippi Correctional Facility in Meridian, Mississippi. The East Mississippi Correctional Facility was operated by GEO Group Inc. (GEO). On August 17, 2010, Ray assaulted and threatened Kino Reese, a unit manager at the facility. On September 11, 2010, Ray was terminated for violating GEO’s policy against threatening, fighting, or assaulting another employee. Ray then filed for unemployment-compensation benefits with the MDES. A claims examiner with the MDES investigated the events surrounding Ray’s discharge. The claims examiner determined that Ray was discharged due to disqualifying misconduct; therefore, he was ineligible for unemployment-compensation benefits.

¶ B. Ray appealed the MDES decision to the ALJ, who on November 2, 2010, held a telephonic hearing. The following individuals testified at the hearing: Dorothy Pope, GEO’s human-resources manager; Kino Reese, a GEO unit manager; Christopher Thrift, a mental-health counselor; Ken Morgan, an investigator for GEO; and Ray. The videotape of the incident was not presented at the hearing.

¶ 4. Pope testified that she had watched a videotape of the incident that showed Ray approach and then poke Reese with his finger. According to Pope, Ray threatened Reese that he was going to kill him, but Ray later claimed the statement was misinterpreted. Pope stated that the corporate office ultimately made the decision to terminate Ray and that he was fired for unbecoming conduct, which included assaulting another employee.

¶ 5. Reese testified that on August 16, 2010, the day before the altercation, Reese saw an inmate sitting at Ray’s computer with Ray sitting next to the inmate. Allowing an inmate to use the computer violated company policy. When Ray saw Reese in the hallway, he and the inmate switched chairs. Reese then told his supervisor about the incident, which resulted in Ray’s computer being locked.

¶ 6. The next day, Ray approached Reese regarding the incident, but Reese refused to speak to him. According to Reese, Ray “then took his finger and ... hit [Reese] several times in the chest very aggressively.” Ray also told Reese that Reese “was trying to kill him[,] and he was going to kill [Reese] and ... [knew] how to kill [Reese].” Based on this conduct, Reese pressed criminal charges against Ray. Ray was found guilty of simple assault, although he has appealed his criminal conviction.

¶ 7. Thrift, an eyewitness to the assault, testified: “Ray came up to ... Reese and said[, ‘Y]ou’re trying to kill me[,’ while] poking him in the chest[, and then said, ‘B]ut I’m going to kill you first[,] and I know how to do it.[’]” According to Thrift, Reese did not respond, and Ray walked away.

¶ 8. Morgan testified regarding his investigation of the case. During the investigation, he gathered statements from Reese, Thrift, and two other individuals who had witnessed the assault. Morgan testified that there were no conflicting statements among those interviewed. He also watched the videotape of the altercation. Morgan testified that Ray admitted that he had told Reese he was going to kill him but that “it was taken out of context!,] and it wasn’t meant literally.” After compiling a report regarding the incident, Morgan sent the file to the corporate office for a determination on the matter.

¶ 9. Ray also testified at the hearing. First, he acknowledged that an inmate was sitting at his computer but maintained that the inmate was simply reading names off of the computer screen. Thus, he claims he did not violate company policy. Ray stated that on the day of the assault, he had asked Reese to come by his office, which Reese did not do. When he saw Reese in the hallway later that day, he approached Reese. According to Ray, he told Reese: “[You are] trying to get me fired, so I’m going to try to do the same to you by exposing the phony [m]aster’s degree that you have ... on file....” Ray claimed that he then shook his finger at Reese but never actually touched him.

¶ 10. Ray also testified that Morgan was lying because he never made any statement to Morgan; however, he admitted to writing a statement. Ray alleged that Reese and the other individuals involved were conspiring against him. He believed the conspiracy was in retaliation for a wage and hour claim he made against the warden in 2008.

¶ 11. Ray attempted to call three character witness to testify against Reese. The ALJ advised Ray that he would permit one character witness. However, after several unsuccessful attempts to contact each of the three character witnesses, no character witnesses testified.

¶ 12. On November 4, 2010, the ALJ affirmed the denial of unemployment-compensation benefits. The ALJ rejected Ray’s claim that the complaint was fabricated as retaliation for his wage and hour complaint against the warden. The ALJ stated: “The employer’s witnesses had nothing to gain by giving false testimony against the claimant[,] and the employer’s testimony is considered the more credible testimony in this matter.” Thus, the ALJ concluded that Ray did, in fact, assault Reese by poking him in the chest with his finger and threatening to kill him. Because these actions were “in disregard of the employer’s interests [and] constitut[ed] misconduct,” Ray was disqualified from receiving unemployment-compensation benefits.

¶ 13. On November 10, 2010, Ray appealed to the Board. He requested a rehearing and implored the Board to order GEO to send the videotape of the assault for review. The Board did not order the videotape. On December 2, 2010, the Board affirmed the ALJ’s decision and adopted the findings of fact and opinion of the ALJ.

¶ 14. Ray then appealed to the circuit court. On April 19, 2011, the circuit court affirmed the Board’s decision. The circuit court found the Board’s decision was supported by substantial evidence, and that Ray failed to produce sufficient evidence to overcome the presumption in favor of the Board’s decision. Ray now appeals.

STANDARD OF REVIEW

¶ 15. When considering an unemployment-compensation case, this Court’s scope of review is limited to questions of law. Welch v. Miss. Emp’t Sec. Comm’n, 904 So.2d 1200, 1201 (¶ 5) (Miss.Ct.App.2004)(citing Johnson v. Miss. Emp’t Sec. Comm’n, 761 So.2d 861, 863 (¶ 5) (Miss.2000)). “The findings as to the facts of the Board ... are conclusive if supported by substantial evidence and absent fraud.” Id. We will only disturb the denial of unemployment benefits if it is “(1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights.” Id.

DISCUSSION

¶ 16. Ray argues the circuit court erred by failing to reverse and remand the case to the Board to consider more evidence, specifically the videotape of the altercation. He asserts there was insufficient evidence to support the decision that he was discharged for misconduct. Finally, he alleges GEO committed fraud by wilfully failing to provide the initial witness statements and videotape.

I. Insufficient Evidence

¶ 17. Mississippi Code Annotated section 71-5-513 (Rev.2011) covers individuals disqualified from receiving unemployment-compensation benefits. It provides that an individual shall be disqualified from receiving benefits:

For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the department, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.

Miss.Code Ann. § Yl — 5—513(A)(1)(b). The term “misconduct” as used in the statute is generally defined as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982)(citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)). Furthermore, “[t]he burden of proof of good cause for leaving work shall be on the claimant, and the burden of proof of misconduct shall be on the employer.” Miss. Code Ann. § 71-5-513(A)(l)(c).

¶ 18. Substantial evidence exists to support the Board’s decision. Although the videotape of the altercation was never presented, several witnesses testified to viewing the videotape. Those witnesses stated the videotape showed Ray poking Reese in the chest with his finger. Reese and Thrift also testified that Ray poked Reese in the chest with his finger. In addition, they both testified that Ray threatened to kill Reese during the altercation. While Ray later claimed to Pope and Morgan that his statement was misunderstood, it was nonetheless established that he made the statement. During the hearing, Ray denied poking Reese in the chest and threatening to kill Reese; however, the ALJ found the other witnesses were more credible. Thus, the evidence was sufficient to establish the altercation occurred.

¶ 19. Moreover, Ray’s actions constitute misconduct under the statute. His employer had a policy against threatening, fighting, or assaulting an employee, which Ray clearly violated. Therefore, he is disqualified from receiving benefits. This issue is without merit.

II. Fraud

¶ 20. Ray asserts the decision by the ALJ was the result of fraud, based on the failure of GEO to provide the witness statements and videotape. He argues the videotape and witness statements would show that no assault occurred. Therefore, Ray claims that GEO’s failure to provide the evidence amounts to fraud.

