text:
    Kellye Meek HOUSTON, Appellant v. Brockman Mason HOUSTON, Appellee.
    NO. 2012-CA-00617-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      William R. Wright, Jackson, Trhesa Barksdale Patterson, Amanda Jane Proctor, attorneys for appellant.
    Kay Farese Turner, Madeline Luckett Nolan, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Kellye Meek Houston divorced Brock Houston due to Brock’s uncondoned adultery. The Lafayette County Chancery Court awarded Brock custody of the couple’s two minor children, and ordered Kel-lye to pay Brock $600 per month in child support. Based on the chancellor’s equitable distribution of the marital estate and Kellye’s substantial separate estate, the chancellor denied Kellye’s request for alimony. Kellye appeals and claims the chancellor should have awarded her alimony. Kellye further claims the chancellor erred by ordering her to pay Brock $600 per month in child support. Finally, Kel-lye claims the chancellor should have ordered Brock to pay for the two minor children’s college expenses. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kellye and Brock were married in December 1987. Shortly after they married, Brock enlisted in the United States Air Force, where he was trained as a pilot. In 1989, Kellye and Brock had a daughter, Hillary. A few months after Hillary’s first birthday, Kellye was injured in a serious car accident. Among other injuries, she broke her jaw and one of her ankles. Despite Kellye’s injuries, Kellye and Brock added to their family. Their oldest son, Jake, was born in 1991. In 1998, they had another son, John Hale.

¶ 3. In 1995, FedEx hired Brock as a pilot. Brock’s earnings substantially increased. Brock flew out of Memphis, Tennessee, which is within driving distance of the marital home in Oxford, Mississippi. Since 1995, Brock has consistently worked for FedEx.

¶ 4. Kellye’s parents, Ed and Becky Meek, were frequently discussed throughout the divorce proceedings. The Meeks consistently provided a substantial amount of supplemental income to Kellye and Brock’s family. Conservatively, the Meeks gave Kellye between $2,000 and $4,000 per month. The Meeks provided financial assistance when Kellye and Brock bought the marital home. The Meeks also bought all of Kellye and Brock’s children’s clothes from the time the children were born. Later, the Meeks bought a vehicle for Jake and paid for Jake to attend boarding school in upstate New York. Kel-lye’s 2002 Toyota Land Cruiser was a gift from her parents. The Meeks also paid for numerous trips for the entire Houston family. Additionally, Kellye was able to rely on her parents for any supplemental financial assistance that she needed. The Meeks also established seven trusts that benefit either Kellye or Kellye and Brock’s children. Suffice it to say that it is undisputed that the Meeks’ financial assistance allowed Kellye and Brock’s family to live a lifestyle that they would have otherwise been unable to afford.

¶ 5. Kellye’s work history is limited. As of 2009, Kellye was within thirty-five hours of obtaining a bachelor’s degree. Sometime prior to 2000, Kellye’s father hired her to work as an administrative assistant at his publishing company in Oxford. Although the record does not specify when Kellye began working for her father, she stopped working for him sometime during 2000, after she and he argued.

¶ 6. Over time, Kellye began experiencing greater jaw pain due to the injuries that she sustained in the 1990 car accident. According to Kellye, the pain left her unable to adequately care for the children. Because of Kellye’s inability to care for the children and Brock’s schedule as a pilot, their children began to spend significant time with the Meeks. During 2001, John Hale began living with the Meeks. Between 2008 and 2005, Kellye had numerous surgeries to repair her jaw. Ultimately, both of Kellye’s temporomandibular joints were replaced.

¶ 7. As time passed, Kellye and Brock’s relationship deteriorated. In late 2007 or early 2008, Brock had an affair that was characterized as a “one-night stand.” Kel-lye confronted Brock after she heard a rumor that he had been unfaithful to her. Brock confessed, and Kellye asked him to leave the marital home. Brock complied. Although Kellye later asked Brock to return to the marital home, Brock refused to do so.

¶ 8. Kellye told her parents that she could not continue to live in the marital home. Consequently, Kellye moved out of the marital home. Kellye’s mother, Becky, bought a house for Kellye. At the time of the trial, Kellye was living in the house that her mother bought for her. Brock had moved into a loft apartment in a barn that was located on property that he and his siblings had inherited from his family. Meanwhile, the marital home remained empty. Hillary lived in her own apartment while she attended college at the University of Mississippi. Jake was in boarding school in upstate New York. And John Hale continued to live with the Meeks.

¶ 9. In September 2008, Brock filed a complaint for divorce based on habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Kellye filed a counter-complaint for divorce based on Brock’s uncondoned adultery. Kellye and Brock both requested physical custody of the children. In November 2009, they went to trial. Over the course of four days, the chancellor heard testimony from Brock, Kellye, and Kellye’s mother, Becky. Additionally, Brock and Kellye each called expert witnesses to testify regarding the trusts that the Meeks established for Kel-lye and the couple’s three children.

¶ 10. Ultimately, the chancellor granted Kellye’s request for a divorce based on Brock’s uncondoned adultery, which Brock admitted during his testimony. By the time the chancellor entered her judgment, Hillary had reached the age of majority. The chancellor awarded Brock physical custody of Jake and John Hale. Additionally, the chancellor ordered Kellye to pay Brock $600 per month in child support. Based on Kellye’s separate estate and the division of the marital estate, the chancellor denied Kellye’s request for periodic or rehabilitative alimony. Kellye appeals.

STANDARD OF REVIEW

¶ 11. An appellate court will not disturb a chancellor’s findings of fact when those findings are supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, or the chancellor applied an erroneous legal standard. Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 11) (Miss.2012).

ANALYSIS

I. ALIMONY

¶ 12. Kellye claims the chancellor erred by declining to award alimony. “[T]he decision to award alimony is left to the discretion of the chancellor.” Id. at 154 (¶ 18). “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.” Id. at 153 (¶ 11).

¶ 13. “The purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Faerber v. Faerber, 13 So.3d 853, 863 (¶ 36) (Miss.Ct.App.2009) (quoting Holley v. Holley, 892 So.2d 183, 185 (¶ 7) (Miss.2004)). “Accordingly, the chancellor should consider alimony only after the equitable division of the marital property.” Id. The chancellor awarded Kellye the following marital property: (1) two specified bank accounts and any other bank account in which she has an interest; (2) her two individual-retirement accounts; (3) one-half of Brock’s two retirement accounts; (4) one-half of the net proceeds of the sale of the marital home; (5) one-half of the net sales proceeds from three rental properties; and (6) various items of personal property, including her 2002 Toyota Land Cruiser. Additionally, the chancellor ordered Brock to pay all of the marital debt. Kellye does not claim that the chancellor erred when she divided the marital estate. However, Kellye argues that the chancellor erred in valuing her separate estate based on the fact that she is the beneficiary of a “Generation-Skipping Trust” (GST).

¶ 14. Kellye and her sister are the beneficiaries of a trust that was characterized as a “Children’s Trust.” That trust owns a $4,500,000 life-insurance policy on the lives of Kellye’s parents. Kellye notes that “[tjhere was no testimony ... as to the cash value of that life[-]nsurance policy. Thus, there is no value that can be attributed to Kellye as a result of her being a beneficiary of the Children’s Trust.” However, there is no indication that the chancellor based Kellye’s separate estate on the Children’s Trust.

¶ 15. Regarding the GST, Brock’s expert witness, Joe M. Duncan, testified that Becky created the GST to provide Kellye with “sufficient income and principle to provide for her health, education, support, and welfare.” Kellye’s father is the trustee of the GST. Duncan went on to testify:

If [Kellye’s father] determines that [Kel-lye’s needs] ... are taken care of or satisfied, then the trust can be used for the benefit of [Kellye’s children]. But the trust makes it clear that the interests of Kellye are ... to be considered paramount over any residuary beneficiary or any remainder beneficiary. In fact, the trustee is instructed or directed to make trust investments with Kellye in mind.

However, Kellye’s expert witness, David V. Grisham, opined that Kellye’s father is not obligated to release any of the trust funds to Kellye. Grisham noted that the language of the GST provided:

[T]his trust is not being created for the purpose of creating a disincentive for Kellye[ or Brock] to work and earn a living for themselves and their children, but is being created to provide for their needs, especially in the event that health problems should preclude one of them from being able to work, or in the event that health problems should cause them to need additional support and medical care because of their health situations.

¶ 16. Duncan and Grisham disagreed whether Kellye’s father would be obligated to provide Kellye with funds from the GST in the event that Kellye reasonably needed money “for her health, education, support, and welfare.” Duncan testified:

[I]f [Kellye] has a need that falls within the category of health, education, support^] or maintenance, ... and [Kellye’s father] says, “I’m ... just not going to give you any money[,]” ... chancery courts in Mississippi have the right to come in and oversee that discretionary standard to make sure that it is not exercised in an unreasonable manner.

