author: BARNES, J.,

text:
    Amos ARCHIE, Jr., Appellant v. Debbie Johnson ARCHIE, Appellee.
    No. 2010-CA-00600-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.

      Frederick Anderson Johnson, Melissa Ann Malouf, William Edward Ballard, Jackson, attorneys for appellant.
    M. Judith Barnett, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and . JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. After four years of divorce proceedings, Amos and Debbie Archie were granted a divorce (“Final Judgment of Divorce and Opinion of the Court”) on March 9, 2010. However, since the 2010 judgment required clarification and correction, the chancery court issued a “Third Amended Order and Opinion of the Court” on May 9, 2012, from which Amos now appeals. Upon review, we find that Amos was erroneously required to pay child support, college expenses, and insurance for his emancipated children, and we reverse and render the judgment on these issues. We also reverse the chancellor’s award of alimony and remand for correction and clarification on the issues of the equitable distribution of marital assets and alimony in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Amos and Debbie were married on April 15, 1989. They had two children born of the marriage: Brittney Nicole Archie, born on September 26, 1987, and Amos Corey Archie III (Corey), born on February 21,1990. The marriage suffered from domestic violence and infidelity, and Debbie filed a complaint for divorce on June 14, 2006.

¶ 3. A temporary judgment was entered on August 6, 2007, ordering Amos to pay $500 per month in child support “until further order of the court.” On August 22, 2007, an agreed temporary order was filed, ordering: (1) Amos to pay $600 in monthly child support; (2) both parties to pay one-third of Brittney’s college tuition and book costs; and (3) both parties to pay one-half the medical costs for the minor children. The temporary order also granted Debbie exclusive possession of the marital home. However, this temporary order was later rescinded.

¶ 4. After two hearings before the chancellor — one on March 7, 2008, and one on July 22, 2008 — the parties consented to divorce based on irreconcilable differences. They agreed Debbie would have sole custody of Corey and that Amos and Corey would seek counseling in an effort to rehabilitate their strained relationship. The parties also agreed to submit the remaining issues (child support, alimony, attorney’s fees, college expenses, and division of marital assets) to the chancery court’s discretion.

¶ 5. On September 25, 2009, Debbie filed a petition for citation for contempt, claiming that Amos had failed to pay child support as ordered by the chancery court. Then, on January 25, 2010, the agreed temporary order dated August 22, 2007, was rescinded by the Honorable J. Dewayne Thomas due to lack of jurisdiction. That same day, Amos was found guilty of contempt by the chancellor originally assigned to the case, the Honorable Patricia Wise, and he was ordered to pay $5,550.

¶ 6. A final judgment of divorce (“2010 Order”) was entered on March 9, 2010, awarding Debbie exclusive use of the marital home and the value of the couple’s Prepaid Legal Services stock ($25,557). Although Amos was not given any equity in the marital home, he was ordered to pay the remaining balance owed on the mortgage. Amos was, however, awarded ownership of his eleven rental properties, the value of which was unknown. The judgment also required Amos: (1) to pay one-half of college expenses for Brittney; (2) to maintain health insurance for Corey; (3) to pay one-half of the medical costs for the children; and (4) to “pay [Debbie] reasonable periodic sums of child support in the amount of $180 per month.”

¶ 7. Debbie filed a petition for rehearing for clarification of several issues on March 19, 2010. One concern was that the chancellor failed to provide how Debbie was to obtain the $25,557 value of the legal stock and failed to make a finding as to the current value of the stock. A hearing was held regarding these issues on September 29, 2010.

¶ 8. On October 6, 2010, the chancery court entered an “Order on Motion for Clarification,” identifying scrivener errors (i.e., transposing the names of the two children) in the judgment and holding in abeyance any decision regarding the legal stock, as its value remained in dispute. The record reflects that the majority of the stock was liquidated in 2006, prior to the filing of the complaint for divorce; therefore the value of the stock in the 2010 Order was overstated. The proceeds from the sale of the stock were allegedly used for Brittney’s college education. The order for clarification also acknowledged that Brittney was emancipated, that Corey was a minor, and that the intent was for Amos to pay $180 per month in child support. Finally, the order stated that while Debbie was to maintain health insurance for Corey, Amos was responsible for the amount of the premium, and both parties were to split equally any uncovered medical costs.

¶ 9. After another hearing on April 3, 2012, regarding the value of the legal stock, the chancery court entered a “Third Amended Order and Opinion of the Court” (“2012 Order”) on May 9, 2012. This order contained several changes in the areas of the equitable distribution of assets, as well as the award of child support and alimony. The 2012 Order reduced the value of the legal stock awarded to Debbie to $976.10, but awarded Debbie $250 per month in periodic alimony. The 2012 Order further stated Amos was to: (1) pay $500 in child support “as set forth in the temporary order”; (2) maintain “health and life insurance for the children”; (3) “pay one-half (50%) of all college expenses for both children, Brittney and [Corey]”; and (4) pay half of the medical insurance premium for Corey. Below is a table outlining the changes from the 2010 Order:

¶ 10. Amos filed an amended notice of appeal on June 7, 2012. The chancery court erred in its award of child support, college expenses, and insurance; accordingly, we reverse and render the judgment as it relates to those issues. On the issue of alimony and equitable distribution of assets, we reverse and remand for further consideration.

STANDARD OF REVIEW

¶ 11. “The standard of review for a chancellor’s decision is abuse of discretion.” Scott v. Scott, 115 So.3d 847, 849 (¶ 6) (Miss.Ct.App.2012) (citing Townsend v. Townsend, 859 So.2d 370, 372 (¶ 7) (Miss.2003)). Unless we can state with reasonable certainty that the chancery court abused its discretion, “was manifestly wrong, clearly erroneous, or applied an erroneous legal standard,” its factual findings will not be disturbed on appeal. Jones v. Graphia, 95 So.3d 751, 753 (¶ 6) (Miss.Ct.App.2012) (quoting Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007)). Questions of law are reviewed de novo. Scott, 115 So.3d at 849 (¶ 6).

I. Whether the chancellor erred by requiring Amos to pay child support, college costs, and insurance for his adult children.

¶ 12. In the 2012 Order, Amos was required to pay $500 per month in child support payments. However, since Brittney and Corey had reached the age of majority at the time the order was entered, Amos claims that it was error for the chancellor to order him to pay child support.

¶ 13. At the hearing on the motion for contempt in 2009, it was acknowledged that Brittney had recently turned twenty-one. Amos also stated in the January 25, 2010 hearing, regarding his failure to pay child support, that Brittney had “reached the age of 21 in September[ ] 2008?’ Corey’s twenty-first birthday occurred on February 21, 2011, more than a year prior to the filing of the 2012 Order.

¶ 14. A parent has no statutory or common-law duty to support a child who has reached the age of majority. See Hays v. Alexander, 114 So.3d 704, 707 (¶ 12) (Miss.2013). “Legally, a parent is relieved of the duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.” Meek v. Warren, 726 So.2d 1292, 1293 (¶ 2) (Miss.Ct.App.1998) (citing Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989)).

¶ 15. Under Mississippi Code Annotated sections 93-5-23 and 93-11-65 (Supp.2012), a chancellor may make a determination that a child has become emancipated when the child has reached twenty-one years of age. If such a determination is made, then “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss.Code Ann. § 93-5-23. Furthermore, the Mississippi Supreme Court held that:

In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (i.e., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by [Mississippi Code Annotated sjection 93-5-23 for a parent to support [a] child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.

Hays, 114 So.3d at 709 (¶ 14) (Miss.2013) (internal citations and emphasis omitted).

¶ 16. In the present case, when discussing the issue of alimony in the 2012 Order, the chancery court stated: “The parties have two children. Their daughter is now 24 years of age and their son is now 22 years of age. Both children have been emancipated by age.” Therefore, the chancellor clearly found that Brittney and Corey were emancipated, and we find the award of $500 per month in child support to be error.