¶ 21. Mississippi Rule of Appellate Procedure 28(a)(6) requires that an appellate’s brief “contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Moreover, it is well-settled law that “[t]he failure to cite relevant authority, or the failure to connect the relevant authority to the case procedurally bars consideration on appeal.” Crawford v. Butler, 924 So.2d 569, 576 (¶ 24) (Miss.Ct.App.2005)(citing King v. State, 857 So.2d 702, 725 (¶ 70) (Miss.2003)).

¶ 22. Ray failed to cite any relevant authority regarding this argument. He briefly references one case, Tucker v. Mississippi Department of Employment Security, 10 So.3d 924 (Miss.Ct.App.2009). However, this case is not relevant to his assertion. In Tucker, we addressed whether the appellant’s right to a fair and impartial hearing was violated when the MDES considered one witness’s testimony after it was discovered that a portion of her testimony was false. Tucker, 10 So.3d at 926 (¶ 7). The witness was allegedly untruthful about her receipt of certain documents. Id. at (¶ 9).

¶ 23. Ray states this case reflects “[the] importance of [the] wilfully concealed and absent evidence.” However, in Tucker, this Court ruled that the argument was without merit, and stated that “[o]nly if a witness is impeached to the extent that his or her testimony is rendered highly improbable or incredible is that witness’s testimony deprived of any probative value.” Id. (quoting Boles v. State, 744 So.2d 349, 851 (¶ 8) (Miss.Ct.App.1999)). Thus not only is this case not relevant to the current issue, but it is actually in opposition to any argument Ray might make that the witnesses’ testimony should not be considered in lieu of the videotape and witness statements.

¶ 24. In addition to Ray’s failure to cite relevant authority, he does not provide any facts or evidence to suggest GEO committed fraud other than the fact that the witness statements and videotape were not produced. Accordingly, we decline review of this issue.

¶ 25. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    The COLLEGE NETWORK, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-01115-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.

      David Earl Rozier Jr., Jackson, Jenessa Jo Carter Hicks, attorneys for appellant.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before IRVING, P.J., BARNES, and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. The College Network appeals the Circuit Court of Hinds County’s decision to affirm the determination of the Mississippi Department of Employment Security Board of Review (Board of Review) that Monroe Stewart’s employment relationship constituted that of an employee of The College Network.

¶ 2. In 2005, Stewart signed a contract to work for The College Network as an independent contractor. Upon termination of his contract, Stewart filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES), reporting that he constituted an employee of The College Network. The MDES conducted an investigation and then concluded that Stewart constituted an employee of The College Network. The College Network appealed this decision and requested review by the administrative judge (AJ), who affirmed the determination of the MDES. On appeal, the Board of Review affirmed the AJ’s decision. The circuit court then affirmed the Board of Review’s decision. Finding the decision below arbitrary and capricious as an erroneous application of the law to this case, we reverse and render.

FACTS

¶3. The College Network describes itself as offering for sale to individuals learning modules that are designed to “enable ... individuals] to test out of college courses and transfer those college courses to a university and complete their degree through that particular university.” The findings of the Board of Review reflect that The College Network employs approximately 180 persons who earn a salary, and The College Network also contracts with about 200 additional persons as independent contractors, who are paid commission only. The College Network provides for its employees workers’ compensation insurance, health insurance, and disability insurance. It -withholds Social Security tax, federal income tax, and state income tax. The College Network provides its employees a 401(k) retirement program, sick pay, and vacation pay. In contrast, the College Network provides no benefits of any kind to its independent contractors. As we will discuss further in our analysis section, independent contractors receive commissions, not a salary, and also determine how and when sales are obtained. Independent contractors can hire assistants, or sub-contractors, to conduct the contracted work of sales.

¶ 4. With respect to the facts in this case, the record reflects that Stewart answered an advertisement posted by The College Network on www.monster.com and Stewart was hired as an independent contractor to perform as a traveling salesman to sell products in Mississippi. The College Network states that Stewart worked as an independent contractor from January 26, 2005, until October 16, 2006. The College Network explained that Stewart set his own hours, used his own vehicle and gas, and provided his own home office. The record further reflects that The College Network provided no employee insurance or other benefits to Stewart due to his independent-contractor status, and that The College Network exercised no control or right to control over how and when Stewart performed the actual sales.

¶5. Notwithstanding his independent-contractor status, upon the termination of his relationship with The College Network, Stewart filed for unemployment benefits. As a result of his filing, MDES determined that no wages had been reported on behalf of Stewart by The College Network. Therefore, MDES conducted an investigation to determine whether Stewart constituted an employee or an independent contractor of The College Network. Without personally interviewing The College Network or Stewart, the MDES determined that an employer-employee relationship existed. Additionally, MDES ordered The College Network to report all wages paid to Stewart and others similarly situated in Mississippi, and MDES ordered that all applicable taxes for “employees” be paid upon these wages of Stewart and others similarly situated in Mississippi, notwithstanding their independent contractor status.

¶ 6. The College Network appealed this determination and requested review by the AJ. The AJ held a hearing on November 8, 2007, where Stewart testified, as did Noreen Prouty, a tax specialist testifying on behalf of MDES, and Glenn Cason, vice president of sales for The College Network. The AJ subsequently issued his opinion agreeing with the MDES’s decision and finding that Stewart constituted an employee of The College Network. The AJ acknowledged that although Stewart signed a contract with The College Network as an independent contractor, The College Network reserved the right to control various aspects of Stewart’s job, and exercised that right. Specifically, the AJ concluded that Stewart “was required to report daily by internet, report weekly to his regional sales manager, and was trained at the company’s expense.” The AJ found these factors determinative of establishing an employee-employer relationship under the law, even though these acts failed to constitute the contracted work of conducting actual sales. Further, these acts failed to show that The College Network possessed any right to control the means, time, place, transportation, method, or even the personnel Stewart utilized to conduct the sales. The AJ added: “The ultimate right of control is the right to discharge without liability. The company exercised that right by discharging [Stewart].” The AJ’s conclusion failed to consider the totality of the various factors relative to the employer’s control or right to control, and also the totality of the applicable economic considerations in reaching the conclusion as to the existence of an employment relationship as established by common law and statute.

¶ 7. The College Network then requested review from the Board of Review, which upheld the AJ’s decision. The College Network appealed to the Hinds County Circuit Court, which affirmed the previous rulings. The College Network now appeals to this Court.

STANDARD OF REVIEW

¶ 8. Generally, our standard for reviewing the decision of an administrative agency is limited. Miss. Emp’t Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). We will not disturb the Board of Review’s decision unless it: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) falls beyond the scope of authority granted to the agency, or (4) violates a constitutional right. EMC Enter., Inc. v. Miss. Dep’t of Emp’t Sec., 11 So.3d 146, 150 (¶ 9) (Miss.Ct.App.2009).

¶9. Regarding factual issues and findings of fact, Mississippi Code Annotated section 71-5-531 (Rev.2011) establishes that “the findings of the Board [of Review] as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” With respect to disputes of material facts, we recognize that “a rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Miss. Dep’t of Emp’t Sec. v. Harbin, 11 So.3d 137, 139 (¶ 5) (Miss.Ct.App.2009) (quoting Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)). This case, however, involves the construction of the facts and the details of employment and the interpretation of what constitutes employment, and the erroneous and arbitrary application of the law to this issue.

¶ 10. We also acknowledge, as stated in Senior Partners, Inc. v. Mississippi Employment Security Commission, 959 So.2d 44, 47 (¶ 7) (Miss.Ct.App.2006), that all employers under the Employment Security Act “are compelled to make contributions to the Employment Security Trust Fund ... based upon a percentage of all wages.” These contributions operate as a mandatory excise tax, and upon review of such, “every doubt as to their application must be resolved in favor of the taxpayer and strictly against the taxing power.” Id.; see Mozingo v. Miss. Emp’t Sec. Comm’n, 224 Miss. 375, 383-84, 80 So.2d 75, 78-79 (1955).