But Grisham testified that Kellye’s father has “total discretion” regarding whether to disburse funds from the GST, and Kellye has no right to withdraw from the GST or require that her father disburse any funds from it. Grisham also testified that “[i]t doesn’t make any difference what other people extraneous to this document think about what the intentions were or that language that is used.”

¶ 17. In any event, as of November 30, 2009, the corpus of the GST included a Morgan Keegan account with a balance of approximately $3,600,000 and a certificate of deposit worth approximately $244,000. During 2008, the GST generated approximately $370,000 in income. Tax returns indicated that the GST distributed approximately $460,000 in dividends during 2006, but Kellye testified that she had not received any distribution from the GST. It is unclear what happened to the 2006 dividends from the GST.

¶ 18. According to Kellye, although she is the primary beneficiary of the GST, “she may never receive any funds from it.” Kellye notes that she received no money from the GST during the two years prior to the trial. Kellye reasons that the chancellor should not have included the GST when she calculated Kellye’s separate estate. Alternatively, Kellye argues that the chancellor should have calculated the value of the GST more conservatively. According to Kellye, “the chancellor failed to recognize that Kellye’s interests in the trusts are not worth the same as the trusts themselves.” Kellye cites this Court’s opinion in Dogan v. Dogan, 98 So.3d 1115 (Miss.Ct.App.2012), to support her argument that the chancellor should have valued the GST more conservatively.

¶ 19. In Dogan, the chancellor divided a divorcing couple’s estate and found that the wife’s separate estate included a living trust that was worth $250,000 to $300,000. Id. at 1121 (¶ 7). On appeal, the wife argued that the chancellor erred in valuing her portion of the living trust, which contained a total corpus worth approximately $760,000. Id. at 1125 (¶ 22). The chancellor valued the wife’s share of the trust at $250,000 to $300,000 because the living trust could have possibly been obligated to feed a separate trust that paid the wife’s stepmother $55,000 in the event that the stepmother depleted her own trust. Id. The living trust also paid “the maintenance and expenses associated with [the stepmother’s] home and premiums on a joint life-insurance policy that fund[ed] another trust.” Id. This Court held that “[njeither party produced a specific and reliable valuation of the [l]iving [t]rust; therefore, the burden fell on the chancellor to [value the living trust] using the provided evidence!.]” Id. at (¶ 23). Consequently, this Court found no merit to the wife’s claim that the chancellor improperly valued the living trust. Id. at (¶¶ 23-24).

¶ 20. We do not find that the chancellor erred in considering Kellye’s interest in the GST. Although the chancellor did not specifically value Kellye’s interest in the GST, the chancellor found that “Kellye is the beneficiary of several trusts worth well over $3,000,000.” Unlike the living trust in Dogan, the GST in which Kellye had an interest was not obligated to fund any other trusts or beneficiaries. Kellye notes that her father had not distributed any of the funds from the GST during 2007 and 2008. Even so, the chancellor may have concluded that Kellye’s father chose not to distribute funds from the GST because the consistent financial gifts that Kellye received from her parents were enough to meet her needs. Except for a brief period following an argument, Kellye’s parents had consistently given her an “allowance” for the twenty-two years that she and Brock were married. That “allowance” simply continued after Kellye and Brock separated. And while Kellye’s father could have possibly distributed funds from the GST to Kellye’s children, he could only do so in the event that Kellye’s needs were met first. Furthermore, the language of the GST provides: “To the extent that Kellye notifies the trustee that she has sufficient income! ] or other assets to provide for [her health, education, support, and welfare], the trustee may then accumulate the income and add it to the principal at least annually.” We find that the chancellor acted within her discretion when she valued Kellye’s interest in the GST.

THE ARMSTRONG FACTORS

¶ 21. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the Mississippi Supreme Court held that a chancellor is to weigh the following factors when considering a request for alimony:

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.

In declining to award Kellye alimony, the chancellor found:

Kellye’s earning capacity is probably not as great as Brock’s for the near future if you consider only her earned income, but the [c]ourt must not discount the fact that her parents have been giving her substantial income all throughout the marriage and that they have established extensive, valuable trusts for her benefit. Looking at the obligations and assets of the parties, Kellye has a much greater net worth than Brock, considering their respective non-marital assets or assets not subject to distribution, since Kellye is the beneficiary of several trusts worth well over $3,000,000.00 and she has taken no marital debt, but Brock, on the other hand, has assumed all of the marital debts and has divided his marital assets, but has only a small inheritance that was not valued at the trial of this case.... It is very clear that Brock’s standard of living has decreased from that [which] he had during the marriage of the parties, but Kellye’s standard of living does not seem to have been affected because of the “gifts” her parents continue to bestow upon her.... There was extensive testimony of Kellye’s dissipation of marital assets or maybe assets that were gifted to her by her parents in the form of an allowance. Brock and Becky Meek both tes-tifie[d] that Kellye overspentf,] and there were pages of exhibits to document her excessive e[B]ay purchases. Finally, this court cannot and will not in good conscience, award alimony to a wife with a net worth substantially greater than that of the husband.

Kellye argues that the chancellor should have found that ten of the Armstrong factors favored an award of periodic alimony, and the remaining two factors were neutral in that they did not favor either her or Brock.

1. The income and expenses of each party.

¶ 22. Although Kellye does not claim that the chancellor erroneously divided the marital estate, she argues that the division of the marital estate left her with a deficit in that she did not receive enough liquid assets to support her. “When one party will suffer a deficit after the marital property has been equitably divided, alimony should be considered.” Rogillio, 101 So.3d at 155 (¶ 19). Additionally, Kellye argues that the chancellor erred in calculating her income based on her parents’ gifts and the trusts her parents established. Ultimately, Kellye argues that “[t]he chancellor erred in failing to find that a comparison of Kellyef’s] and Brock’s income[s] and expenses favored an award of alimony.”

¶ 23. Kellye notes that Brock’s financial statement under Rule 8.05 of the Uniform Chancery Court Rules was inaccurate because some of his monthly expenses were inflated. Kellye highlights those inaccuracies. For example, Kellye draws our attention to the fact that Brock’s Rule 8.05 statement indicated that he was paying $120 per month to maintain the marital home, including maintenance of the yard. But on cross-examination, Brock admitted that he had not been paying those expenses. To avoid unnecessary elaboration on the intricacies of the accounting discrepancies that Kellye alleges, it should suffice to say that Kellye claims that Brock underestimated his monthly adjusted gross income by approximately $3,000. According to Kellye’s calculations, Brock has a monthly surplus of approximately $4,000.

¶ 24. Next, Kellye claims that the chancellor did not award her with sufficient liquid assets to support herself. Kellye notes that none of the checking accounts had a “significant [balance] at the time of the trial.” Kellye argues that she cannot rely on her retirement accounts, because she has not reached the age of retirement and she “would be subject to penalties and taxes if she withdrew funds from ... the retirement accounts.” Furthermore, she argues that Brock has not reached the age of retirement, so she cannot rely on his retirement accounts to meet her needs. Regarding her half of the proceeds from the marital home and the three rental properties, Kellye claims that she will have to use those funds “to purchase another residence.” However, it is unclear why Kellye would need to buy another house. Kellye voluntarily left the marital home and moved into a house that her parents bought for her. Kellye does not have to pay anything to live in that house. There was no evidence that Kellye’s parents planned to force her to move out of the house. Nor was there evidence that Kel-lye planned to move out of the house. Consequently, there is no reason to conclude that Kellye will have to use the proceeds from the sale of the marital home and the three rental properties to buy another house.

¶ 25. Kellye then argues that she had approximately $16,000 in monthly expenses. She attributed nearly $7,000 of those expenses to her own needs, and approximately $9,000 per month in expenses related to the children. Kellye also argues that she had no income because she has been unemployed. Consequently, Kellye contends that she has a monthly deficit of approximately $16,000 per month. Kellye concludes that Brock’s ability to pay his monthly expenses compared to her own inability to do so weighed in favor of alimony.