¶ 17. We also find that the order for Amos “to maintain in full force and effect health and life insurance for the children” is erroneous. The supreme court has noted that “[insurance coverage for the benefit of children in divorce cases is an issue of child support.” Arthur v. Arthur, 691 So.2d 997, 1001 (Miss.1997) (citing Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss.1994)). Absent compelling reasons, such as the mental or physical incapacitation of a child, the obligation of a parent ordered to maintain insurance for the benefit of a minor child ceases when the child reaches majority. Id.

¶ 18. Lastly, the chancellor ordered Amos “to pay one-half (50%) of all college expenses for both children, Brittney and [Corey].” The supreme court has stated:

[I]f the [college education] benefit is awarded as child support, that right terminates when the child becomes emancipated[,] ... but if it is awarded as an adjustment of the rights between the parties to the divorce as to who shall share or pay what portion of the expense of a college education, then the right vests and does not terminate although the child does not enjoy that benefit until he may have passed the age of 21.

Stokes v. Maris, 596 So.2d 879, 881 (Miss.1992); see also Crow v. Crow, 622 So.2d 1226, 1230 (Miss.1993) (finding that a parent was contractually bound by an agreement to provide “post-emancipation support in the form of college and other expenses”). However, while contractual agreements to provide post-emancipation support during a child’s college attendance are enforceable, there is no such agreement in the present case. Thus, we find that the chancellor erred in ordering Amos to pay for college expenses for both children.

¶ 19. Since Brittney and Corey have reached the age of majority and were considered by the chancellor to be emancipated, we find that the chancellor erred in requiring Amos to provide support for them. Therefore, the chancery court’s 2012 Order, as it relates to the award of child support, college expenses for the children, and life and health insurance for the benefit of the children, is reversed and rendered.

II. Whether the chancellor erred in requiring Amos to pay periodic alimony to Debbie.

¶ 20. Although the 2010 Order denied Debbie alimony, the chancery court granted Debbie $250 in monthly periodic alimony in the 2012 Order. Amos contends that because Debbie failed to request alimony in her complaint, she is barred from receiving an award of alimony. However, Debbie counters that since she requested the equitable division of all assets and a prayer for “general relief,” the issue of alimony was within the scope of her pleading.

¶ 21. In Crowe v. Crowe, 641 So.2d 1100, 1104 (Miss.1994), the Mississippi Supreme Court upheld a chancellor’s award of alimony to the wife, even though she failed to specifically request alimony. “[U]nder the general prayer, any relief will be granted which the original bill justifies and which is established by the main facts of the case, so long as the relief granted will not cause surprise or prejudice to the defendant.” Id. (quoting Smith v. Smith, 607 So.2d 122, 127 (Miss.1992)). Furthermore, Debbie’s “Findings of Fact and Con-elusions of Law,” which was submitted to the chancery court on April 23, 2012, stated:

If this Court takes away [Debbie’s] right to receive $25,557.00 in stock sale pro-eeeds[,] plus the proceeds of the remainder stock which [Amos] sold after the divorce was over[,] then [Amos] would have a substantially larger estate and would leave [Debbie] in need of alimony and assistance to meet her obligations [•]
In order for this Court to achieve equity pursuant to Ferguson and its prodigy, the Court must make [Amos] pay unto [Debbie] in cash the amount of the stock[] that sold just prior to divorce and that after the decree was entered.

(Emphasis added). Therefore, we find that an award of alimony was not barred from consideration.

¶ 22. “Alimony should only be considered when ‘an equitable division of marital property leaves a deficit for one party.’ ” Mauldin v. Mauldin, 107 So.3d 176, 180 (¶ 21) (Miss.Ct.App.2013) (quoting Rogillio v. Rogillio, 57 So.3d 1246, 1248 (¶ 8) (Miss.2011)). “If the equitable division of property leaves neither spouse with a deficit with respect to having sufficient resources and assets to meet his or her needs and living expenses, then no alimony award is appropriate.” Jackson v. Jackson, 114 So.3d 768, 777 (¶ 22) (Miss.Ct.App.2013) (citations omitted).

¶23. The equitable division of marital assets in the 2012 Order resulted in Debbie’s receiving $255,376 in marital assets; Amos’s marital assets totaled $116,982.66. The only change in the division of marital assets from the 2010 Order concerned the reduction in value of the legal stock awarded to Debbie; it was decreased from $25,557 to $967. As already discussed, Debbie requested that the chancery court consider alimony to make up for that asset loss. Debbie claimed that the devaluation of stock would mean that Amos “would have a substantially larger estate[.]” However, as we have noted, even after the stock value was reduced, Debbie’s assets were more than twice of the value of Amos’s marital assets. The change in the value of the stock had no effect on the chancery court’s calculation of Amos’s assets.

¶ 24. After the equitable distribution of marital assets, the chancellor proceeded to consider alimony using the guidelines set forth in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). She noted that both parties were employed, that Debbie’s net pay was listed at $2,673.95, and that neither party had health issues. It was also mentioned that Amos’s primary debt obligation was the mortgage on the marital home, even though Debbie was awarded the home in the distribution of marital assets. Debbie’s primary debt obligations were her own debts and monthly expenses, which were stated by the chancellor to be $8,401.

¶ 25. We find it significant that these Armstrong findings are identical to those made by the chancellor in the 2010 Order. As such, we must conclude that the chancellor only awarded alimony to compensate Debbie for the devaluation of the Pre-Paid Legal Services stock awarded to Debbie in the distribution of marital assets. In other words, the alimony award could not have been, as the chancellor claimed in the 2012 Order, “[b]ased on the foregoing analysis of the Armstrong factors[.]”

¶ 26. More importantly, the monthly income/expense figures stated by the chancellor in both orders were not a true indication of Debbie’s actual financial situation. The figures were derived from Debbie’s Uniform Chancery Court Rule 8.05 financial statement that was filed with the chancery court years earlier, in 2006. The $8,401 expense figure included a monthly mortgage payment of $895 and a monthly auto payment of $701; yet, the record clearly shows that Debbie was no longer responsible for the payment of those expenses. Debbie admitted in a 2008 hearing that she told Amos to come get the car because she could not afford the monthly payment of $701 and that she had not paid the mortgage on the home since August 2007. She also noted that her current car payment was only $320. Her Rule 8.05 statement also noted that some expense items were a yearly rather than monthly sum, but the chancery court failed to make this distinction and included the yearly amounts into the monthly-expense figure. As a result of these errors, Debbie’s monthly expenses were overstated by approximately $3,600.

¶ 27. Additionally, the amount of Debbie’s income stated in the order ($2,673.95) was not adjusted for any salary/job changes since 2006. Debbie testified before the chancery court in July 2008 that she was starting a new job the following month, with a slight decrease in salary. Therefore, we find the chancellor’s Armstrong analysis regarding Debbie’s income and debt was clearly erroneous and merits a remand of the issue for further consideration. See McLeod v. McLeod, 84 So.3d 804, 809 (¶ 27) (Miss.Ct.App.2011) (remanding chancellor’s decision to deny increase in child support as it was unclear whether Rule 8.05 statement reflected father’s current rate of pay).

¶ 28. “The change in one financial award or obligation changes the ‘entire field’ of the financial settlement in a divorce judgment.” Carter v. Carter, 98 So.3d 1109, 1114 (¶ 18) (Miss.Ct.App.2012) (citing Rhodes v. Rhodes, 52 So.3d 430, 450 (¶ 82) (Miss.Ct.App.2011)). The issue of alimony “is not a completely independent financial issue in a domestic case”; it is “intertwined” with the distribution of marital assets. McKissack v. McKissack, 45 So.3d 716, 723-24 (¶¶ 41-42) (Miss.Ct.App.2010) (citation omitted). Both “work together to provide for the parties after divorce.” Id. at 724 (¶ 42). Since the error in the calculation of Debbie’s income and expenses may impact the entire distribution, we reverse and remand this case for the chancellor to reconsider the equitable distribution of the assets and the parties’ income and expenses and, if necessary, the need for alimony.