¶ 11. The College Network appeals the finding that it was an employer within the meaning of the Employment Security Act. Additionally, The College Network appeals the circuit court’s affirmance of the decisions of the AJ and Board of Review, arguing that the circuit court’s decision lacked supporting evidence and that the circuit court erred as a matter of law in applying the law to the facts and concluding that Stewart’s employment status constituted that of an employee, as opposed to an independent contractor. This case presents no material factual dispute as to what services Stewart performed; when and where the services would be performed; who would accomplish the services; or what physical acts The College Network could control. The dispute instead involves the application and construction of the law as applied to the undisputed facts.

¶ 12. Significant to our review of the issues in this case, in Mozingo, 224 Miss, at 386, 80 So.2d at 80, the Mississippi Supreme Court held that the rule that a decision of the Board of Review should prevail if supported by substantial evidence fails to apply where no material dispute exists in the evidence as to the actual operations of the parties and where the Board of Review’s decision “[is] not a ruling on the facts[,] but rather a construction of the facts whereby it erroneously determined the relationship of the parties.”

DISCUSSION

¶ 13. The College Network argues that the Board of Review erred in determining that Stewart constituted an employee, rather than an independent contractor, of The College Network. As acknowledged, this dispute does not involve the particular work or acts performed but whether, under the law, the physical acts of selling The College Network’s products establish the requirements necessary for an employee-employer relationship. The requirements to establish an employer-employee relationship are explained in section 71-5-11(J)(14) of the Mississippi Code Annotated (Supp.2012):

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

The relevant workers’ compensation statute, Mississippi Code Annotated section 71-3-3(r) (Rev.2011), defines independent contractor as:

[A]ny individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

¶ 14. Section 71-5-ll(J)(14) directs us to employ common-law principles of master and servant, and the common law provides a flexible test. Miss. Emp’t Sec. Comm’n v. Total Care, Inc., 586 So.2d 834, 838 (Miss.1991). Reflecting the flexibility of the common-law test, we also recognize that the Mississippi Supreme Court has set forth the following factors to consider when determining whether an employee-employer or independent-contractor relationship exists:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill required in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job; and
(7) Whether or not the work is a part of the regular business of the employer.

Miss. Emp’t Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 841-42 (Miss.1991) (citing Miss. Emp’t Sec. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 732, 69 So.2d 814, 818 (1954)). A prominent factor in determining whether an individual is an employee or an independent contractor is “whether the employer has the right to exercise control over the work of the employee.” Estate of Dulaney v. Miss. Emp’t Sec. Comm’n, 805 So.2d 643, 646 (¶ 13) (Miss.Ct.App.2002). Stated differently, the relationship status depends upon the extent the putative employer controls, in substance and in detail, the work activities of the putative employee. Total Care, Inc., 586 So.2d at 837. The test for employee status is considered on a case-by-case basis. Id. In applying jurisprudence and statutory law, we note that the physical acts of the work performed must be evaluated in light of the employer’s right to control to determine the employment relationship. So, we turn to the evidence in this case, and the decision of the Board of Review.

¶ 15. In the present case, the Board of Review adopted the AJ’s opinion finding that an employer-employee relationship existed between The College Network and Stewart under section 71-5-ll(J)(14). During the hearing before the AJ, tax specialist Noreen Prouty testified on behalf of MDES. Prouty stated that MDES considered the following facts in its determination that Stewart constituted an employee of The College Network: Stewart operated under the company name; he was restricted to a sales territory; The College Network supplied the sales leads; Stewart had to report sales regularly; The College Network set the prices; The College Network provided the training, materials, and forms; The College Network approved all orders before a sale occurred; The College Network set advertising constraints; and either party could terminate the contract at any time without liability. The evidence in the record and the findings of the Board of Review fail to show that The College Network possessed the right to control, or controlled, the actual work of conducting sales. See PDN, 586 So.2d at 841-42. The physical acts and work identified by the decisions below pertain to before and after the actual work of conducting sales, which was at issue.

¶ 16. After the hearing, the AJ concluded in its findings of fact, as adopted by the Board of Review, that:

[Stewart] signed a contract with the company as an independent contractor.
[Stewart] had no investment in the company. He provided no tools or equipment. [The College Network] provided no tools or equipment. He furnished his own transportation. He determined his profit or loss solely on his sales. His loss was a result of not selling enough to cover expenses. His profit was based upon sales exceeding the expenses incurred.
[Stewart] was paid commissions bimonthly. He could receive an advance on his own commission. He bought forms required by [The College Network] for the placement of orders. He was provided training in product knowledge. He was provided advertisements and modules for the sale to the purchaser. [The College Network] provided leads to [Stewart] for sales. He set a schedule of times he was willing to work. The company then set appointments for [Stewart] based on the leads in his area. [Stewart] reported to [The College Network] daily by internet. This was a follow[-]up on the leads provided by the company. [Stewart] reported to his regional manager on a weekly basis. The regional manager would follow up with [Stewart] about missed leads. He attended training meetings at the company’s expense on three occasions.
[Stewart] would provide the purchaser with the first of the modules. He submitted by UPS a copy of his enrollment register from which [The College Network] paid [Stewart] his commissions. The company would follow up with the other modules to the purchaser.
The company terminated the contract with [Stewart]. [Stewart] was paid commissions due at the end of a [ninety-]day period following the termination as stipulated in the contract.

Based on these findings, the Board of Review determined that The College Network had reserved the right to control Stewart, and that it had exercised that right. The Board of Review ultimately concluded that an employer-employee relationship existed between Stewart and The College Network.

¶ 17. As previously acknowledged, in reviewing the findings of the AJ and Board of Review, the record reflects a lack of evidence showing that The College Network controlled, or possessed a right to control, Stewart in the actual sales operations, including the means, place, time, methods, details, transportation, and even sales personnel. See Mozingo, 224 Miss, at 384, 80 So.2d at 79. The focus remains-on what work details and activities The College Network reserved the right to control, and the extent of any right to control these work activities, in light of the common law and factors set forth by the supreme court and statute. See Miss.Code Ann. §§ 71 — 5—11(J)(14) & 71-3-3(r); see also PDN, 586 So.2d at 841-42. The work and physical acts identified by the Board of Review fail to constitute the actual operation and conduction of sales, and pertain instead to activities before and after the sales work.

¶ 18. The College Network argues that the Board of Review’s decision lacks supporting substantial evidence and law. The College Network asserts that Stewart controlled his own hours; that he was not provided health insurance; and that he was not entitled to any other fringe benefits from the company. The College Network states that both The College Network and Stewart signed a contract declaring Stewart to be an independent contractor. We acknowledge that this Court has held that the mere fact that a contract declares a worker to be an independent contractor “is not conclusive as to whether the worker is an employee.” Senior Partners, Inc. v. Miss. Emp’t Sec. Comm’n, 959 So.2d 44, 49 (¶ 14) (Miss.Ct.App.2006). Therefore, “[i]t is not necessary for us to decide ... whether the contract taken alone discloses an employer-employee relationship.... [B]oth the contract of service and the facts of operation thereunder must be considered in determining the relationship.” Mozingo, 224 Miss, at 384-85, 80 So.2d at 79. As acknowledged in PDN, 586 So.2d at 838, courts consider the actual practice of the parties which supplements their written contract. See also Miss. Emp’t Sec. Comm’n v. Heidelberg Hotel Co., 211 Miss. 104, 116, 51 So.2d 47, 51 (Miss.1951) (Despite contract labeling orchestra members as employees, the supreme court found the hotel exercised no management over orchestra members when they performed the services specified in the contract.).