¶ 26. First and foremost, Kellye’s expenses are grossly misstated. Kellye was clearly not paying $9,000 in monthly expenses related to the children. None of the three children lived with her. The undisputed testimony was that the Meeks had paid for all of the children’s clothing and school expenses from the time the children were born. Hillary was a twenty-year-old college student at the time of the trial. She lived in her own apartment. There was evidence that Kellye occasionally . gave Hillary some money, but the Meeks paid for all of Hillary’s college expenses, and Brock paid for a significant amount of Hillary’s living expenses. Brock also paid for Hillary’s car. There was no evidence that Kellye paid for any of the expenses associated with Jake’s boarding school. The Meeks bought Jake’s vehicle. And John Hale lived with the Meeks for several years, so Kellye did not pay any of John Hale’s expenses. At best, Kellye spent $800 per month on the children’s entertainment in the form of eating out and going to movies. Otherwise, there is no indication that Kellye paid for any of the children’s expenses.

¶ 27. Furthermore, Kellye admitted that her own Rule 8.05 financial statement was not an accurate reflection of her monthly expenses. Contrary to her Rule 8.05 financial statement, she did not pay approximately $2,750 per month in mortgage payments. Brock had been paying the mortgage on the marital home. Kel-lye’s mother bought the house in which Kellye lived, and Kellye did not have to pay anything to live there. Additionally, Kellye’s mother paid for all of Kellye’s utilities, food, clothes, maintenance of Kel-lye’s house, and maintenance of Kellye’s car.

¶ 28. Kellye also claims that the chancellor erred by finding that Kellye’s income was $3,000 per month based on the average value of the amount of money her parents gave her each month. To support her argument, Kellye cites Robinson v. Robinson, 554 So.2d 300, 305 (Miss.1989), in which the supreme court held that when determining whether to award separate maintenance:

[w]e do not think it proper to consider mere gratuities given to the complainant by her father. The duty to support the wife rests upon the husband, and he cannot avoid the performance of this duty by showing that the father will probably see that the wife does not suffer because the father is able to do so and is manifesting a disposition to meet the wants of the daughter.

As discussed above, except for a brief period after an argument between Kellye and her father, her parents had consistently provided her with an “allowance” of between $2,000 and $4,000 per month for the entire duration of Brock and Kellye’s marriage. It was within the chancellor’s discretion to conclude that Kellye’s “allowance” amounted to more than “mere gratuities.” True enough, there was no evidence that Kellye had earned, any income since she stopped working for her father in 2000. However, the $2,000 to $4,000 figure was actually a conservative estimate when Kellye’s parents pay for so many of her other expenses. And the Meeks had supplemented Kellye’s lifestyle for years before Kellye and Brock separated. Prior to the separation, Kellye’s mother created a joint checking account and allowed Kel-lye to write checks from that account. There was evidence that approximately $70,000 passed through that account in one year. Although Kellye and her mother testified that the Meeks’ financial contributions became loans rather than gifts after Kellye and Brock separated, the chancellor acted within her discretion when she disregarded that testimony. The Meeks never asked Kellye to sign a promissory note, and there was no indication that the Meeks ever intended to have Kellye repay them.

¶ 29. To be clear, we do not interpret the chancellor as having penalized Kellye for the fact that her parents give so generously to her. Instead, the chancellor merely accepted the reality of the unique circumstances — Kellye’s parents consistently paid for practically all of Kellye’s expenses and regularly supplemented her income. The chancellor did not find that the Meeks were obligated to support Kel-lye. The chancellor simply recognized that the Meeks had consistently and voluntarily supported Kellye.

2. The health and earning capacities of the parties.

¶ 30. Kellye argues that “given [her] history of poor health, the chancellor should have awarded [her] periodic alimony.” As Kellye notes, the chancellor held:

Kellye has numerous physical and emotional/mental issues. In fact, during the pendency of this action, she fought the efforts to hav[e] her deposition taken by having her psychiatrist indicate that she was not well enough to participate in [a deposition]. There was extensive testimony of her physical ailments that put her to bed. There was also extensive testimony about her alcohol abuse and her extensive use of prescription medications that interfered with her ability to interact normally.

Kellye further notes that the chancellor held that Kellye’s “unstable emotional state” and her “health issues” weighed against awarding her custody of the children. According to Kellye, “the chancellor made contradictory findings” when she concluded that Brock was not obligated to pay Kellye alimony. While analyzing the health-of-the-parties factor, the chancellor held that “[a]lthough Kellye testifie[d] that she had been suffering from serious health and emotional issues that had prevented her from working, caring for her children[,] and being a wife to Brock, she testified that she was better and that she anticipated going to work upon completion of her de[g]ree.” According to Kellye, “[i]t was not tenable for the chancellor to believe both that Kellye had severe mental and physical problems [that] prevented her from providing primary childcare and that Kellye was well enough to finish her degree and reenter the work force.”

¶ 31. We disagree. It was within the chancellor’s discretion to find that Kellye’s health and emotional problems made her less suitable for primary physical custody of the children, but also to find that those health and emotional problems did not prohibit her from earning a college degree or reentering the workforce. The two concerns are not necessarily mutually exclusive.

¶ 32. Regarding her and Brock’s earning capacities, Kellye notes that her earning capacity is significantly less than Brock’s. The chancellor held:

Kellye’s earning capacity is probably not as great as Brock’s for the near future if you consider only her earned income, but the [c]ourt must not discount the fact that her parents have been giving her substantial income all throughout the marriage and that they have established extensive, valuable trusts for her benefit.

Kellye argues that the chancellor erred by finding that Kellye’s earning capacity was $3,000 per month based on the salary that she received while she was working for her father’s business. To support her argument, Kellye notes her testimony that her earning capacity was minimum wage, since she did not have a college degree. We agree that the salary Kellye received while she worked for her father is not an accurate reflection of her earning capacity. There was testimony that Kellye’s position and her salary were somewhat pretexts to justify the “allowance” that her parents gave her. Kellye had not even attempted to find a job after Brock left the marital home. Kellye did not testify that she was unable to work. She certainly has some earning capacity, but having made no attempt to earn an income, it is difficult to calculate her earning capacity with any accuracy. Even if the chancellor erred when she calculated Kellye’s earning capacity, we do not find that her error, in and of itself, is the equivalent of reversible error. As stated previously, the chancellor’s analysis of the Armstrong factors was comprehensive. It was within the chancellor’s discretion to weigh all of the Armstrong factors when she refused Kellye’s request for alimony.

3. The needs of each party.

¶33. According to Kellye, the chancellor should have found that this factor favored ordering Brock to pay alimony. Kellye’s reasoning is based on the following concepts: (1) she relies on her parents to support her; (2) she has a monthly deficit of approximately $16,000; and (3) Brock has a monthly surplus of approximately $4,000. Kellye raises these same arguments under other factors. It is unnecessary to reiterate the inaccuracies regarding Kellye’s claim that she has a monthly spending deficit of $16,000. For brevity’s sake, we simply state that it was within the chancellor’s discretion to weigh all of the Armstrong factors when she refused Kellye’s request for alimony.

4. The obligations and assets of each party.

¶ 34. Kellye claims “[t]he chancellor should have found this factor weighed in favor of awarding alimony to [her].” Kellye’s entire argument under this heading is as follows: “While neither party was left with any significant liquid assets after property division, Brock continued to receive a healthy income from his job at FedEx.” We do not find that this factor justifies reversing the chancellor’s decision.

5. The length of the marriage.

¶ 35. According to Kellye, “the chancellor failed to give appropriate weight to the fact that the parties were married for twenty-three years.” Kellye cites Sanderson v. Sanderson, 824 So.2d 623 (Miss.2002), to support her claim. In Sanderson, the supreme court held:

[W]e find that the length of this marriage [ (approximately twenty-two years)], the fact that Mrs. Sanderson was a full-time mother and homemaker, the fact that Mr. Sanderson did not have a retirement plan, the great disparity between the non-marital assets, and the great disparity in their capacities to produce future income make the amounts of the lump sum and rehabilitative alimony awards insufficient to do equity in this case.

Id. at 626 (¶ 13). Consequently, the supreme court found that “the rehabilitative alimony award of $54,000.00 and lump sum alimony award of $200,000.00 [was] insufficient in light of the parties’ prospects for future earnings and retirement.” Id. at 627. Although the length of the parties’ marriage was certainly one of the factors that the supreme court discussed, the disparity in the parties’ incomes and their capacities to produce future income were also factors. Id. at 626. The length of the marriage was not the sole determining factor in the supreme court’s decision.

¶ 36. Kellye also cites Buckley v. Buckley, 815 So.2d 1260 (Miss.Ct.App.2002), to support her argument that the length of the marriage favored an award of alimony. Again, the length of the marriage was certainly mentioned in this Court’s analysis in Buckley, but it was simply one of many factors that were discussed. Id. at 1263-66 (¶¶ 11-36). Additionally, in discussing the length of the marriage, this Court simply noted that the chancellor had “found that the Buckleys’ twenty-year marriage was ‘long-standing.’ ” Id. at 1264 (¶ 21). At best, Kellye’s authority supports the concept that the length of the marriage is but one factor that must be considered when determining whether to award alimony. Although the length of the marriage could reasonably support an award of alimony, in light of the chancellor’s discretionary authority to balance other factors against the length of the marriage, we do not find that the chancellor erred.