III. Whether the equitable distribution of marital assets was incomplete due to the chancery court’s failure to value Amos’s rental properties.

¶ 29. Debbie requests reversal of the judgment on appeal for reconsideration of the distribution of marital assets. Her argument is that the chancellor failed to assess the value of the rental properties owned by Amos, and this renders the equitable division of marital assets incomplete. The 2012 Order took note of the rental properties, which were awarded to Amos in the division of marital assets, stating that the “value of the rental properties is uncertain, but the Court takes judicial notice that some of the rental properties are located in depressed areas.”

¶ 30. This issue was not raised by Amos’s appeal, and Debbie has failed to file a cross-appeal. “In order for the ap-pellee to gain reversal of any part of the decision of a trial court about which the appellant brings no complaint, the appellee is required to file a cross-appeal.” Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d 862, 878 (¶ 52) (Miss.Ct.App.2001) (citing Brock v. Hankins Lumber Co., 786 So.2d 1064, 1068 (¶ 19) (Miss.Ct.App.2000)).

¶ 31. However, based on our decision to reverse and remand, the chancellor may consider all pertinent issues relating to the distribution and valuation of marital assets, including the valuation of the rental properties. Regardless, we find no abuse of discretion in the chancery court’s finding that the value of the rental properties was “unknown.” Amos testified at the July 2008 hearing that the rental properties were all in foreclosure and “worth absolutely nothing[.]” Debbie also acknowledged that the rental properties had “no value.” Both parties had ample opportunity throughout the six-year process of divorce and division of marital assets to provide the chancery court with a specific valuation of the properties in question; they failed to do so.

CONCLUSION

¶ 32. The chancery court’s award of child support, college expenses, and insurance for Amos’s emancipated children was in error, and we reverse and render judgment as it relates to those issues. Additionally, we reverse the chancellor’s award of alimony and remand for further correction and clarification on the issues of the equitable distribution of marital assets and alimony in accordance with this opinion.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED AND RENDERED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

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

      . The order noted that nine of the properties were in foreclosure.

      . Information received from Pre-paid Legal Services showed that as of August 8, 2010, the value of the stock was $976.10. A copy of a check showed that this amount was paid to Amos on August 12, 2010.

      . On April 9, 2010, Amos filed a timely notice of appeal of the March 9, 2010 judgment.

      . Debbie concedes that both children were over twenty-one at the time of the order, but she claims that the award of child support, including college expenses and insurance, was merely a "scrivener’s error” by the chancery court. Thus, she contends that Amos’s appeal of these issues is without merit. Based upon our review of the record, we cannot state with certainty that the chancery court's awards of child custody, college expenses, and insurance, were merely clerical errors on the part of the judge, and we will address them on their merits.
      Debbie argued in her 2008 "Proposed Findings of Fact and Law” and at the March 2008 chancery court hearing that Corey should be entitled to support past the age of majority due to a medical condition, tourette syndrome. However, she has made no claim to this effect on appeal. In fact, she claims in her brief that both children "had the aptitude for and were expected to go to college.” Therefore, we deem this argument abandoned. See Kendrick v. Miss. Farm Bureau Ins., 996 So.2d 132, 133 (¶ 3) (Miss.Ct.App.2008) (Issues not addressed in a brief or supported by authority are considered abandoned and not properly before this Court on appeal.).

      . See also Deborah H. Bell, Bell on Mississippi Family Law § 10.07[3][d][i] (2005).

      . The only time Amos agreed to pay any college expenses (for Brittney) was in the August 2007 “Agreed Temporary Order” that was subsequently rescinded.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Michael Dewayne TERRY a/k/a Michael Terry a/k/a Michael D. Terry, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01344-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Michael Dewayne Terry was indicted for burglary of a dwelling. A jury trial was held, resulting in a guilty verdict. Terry was sentenced to five years in the custody of the Mississippi Department of Corrections, with three years suspended. On appeal, Terry asserts that the trial court erred in denying his motion for a directed verdict and his post-trial motion for a judgment notwithstanding the verdict. Finding that there is material evidence to support the guilty verdict, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Lenester Harris’s apartment was burglarized in the early morning hours of March 15, 2010, while Harris was at work. The apartment was located at the Academy apartments in Tunica, Mississippi. Hams told investigators that the items stolen included: CDs, DVDs, three DVD players, a Direct TV access card, a class ring, a Play Station 2, a CD player, two cell phones, dog food, soap, and Hot Pockets. Investigator Rico Harris of the Tuni-ca County Sheriffs Department led the investigation. During the course of the investigation, Terry, Ernest Bowman, Michael Jamison, and Kendale Dorsey became persons of interest. As a result, investigators executed a search warrant at the home of Pamela Bass, where Jamison and Bowman resided. The search resulted in the recovery of several items taken from the Harris home. A Tunica County grand jury indicted Terry, Bowman, Jamison, and Dorsey for burglary of a dwelling pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2006). The case against Dorsey was remanded to youth court. Jamison and Bowman entered guilty pleas.

¶ 3. Terry’s trial was held on July 2-3, 2012, in Tunica County Circuit Court. During the State’s case, the jury heard testimony from the following witnesses: Deputy Louise Linzy, Investigator Rico Harris, Lenester Harris, Dorsey, and Bowman.

¶ 4. During Lenester Harris’s testimony, she identified items recovered from the Bass home as items taken from her home. She further testified that she was familiar with Terry from around the apartment complex and stated that Terry was romantically involved with her daughter.

¶ 5. Both Dorsey and Bowman testified for the prosecution. Dorsey testified that he, Terry, Jamison, and Bowman were at the Academy apartments on the night of March 14, 2010. Dorsey stated that Terry removed the screen from an apartment window and lifted the window sash, allowing Dorsey to climb in and open the door for the others. Upon entering the apartment, the group stole various items. However, Dorsey was unable to state which apartment they burglarized.

¶ 6. Likewise, Bowman testified that he, Jamison, Dorsey, and several others were at the Academy apartments on March 14, 2010, when they were approached by Terry, who said that he “knew of a little ‘stang’ they could get into.” Like Dorsey, Bowman testified that Terry opened the window and that Dorsey climbed inside in order to open the door for the others. Bowman was able to describe in detail the items that they took from the apartment, which was consistent with Harris’s testimony. Bowman also testified that Terry told him that he (Terry) dated the owner of the apartment’s daughter.

¶ 7. At the close of the State’s case, the defense moved for a directed verdict claiming that the evidence was legally insufficient to support a conviction for burglary. The judge denied the motion and the defense rested without presenting any evidence. The jury found Terry guilty of burglary of a dwelling. Terry then filed a motion for a judgment notwithstanding the verdict, or in the alternative, a motion for a new trial, which the trial court denied. Terry was sentenced to five years in the custody of the Mississippi Department of Corrections, with three years suspended. Terry now appeals.

DISCUSSION

¶ 8. Terry raises one issue on appeal: whether the trial court erred in denying his motion for a directed verdict and his post-trial motion for a judgment notwithstanding the verdict based on the sufficiency of the evidence.

¶ 9. A motion for a judgment notwithstanding the verdict implicates the legal sufficiency of the evidence. Arbuckle v. State, 894 So.2d 619, 622 (¶ 16) (Miss.Ct.App.2004) (citing Bullins v. State, 868 So.2d 1045, 1048 (¶ 12) (Miss.Ct.App.2004)). The Mississippi Supreme Court has held that “[wjhen reviewing a case for the sufficiency of the evidence, ‘the 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.’ ” Parker v. State, 962 So.2d 25, 26 (¶ 8) (Miss.2007) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). Additionally, “the evidence must show ‘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.’” Id. The evidence will be deemed to have been sufficient if, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id.