¶ 19. The College Network compares the present facts to the facts in Harbin, where this Court found the Board of Review’s determination that an employer-employee relationship existed arbitrary and capricious. Harbin, 11 So.3d at 142 (¶ 16). The Harbin claimant worked for a satellite-television-installation company as an installer. Id. at 140 (¶ 9). He set his own hours; he was paid per job/installation; he had no set time for his work schedule; and he provided all of his own tools. Id. at (¶¶ 10-12). The installers also used their own phones to contact customers to coordinate an installation time. Id. at 140-41 (¶ 12). The installers were required to provide their own independent-contractor insurance, though the claimant had not purchased it because he was in a “bind.” Id. at 141 (¶ 12). The claimant also had obtained specialized training prior to working for the company. Id. at 141-42 (¶ 15). Further, the installers could hire additional individuals to assist them in completing the installation if they so desired. Id. at 141 (¶ 15).

¶ 20. Similarly, Stewart possessed responsibility for providing his own automobile for travel, gas expenses, a home office, a computer, and a telephone. In applying the factors set forth by the supreme court and common law to this evidence, Stewart provided his own tools, place of work, equipment, and even sub-personnel, to operate and perform the actual work of conducting sales. See PDN, 586 So.2d at 841-42. He received a commission based on the amount of sales he made, and not an hourly wage. The College Network set no work hours for Stewart. Instead, he possessed the freedom to choose when he worked. Also, like in Harbin, Stewart possessed the freedom to hire someone to assist him in his work, and Stewart bore the duties to set compensation and pay sub-contractors himself. See also Mozingo, 224 Miss, at 381, 80 So.2d at 78. Again, in applying the factors set forth in common law and statute, Stewart set his own hours; received a commission by the sale conducted, and not an hourly wage; and The College Network possessed no right of control over how, when, or by what means he conducted the sales. See id. The law as applied to these facts shows Stewart constituted an independent contractor.

¶ 21. However, after hearing testimony, the AJ concluded differently, finding that Stewart constituted an employee because he possessed no investment in the company and because he provided no tools or equipment. This conclusion lacks a basis in the evidence since Stewart provided his own tools and resources, including his computer, telephone, skills of salesmanship, cost of travel, home office, transportation, personnel, and earned commissions (as opposed to an hourly wage). The law, when considering the totality of the economic relationship displayed by the evidence in this case, shows that Stewart engaged in sales as an independent contractor. Stewart contracted to perform the physical operations of sales as an independent contractor for The College Network, and Stewart alone controlled the physical acts, details, and operation of sales. Stewart possessed the right to decide who conducted the physical operations of the sales with potential buyers. Stewart could hire and set wages for sub-contractors, and Stewart alone bore the obligation to pay any subcontractor wages. Significant to the application of the law, including the common-law factors employed in determining the nature of the employment relationship, the record shows that The College Network retained no control to even require Stewart to personally conduct the sales or control over the details of how or when the sales were conducted. See Heidelberg Hotel, 211 Miss. at 115, 51 So.2d at 51. The College Network paid Stewart a commission by the job.

¶22. The AJ’s findings reflect misplaced reliance upon isolated acts occurring before or after the physical operation of conducting the sales, and the conclusions of the AJ rested on isolated acts as opposed to the totality of the applicable economic operations. Total Care, Inc., 586 So.2d at 837. Stewart reported the sales after their completion and gained information about potential new sales leads prior to the work of conducting these sales. As noted, Stewart bore no obligation to actually conduct any sales or follow up on suggested leads. MDES argues that the present case is distinguishable from the facts of Harbin, asserting that Stewart performs daily, not episodically, and that he personally performed the essential services of The College Network, as advertised by the company.

¶ 23. In this case, no material dispute exists as to the operation of the parties; rather, the dispute pertains to the application of the law to the facts and the construction of the facts below. See Mozingo, 224 Miss, at 386, 80 So.2d at 80. After careful scrutiny, we find the Board of Review arbitrarily erred in applying the law to the facts and arbitrarily erred in its construction of the facts. See id. The decision below also lacks substantial evidence in its finding that Stewart provided no tools, resources, or investment in the company. The decision below also lacks substantial evidence since The College Network failed to exercise control, nor did it possess a right of control over the details of the actual sales work at issue. The record therefore fails to support the Board of Review’s conclusion that Stewart constituted an employee of The College Network. Instead, we find that the law as applied to the evidence in the record supports that Stewart constituted an independent contractor. Finding the Board of Review’s decision arbitrary and capricious due to an erroneous application of the law to the facts, we reverse and render the circuit court’s judgment.

¶ 24. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED.

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

      . See Miss.Code Ann. § 71-5-101 (Rev.2011) (establishing Mississippi Department of Employment Security); Miss. Code Ann. § 71-5-11(F) (Supp.2012).

      . Mozingo, 224 Miss, at 383-84, 80 So.2d at 78-79 (law as applied to facts is construed in favor of taxpayer, and not in favor of taxing power).


author: FAIR, J.,

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellant v. Dorothy LANG, Appellee.
    No. 2011-SA-01623-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.

      David Lee Love, Jackson, Bradley Louis Smith, attorneys for appellant.
    Latisha Nicole Clinkscales, attorney for appellee.
    Before IRVING, P.J., ISHEE, ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Dorothy Lang shared two accounts at Regions Bank with her estranged husband, Derrick Higgins. For the past eight years, they have been separated, but neither account was ever closed. In fact, Lang continued to use their savings account, while Higgins continued to use their checking account.

¶ 2. In April 2010, the Mississippi Department of Human Services sent its notice of encumbrance to Regions Bank and Higgins pursuant to section 43-1ÍM8 of the Mississippi Code Annotated (Rev. 2009). Both joint accounts were frozen, and a lien was placed on the funds because Higgins owed over $17,000 in child support. Lang discovered the encumbrance, and her attorney sent a letter to the Mississippi Department of Human Services (DHS) on May 26, 2010, stating that the money belonged to Lang. DHS responded the next day with a letter explaining that Lang should file a petition with the court if she wished to challenge the encumbrance.

¶ 3. Because no action was taken by either Higgins or Lang within the forty-five days for objection by “the obligor or by an account holder of interest,” DHS received $3,116.69 from the two accounts on June 17, 2010. On September 1, Lang filed her objection to the encumbrance in Lowndes County Chancery Court under the same cause number as DHS’s notice of encumbrance. Lang argued that the approximate balance of $2,000 in the savings account was entirely hers. A hearing was held, and Lang presented a cancelled check showing the origin of the funds, a deposit slip, account records, and her own testimony to prove that she was the sole contributor. No evidence indicating otherwise was presented. The court found that the statutory forty-five-day objection period did not apply to Lang because DHS did not send her notice of the encumbrance, that Lang prevailed under a mistake of identity, and that DHS should remit $2,000 to Lang within ten days.

¶ 4. DHS now appeals arguing that the trial court misinterpreted “mistake of identity” and that Lang did not meet her burden of proof. DHS also claims that the trial court erred in determining that Lang made a timely objection to the encumbrance.

STANDARD OF REVIEW

¶ 5. “The law is settled that statutory interpretation is a matter of law [that] this Court reviews de novo.” Franklin Collection Serv. Inc. v. Kyle, 955 So.2d 284, 287 (¶ 8) (Miss.2007) (citations and quotation marks omitted). We will not interpret a statute if it is plain and unambiguous. Miss. Methodist Hosp. & Rehab. Ctr. Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (¶18) (Miss.2009). “However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue.” Id.

DISCUSSION

¶ 6. Section 43-19^18 of the Mississippi Code Annotated sets up a “data match system” to require banks to release information on its account holders to DHS and allows DHS to administratively encumber funds in the bank account of one who owes past-due child support. If the obligor or “an account holder of interest” does not petition the chancery court and dispute an encumbrance within forty-five days of notice to the obligor but not the “holder of interest,” the funds are released to DHS. Miss.Code Ann. § 43-19-48(3)-(4) (Rev.2009). Lang, as an account holder of interest, challenged the encumbrance under subsection 5, which provides:

(5) Challenges to encumbrance of an account:
(a) Challenges to such levy for child support arrearage may be initiated only by the obligor or by an account holder of interest.
(b) Challenges shall be made by the filing of a petition for hearing by the obligor in a court of appropriate jurisdiction. ...
(c) Grounds for the petition challenging the encumbrance shall be limited to:
(i) Mistakes of identity; or
(ii) Mistakes in’amount of overdue support.