6. The presence of children in the home.

¶ 37. Kellye argues that this factor should have been neutral regarding whether alimony was necessary. The chancellor awarded Brock custody of the two minor children. Kellye did not appeal the chancellor’s custody determination. We do not find that the chancellor erred in her application of this factor to her decision to refuse Kellye’s request for alimony.

7. The age of each party.

¶ 38. The chancellor incorrectly found that Brock and Kellye were within four years of the same age. At the time of the trial, Kellye was forty-two years old, and Brock was forty-eight years old. The chancellor’s incorrect statement of the parties’ ages is of no moment. However, Kellye claims that the chancellor erred “in failing to consider the difficulty of Kellye reentering the workforce at her age and with her long medical history and limited work experience.” According to Kellye, “this factor should have weighed in favor of an award of alimony.”

¶ 39. Brock disagrees. As the chancellor noted, per FedEx policy, Brock must retire when he reaches his sixty-fifth birthday. Consequently, Brock had approximately fifteen years remaining in his career. When he retires, Brock must split a significant portion of his retirement with Kellye. Brock also notes that Kellye has no mandatory age limitation regarding the amount of time she may work. We find that the chancellor did not abuse her discretion when she did not find that this factor favored awarding alimony.

8. Each party’s standard of living.

¶40. The chancellor held that “Brock’s standard of living has decreased from that [which] he had during the marriage of the parties, but Kellye’s standard of living does not seem to have been affected because of the ‘gifts’ her parents continue to bestow upon her.” Kellye claims the chancellor erred. According to Kellye, “[t]his factor should have weighed in favor of an award of alimony.” Kellye’s reasoning is based on the concept that “Brock will continue to enjoy a large income and a high standard of living as a result of his employment as a FedEx pilot. [But she] will not enjoy the same standard of living-unless her parents choose to pick up the slack for Brock.”

¶ 41. To support her argument, Kellye relies on McKissack v. McKissack, 45 So.3d 716 (Miss.Ct.App.2010). In McKissack, the chancellor equitably distributed a couple’s property and then analyzed a wife’s request for alimony. Id. at 723 (¶ 37). The wife had a college degree, but she had “virtually no work experience during the marriage.” Id. She had “a monthly income of approximately $800 from her part-time employment as an interior designer.” Id. The chancellor found that the wife needed “ample liquid resources to maintain her in some semblance of her accustomed style and manner of living.” Id. at (¶ 38). The chancellor’s decision was based on “the wide disparity in the parties’ incomes and their ability to earn income.” Id. The chancellor specifically found “that the property [the wife] received in the equitable distribution would produce some income, but not enough to maintain [her] lifestyle.” Id. Consequently, the chancellor awarded the wife $6,000 per month in periodic alimony. Id. at (¶ 39).

¶ 42. Unlike the wife in McKissack, Kellye’s standard of living has not suffered. The chancellor reasonably concluded that Kellye’s standard of living has remained the same, and Brock’s standard of living has decreased. As stated by the chancellor, at the time of the trial, Brock was “living in a loft apartment in a barn located on some land that he owns jointly with his siblings that they [had recently inherited].” Kellye was living in a house that her parents bought for her. Under these circumstances, we do not find that the chancellor abused her discretion.

9. Fault or misconduct.

¶43. The chancellor held that “both parties are equally at fault in the fault of the marriage.” The chancellor also held:

The demise of this marriage hás been coming for a long time. There are numerous contributing factors to its demise, such as the wife’s illnesses and her apparent withdrawal from the family and from her responsibilities to her marriage, her parents’ continued “help” both financially and otherwise which tended to undermine the marriage, the fact that the husband worked out of town quite a bit and was thus absent from the home for periods of time. The final straw that caused the separation of the parties was Brock’s one-night-stand affair that he admitted to Kellye and admitted on the stand in open court.

According to Kellye, “the chancellor did not give appropriate weight to the fact that the dissolution of this marriage was caused by Brock’s unfaithfulness.” Kellye also notes that she testified that Brock was “physically and verbally rough” on their son, Jake. And Kellye claims that the chancellor failed to properly weigh her testimony that Brock drank too much. Kellye argues that the chancellor should have found that this factor weighed in favor of awarding alimony.

¶ 44. The chancellor was aware of Brock and Kellye’s philosophical differences regarding the discipline of Jake, who was in boarding school for reasons related to discipline problems at the time of the trial. However, it was within the chancellor’s discretion to conclude that Brock and Kellye’s philosophical differences regarding discipline did not contribute to the erosion of the marriage. It was not unreasonable for the chancellor to conclude that every disagreement during the marriage did not necessarily relate to fault or misconduct. Furthermore, there was ample testimony that both parties drank to excess, and there was evidence that Kellye’s reliance on prescription medication “interfered with her ability to interact normally.” Considering the totality of the circumstances, the chancellor did not abuse her discretion when she found that both parties were at fault for the demise of the marriage, despite the fact that Brock’s affair was the final catalyst that brought about its demise.

10. Dissipation of assets.

¶ 45. The chancellor held that “[t]here was extensive testimony of Kellye’s dissipation of marital assets or maybe assets that were gifted to her by her parents in the form of an allowance.” According to Kellye, “the chancellor gave undue consideration to Kellye’s eBay purchases.” Kel-lye claims that she “should not have been penalized in the chancellor’s alimony analysis when any money she overspent wa[s] given to her by her parents and [she] did not cause any wasteful dissipation of marital assets.” (Emphasis in original). Additionally, Kellye argues that Brock wasted marital assets when he withdrew $42,000 from his 401 (k) to pay his attorneys’ fees. Kellye states: “While Brock spent tens of thousands of dollars in marital funds to pay his attorneys’ fees, Kellye used not one cent of marital funds to pay her attorney[s]. Instead, the Meeks paid for all of Kellye’s attorneys’ fees.”

¶ 46. Brock argues that “the chancellor determined that [the Meeks’] regular and historical monetary gifts should be eonsid-ered as sources of income [that] ..., whether gifted or not, [were] marital asset[s], some of which [were] commingled with Brock’s earnings, and [were] dissipated through Kellye’s excessive spending.” We find that the chancellor acted within her discretion in finding that Kellye dissipated marital assets. Despite the chancellor’s finding, there is no indication that the chancellor gave significant weight to this factor when she declined to award Kellye alimony.

11. Any other factor.

¶47. Under this factor, Kellye summarizes her argument that the chancellor erred when she did not order Brock to pay alimony. Kellye claims all of the factors except two favored ordering Brock to pay her alimony. However, we have found that the chancellor did not abuse her discretion when she considered the factors discussed above. Although the chancellor could have possibly reached different conclusions, the chancellor weighed the evidence in a reasonable manner. “[A]limony is not a bounty to which the wife became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to the husband.” Graham v. Graham, 767 So.2d 277, 280 (¶ 8) (Miss.Ct. App.2000) (quoting Beacham v. Beacham, 383 So.2d 146, 148 (Miss.1980)). “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.” Rogillio, 101 So.3d at 153 (¶ 11). We do not find that the chancellor’s decision is oppressive, unjust, or grossly inadequate. Consequently, we find that the chancellor did not err when she refused Kellye’s request for alimony. This issue is without merit.

II. CHILD SUPPORT

¶ 48. Kellye claims the chancellor erred by ordering her to pay Brock $600 per month in child support. According to Kellye, the chancellor incorrectly concluded that she has an income of $3,000 per month. We have discussed Kellye’s claim in our analysis above. There is no need to reiterate the point. Suffice it to say, it was within the chancellor’s discretion to conclude that Kellye had received at least $3,000 per month from her parents for a significant time.

¶ 49. Kellye also repeats her claim that she has a monthly spending deficit of approximately $16,000. Again, we addressed that claim above, and we found no merit to it. Kellye most certainly does not spend approximately $9,000 per month on the three children. Nor does she have approximately $7,000 per month in expenses related solely to herself.

¶ 50. Brock received custody of the couple’s two minor children. Under the circumstances, it was within the statutory guidelines for the chancellor to order Kel-lye to pay Brock child support in the amount of twenty percent of her adjusted gross income. See Miss.Code Ann. § 43-19-101(1) (Supp.2012). The term “adjusted gross income” includes “all potential sources that may reasonably be expected to be available to the absent parent.” Miss.Code Ann. § 43-19-101(3)(a). The chancellor actually valued Kellye’s adjusted gross income rather conservatively, considering that some evidence suggested that Kellye’s parents gave her more than $3,000 per month. We find no merit to this issue.