¶ 10. Mississippi Code Annotated section 97-17-23 provides the elements of the crime of burglary of a dwelling:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

Thus, the elements of burglary are: “(1) the unlawful breaking and entering; and (2) the intent to commit some crime when entry is attained.” Parker, 962 So.2d at 27 (¶ 9).

¶ 11. Terry argues that although Dorsey and Bowman both testified that Terry participated in the burglary with them, neither their testimony nor the evidence established where the burglary occurred; therefore, the evidence was insufficient to establish that he participated in the burglary of the particular residence described in the indictment. We have held that it is “within the jury’s province to draw reasonable inferences from the evidence based on then’ experience and common sense.” Arbuckle, 894 So.2d at 623-24 (¶ 21) (citing Hester v. State, 463 So.2d 1087, 1093 (Miss.1985)). Therefore, we find that it was reasonable for the jury to infer that the apartment that Terry and the others burglarized was, in fact, Harris’s apartment, which was the dwelling identified in the indictment.

¶ 12. Harris identified several items recovered from the Bass home as items belonging to her. Bowman identified the same items as the items that he and the others, including Terry, took from the apartment. Bowman testified that Terry approached the others and said he knew of “a little stang they could get into,” thus indicating Terry’s intent to steal. Bowman and Dorsey both testified that Terry opened the window allowing Dorsey to climb inside the apartment and open the door for the others, after which Terry and the others entered the apartment looking for items to steal. Finally, Bowman testified that Terry told him that he dated the apartment owner’s daughter. This was supported by Harris’s testimony that Terry was romantically involved with her daughter.

¶ 13. Thus, we find the evidence to be of such weight and sufficiency as to support the jury’s verdict finding Terry guilty of burglary of a dwelling. Accordingly, we find no error and affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . According to Bowman, "stang” means "to steal something.”


text:
    Robert PURNELL a/k/a Robert T. Purnell a/k/a Robert Tyrone Purnell, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01572-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Robert Purnell, appellant, pro se.
    Office of the Attorney General by Billy L.' Gore, attorneys for appellee.
    Before IRVING, P.J, ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. A Hinds County grand jury indicted Robert Purnell on one count of forcible rape. Purnell pled guilty to one count of sexual battery and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended and five years of supervised probation. Over four years later, Purnell filed a motion for post-conviction relief (PCR). The circuit court summarily dismissed Purnell’s PCR motion, and it is from this dismissal that Purnell now appeals. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 8, 2004, a grand jury, drawn from the First Judicial District of Hinds County, indicted Robert Purnell on one count of forcible rape. The indictment read, in pertinent part: “Robert T. Pur-nell, a male person[,] ... on or about the 23rd day of December, 2002[,] did willfully and unlawfully have forcible sexual intercourse with [the victim,] a female person, in violation of [Mississippi Code Annotated] section 97-3-65(4)(a).... ”

¶ 3. On June 2, 2008, Purnell entered a voluntary plea of guilty to one count of sexual battery. Purnell was sentenced to thirty years in the custody of the MDOC, with fifteen years suspended and five years of supervised probation. On August 7, 2012, Purnell filed a PCR motion arguing that the age of the victim was an essential element of the crime of sexual battery. On September 6, 2012, the circuit court dismissed Purnell’s PCR motion, finding that the age of the victim is not an essential element of sexual battery. In his pro se brief before this Court, Purnell argues: (1) that his PCR motion is excepted from the three-year statute of limitations; and (2) that his indictment lacked the necessary elements of sexual battery. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

¶ 5. First, we find that Purnell’s PCR motion is time-barred. “This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)). Purnell argues that the victim-impact statements made during his sentencing hearing denied him due process of law. However, Purnell does not state what the statements were or how the alleged statements prejudiced him. Further, the record does not contain a transcript of the hearing or indicate that such statements were made. Therefore, we find this issue to be without merit.

¶ 6. Purnell had three years from the date of the entry of his judgment of conviction to file a PCR motion. See Miss.Code Ann. § 99-39-5(2) (Supp.2013) (“A motion for relief under this article shall be made[,] ... in [the] case of a guilty plea, within three (3) years after entry of the judgment of conviction.”). Purnell’s judgment of conviction was entered on June 2, 2008; therefore, the deadline for filing a PCR motion was June 2, 2011. Purnell filed his PCR motion on August 7, 2012. Therefore, Purnell’s PCR motion is time-barred. The procedural bar notwithstanding, we will address the remaining issues that Pur-nell raises in his brief to this Court.

¶ 7. Purnell claims that his guilty plea was defective because he was indicted for forcible rape but pled guilty to sexual battery “without additional actions by the grand jury.” Mississippi Code Annotated section 99-19-5(1) (Rev.2006) provides:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

A lesser included offense requires that the elements of the greater offense contain the elements of the lesser offense. Green v. State, 884 So.2d 733, 737 (¶ 11) (Miss.2004). Here, Purnell was indicted for forcible rape pursuant to Mississippi Code Annotated section 97-3-65(4)(a) (Supp.2013), which states:

Every person who shall have forcible sexual intercourse with any person ... shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

Purnell pled guilty to the crime of sexual battery. Particularly, Purnell pled guilty to sexual battery pursuant to Mississippi Code Annotated section 97-3-95(l)(a) (Rev.2006), which is reflected in his plea petition. Section 97-3-95(l)(a) states: “A person is guilty of sexual battery if he or she engages in sexual penetration with .... [ajnother person without his or her consent....” The penalty for sexual battery is set forth in Mississippi Code Annotated section 97-3-101(1) (Rev.2006), which states, in pertinent part:

Every person who shall be convicted of sexual battery under section 97-3-95(l)(a) ... shall be imprisoned in the State Penitentiary for a period of not more than thirty (30) years, and for a second or subsequent such offense shall be imprisoned in the penitentiary for not more than forty (40) years.

Thus, all the elements of sexual battery pursuant to section 97-3-95(l)(a) are elements of forcible rape: sexual penetration and lack of consent. Sexual battery also carries a less severe penalty than forcible rape. Thus, we find Purnell’s argument to be without merit.

¶ 8. Purnell next asserts that the age of the victim is a necessary element of sexual battery and argues that his guilty plea to sexual battery was improper because his indictment for forcible rape did not contain the victim’s age. We disagree. Mississippi Code Annotated section 97-3-95 provides several definitions for the crime of sexual battery; although age is a necessary element for some subparts, age is not an element under section 97-3-95(l)(a). Therefore, we find this issue to be without merit.

¶ 9. The issues raised by Purnell are without merit. Accordingly, we affirm the trial court’s dismissal of Purnell’s PCR motion.

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

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


author: MAXWELL, J.,

text:
    Lakeisha ROBINSON a/k/a Lakesha Robinson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01141-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Convicted of felony child abuse, Lakeisha Robinson claims two errors require reversal. The first alleged error — that the trial judge did not instruct the jury on her defense theory of insanity — is simply incorrect. To the contrary, the record shows the trial judge did in fact give two instructions on insanity as a defense; plus he modified the form-of-the-verdict instruction to include an option for the jury to find her not guilty by reason of insanity. The reason the judge gave the State’s insanity instructions, and not Robinson’s own insanity instruction, was because her counsel withdrew it.

¶ 2. And the second alleged error — that the State’s psychological testimony was inadmissible — is procedurally barred, since she made no objection at trial. Because she waived her appellate challenge to this testimony, she frames the issue as one of ineffective assistance of counsel — that her attorney was constitutionally deficient for not objecting to portions of expert testimony and that the deficiency prejudiced her defense. But decisions whether to object or not are generally deemed trial strategy. So they do not typically support ineffective-assistance claims. This is especially so on direct appeal, where no record has been developed to evaluate counsel’s overall performance.