Miss.Code Ann. § 43-19-48(5) (Rev.2009).

¶ 7. The issue presented is the exact meaning of “mistakes of identity.” Lang takes the position, as the trial court did, that a mistake of identity encompasses the identity or ownership of the funds. DHS argues for a stricter interpretation — that a mistake of identity is limited to the name on the account being the person who actually owes child support. We find that Lang’s right to challenge the encumbrance is not controlled by section 43-19-48(5), which by its terms is limited to the obligor.

¶ 8. Rather, although the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam.Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.

¶ 9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So.2d 800 (Miss.1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So.2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debt- or’s ownership of the funds.” Delta, 547 So.2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.

¶ 10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.

¶ 11. Ultimately, therefore, the controlling issue in this case is whether Lang filed her objection to the seizure of her account within a reasonable amount of time. On April 22, 2010, DHS filed a notice of encumbrance, stating that Higgins had a child-support arrearage of $17,903.76. Regions Bank informed DHS that Higgins was listed as the primary account holder of the two accounts. It is unclear whether Regions Bank informed DHS of Lang’s status as an account holder of interest, but Lang unquestionably had actual notice of the encumbrance, as evidenced by her attorney’s letter sent to DHS on May 26, 2010. Lang waited until September 2010, after the funds were tendered to DHS, to file any formal pleading with the court.

¶ 12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So.2d 1061 (Miss.Ct.App.2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶ 2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶ 13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶ 11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So.2d 320, 322 (Miss.1981)).

¶ 13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So.2d at 1067 (¶ 12) (internal citation omitted).

CONCLUSION

¶ 14. We find that the “mistake of identity” language in section 43-1ÍM8 of the Mississippi Code Annotated does not apply to Lang. Further, Lang is not restricted to filing under the forty-five day deadline. However, Lang failed to file a petition for relief within a reasonable time. Therefore, we reverse and render the chancellor’s judgment against DHS in the amount of $2,000.

¶ 15. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . This amount was owed to the child of Higgins's first marriage pursuant to an order for support obtained by DHS under chapter 19 of title 43 of the Mississippi Code Annotated, which establishes the state "Child Support Unit” and prescribes procedures for its collection of federal and state benefits accorded children of this state. Interestingly, because Lang was receiving entitlement benefits, there was also an open case of the same nature by DHS against Higgins for support of the child born to their marriage.

      . Section 81-12-137 of the Mississippi Code Annotated (Rev.2001) governs joint savings accounts and states that the money in such accounts "shall be the property of [two or more persons] as joint tenants with the right of survivorship.” In Stevens v. Smith, 71 So.3d 1230, 1234 (¶ 13) (Miss.Ct.App.2011), this. Court explained that "while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners in the absence of evidence to the contrary, the intention of the parties is the controlling factor.” (Citation omitted). The Court further stated that in the midst of a controversy, evidence is admissible to show the true situation. Id. Therefore, in determining the ownership of funds in a joint account, courts will admit evidence and look to the intention of the parties.


author: IRVING, P.J.,

text:
    Nicole Lee (Reid) TIDMORE, Appellant/Cross-Appellee v. Michael Timothy TIDMORE, Appellee/Cross-Appellant.
    No. 2012-CA-00167-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.

      Charles E. Hodum, attorney for appellant.
    Jerry Wesley Hisaw, Southaven, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Nicole Tidmore appeals the DeSoto County Chancery Court’s award of attorney’s fees to her former husband, Michael Tidmore. She raises one issue on appeal: whether the chancellor erred by entering a judgment against her for the full amount of Michael’s attorney’s fees. Michael cross-appeals, asserting two issues: (1) whether the chancellor erred in awarding sole legal and physical custody of the minor children to Nicole; and (2) whether the chancellor erred in awarding only standard visitation to him. Upon review, we affirm the awards of custody and visitation. However, we reverse the chancellor’s award of attorney’s fees to Michael and remand this case for a determination of the amount of attorney’s fees that should be awarded for the contempt proceedings and the unsubstantiated-allegations-of-abuse proceedings.

FACTS

¶ 2. Michael and Nicole were married on August 21, 2003. On October 26, 2004, the couple welcomed twin daughters. The parties separated on March 16, 2006, and a divorce was granted on the ground of irreconcilable differences on June 12, 2008. The parties were awarded joint physical and legal custody of the twins, with each having custody of the children for a one-week period, beginning Monday at 5:00 p.m. and ending on the following Monday at 5:00 p.m. Further, whichever party did not have custody during the week was entitled to extended visitation from Wednesday at 5:00 p.m. until the following Friday morning when the children were dropped off at school.

¶ 3. On July 26, 2010, Michael filed a petition for contempt, modification of custody, and temporary relief. Michael alleged that there had been a material change in circumstances since the entry of the last custody order, and that it would be in the children’s best interests for him to be awarded sole physical and legal custody, with visitation to Nicole. Michael also alleged that Nicole was in contempt for: (1) failing to exchange information concerning the health, education, and welfare of the children; (2) failing to pay her portion of medical bills and health insurance for the children; and (3) filing the children’s daycare expenses on her tax return when Michael had actually paid such expenses.

¶ 4. On November 16, 2010, Nicole filed an answer and counter-petition to modify custody, visitation, and child support; to appoint a guardian ad litem (GAL); and to cite Michael for contempt. Nicole alleged that there had been a material change in circumstances since the entry of the last custody order, and that it would be in the children’s best interests for her to be awarded sole physical and legal custody, with visitation to Michael. Nicole also made allegations of abuse against Michael and requested that the court appoint a GAL to investigate. Finally, Nicole alleged that Michael was in contempt for: (1) failing to pay insurance premiums for the children; and (2) claiming one of the girls as a dependent on his tax return.

¶ 5. On November 19, 2010, Michael filed a motion to appoint a GAL in response to Nicole’s allegations of abuse. On December 1, 2010, the chancellor entered an order of continuance and a stay of proceedings pending the Mississippi Department of Human Services (DHS) investigation. The chancellor also appointed Kimberly Jones as the GAL and ordered Nicole to submit an outline of facts detailing the specific instances of alleged abuse.

¶ 6. On October 12, 2011, after a full trial, the chancellor entered a final judgment granting Nicole sole physical and legal custody of the children. Michael was awarded visitation every other weekend— the first and third weekends of each month — from Friday at 6:00 p.m. until Sunday at 6:00 p.m. He was also awarded six weeks of visitation during the summer, along with standard holiday visitation. The chancellor also ordered Nicole to pay Michael’s attorney’s fees and the GAL fees.

¶ 7. Nicole appealed the award of attorney’s fees, and Michael cross-appealed the order granting Nicole sole custody and granting him only standard visitation.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence[.]” Wilson v. Wilson, 79 So.Sd 551, 560 (¶ 37) (Miss.Ct. App.2012) (quoting Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000)). This Court “will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard.” Id. (citing Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009)). “We do not substitute our ‘judgment for that of the chancellor, even if we disagree with the findings of fact and would arrive at a different conclusion.’ ” Id. (quoting Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003)). “[W]hen reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo.” Id. (citing Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001)).

I. Award of Attorney’s Fees to Michael

¶ 9. “The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor.” Evans v. Evans, 75 So.3d 1083, 1089 (1122) (Miss.Ct.App.2011) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). Therefore, “[w]e are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award.” Id. (citing Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)).