III. COLLEGE EXPENSES

¶ 51. Finally, Kellye claims that the chancellor should have ordered Brock to pay the two minor children’s college expenses. Kellye did not raise the issue of the children’s educational expenses in her counter-complaint for divorce, her amended counter-complaint for divorce, or any other pleading prior to the chancellor’s judgment. Kellye first raised this issue in her posttrial “motion to alter and/or amend judgment, for new trial and for relief from judgment.” However, Kellye’s attorney cross-examined Brock regarding whether he was willing to pay the minor children’s college expenses. Brock testified that he would pay for the children’s educational expenses if the Meeks were not willing to allow the children to access the trusts that the Meeks had established for them.

¶ 52. The Meeks had established trusts for all three of Brock and Kellye’s children. The primary purpose of those trusts was to provide a postsecondary education for the children. The youngest child was also a beneficiary of a separate trust that did not place the same emphasis on education. Instead, that trust was established to “provide extras” that his parents are not able to provide.

¶ 53. Additionally, the Meeks established a “Grandchildren’s Trust” to provide extras for all of the grandchildren. Kel-lye’s expert witness testified that the Grandchildren’s Trust was not intended to discharge Brock and Kellye from their obligation to support their own children. According to Kellye, the “trusts should not be used as an excuse for why Brock should not first be obligated to pay for the children’s college expenses.” Kellye further argues that her parents “should not be compelled to provide for the children’s college educations, but that is in essence what the chancellor ordered.” We disagree. The Meeks were not compelled to establish any of the trusts that benefit their grandchildren. The Meeks established those trusts of their own free will, and they did so well before Brock and Kellye separated. Brock testified that he would fund the two minor children’s college educations if the Meeks would not allow the children to access their trusts. It was within the chancellor’s discretion to decline to address the children’s college expenses when the children have access to trusts that are intended to fund their college educations, and Brock testified that he was willing to pay for their education if the Meeks would not allow the children to access their trusts. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . As of the time of the trial, John Hale was still living with the Meeks.

      . Because the local chancellors had recused, the Mississippi Supreme Court appointed a special chancellor to hear Brock's complaint and Kellye’s counter-complaint.

      . There was no evidence that Kellye was the beneficiary of "several” trusts. The record indicates that Kellye was the beneficiary of two trusts. However, the chancellor’s incorrect reflection of the number of trusts in which Kellye has an interest is of no moment for the purposes of this issue.

      . We note that the chancellor's analysis of the Armstrong factors was comprehensive in that she addressed the relevant factors, but she did not discuss each factor separately and then determine whether each factor favored or disfavored an award of alimony. Additionally, the chancellor's analysis of the Armstrong factors was after her child-custody determination and her division of the marital estate. For brevity’s sake the chancellor often related her discussion of the Armstrong factors to similar considerations in her prior rulings. We do not mention these aspects of the chancellor’s analysis as a form of criticism-we merely intend to accurately frame the manner in which she conducted her analysis.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Rosetta JACKSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-01310-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Rosetta Jackson, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. The Mississippi Department of Employment Security (MDES) denied unemployment benefits to Rosetta Jackson after it determined she had failed to file a timely appeal of the claims examiner’s decision. The Forrest County Circuit Court affirmed that decision. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶2. Jackson was employed by LBAM Investor Group LLC as a hotel housekeeper from October 15, 2011, to January 3, 2012. She was discharged due to a verbal altercation with her supervisor. Jackson applied for unemployment benefits with MDES. After conducting an investigation, the MDES claims examiner denied Jackson benefits due to work misconduct.

f 3. On February 4, 2012, Jackson received a “Notice of Nonmonetary Determination Decision” in the mail, informing her that her benefits were denied. The letter informed her that she had until February 18, 2012, to appeal the decision. The letter also stated that if she filed an appeal later than February 18, a hearing would be held to determine whether she had good cause for filing late. Jackson did not file her appeal until February 28, 2012.

¶ 4. The administrative law judge (ALJ) conducted a telephonic hearing with Jackson. After reviewing the record, the ALJ found that pursuant to Mississippi Code Annotated section 71-5-517 (Rev.2011), Jackson had fourteen days from the claims examiner’s February 4, 2012 decision in which to appeal. Consequently, the ALJ stated that Jackson’s appeal was not timely because it was not filed until February 28, 2012. Finding that Jackson failed to show good cause for her untimely filing, the appeal was dismissed. Jackson appealed the ALJ’s decision to the MDES Board of Review, which affirmed the decision. Jackson appealed the MDES decision to the Forrest County Circuit Court. The circuit court affirmed that decision. Jackson now appeals to this Court.

STANDARD OF REVIEW

¶ 5. “The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So.3d 766, 769 (¶ 9) (Miss.2010) (citation omitted). “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994).

DISCUSSION

¶ 6. Jackson argues before this Court that her appeal was timely under Mississippi Code Annotated section 71-5-529 (Rev.2011), which states that “[a]ny decision of the Board of Review, in the absence of an appeal therefrom as herein provided, shall become final ten (10) days after the date of notification.... ” Section 71-5-529 governs appeals of decisions from the Board of Review. The timeliness of Jackson’s appeal, from the Board of Review’s decision is not an issue in this case. This argument is without merit.

¶ 7. Mississippi Code Annotated section 71-5-517 sets out the applicable period for a claimant or employer to appeal the initial determination of an MDES claims examiner. The statute provides that “[t]he claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was sent to his last known address.” Miss.Code Ann. § 71-5-517.

¶ 8. “This fourteen-day time period is to be strictly construed, and unless the notification of the decision is made by means other than mailing to the last known address, the time period to appeal to the Board of Review begins to run on the date that notice was sent to the parties.” Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs., Inc., 996 So.2d 809, 818 (¶ 10) (Miss.Ct.App.2008) (citation omitted). However, the fourteen-day time period may be relaxed or extended if there is a showing of “good cause” by the appellant. Holt v. Miss. Emp’t Sec. Comm’n, 724 So.2d 466, 470 (¶ 17) (Miss.Ct.App.1998). “Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control.” Miss. Emp’t Sec. Comm’n v. Marion Cnty. Sheriff's Dep’t, 865 So.2d 1153, 1157 (¶ 10) (Miss.2004).

¶ 9. Jackson received a notice of the claims examiner’s decision on February 4, 2012. Pursuant to section 71-5-517, the deadline for Jackson to file the appeal of the claims examiner’s decision was February 18, 2012. Jackson did not file her appeal until February 28, 2012. The record reflects that the decision was sent to her correct mailing address in a timely manner. At the telephonic hearing, Jackson stated she received the claims examiner’s decision. When asked why she did not file the appeal in a timely manner, Jackson simply stated that she had other things going on and that she thought her claim would be denied anyway.

¶ 10. Pursuant section 71-5-517, the MDES provided Jackson with all of the notice to which she was entitled. Given that Jackson’s ability to receive her mail was within her control, we find that the record does not present any set of facts that would support a showing of good cause to excuse Jackson’s untimely filing. Therefore we affirm the circuit court’s decision, which affirmed the MDES’s denial of unemployment benefits to Jackson.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED.

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


text:
    In re The Matter of Lacey Celeste WILHITE, an Unmarried Minor. Tammy L. Woolbright, Appellant v. Rodford Ray Wilhite, Guardian/Conservator of Lacey Celeste Wilhite, Appellee.
    No. 2012-CP-00373-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Tammy L. Woolbright, appellant, pro se.
    Will R. Ford, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Eighteen-year-old Lacey Wilhite was permanently disabled in an automobile accident. Her divorced parents each sought a guardianship or conservatorship, and the father ultimately prevailed. The mother’s attorney, Tammy Woolbright, filed an attorney’s lien against the proceeds of a settlement of Lacey’s claims stemming from the accident. The chancery court ultimately awarded Woolbright $2,500 for her work on Lacey’s behalf, and Woolbright appeals from that judgment, contending she should have received more. We can find no basis to interfere with the exercise of discretion by the chancellor and increase the award, so we affirm.

FACTS

¶ 2. On August 16, 2008, Lacey was thrown from her vehicle after a collision with a drunk driver. She suffered permanent debilitating brain injuries that left her “neurologically devastated” and totally dependent on the care of others. Her mother, Celeste Sloan, had custody at the time of the accident, but Lacey had actually been living with her father for several years. Sloan, through her attorney, Wool-bright, filed a petition for guardianship on September 24, 2008. A short time later, Lacey’s father, Rodford Wilhite, responded with a counter-petition. He also sought custody of Lacey in a separate proceeding. Rodford ultimately prevailed in both actions, with the chancery court appointing him guardian/conservator approximately two years after the accident. The court then entered an order approving a 25% contingency fee contract with Rodford’s attorney, Will Ford.