¶ 3. Because Robinson has not shown reversible error, we affirm.

Background

¶ 4. Medical experts testified that Robinson’s newborn son had suffered permanent brain injury. He had also endured multiple fractures to his extremities, caused by his small arms and legs being yanked and twisted. Because there was strong evidence Robinson had inflicted the injuries, her defense theory focused on her postpartum mental state and her history of depression.

¶ 5. Before trial, the circuit judge conducted a competency hearing in compliance with Rule 9.06 of the Uniform Rules of Circuit and County Court. At this hearing, Dr. Mark Webb, who had conducted the court-ordered mental evaluation, testified that Robinson was competent to stand trial. Deborah Meek, who had been treating Robinson for depression at the time the crime occurred, and James Patrick, Robinson’s long-term boyfriend and father of the abused infant, also testified. After considering the various testimony, the trial judge determined Robinson was competent to stand trial.

¶ 6. At trial, Dr. Webb testified that Robinson knew the difference between right and wrong when she abused her son and that her postpartum depression was not so severe as to make her insane. But Patrick disagreed and testified that, based on his observation of Robinson at the time, he did not believe Robinson knew her actions were wrong.

¶ 7. The jury was instructed on insanity as a defense and had the option of finding Robinson guilty, not guilty, or not guilty by reason of insanity. After deliberating, the jury found Robinson guilty of felony child abuse. The circuit judge sentenced her to thirty-five years’ imprisonment.

Discussion

I. Insanity-Defense Jury Instructions

¶ 8. Robinson’s main assertion on appeal is that the trial court “erred in refusing to permit [Robinson] a jury instruction on insanity as a defense.” But the record shows this claim is factually incorrect.

¶ 9. Contrary to Robinson’s assertion, the trial judge recognized Robinson was entitled to an insanity-defense instruction. And he correctly granted her insanity instructions, despite the only evidence supporting her theory was the equivocal lay evidence from Patrick that she was legally insane when she abused their son. See Giles v. State, 650 So.2d 846, 849 (Miss.1995) (citation omitted) (“Even though based on meager evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.”).

¶ 10. The record shows Robinson’s own counsel admitted his dissatisfaction with his proposed insanity-defense instruction— which was four-pages of single-spaced type and admittedly unworkable. So after conferring with the trial judge and the State, defense counsel withdrew the instruction. Cf. Vickers v. State, 994 So.2d 200, 224 (¶ 92) (Miss.Ct.App.2008) (finding that, when an objection is withdrawn, the judge is not given an opportunity to err, so there can be no error). He agreed the trial judge should instead give the State’s two proposed insanity-defense instructions. His only request was that the State modify its form-of-the-verdict instruction to include the option that the jury could find Robinson not guilty by reason of insanity, which the State did.

¶ 11. So the error Robinson asserts did not occur.

II. Ineffective Assistance of Counsel

¶ 12. Robinson’s other suggested error concerns Dr. Webb’s testimony. She alleges part of his testimony was inadmissible “because it embrace[d] an ultimate issue to be decided by the jury” — whether Robinson was legally insane at the time she physically abused her son. But Robinson did not object to Dr. Webb’s trial testimony, so this issue is waived. See Rubenstein v. State, 941 So.2d 735, 751 (¶ 27) (Miss.2006) (holding that the failure to make a contemporaneous objection to witness’s testimony bars the defendant from raising the issue for appellate review).

¶ 13. Snagged on this procedural default, Robinson recasts the issue as one of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing two-prong test — (1) was counsel’s performance deficient and (2) did prejudice result — for proving ineffective assistance contrary to the Sixth Amendment right to counsel). Specifically, Robinson’s appellate attorney insists her trial counsel was constitutionally deficient for failing to object to portions of Dr. Webb’s testimony.

¶ 14. While Robinson’s appellate counsel suggests otherwise, we are mindful of the strong presumption that a lawyer’s trial conduct falls within “the wide range of reasonable professional assistance.” Carr v. State, 873 So.2d 991, 1003 (¶ 27) (Miss.2004). With respect to this general presumption, the Mississippi Supreme Court has held that an attorney’s decision whether to. object falls “ ‘within the ambit of trial strategy’ and will not stand as support for an ineffective assistance of counsel claim.” Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). We find this notion particularly true when the claim of inefféetive assistance due to the failure to object is raised on direct appeal — a procedural posture where the record has not been developed with facts by which we can evaluate counsel’s performance. See Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002). Since we must presume there was a strategic reason for Robinson’s trial counsel not objecting to Dr. Webb’s testimony — which may have included his well-i'easoned belief any objection would have been overruled — we find Robinson has failed to assert a valid claim for ineffective assistance of counsel on direct appeal. See Liddell v. State, 7 So.3d 217, 219-20 (¶ 5) (Miss.2009). However, Robinson is free to bring her ineffective-assistance claim in a motion for post-conviction relief, if she so chooses.

¶ 15. For these reasons, we affirm.

¶ 16. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH A 171-DAY CREDIT FOR TIME SERVED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . "To determine insanity, Mississippi follows the M’Naghten Rule, which essentially asks whether the defendant was unable to distinguish right from wrong at the time of the act.” Hogan v. State, 89 So.3d 36, 39 (¶ 10) (Miss.Ct.App.2011) (internal citation omitted) (citing Woodham v. State, 800 So.2d 1148, 1158 (¶ 29) (Miss.2001)).

      . On appeal, the State failed to recognize and point out to this court that the jury was indeed instructed on Robinson’s defense theory, as evidenced by the jury instructions and transcript of the jury-instruction conference. Apparently accepting Robinson's assertion at face value — that the trial judge did not give an insanity-defense instruction — the State argued an insanity instruction was 'not warranted based on the evidence.


author: IRVING, P.J.,

text:
    Bradley MOBLEY a/k/a Bradley J. Mobley a/k/a Bradley Joel Mobley, Appellant v. CITY OF STARKVILLE, Mississippi, Appellee.
    No. 2012-KM-00727-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Rodney A. Ray, Columbus, attorney for appellant.
    Roy E. Carpenter Jr., Starkville, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. In March 2010, in the Starkville Municipal Court, Bradley Mobley entered a plea of no contest to driving under the influence pursuant to Mississippi Code Annotated section 63-ll-30(l)(a), (c) (Rev. 2013). The municipal court found Mobley guilty. He appealed his conviction to the Oktibbeha County Circuit Court, which, after a trial de novo, also found him guilty of driving under the influence. The circuit court sentenced Mobley to forty-eight hours in the county jail but suspended Mobley’s sentence for two years, pending Mobley’s good behavior. Feeling aggrieved, Mobley appeals and argues that the circuit court’s ruling was against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 23, 2010, Officer Andy Round, with the Starkville Police Department, observed Mobley’s vehicle run partially off the road. Officer Round was running a stationary radar while sitting on the north side of Highway 182 in Stark-ville, Mississippi. Officer Round activated his emergency lights and initiated the traffic stop after seeing Mobley’s vehicle run off the side of the road and return to the proper driving lane. Officer Round stated that he suspected that Mobley may have been under the influence of drugs or alcohol.

¶ 4. During the traffic stop, Officer Round smelled alcohol on Mobley’s breath and noticed that Mobley’s eyes were bloodshot. However, Mobley responded appropriately to Officer Round’s questions and had no noticeable trouble complying with Officer Round’s requests. Officer Round asked Mobley how much he had had to drink, and Mobley responded by stating that he had had “a couple of mixed drinks.” Officer Round requested that Mobley submit to a portable breath test, to which Mobley complied. The results registered positive for the presence of alcohol.