¶ 10. Nicole argues that the chancellor erred in awarding attorney’s fees to Michael since some of the attorney’s fees were incurred in pursuing a modification of custody. We note that “attorney’s fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So.2d 834, 841 (¶32) (Miss.Ct.App.2003). However, it is well established that “[a] chancellor may award attorney’s fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So.2d 1033, 1040 (¶ 25) (Miss.Ct.App.2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So.3d 65, 73 (¶ 26) (Miss.Ct.App.2009).

¶ 11. Additionally, Mississippi Code Annotated section 93-5-23 (Supp.2012) requires the chancellor to impose attorney’s fees for unsubstantiated allegations of abuse:

If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.

(Emphasis added).

¶ 12. In this case, the chancellor ordered Nicole to pay Michael’s attorney’s fees and the GAL fees as follows:

With regard to [Michael’s] claims for attorney’s fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt.... As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.
After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney’s fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]

¶ 13. We cannot say that the chancellor abused his discretion in awarding attorney’s fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole’s allegations of abuse against Michael were unsubstantiated. The chancellor’s order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole’s contemptuous conduct.

¶ 14. While Michael is certainly entitled to an award of attorney’s fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney’s bill. Although there may be difficulty in allocating the attorney’s fees, the chancellor should nonetheless make that determination. Therefore, the amount of the award of attorney’s fees is reversed and this issue .is remanded to the chancellor for a determination of the amount of attorney’s fees that should be awarded to Michael for the contempt proceedings and defense against the baseless abuse allegations.

¶ 15. Michael also asks this court to order Nicole to pay his attorney’s fees on appeal. “When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded [by the chancellor].” Carroll v. Carroll, 98 So.3d 476, 483 (¶ 26) (Miss.Ct.App.2012) (citing Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss.Ct.App.2006)). However, because Nicole prevails on this issue, Michael is not entitled to attorney’s fees on appeal.

II. Modification of Child Custody

¶ 16. “In a modification action, the party seeking a change in custody bears the initial burden of proving there has been a material change in circumstances adverse to the child’s welfare.” Wilson, 79 So.3d at 561 (¶ 43) (quoting Anderson v. Anderson, 961 So.2d 55, 58 (¶ 6) (Miss.Ct.App.2007)) (internal quotation marks omitted). “In determining whether a material change has occurred, chancellors are instructed to consider the totality of the circumstances.” Id. (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶8) (Miss.2003)).

¶ 17. “If there has been a material change, chancellors must ‘then analyze and apply the Albright factors in light of that change.’ ” Id. (quoting Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss. Ct.App.2001)). The Albright factors are as follows:

(1) the child’s age, health, and sex; (2) which parent had the continuity of care before the separation; (3) which parent has the best parenting skills; (4) which parent has the willingness and capacity to provide primary child care; (5) each parent’s employment and its responsibilities; (6) each parent’s physical and mental health and age; (7) the emotional ties between the child and each parent; (8) each parent’s moral fitness; (9) the child’s home, school, and community record; (10) the child’s preference, if the child is over twelve years old; (11) the stability of the home environment; and (12) any other relevant equitable factor.

Id. at 566 (¶ 64) (citing Daniel v. Daniel, 770 So.2d 562, 564 (¶ 6) (Miss.Ct.App.2000)). “In all cases involving child custody, including modification [cases], the polestar consideration is the best interest and welfare of the child.” Id. at (¶ 63) (quoting D.M. v. D.R., 62 So.3d 920, 923 (¶11) (Miss.2011)). “The Albright factors are a guide for chancellors in weighing the facts to determine the child’s best interest.” Id. However, “[a]n Albright analysis is not, by any means, a mathematical equation.” Id. (citing Lee v. Lee, 798 So.2d 1284, 1288. (¶ 15) (Miss.2001)). Further, “the factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So.2d 370, 376 (¶ 27) (Miss.Ct.App.2003)). “In some cases, one or two factors may weigh more heavily and control the custody determination.” Id. (citing Divers, 856 So.2d at 376 (¶ 27)). While all factors are important, “the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Id. (quoting Johnson v. Gray, 859 So.2d 1006, 1018-14 (¶ 86) (Miss.2003)).

¶ 18. In the case before us, the chancellor found a material change in circumstances as follows:

The evidence shows that the parties have trouble getting along and rarely agree on anything. The [GAL] found that the parties have trouble communicating with one another. One argument between the parties is the length of the children’s hair. It has been noted that the parties have other arguments that relate to the children’s education and health. However, the parties spent a great length of time in court explaining their positions and disagreements as to the “hair” issue. If the parents cannot agree on such a minuscule issue as the length of a child’s hair, the [c]ourt finds it hard to believe that they will ever agree on anything.
Since the last order of custody in 2008, there has been a material change in circumstances detrimental to the children’s best interest. The parents have communication problems and can rarely agree on anything. These children are now in school[,] which takes a great deal of cooperation to make the current custody schedule workable. Decisions such as where the children need to go to school are becoming more important. These children need one parent to have the final say on big decisions such as what school they should attend. Lately, the children have become confused at times as to where they will go home that particular day. There is no reason these children should suffer for their parent[s’] lack of communication and unwillingness to get along. For the reasons stated above, the [c]ourt finds that there has been a material change in circumstances[,] which allows for a modification of custody.

¶ 19. After finding a material change in circumstances adverse to the children’s welfare, the chancellor proceeded to conduct an Albright analysis, which Michael now challenges on appeal. The chancellor found that the following factors favored Nicole: (1) age, health, and sex of the children; (2) parenting skills; and (3) willingness and capacity to provide primary child care. The remaining factors were neutral, but Michael only takes issue with the following neutral factors: (1) employment of the parents and responsibilities of that employment; (2) moral fitness of the parent; (3) home, school and community record of the children; and (4) other factors relevant to the parent-child relationship. Below, we will address each factor disputed by Michael.

A. Age, Health, and Sex of the Children

¶ 20. The chancellor found this factor favored Nicole as follows:

The parties have two minor children, both are female, and both were born on October 26, 2004. Neither [child is] of tender years[,] which may tend to show a preference for the mother. The sex of the female children would favor the natural mother. Both children are in relatively good health. The children have had allergy problems and urinary tract infections in the past. Although [Michael] knows the children to have these health issues, he has at least on one occasion allowed the girls to take a bath with a dog and continues to smoke in the presence of the children. Also, the [s]tep-[m]other smokes in the presence of the children while traveling in the car. Accordingly, the [c]ourt finds that this factor favors the mother.

¶ 21. We note that Nicole also smokes cigarettes, but not in the presence of the children. This Court has held that a parent’s smoking outside the presence of children with allergies does not weigh against that parent under this Albright factor. See Owens v. Owens, 950 So.2d 202, 208 (¶ 18) (Miss.Ct.App.2006) (holding that the “chancellor properly found that this factor does not weigh against [the smoking parent] because the evidence strongly indicates that [he] has made great effort to avoid smoking around [the child]”). Conversely, we have held that a parent’s smoking in the presence of the children weighs against that parent. See Davis v. Stevens, 85 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2012).

¶ 22. As to the age of the children, the twins were six years of age at the time of trial. Of course, the age of a child is “but one factor out of many to be considered in a child custody ease.” Id. at 949 (¶ 28) (quoting Gutierrez v. Bucci, 827 So.2d 27, 31 (¶ 17) (Miss.Ct.App.2002)).

¶ 23. Regarding the sex of the children, Michael argues that this factor should not have favored Nicole because he has a wife, Wendy, and several other female relatives in the area, whereas Nicole only has her mother in the area. Again, these factors are “not, by any means, a mathematical equation.” Wilson, 79 So.3d at 566 (¶ 63). We cannot say that the chancellor erred in finding that this factor favored Nicole.