¶ 3. The court was later presented with a settlement offer from the insurance carrier of the other driver, Nationwide, for the policy limits of $100,000. Also before it were Woolbright’s attorney’s lien and a subrogation claim by Lacey’s medical insurance carrier. The chancellor approved the settlement, denied the subrogation claim, and ordered a separate hearing on the issues of Ford’s fee and Woolbright’s lien.

¶ 4. The chancery court found that Ford was largely entitled to collect his 25% contingency fee. Further, although Wool-bright had a contract with Lacey’s mother and had devoted significant time and effort to pursuing Lacey’s claims, Lacey’s mother did not have a guardianship, and Wool-bright had never sought or received court approval to represent Lacey. For that and other reasons, the chancellor concluded Woolbright was entitled to $2,500, in quantum meruit, which was charged against Ford’s fee (leaving him with $22,500).

DISCUSSION

1. Ford’s Contract and Fees

¶ 5. Woolbright’s first two issues assert deficiencies in the chancery court’s supervision of Lacey’s estate, so we shall address them together. She argues that Ford was required to file a motion requesting approval of the contingency fee contract before the trial court could enter an order approving it. She also contends Ford failed to comply with Uniform Chancery Court Rule 6.12, arguing among other things that Ford’s written petition failed to outline the work he did on the case and failed to disclose a prior settlement offer that had been made to Woolbright.

¶ 6. Rule 6.12 states in relevant part:

Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered shall set forth the same facts as required in Rule 6.11, touching his compensation, and if so, the nature and effect thereof. If the petition be for the allowance of fees for recovering damages for wrongful death or injury, or other claim due the estate, the petition shall show the total amount recovered, the nature and extent of the service rendered and expense incurred by the attorney, and the amount if any, offered in compromise before the attorney was employed in the matter. In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons. If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.

¶ 7. While we agree that Ford’s written filings fail to fully comply with the Uniform Chancery Court Rules, we find no error because all of the required information was presented to the chancery court during the hearing. Ford testified at some length to “the nature and extent of the service rendered and expense incurred,” his experience, the novelty of the legal questions involved, and the reasonableness of his fee; and Woolbright informed the court of the prior settlement offer made to her. Both agreed that the case involved more than simply accepting a settlement for the policy limits; among other things, Lacey’s attorney had to investigate other potential causes of action on Lacey’s behalf, follow up on the criminal prosecution of the other driver, and contest various subrogation claims. Indeed, Woolbright herself argued that her 33.8% contingency fee contract with Lacey’s mother and the 125-plus hours she had devoted to the case were reasonable and entitled her to fees exceeding those awarded to Ford. The chancellor found that Ford’s fee of 22.5% was fair and reasonable. Given the evidence before the chancellor, we cannot find any error in his approving this fee.

2. Woolbright’s Quantum Meruit Claim

¶ 8. Woolbright acknowledges that her contract with Lacey’s mother is unenforceable. But she contends that, under a quantum meruit theory, she is entitled to compensation from Lacey’s estate far ex-eeeding the $2,500 awarded by the chancery court.

¶ 9. The “essential elements of recovery under a quantum meruit claim” are as follows:

(1) valuable services were rendered or materials furnished;
(2) for the person sought to be charged;
(3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; and
(4) under such circumstances as reasonably notified person sought to be charged that plaintiff, in performing such services, was expected to be paid by person sought to be charged.

Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 514-15 (1156) (Miss.2007). “Quantum meruit recovery is a contract remedy which may be premised either on express or implied contract, and a prerequisite to establishing grounds for quantum meruit recovery is [the] claimant’s reasonable expectation of compensation.” Id. at 514 (¶ 56) (citation and internal quotation marks omitted). A chancellor’s decision as to attorney’s fees in quantum meruit is reviewed only for an abuse of discretion; it will not be disturbed on appeal if it is supported by substantial evidence. Ownby v. Prisock, 243 Miss. 203, 208, 138 So.2d 279, 281 (1962).

¶ 10. The chancery court pointed out in its order that the fatal flaw in Woolbright’s quantum meruit claim against Lacey’s estate is the absence of a reasonable expectation of compensation from the estate. From the beginning, Woolbright knew Lacey’s parents were divorced and that there was a potential contest of Sloan’s petition for a guardianship. Of the more than 125 hours on Woolbright’s invoice, only 12.9 precede the filing of the guardianship contest. While Sloan continued pursuing Lacey’s claims, there was no evidence of any pressing need to do so before the resolution of the guardianship dispute; and a fair portion of the remaining hours invoiced relates only to the guardianship contest.

¶ 11. Woolbright’s argument is that her employment by Sloan gave her a reasonable expectation of compensation from the estate even if she had no enforceable contract. We do not agree. Sloan may have been a “natural guardian” of Lacey under Mississippi Code Annotated section 93-13-1 (Rev.2004), but the chancery court is the “superior guardian.” See Carpenter v. Berry, 58 So.3d 1158, 1163 (¶ 19) (Miss.2011). As the Mississippi Supreme Court detailed in Mississippi State Bar Association v. Moyo, 525 So.2d 1289, 1293-96 (Miss.1988), there are three ways to bind a minor in a settlement: (1) removal of the disability of minority, (2) the formal appointment of a guardian, and (3) the chancery court’s approval, without a guardianship, when the claim is worth $25,000 or less (Mississippi Code Annotated section 93-13-211 (Supp.2012)). It stands to reason that a parent who has no authority to bind her daughter’s estate in a settlement cannot bind the estate to an attorney’s fee contract, particularly when such a contract would have to be, but was not, approved by the chancery court. See UCCR 6.12. In Carpenter, 58 So.3d at 1163 (¶ 19) (citation omitted & emphasis added), the supreme court reiterated its longtime holding that:

Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irre-fragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court andLGor the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril.

See also Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826-27, 138 So. 593, 595 (1932) (original source). Given the age and clarity of that pronouncement, we agree with the chancery court that Wool-bright did not have a reasonable expectation of compensation from Lacey’s estate.

¶ 12. Woolbright also contends that the chancellor’s decision to award her $2,500, 10% of Ford’s 25% contingency fee contract, was arbitrary. She points out that the chancery court cited In re Guardianship Estate of Baker, 31 So.3d 1285, 1289 (¶ 14) (Miss.Ct.App.2010), an attorneys’ fee dispute case where 10% of the total fees were awarded to one attorney in quantum meruit. Woolbright argues the chancellor awarded her 10% because that was how much was awarded in Baker.

¶ 13. Although we agree that it is not clear how the chancery court arrived at the $2,500 award, Ford points out that it could be interpreted as a rough approximation of the value of the 12.9 hours Wool-bright had in the case before the guardianship dispute. Woolbright testified that her hourly rate was $225; if the chancellor had decided a reasonable value for Wool-bright’s services was $200 per hour, 12.9 hours would be $2,580. Given that there is substantial evidence to support the $2,500 figure, and the questionable reasonableness of Woolbright’s expectation of any compensation whatsoever, we do not think the failure to make a larger award is an abuse of discretion.

¶ 14. This issue is without merit.

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

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


text:
    Ray Anthony CHANEY a/k/a Ray A. Chaney, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00908-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Ray Anthony Chaney, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.

      Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On December 18, 1981, Ray Anthony Chaney pled guilty to five counts of burglary of a dwelling. Over thirty years later, he filed a motion for post-conviction relief (PCR). Chaney stated that, at the time of his guilty plea, his constitutional rights were violated because his counsel was ineffective.

¶ 2. The Jackson County Circuit Court dismissed Chaney’s motion without an evi-dentiary hearing, stating that the motion was untimely filed and had no meritorious claims. Chaney’s motion for reconsideration was also denied. Chaney now appeals to this Court. Finding no error, we affirm the trial court’s dismissal of Chaney’s PCR motion.

STANDARD OF REVIEW

¶ 3. The trial court may summarily dismiss a PCR motion without an eviden-tiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 4. When this Court reviews the trial court’s dismissal of a PCR motion, we “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999).

DISCUSSION

¶ 5. Chaney argues his attorney was ineffective by: (1) coercing him into pleading guilty and failing to correctly explain the applicable laws and sentencing alternatives, (2) encouraging him to engage in a plea that was not voluntary or intelligently given, (3) failing to object to the trial court’s failure to engage in a full and fair plea colloquy, and (4) failing to perfect an appeal after he was instructed to do so by Chaney.