¶ 5. Next, Officer Round administered the horizontal-gaze-nystagmus (HGN) test, where he observed all six of the recognized signs of an impaired driver. Additionally, Officer Round noted that Mobley placed his hands on his car to maintain his balance throughout the traffic stop. Officer Round placed Mobley under arrest and transported him to the Starkville Police Department. Once there, Officer Round, though certified to administer the Intoxi-lyzer, used an access-operator card belonging to Officer Josiah Buckner, also with the Starkville Police Department, to access and administer the Intoxilyzer. Mobley consented to the test, and the results of the Intoxilyzer indicated that Mobley’s blood-alcohol-content level was .09 percent. The Intoxilyzer results were admitted into evidence without objection from Mobley’s counsel.

¶ 6. Officer Round admitted that on the day that he administered the test to Mob-ley, he had not received his certification card from the Mississippi Department of Public Safety, located in Jackson, Mississippi. He explained that his access-operator card arrived two days after Mobley’s arrest. Further, although Officer Round administered the test, Officer Buckner signed the Intoxilyzer results, indicating that he had operated the Intoxilyzer.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Mobley contends that the circuit court’s ruling was not based on credible evidence because Officer Buckner, who signed the Intoxilyzer results, was not the actual administrator of the test. As such, the Intoxilyzer was “tricked” into producing its results, and the results were not credible evidence that Mobley committed the offense. We disagree.

¶ 9. The findings of “[a] circuit court ... sitting without a jury ... are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Knight v. State, 14 So.3d 76, 78 (¶ 4) (Miss.Ct.App.2009) (quoting Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss.Ct.App.2003)) (internal quotation marks omitted). Therefore, “this Court will reverse only when the findings of the [circuit court] are manifestly wrong or clearly erroneous.” Id. (quoting Walker v. State, 913 So.2d 411, 412 (¶ 4) (Miss.Ct.App.2005)) (internal quotation marks omitted). Further, a circuit court’s determination regarding “[t]he admissibility and relevancy of evidence falls within the [circuit] court’s discretion, and absent an abuse of that discretion, we will not disturb that decision.” Evans v. State, 93 So.3d 62, 65 (¶ 11) (Miss.Ct.App.2012) (citing Pulido v. City of Oxford, 991 So.2d 1223, 1228 (¶ 22) (Miss.Ct.App.2008)).

¶ 10. Mobley did not object to the admission of the Intoxilyzer results at trial. Therefore, his challenge on appeal to the circuit court’s admission of those results is procedurally barred. See Parkman v. State, 108 So.3d 443, 446 (¶ 9) (Miss.Ct.App.2012).

¶ 11. Procedural bar notwithstanding, Mobley’s contention is without merit. “The results of a breath-analysis test are only valid if performed by a person certified to give such a test.” Hudspeth v. State, 28 So.3d 600, 603 (¶ 12) (Miss.Ct.App.2009) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). It is undisputed that Officer Round was certified to administer the Intoxilyzer but had not received his access-operator card by the night of Mobley’s arrest. More importantly, there was no evidence that Officer Round’s use of Officer Buckner’s access-operator card altered the Intoxilyzer results. During cross-examination, Officer Round testified that although he did not use his own access-operator card to start the Intoxilyzer, “[t]he machine was run the same way, whether it would have been my card or his card[.]” There is no evidence that the results of the test, generated solely by Mobley’s breath, would have been different based on the operator of the In-toxilyzer. Therefore, the court did not abuse its discretion in admitting the Intox-ilyzer results.

¶ 12. Furthermore, the court’s ruling is not against the overwhelming weight of the evidence. When examining “whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict[.]” Graham v. State, 878 So.2d 162, 166 (¶ 19) (Miss.Ct.App.2004) (citing Ford v. State, 753 So.2d 489, 490 (¶ 8) (Miss.Ct.App.1999)). Here, the City presented evidence that as Officer Round spoke with Mobley during the traffic stop, he smelled the odor of alcohol on Mobley’s breath. Also, during the HGN test, Officer Round observed six out of the six indicators of an impaired driver. Moreover, Officer Round testified that Mobley used his car to maintain his balance throughout the traffic stop. In looking at this evidence, we cannot say that the verdict is against the overwhelming weight of the evidence. Accordingly, this issue is without merit.

¶ 13. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE AND SENTENCE OF FORTY-EIGHT HOURS IN THE OKTIBBEHA COUNTY JAIL, WITH THE SENTENCE SUSPENDED PENDING THE DEFENDANT’S GOOD BEHAVIOR, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Anthony K. CHAPMAN, Jr. a/k/a Anthony Chapman a/k/a Anthony Kyle Chapman, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00732-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Rodney A. Ray, Columbus, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. The Oktibbeha County Justice Court found Anthony K. Chapman Jr. guilty of driving under the influence (DUI), first offense. Chapman appealed to the Oktibbeha County Circuit Court, which, after a trial de novo, also found him guilty. Chapman filed a motion for reconsideration, which the court denied. Feeling aggrieved, Chapman appeals and argues that the circuit court’s judgment was manifestly erroneous and clearly wrong because the State did not meet its burden of proof.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 11, 2010, at approximately 10:00 p.m., Officer Michael Hunter, with the Oktibbeha County Sheriffs Department, received a call from dispatch reporting that a black truck was running over mailboxes on a residential street. Officer Hunter testified that as he was responding to that call, he received a second call from dispatch indicating that the same black truck had hit a boat on the same street. As Officer Hunter approached the scene, he spotted the truck described in the call. Officer Hunter stated that he got behind the truck and followed it for two minutes until the driver, later identified as Chapman, pulled into the parking lot of an apartment complex. Officer Hunter pulled into the parking lot behind Chapman, activated his blue lights, got out of his vehicle, and approached Chapman’s truck.

¶ 4. Officer Hunter noticed that part of the chrome grill on the front of the truck had been damaged. He asked Chapman about the mailboxes. Chapman responded that the truck’s power steering had “gone out” and admitted that as a result, he had hit some mailboxes. Officer Hunter asked Chapman to step out of the truck. Officer Hunter stated that he could smell an “intoxicating beverage coming from” Chapman and that he observed two beer cans in the truck, which Chapman claimed were not his. He also noted that Chapman’s speech was a little slurred, and when he asked Chapman if he had had anything to drink, Chapman responded that he had had six beers.

¶ 5. Deputy Charlie McVey, also with the Oktibbeha County Sheriffs Department, arrived with a portable breathalyzer (PBT) and asked Chapman to submit to a test, but Chapman refused. Deputy McVey testified that there was no doubt in his mind that Chapman was intoxicated based on his refusal of the PBT, his words, and his actions. Officer Hunter arrested Chapman and took him to the police station. At the police station, Deputy McVey asked Chapman to take the Intoxilyzer test, which Chapman refused. Officer Hunter then conducted field sobriety tests. During the horizontal gaze nystagmus test, Officer Hunter noted that there were no clues of intoxication. When Chapman performed the walk-and-turn test, Officer Hunter noted that there were two clues of intoxication: Chapman put both of his thumbs in his belt loops, against Officer Hunter’s instructions, and Chapman missed the heel-to-toe step on several of nine steps. During the one-leg-stand test, Officer Hunter observed one clue, as Chapman had raised his hands for balance. During trial, Chapman, arguing that the State had not met its burden of proof, moved for a directed verdict, which the court denied.

¶ 6. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. “[A] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Sendelweck v. State, 101 So.3d 734, 739 (¶ 19) (Miss.Ct.App.2012) (quoting Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss.Ct.App.2003)). An appellate court will only reverse a circuit court’s judgment if it is “manifestly erroneous or clearly wrong.” Id. (quoting Amerson v. State, 648 So.2d 58, 60 (Miss.1994)).

¶ 8. Chapman insists that the circuit court’s judgment was manifestly erroneous and clearly wrong because the State did not meet its burden of proof. He essentially challenges the sufficiency of the evidence, alleging that the State did not prove his guilt beyond a reasonable doubt with .substantial and credible evidence. The Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction[,] ... the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under 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.
Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable man could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotation marks omitted). The evidence is viewed in the light most favorable to the State. Id.