B. Parenting Skills

¶ 24. The chancellor found that this factor favored Nicole as follows:

[Nicole] claims that [Michael] makes the children wear shoes too small for their feet[,] which shows a lack of parenting skills. Also, the children have had a history of urinary tract infections and allergy problems, but the father has on one occasion allowed the children to take a bath with a dog and continues to smoke in the presence of the children. The evidence shows that [Nicole] is the parent who customarily takes the children to the doctor and is the most involved in the children’s school activities. She has been to the school countless times, and [Michael] can only remember going once. Accordingly, the [c]ourt finds that this factor favors [Nicole],

¶ 25. This Court has held that the parenting-skills factor favors a parent who, among other things, routinely takes the child to the doctor. See Klink v. Brewster, 986 So.2d 1060, 1064 (¶14) (Miss.Ct.App. 2008); Turner v. Turner, 824 So.2d 652, 656 (¶ 13) (Miss.Ct.App.2002). Further, a parent who was more involved in school activities has been favored under the parenting-skills factor. See Tritle v. Tritle, 956 So.2d 369, 375 (¶18) (Miss.Ct.App.2007). We cannot say that the chancellor erred in finding that this factor favored Nicole.

C. Willingness and Capacity to Provide Primary Childcare

¶ 26. The chancellor found that this factor favored Nicole as follows:

Since both parents have had joint physical custody, both parents have provided primary childcare during their time with the children. Although [Michael] has had the children the same amount of time, he has only been to the school [once] to participate in school functions. [Nicole] has been to the school countless times and has been the parent who takes the children to the doctor most of the time. Accordingly, the [c]ourt finds that this factor favors [Nicole].

¶ 27. Michael argues that this factor “reflects only a desire to be the primary custodian” and that the record contains numerous instances reflecting Michael’s desire to be the primary custodian of the children. However, Michael cites no authority to support his argument regarding this factor. Therefore, his argument is procedurally barred. See Lucas v. Williamson, 852 So.2d 67, 68 (¶ 4) (Miss.Ct.App.2003). Notwithstanding the procedural bar, this Court has never held that this factor only reflects a parent’s desire to have custody. We find that the record supports the chancellor’s resolution of this factor in favor of Nicole because she has been the primary parent to take the children to the doctor and visit their school, which shows her willingness and capacity to provide primary childcare. This issue is without merit.

D.Employment of the Parent and Responsibilities of that Employment

¶ 28. The chancellor found that this factor was neutral as follows:

Both the parties have changed employment since the [d]ivorce [d]ecree. Now, both parties have stable but flexible jobs that would allow them to take care of the children in the case of sickness or emergency. Both parties are fortunate in that their respective employment allows the liberty to be with the children should emergencies arise, and accordingly, the [c]ourt finds that the responsibilities of employment favor neither party-

¶ 29. Michael argues that this factor should have favored him because Nicole was fired from her job. However, at the time of trial, Nicole had obtained new employment. Further, neither party cites any case law pertaining to this factor, and this assignment of error is procedurally barred. Notwithstanding the procedural bar, we cannot say that the chancellor erred in his resolution of this factor.

E.Moral Fitness of the Parents

¶ 30. The chancellor determined that this factor did not favor either party:

Both parties’ moral fitness can be called into question [because] both have lied in regards to their tax returns. [Michael] had been compensated for side jobs where he was paid in cash, and he did not report the income. Also, [Nicole] actively sought the children’s daycare expenses in order to claim them and did claim them on her tax return even though she was not the parent paying the expenses. Accordingly, the [c]ourt finds this factor to favor neither party.

¶ 31. We note that neither party cites a single case to support an argument pertaining to the moral-fitness factor. Thus, this argument is procedurally barred. Procedural bar aside, we have no reason to find that the chancellor abused his discretion in finding that this factor was neutral. This issue is without merit.

F.Home, School, and Community Record of the Children

¶ 32. The chancellor found that this factor favored neither party:

[Michael] has a greater number of relatives in the local area, but the [c]ourt must take note that the mother lives with her mother and has a son, age nine, that resides in the home and has bonded with the two girls born [to] the two parties. The grandmother is a recovering alcoholic and still drinks from time to time. The mother has been late to pick up the children from school totaling 18 times. However, the mother has had the most involvement with the children and their school activities. She has been to the school countless times[,] whereas [Michael] has only been once. Accordingly, the [c]ourt finds that this factor favors neither party.

We cannot say that the chancellor abused his discretion in determining that this factor was neutral.

G. Other Factors

¶ 38. The chancellor noted the following under the “catch-all” factor:

The [c]ourt takes note that [Nicole] made claims of abuse/neglect by [Michael] before the trial and up to the end of trial. [Neither] DHS nor the [GAL] found these claims to have merit. The [c]ourt was not presented with evidence to show that the children had been adversely affected by the allegations of abuse/neglect. The [c]ourt finds that in this particular case[,] the allegations of abuse/neglect have not risen to the level that would allow the [c]ourt to weigh this factor against the mother. Therefore, the [c]ourt finds that this factor favors neither party.

Michael argues that this factor should have weighed in his favor because Nicole made unsubstantiated allegations of abuse. He relies on Jernigan v. Jernigan, 830 So.2d 651, 652 (¶ 3) (Miss.Ct.App.2002), to support his contention. However, Jemigan is distinguishable from this case because the mother in Jemigan made allegations of sexual abuse in at least three different jurisdictions against the father even though there was no testimony or medical evidence to support those allegations. Id. We cannot say that the chancellor erred in finding that this factor was neutral.

¶ 34. In sum, we find that the chancellor properly weighed the Albright factors and modified custody of the twins to Nicole. Therefore, we affirm the grant of sole legal and physical custody to Nicole.

III. Standard-Visitation Award

¶ 35. “Visitation is a matter within the chancellor’s sound discretion.” Brooks v. Brooks, 76 So.3d 215, 222 (¶ 31) (Miss.Ct.App.2011). “The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor’s visitation decision is afforded great deference by this Court.” Id. Our supreme court has emphasized the importance of a non-custodial parent’s visitation rights:

Certainly the rights and responsibilities of the parent having custody following a divorce are paramount with respect to matters of schooling, discipline^] and the like. We are afraid that by labeling the rights of the non-custodial parent “visitation” we imply an inordinate subordination of those rights in quality. That there will be no misunderstanding in the future[,] the chancellor should approach the fixing of visitation rights with the thought in mind that, absent extraordinary circumstances militating to the contrary, the non-custodial parent will[,] during the periods of visitation[,] have broad authority and discretion with respect to the place and manner of the exercise of same, subject only to the time constrictions found reasonable and placed in the decree. Overnight visitation with the non-custodial parent is the rule, not the exception; indeed, a noncustodial parent is presumptively entitled during reasonable times to overnight visitation with the children. The approach we mandate is based upon the premise of our law in this area: that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship. To be sure, this ideal is seldom achieved. This, however, is no reason for the law to impose obstacles to that achievement.

Cox v. Moulds, 490 So.2d 866, 870 (Miss.1986) (internal citation omitted).

¶ 36. This Court has held that “liberal visitation, at a minimum, means two weekends a month and five weeks during the summer.” Messer v. Messer, 850 So.2d 161, 167 (¶ 22) (Miss.Ct.App.2003) (citing Chalk v. Lentz, 744 So.2d 789, 792 (¶ 9) (Miss.Ct. App.1999)). Here, Michael was awarded two weekends per month and six weeks in the summer, along with holidays every other year. We cannot say that the chancellor abused his discretion in granting standard visitation to Michael. This issue is without merit.

¶ 37. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR A DETERMINATION OF ATTORNEY’S FEES CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE/CROSS-APPELLANT.

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

      . Michael had a daughter from a previous relationship, who was twenty-two years of age at the time of the trial in 2009, and Nicole had a son from a previous relationship, who was nine years of age at the time of the trial.

      . These allegations of abuse were later determined to be unsubstantiated.


text:
    COASTAL DEVELOPMENTS, INC., Appellant v. Ruth DEDEAUX, Appellee.
    No. 2012-CA-00692-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.