¶ 6. Chaney pled guilty, so he had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012). Claims made outside of the three-year statute of limitations must raise one of the exceptions found in section 99-39-5(2)(a)-(b). “Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception.” Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citation omitted).

¶ 7. “[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Pos-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.App.Ct.2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id.

¶ 8. To succeed on an ineffective-assistance-of-counsel claim, the appellant must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 9. Mississippi Code Annotated section 99-39-9(1) (Supp.2012) sets forth the requirements for a PCR motion. The mov-ant must give a “separate statement of the specific facts which are within the personal knowledge of the [movant] and which shall be sworn to by the [movant].... ” Miss. Code Ann. § 99 — 39—9(l)(d).

¶ 10. In his motion, Chaney presented an unsworn statement as his only piece of evidence in support of his argument. He incorrectly titled this piece of paper as an affidavit. An affidavit is “a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” Black’s Law Dictionary 62 (8th ed.2004). An unsworn affidavit is “merely a piece of paper with the word ‘affidavit’ as its title.” Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App.2007).

¶ 11. Chaney only makes bare assertions in support of his ineffective-assis-tanee-of-counsel claims. He has not shown that his counsel’s performance was deficient, as required under Strickland. Furthermore, he has not shown that his counsel’s allegedly deficient performance “proximately resulted in his guilty plea, and [that] but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10). This issue is without merit.

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

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


text:
    Demonta GARDNER a/k/a Gangster, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01014-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before IRVING, P.J, ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. When Karen Winters answered a knock at the door, a man forced it open and held her at gunpoint. Two or three accomplices followed and looted Winters’s apartment as she was forced to lie on the floor with a blanket over her head. The men took her television, purse, medicine bag, change jar, and two laptops, among other things.

¶ 2. Later that night, and only a few bloeks away, an officer of the Columbus Police Department pulled over a Ford Explorer containing Demonta Gardner, five of his acquaintances, and some of Winters’s possessions. The occupants of the vehicle gave varying accounts of who had participated in the robbery and to what extent. Gardner was ultimately tried for armed robbery and burglary. He testified in his own defense that he had stayed in the vehicle and refused to rob an “old woman.” Two of his companions, however, testified for the State and placed him inside the apartment.

¶ 3. The jury acquitted Gardner of armed robbery, but it convicted of him of burglary. Gardner now appeals, arguing that the evidence does not support his conviction. We find no merit to these issues, so we affirm Gardner’s conviction and sentence.

FACTS

¶ 4. Gardner was arrested with five other young men: Michael Satterfield, Tevin Oglen, Jeremy Billups, Corey Lathan, and Bobby Bluitt. The six had varying levels of familiarity with each other and had been, by one description, classmates. Sat-terfield, Billups, and Oglen testified for the State.

¶ 5. There was some variation in the details, but the witnesses generally agreed that the group had assembled during the afternoon of September 29, 2011. Gardner was the last or one of the last to join up when the others showed up at his house. All three of the State’s witnesses agreed Gardner brought a .40-caliber pistol with him and later gave it to Oglen. Although there had been talk of visiting some girls, the six eventually decided to “hit a lick” by robbing a local drug dealer known in the record only as “Al.” Several in the group donned masks and two armed themselves with the .40-caliber pistol and a .22-caliber revolver.

¶ 6. When they arrived sometime after 10:00 in the evening, they found Al’s apartment vacant. Nearby, however, was Winters’s apartment, and through her window they could see a large flat-screen television. One of the six, either Oglen or Billups depending on the testimony, wearing a hood and bandana to obscure his face, knocked on Winters’s door and claimed to be “John, from upstairs.” When Winters opened the door, the lead man forced his way inside and some of the others followed. According to Oglen and Satterfield, Gardner went inside and took the television. Billups described Gardner as going behind the building for a short time and then returning to the car; according to him, Oglen and Lathan took the television.

¶ 7. Gardner testified in his own defense. He claimed to have been surprised when the others showed up at his house, but he came along because he thought they were going to visit some girls. On the way over, however, Lathan began talking about “hitting a lick.” Gardner thought it was just bluster, but Lathan directed the driver, Bluitt, to Al’s apartment complex. Satterfield, Oglen, Billups and Lathan got out of the vehicle, but they came back after finding Al’s apartment vacant. Oglen saw the television in Winters’s apartment and suggested robbing her, but Gardner and Billups refused, even after Oglen threatened them with a pistol. According to Gardner, Oglen was the one who brought the television back. Gardner’s theory of the case was that he abandoned any intent to rob or burglarize anyone by staying in the car.

¶ 8. After the robbery, the young men needed a place to store the television and other loot. Even Gardner admitted he volunteered his sister’s apartment, which was vacant. They drove there, and Satter-field went in through the window to unlock the door. They left the TV and one of the laptops in the apartment, and they disposed of some undesired items in a field nearby — pharmaceuticals, phones, and the now-empty change jar. A short time later they were apprehended.

¶ 9. Gardner was tried for robbery and burglary. The jury acquitted him of robbery, but he was convicted of burglary and sentenced to twenty years’ imprisonment and five years of post-release supervision. Gardner now appeals, contending his conviction is not supported by sufficient evidence and that it is against the overwhelming weight of the evidence.

DISCUSSION

1. Sufficiency of the Evidence

¶ 10. In his first issue, Gardner contends the evidence was insufficient to support his burglary conviction. Specifically, he argues that the evidence could only support his abandonment defense.

¶ 11. The inquiry as to sufficiency is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Gardner’s indictment, tracking the language of Mississippi Code Annotated section 97-17-23 (Supp.2012), alleged in relevant part that he did “break and enter the dwelling house of Karen Winters, with the intent to ... steal ... the property which was then inside.”

¶ 12. In his brief, Gardner cites to Bucklew v. State, 206 So.2d 200, 202-04 (Miss.1968) (citation omitted), where the court held:

Abandonment is a defense if the attempt to commit a crime is freely and voluntarily abandoned before the act is put in process of final execution, [and] if there is no outside cause prompting the abandonment. On the other hand, a voluntary abandonment of an attempt which has proceeded beyond mere preparation will not bar a conviction for the attempt.

¶ 13. The flaw in Gardner’s argument is that abandonment is a defense to an attempt, but there was more than sufficient evidence Gardner completed the crime, either as a principal or as an accomplice. Gardner contends that the State’s witnesses are unreliable because there are numerous discrepancies in their accounts as to who did what. Admittedly there are differences in the accounts, and each of the witnesses obviously employed the “other guy defense” to minimize the role he personally played; but all three testified that Gardner provided one of the guns used in the robbery, and Gardner admits he directed them to his sister’s apartment to hide the loot. Satterfield and Oglen testified that Gardner, working in concert with the individual who forced his way into the apartment, personally entered and took the television.

¶ 14. It has been “repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Hughes v. State, 735 So.2d 238, 276-77 (¶ 177) (Miss.1999) (citation omitted). The evidence must be viewed in the light most favorable to the prosecution. Bush, 895 So.2d at 843 (¶ 16). Moreover, under the theory of accomplice liability, the jury needed to find only that Gardner aided or acted in concert with the principals. See King v. State, 47 So.3d 658, 665 (¶ 18) (Miss.2010). Given that Gardner supplied one of the guns used in the robbery and provided a place to hide the stolen items, the jury could have found Gardner guilty even if it believed he did not personally go into the apartment. We conclude there was sufficient evidence to support Gardner’s burglary conviction.

2. Weight of the Evidence

¶ 15. In his final issue, Gardner contends the verdict was against the overwhelming weight of the evidence. His argument is a retreading of his first issue, albeit with a different legal standard. A challenge to the weight of the evidence will be successful only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence must be viewed in the light most favorable to the verdict, and a new trial should be granted “only in exceptional eases in which the evidence preponderates heavily against the verdict.” Id. The motion for a new trial is entrusted to the trial judge, who had a first-hand view of the trial. “[Reversal] is warranted only if the trial court abused its discretion .... ” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007).

¶ 16. Given the evidence as we have detailed it above, the verdict is not against the overwhelming weight of the evidence. This issue is without merit,

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF BURGLARY OF AN OCCUPIED DWELLING AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS’ POST-RELEASE SUPERVISION 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.