¶ 9. Under Mississippi Code Annotated section 63 — 11—30(l)(a) (Rev.2013), in order for a defendant to be convicted of DUI, the State must show that the defendant was driving a vehicle while he was under the influence of intoxicating liquor that impaired his ability to operate a motor vehicle. It is undisputed that Chapman was operating the truck that night. However, Chapman insists that Officer Hunter’s and Deputy McVe/s testimonies were insufficient to prove that he was under the influence at that time.

¶ 10. Chapman refused to take the PBT during the traffic stop and also refused to take the Intoxilyzer test at the police station. Both Deputy McVey and Officer Hunter testified that, based on their experience as seasoned police officers, Chapman was under the influence at the time of the stop. Also, Chapman admitted that he had had six beers that day.

¶ 11. To support his argument that he was not intoxicated at the time of the incident and to minimize the impact of his having had six beers, Chapman points to the fact that he and his friends began partying at 10:30 a.m. and finished around 9:30 or 10:00 p.m. He also notes that he had not had anything to drink in “a few hours,” leaving plenty of time for the effects of the beer to wear off. However, the record reflects that Chapman never stated the exact period of time during which he had consumed the six beers, nor does the record show the volume of the six beers. For example, we do not know whether Chapman consumed six twelve-ounce cans of beer or whether the cans were larger. Without proof of Chapman’s weight, the volume of beer that he had consumed and when, it cannot be legitimately argued that the evidence was insufficient to support a finding that he was still under the influence of alcohol at the time that Officer Hunter stopped him. All of these factors, and more, determine how alcohol affects the body and how quickly its effect is dissipated.

¶ 12. As additional support for his argument that he was not under the influence of alcohol, Chapman submitted a receipt showing that the truck’s power steering had been replaced. However, even if there were a problem with the truck’s power steering that night and Chapman’s claims that he could not turn the steering wheel when he needed to avoid the mailboxes and the boat were true, the evidence of how Chapman handled the incident supports a finding that he was under the influence. For example, he did not slow down or attempt to stop when he knew that he was going towards the mailboxes and the boat, nor did he stop to inform anyone of the incident after he hit the mailboxes and the boat. He left the neighborhood as if nothing had happened.

¶ 13. After examining all of the evidence in the light most favorable to the State, we find no facts or inferences that point so strongly in favor of Chapman as to cast reasonable doubt on his guilt. Therefore, we find that the State met its burden of proof, and the judgment was not manifestly erroneous or clearly wrong.

¶ 14. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS, WITH THE FORTY-EIGHT HOURS SUSPENDED, AND SUSPENSION OF DRIVING PRIVILEGES, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J.,

text:
    Heidi Wilkinson BRADDY, Appellant v. Jeremy P. JENKINS, Appellee.
    No. 2012-CA-00584-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Nathan S. Farmer, Picayune, attorney for appellant.
    Kevin R. Roberts, Nance Fitzpatrick Stokes, Poplarville, attorneys for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2012, the Pearl River County Chancery Court issued a final judgment regarding the custody of Jeremy .P. Jenkins’s and Heidi Wilkinson-Braddy’s minor child, Isaiah Jenkins. The chancery court awarded primary physical custody of Isaiah to Jeremy, with the parties sharing joint legal custody. Heidi was granted visitation rights. Heidi now appeals, arguing: (1) the chancellor committed reversible error by failing to make specific written findings on the statutory presumption set forth in Mississippi Code Annotated section 93-5-24(9) (Rev.2004); and (2) the chancellor erred in awarding physical custody of Isaiab' to Jeremy pursuant to an Albright analysis. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Jeremy and Heidi began their relationship in 2003 and resided together in Carriere, Mississippi. Although they were never married, the couple had two children together, Jeremy Jenkins Jr. and Isaiah Jenkins. Jeremy Jr., born September 4, 2003, is in the custody of Heidi’s mother, Sherry Wilkinson, and is not at issue in this case.

¶ 3. In 2005, the couple separated. Upon their separation, Heidi moved into her father’s home in Carriere and was residing there when Isaiah was born on September 6, 2006. The record is unclear as to the exact date, but a few months after Isaiah’s birth, Jeremy gained custody of Isaiah.

¶ 4. According to Heidi, Jeremy, accompanied by his brother, entered her father’s home uninvited and asked to take Isaiah. She testified that, when she refused, Jeremy held her down and threatened to break her arm if she did not release Isaiah. Heidi ultimately relented, and Jeremy took Isaiah with him. Jeremy contends that, while Heidi did not fully agree with him removing Isaiah from her care, he did not threaten her. Also, he contends that she had informed him that she could no longer care for Isaiah. There was no custody order in place at this time.

¶ 5. Following this change in custody, Jeremy began to control the time, place, and manner of Heidi’s visitations. Heidi attempted to take Isaiah several times and, according to Heidi, she was stopped violently by Jeremy and his family each time. On one occasion, Heidi stated, she was pushed by Jeremy’s sister, Crimpson, when Heidi went to Jeremy’s mother’s house on Mother’s Day in 2008 to visit Isaiah. Heidi was ultimately forced to leave the property. Jeremy testified that Heidi was allowed to visit Isaiah freely, but the agreement between the two parties was that Heidi was unable to care for Isaiah permanently. Jeremy also stated that Heidi would often miss scheduled visitations with Isaiah.

¶ 6. Jeremy maintained full custody of Isaiah from November 2006 to July 2009, providing complete financial and physical care to him. At some point in 2009, Heidi moved to New Orleans, Louisiana. On July 9, 2009, Heidi visited Isaiah at Jeremy’s home while Jeremy was at work. Jeremy’s wife, Teresa, testified that Isaiah was swimming in the pool in the backyard when Heidi arrived. Heidi asked for Isaiah’s basketball, and Teresa went to look for it. At that time, Heidi grabbed Isaiah, threw him in her truck, unrestrained by a seat belt, and took him back to her residence in New Orleans. Heidi testified that Jeremy and his family followed her back to Louisiana, threatened her, and demanded she give Isaiah to them.

¶ 7. On July 15, 2009, after filing for a temporary restraining order, Heidi was granted an order of protection in the state of Louisiana for Isaiah and herself against Jeremy. On July 21, 2009, Jeremy filed a complaint for child custody and other relief in the Pearl River Chancery Court seeking custody of Isaiah. On July 29, 2009, the order of protection was dismissed in Louisiana, and Heidi was ordered to return to Mississippi with Isaiah.

¶ 8. Heidi returned to Mississippi on July 29, 2009, with her boyfriend, Darrell, and Isaiah to stay with her mother, Sherry. That same day, Jeremy showed up at Sherry’s home attempting to regain custody of Isaiah. Heidi testified that Jeremy, Teresa, Crimpson, and another friend entered Sherry’s property with the intent of taking Isaiah by force. A violent altercation ensued in Sherry’s front yard among all parties present, except for Sherry, who left with Isaiah. According to Heidi, Jeremy then forced his way into the home and attacked her; she then stabbed him with a knife in self-defense. At the time of trial, both Heidi and Jeremy had pending criminal charges against them regarding this incident.

¶ 9. After the altercation, Heidi returned to Louisiana with Isaiah. On August 3, 2009, Jeremy was granted temporary custody by the Pearl River County Chancery Court. Jeremy regained temporary custody of Isaiah on August 12, 2009, and was awarded sole physical custody of Isaiah on August 24, 2009. On March 10, 2010, a temporary order was entered, granting Heidi visitation rights. On May 4, 2010, Tara Kellar was appointed as a guardian ad litem (GAL). A second temporary order was entered on May 11, 2011, awarding Heidi summer visitation with Isaiah. A third temporary order was entered on August 25, 2011, resetting the trial to January 26, 2012, and further defining Heidi’s visitation schedule. From August 2009 to January 2012, Jeremy retained sole custody of Isaiah, providing full maintenance and support to him.