      William Hall Pettey Jr., Gulfport, attorney for appellant.
    Michael Andrew McDonald, Michael Joseph Yentzen, Biloxi, attorneys for appel-lee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Coastal Developments Inc. appeals the Harrison County Circuit Court’s judgment in favor of Ruth Dedeaux in the amount of $38,419.76. Coastal Developments argues that the trial court erred in denying its motion for a directed verdict. Finding no error, we affirm.

FACTS

¶ 2. Coastal Developments and Dedeaux entered into discussions regarding De-deaux’s desire for Coastal Developments to construct her a single-family residence on a lot in a subdivision being developed by Coastal Developments. Dedeaux testified that she informed Coastal Developments that she did not wish to obtain a construction loan. Dedeaux stated that upon determining Dedeaux’s wishes to be agreeable, Coastal Developments prepared a contract between the parties. The parties entered into the contract on August 11, 2005.

¶ 3. Dedeaux subsequently paid $3,000 in earnest money to Coastal Developments. Dedeaux also obtained loan approval for conventional financing from two mortgage companies. Coastal Developments began preparing the lot for the construction of the residence. Shortly thereafter, Hurricane Katrina hit the Mississippi Gulf Coast. Dedeaux claims that Coastal Developments never returned to constructing her home.

¶ 4. On June 6, 2006, Dedeaux filed a complaint against Coastal Developments for breach of contract, seeking specific performance and monetary damages. Beginning November 15, 2011, a trial commenced. Following Dedeaux’s case-in-chief, Coastal Developments moved for a directed verdict, which the trial court granted as to an individual member and employee of Coastal Developments. The trial court denied the motion as to Coastal Developments. The jury ultimately found in favor of Dedeaux for $33,419.76.

¶ 5. Upon entry of the jury’s verdict and the filing of the final judgment, Coastal Developments filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the trial court denied. Coastal Developments now appeals.

DISCUSSION

¶ 6. Coastal Developments argues that the contract called for construction to be completed within 120 days of the date the owner’s financing was funded. Coastal Developments contends that the contract itself identified the owner as Dedeaux, who herself admitted several times on cross-examination that while she was approved for a loan, there was never any loan actually made or funded. Coastal Developments asserts that under this scenario, there could have been no breach of contract by Coastal Developments. Coastal Developments contends that the trial court erred in denying its motion for a directed verdict.

¶ 7. With respect to this assignment of error, we find that testimony in the record shows Dedeaux met her burden to provide sufficient evidence of her claim of breach of contract and sufficient evidence of her loan approvals, meeting her requirements under the contract to require Coastal Developments to then perform construction. The record shows Dedeaux presented sufficient evidence to both survive a directed verdict and thereafter support the verdict of the jury. With respect to the condition precedent in the contract requiring financing prior to performance of construction, the undisputed facts of this case show that Dedeaux received loan approval for conventional financing from two different mortgage companies.

¶ 8. We employ a de novo standard of review when considering a trial court’s decision on a motion for a JNOV. Bus. Commc’n, Inc. v. Banks, 90 So.3d 1221, 1224 (¶ 9) (Miss.2012). “A motion for [a] JNOV tests ‘the legal sufficiency of the evidence’ supporting the verdict.” Id. “In essence, judgments as a matter of law present both the trial court and the appellate court with the same question-whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. “[T]his Court applies the same standard of review as it applies when reviewing the denial of [a] directed verdict or [a] JNOV[.]” Solanki v. Ervin, 21 So.3d 552, 557 (¶ 10) (Miss.2009). Regarding the burden of proof in this case, this Court has found that when a plaintiff asserts a breach-of-contract claim, he holds the burden of proving, by a preponderance of the evidence: “1. the existence of a valid and binding contract; and 2. that the defendant has broken, or breached it; and 3. that he has been thereby damaged monetarily.” Banks, 90 So.3d at 1224-25 (¶ 10). We now turn to review the evidence in the record.

¶ 9. In this case, the substantial evidence in the record shows that Dedeaux met all of the elements of a breach-of-contract claim by presenting evidence, by at least a preponderance of the evidence, for each element of her claim. See id. As stated, Dedeaux presented ample evidence showing that she satisfied the financing requirement set forth in the contract, and the record shows that the plain language of the contract failed to require a “construction loan,” as claimed by Coastal Developments. Coastal Developments argued below and argues now on appeal that a construction loan was the required financing under the contract. In presenting her case to the jury at trial, Dedeaux specifically identified and relied upon the section of the contract entitled “Special Provisions,” which states that the “Contractor shall not be responsible for the payment of any expenses connected with [the] Owner[’]s construction and/or permanent mortgage financing.” (Emphasis added). The use of an “and/or” scenario alongside conventional financing allows the option of not obtaining a construction loan. A plain reading of the contract would allow a reasonable juror to determine that Dedeaux satisfied the contract’s financing requirement since evidence in the record shows that Dedeaux obtained loan approval for a conventional loan from two different mortgage companies. The evidence of Dedeaux’s loan satisfied the conditional terms of the contract.

¶ 10. Dedeaux’s proof showing she satisfied the contract’s requirement of financing met the contract’s condition precedent to Coastal Developments’ duty to begin construction. Dedeaux then presented evidence that Costal Developments breached its duties under the contract by failing to construct her home as required in the contract. Lastly, Dedeaux proved that she suffered damages due to Coastal Development’s breach of the contract since she was forced to purchase a replacement home at a greater price than the price required under the contract for the original home. In support of her claim for damages, Dedeaux’s expert witness, Dale Steven Ladner Jr., testified as to the amount of Dedeaux’s damages, reflecting the difference between the cost of the home contracted for and the cost of the replacement home, after deducting the additional costs of higher value items in the replacement home.

¶ 11. Dedeaux presented sufficient evidence from which the jury could reasonably conclude that she suffered the damages awarded due to a breach of contract by Coastal Developments. See Banks, 90 So.3d at 1224 (¶9). As applied to Dedeaux’s case, the evidence is not “so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. Furthermore, a review of the record shows that the verdict does not shock the conscience, nor is it contrary to the substantial weight of the evidence. See Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 950 (¶¶ 33-35) (Miss.2008) (setting for the standard of review for a denial of a motion for a new trial). As such, we affirm.

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

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

      . Specifically, Coastal Developments points to the following language under item No. 4 in the contract: "The construction of the dwelling covered by this contract shall be completed within 120 days from and after this date, unless the Contractor is prevented from completing construction by strike, bad weather, catastrophic events, material availability, or other matters which are beyond the control of the parties, or by change orders requested by die Owners.” Coastal Developments then points to a provision under the "Special Provisions” section of the contract, which states: "The 120 days covered in item No. 4 above shall begin at such time as the building permit can be obtained and Owner[’s] financing funded.”

      . See Austin v. Carpenter, 3 So.3d 147, 149 (¶ 12) (Miss.Ct.App.2009) ("A condition precedent has been defined as a 'condition which must be performed before the agreement of the parties shall become a binding contract or a condition which must be fulfilled before the duty to perform an existing contract arises.’ ”).

      . See Bus. Commc’n, Inc. v. Banks, 90 So.3d 1221, 1224 (¶ 9) (Miss.2012).

      . See Wells v. Price, 102 So.3d 1250, 1256 (¶ 17) (Miss.Ct.App.2012) (“The existence of a contract and its terms are questions of fact to be resolved by the fact-finder, whether a jury or a judge in a bench-trial.... Questions concerning the construction of contracts, however, are questions of law that are reviewed de novo.”).

      . See Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751 (¶ 7) (Miss. 2003) ("[I]t is a question of law for the court to determine whether a contract is ambiguous and, if not, enforce the contract as written.”).

        .See Miss. Gulf Props., LLC v. Eagle Mech., Inc., 98 So.3d 1097, 1104 (¶20) (Miss.Ct.App.2012) (noting the standard of review for the admission or exclusion of evidence, including expert testimony, by a trial court is abuse of discretion); see also M.R.E. 702.