      . Winters described the lead man as having long hair in braids or dreadlocks, but only Lathan and Satterfield could have fit that description.


text:
    William C. JACKSON a/k/a William Christopher Jackson a/k/a William Jackson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01195-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. William C. Jackson was convicted in Clarke County Circuit Court of one count of felony escape. Prior to trial, the judge granted the prosecution’s request to try Jackson as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). As a result, he was sentenced to five years as a habitual offender in the custody of the Mississippi Department of Corrections, without the possibility of parole or probation. His sentence was ordered to run consecutively to any previously imposed sentence. The Mississippi Office of Indigent Appeals represents Jackson on appeal. Jackson’s attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005). Following the procedure set forth in Lindsey, Jackson filed a pro se brief. On appeal, he claims that: (1) the indictment was defective; (2) he was denied a speedy trial; and (3) he received ineffective assistance of counsel on appeal. We find no error and affirm.

FACTS

¶ 2. On September 9, 2010, Jackson was indicted for felony escape under Mississippi Code Annotated section 97-9-49 (Rev. 2006) for fleeing from the Clarke County Jail. Jackson pled not guilty. The trial was initially set for December 8, 2010, but was continued two separate times due to defense counsel’s illness. Jackson signed both continuance orders, waiving his right to a speedy trial. On July 20, 2011, Jackson’s trial was continued a third time due to plea negotiations. On August 24, 2011, Jackson filed a motion to dismiss the charge against him for failure to provide a speedy trial. The court denied the motion.

¶ 3. The trial commenced on February 27, 2012. The jury returned a guilty verdict, and the trial court sentenced Jackson as a habitual offender to five years without the possibility of parole or probation. Jackson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied his motion. Thereafter, Jackson appealed. Jackson’s counsel filed a Lindsey brief, stating that there were no arguable issues to support an appeal. In Lindsey, the Mississippi Supreme Court set out the procedure to be followed when a defendant’s attorney does not find any arguable issues to support an appeal. Lindsey, 939 So.2d at 748 (¶ 18). Following the Lindsey procedure, Jackson submitted a pro se brief to this Court.

DISCUSSION

¶ 4. Pursuant to Lindsey, if appellate counsel finds no arguable issues on appeal, it is the appellate counsel’s responsibility to file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal. The counsel must then send her client a copy of the brief, informing her client that she found no arguable issue for an appeal, and she must advise the client of his right to file a pro se brief. Id. If the defendant raises any arguable issue in his pro se brief, or if the appellate court finds any arguable issues upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file supplemental briefing on the issue. Id.

¶ 5. Jackson’s attorney filed a brief indicating that she diligently searched the procedural and factual history of this action and scoured the record, searching for any arguable issues that could be presented in good faith, but she found none. Jackson’s attorney asserts that she examined: (1) the reason for Jackson’s arrest and the circumstances surrounding the arrest; (2) any possible violations of Jackson’s right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misrepresentation of the law in sentencing; (9) the indictment and all the pleadings in the record; (10) any possible ineffective-assistanee-of-counsel issues; and (11) other possible reviewable issues.

¶ 6. Jackson filed a pro se brief. In his brief, he claims that his indictment was defective, he was denied a speedy trial, and he was denied effective assistance of appellate counsel. After a thorough review of the record, this Court finds no arguable, nonfrivolous issues. The three issues raised by Jackson are without merit.

1. Indictment

¶ 7. “The issue of whether an indictment is so flawed as to warrant reversal is a question of law and allows this Court a broad standard of review.” Smith v. State, 989 So.2d 973, 978-79 (¶ 13) (Miss.Ct.App.2008). The primary purpose of an “indictment is to give the defendant fair notice of the crime charged.” Nix v. State, 8 So.3d 141, 144-45 (¶ 6) (Miss.2009) (citing Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978)). It must contain “the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06.

¶ 8. Jackson was charged with felony escape pursuant to Mississippi Code Annotated section 97-9-49. The statute reads as follows:

(1)(a) Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemean- or, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.
(b) Whoever escapes or attempts by force or violence to escape from any confinement for contempt of court, shall, upon conviction, be found guilty of a misdemeanor and sentenced to imprisonment not to exceed six (6) months in the county jail.
(2) Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who willfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be an escapee and shall be subject to the penalties provided in subsection (1).

¶ 9. Jackson argues that his indictment is flawed because it does not sufficiently allege the nature and lawfulness of his custody or the basis for his custody. The indictment stated that Jackson did “willfully, unlawfully, and feloniously escape by force from the custody of the Clarke County Sheriffs Department, Quit-man, Mississippi, pursuant to lawful process or arrest, in violation of section 97-9-49.... ” Jackson was adequately informed by the indictment of the nature of the charge against him and the supporting facts. We find this issue to be without merit.

2. Speedy Trial

¶ 10. Jackson argues that the State violated his right to a speedy trial, and that the charges against him should be dismissed. The United States Constitution and the Mississippi Constitution afford a defendant the right to a speedy trial. The Sixth Amendment to the United States Constitution states, in relevant part, that “the accused shall enjoy the right to a speedy and public trial.” Article 3, Section 26 of the Mississippi Constitution likewise states, in part, that “the accused shall have a right to ... a speedy and public trial.” Additionally, Mississippi Code Annotated section 99-17-1 (Rev.2007) creates a statutory right to a speedy trial: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this [c]ourt’s standard of review, this [e]ourt will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this [e]ourt will ordinarily reverse. The [S]tate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss.1998) (internal citations omitted).

¶ 11. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court stated that a balancing test consisting of four factors is to be used in determining whether a defendant’s right to speedy trial was violated. The factors are as follows: (1) “[l]ength of delay,” (2) “the reason for the delay,” (3) “the defendant’s assertion of his or her right,” and (4) “prejudice to the defendant.” Id. The court must consider the totality of the circumstances on a case-by-case basis. Boone v. State, 964 So.2d 512, 519 (¶ 13) (Miss.Ct.App.2006).

¶ 12. The constitutional right to a speedy trial attaches at the time of arrest, indictment, or information, when a person has been accused. McBride v. State, 61 So.3d 174, 179 (¶ 11) (Miss.Ct.App.2010). “A delay of eight months or more between arrest and trial is presumptively prejudicial.” Boone, 964 So.2d at 519 (¶ 14). Jackson’s right to a speedy trial attached on August 20, 2010, after the detainer was lodged against him. His trial did not begin until February 2012, which was well over eight months later. Therefore, prejudice is presumed and we must look to the next factor.

¶ 13. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” DeLoach, 722 So.2d at 517 (¶ 17). The record reveals that the continuances in this case were granted for good cause based on illness of defense counsel and plea negotiations. We see no error here. This factor weighs in favor of the State.

¶ 14. The third factor concerns Jackson’s assertion of his right to a speedy trial. On August 24, 2011, Jackson filed his motion to dismiss the charges against him for failure to provide a speedy trial. “The Mississippi Supreme Court has also stated that a motion for dismissal based on violation of the right to a speedy trial and a demand for a speedy trial are not equivalent, with regard to the Barker analysis, as one seeks discharge and the other an immediate trial.” Mims v. State, 856 So.2d 518, 521 (¶ 6) (Miss.Ct.App.2003) (citing Perry v. State, 637 So.2d 871, 875 (Miss.1994)). Jackson did not file a motion demanding a speedy trial, but instead filed a motion to dismiss prior to trial. Therefore, we find that the third factor weighs against Jackson.

¶ 15. The fourth factor concerns prejudice suffered by the defendant. In order to prevail on a motion to dismiss the charges against him for failure to provide a speedy trial, a defendant is not required to affirmatively show prejudice; however, “an absence of prejudice weighs against a finding of a violation.” Murray v. State, 967 So.2d 1222, 1232 (¶ 30) (Miss.2007) (quoting Atterberry v. State, 667 So.2d 622, 627 (Miss.1995)).

Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.

Barker, 407 U.S. at 532, 92 S.Ct. 2182. Jackson does not allege prejudice to his defense of the felony-fleeing charge. Nor does Jackson demonstrate that he has suffered anxiety from the charge. Further, the record reflects that the majority of the delay was attributable to Jackson. We find that this factor also weighs against Jackson.

¶ 16. Based on our analysis of the Barker factors, we find Jackson’s argument to be without merit.

3. Ineffective Assistance of Counsel

¶ 17. Jackson seems to argue that his appellate attorney was ineffective because she did not refer to any information in the record to support the appeal. “The standard for considering ineffective assistance of counsel is the same for appellate performance as it is for trial performance.” Foster v. State, 687 So.2d 1124, 1138 (Miss.1996). To succeed on a claim for ineffective assistance of counsel, Jackson must show “that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case.” Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In his argument, Jackson fails “to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Therefore, we find no merit to this issue.

¶ 18. After an examination of Jackson’s pro se brief and a thorough review of the record in this case, we find that Jackson raises no arguable issues in support of his appeal. Therefore, we affirm Jackson’s conviction and sentence.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF CONVICTION OF FELONY ESCAPE AND SENTENCE OF FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

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