¶ 10. The chancellor entered a final judgment on March 6, 2012, awarding sole physical custody of Isaiah to Jeremy. Heidi was granted visitation rights. Aggrieved, Heidi now appeals.

STANDARD OF REVIEW

¶ 11. “In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong [or] clearly erroneous, or the proper legal standard was not applied.” Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). The Mississippi Supreme Court has found that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robison v. Lanford, 841 So.2d 1119, 1122 (¶ 9) (Miss.2003) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). Furthermore, “we, as an appellate court, will affirm the decree if the record shows any ground upon which the decision may be justified.... ” Mosley v. Mosley, 784 So.2d 901, 905 (¶ 15) (Miss.2001) (citing Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

DISCUSSION

I. History of Perpetrating Family Violence

¶ 12. Mississippi Code Annotated section 93-5-24 (Rev.2004) provides for determinations of child custody. Subsection (9)(a)(i) states in pertinent part:

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

Miss.Code Ann. § 93 — 5—24(9)(a)(i).

¶ 13. Accordingly, the rebuttable presumption is triggered if a chancellor finds a history of perpetrating family violence. As noted in the statute, the chancellor must make written findings to document his consideration of the presumption and any rebuttal of the presumption. In determining whether or not the presumption has been overcome, the chancellor must consider the following factors:

1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer’s treatment program;
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

Miss.Code Ann. § 98 — 5—24(9)(a)(iii).

¶ 14. Heidi argues that the chancellor failed to make specific written findings when she presented evidence of domestic violence. She contends that the chancellor should have specifically addressed each incident of domestic violence to determine whether or not the presumption had been triggered. Then, if the presumption was triggered, the chancellor should have made specific written findings as to whether or not the presumption had been rebutted.

¶ 15. The record in this case contains evidence of numerous violent incidents involving both parties. The chancellor addressed this evidence in both the trial proceedings and in his final written judgment. Even Heidi admits that the domestic-violence evidence was addressed by the chancellor in both his questioning of the GAJL and in his final judgment.

¶ 16. The supreme court addressed the rebuttable statutory presumption in J.P. v. S.V.B., 987 So.2d 975 (Miss.2008). In that case, the Court upheld a chancellor’s decision in finding a history of perpetrating family violence that triggered the presumption. Id. at 980 (¶ 12). The appellant argued that the presumption had been rebutted and the chancellor failed to refer in writing to the six factors required by the applicable statute in considering whether the presumption had been rebutted or not. Id. at 981 (¶ 13). The Court explained:

[A] chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination.

Id. at 981-982 (¶ 16).

¶ 17. While the chancellor in the case at hand may not have found the presumption to be applicable, he did make written findings based on his consideration of the domestic-violence evidence. The chancellor fully addressed these issues during the trial proceedings as well as in his final written judgment. Accordingly, this issue is without merit.

II. The Albright Factors

¶ 18. In matters of child custody, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In determining the best interest of the child, the following factors should be considered:

Age[,] ... health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id.

¶ 19. Heidi contends the presumption set forth in Mississippi Code Annotated section 93-5-24(9) was successfully raised by the evidence of domestic violence and that Jeremy failed to rebut the presumption. Therefore, Heidi asserts that Jeremy is precluded from being awarded full physical custody of Isaiah based on an Albright analysis. As previously stated, the record contains evidence of numerous savage encounters between both parties. The chancellor found that both parties had exemplified violent behavior and had pending criminal charges against them for this behavior. Jeremy was controlling and brutal, while Heidi had a documented pattern of violent and destructive behavior. Although Heidi points out many forceful confrontations with Jeremy, the only evidence of any serious injury inflicted on either party was manifested by Heidi when she stabbed Jeremy. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Jeremy or Heidi. See Rolison v. Rolison, 105 So.3d 1136, 1137-39 (¶¶ 5-11) (Miss.Ct.App.2012).

¶ 20. Further, the chancellor went through an extensive analysis of each Al-bright factor in his written opinion. The chancellor made clear findings of fact and conclusions of law for each Albright factor after considering the witnesses’ testimony and the evidence, including the GAL’s recommendation. Six of the Albright factors favored Jeremy, and six factors were neutral. After a thorough review of the record and the chancellor’s written findings, we find that the chancellor did not abuse his discretion in his analysis of the Al-bright factors. This issue is also without merit. Thus, we affirm the chancellor’s judgment.

¶ 21. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).


text:
    Trayce Deanne Martin POGUE, Appellant v. Gerald Phillip POGUE Jr., Appellee.
    No. 2012-CA-01339-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Timothy J. Evans, attorney for appellant.
    Mark Vincent Watts, Biloxi, attorney for appellee.
    Before IRVING, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Trayce Deanne Martin Pogue and Gerald Phillip Pogue Jr. (Phillip), were divorced by the Pearl River County Chancery Court in 2010. The parties agreed on a property-settlement and custody agreement (the agreement), which was incorporated into the chancery court’s judgment. Trayce later filed a motion for contempt against Phillip, claiming he failed to uphold his duties under the agreement. Phillip counterclaimed seeking sole physical custody of their three minor children. The chancery court denied Trayce’s motion for contempt and granted Phillip’s motion for sole physical custody. Aggrieved, Trayce appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Trayce and Phillip were granted a divorce based on irreconcilable differences on April 14, 2010. The chancery court incorporated the agreement into the judgment of divorce. The agreement included terms regarding the division of the marital home, as well as custody of the Pogues’ children. Phillip was awarded the marital home in Poplarville, Mississippi, but agreed to refinance the home and pay Trayce $50,000 within six months of the date the divorce judgment was entered. If Phillip did not refinance the home and pay Trayce within six months, he was ordered to quitclaim his interest in the marital home to Trayce.

¶ 3. With regard to the children, Trayce and Phillip shared joint legal and physical custody pursuant to the terms of the agreement. The agreement ordered the children to spend alternating weeks, including weekends, with each parent. Neither parent paid child support as long as Phillip paid the children’s private-school tuition.

¶ 4. Phillip and the children lived in the home for some time after the divorce, but he eventually moved out. Trayce admitted that she went to the abandoned house and removed several ceiling fans. However, later, Phillip discovered that the home had been stripped of the air-conditioning unit, wiring, and copper pipes. Trayce denies any involvement in these destructive activities.

¶ 5. Phillip attempted to refinance the home both before and after the vandalism, but was unable to do so. Accordingly, he offered to quitclaim the property to Trayce. The record indicates that Trayce refused the conveyance, stating she did not want the home. She testified that she agreed to negate the terms of the agreement and allow Phillip additional time to pay her the $50,000 instead of having him convey the property to her. She also testified that Phillip did not offer to quitclaim the home to her until after it had been vandalized. She stated that she wants the money, not the property; but, if Phillip had offered to quitclaim the home to her before the vandalism, she would have considered it.

¶ 6. In September 2011, Trayce filed a complaint in the chancery court citing Phillip’s alleged contempt for failure to pay her the $50,000. Her complaint initially also sought a modification of the custody agreement to grant her sole physical custody of the children. She soon dismissed her claim for sole physical custody.

¶ 7. Phillip denied the allegation of contempt. He later counterclaimed in February 2012 with his own motion to modify the custody agreement, seeking sole physical custody of the children. He asserted that since the divorce, Trayce had only exercised alternating weekend visitation, as opposed to the week-long visitation ordered in the judgment and consented to in the agreement. He also claimed that he provided all financial support for the children and was the primary caregiver.

¶ 8. At trial, Trayce acknowledged that she and Phillip had reached an understanding that delayed his payment of the $50,000 for approximately one year and negated the original agreement. She admitted that Phillip had offered to quitclaim the home to her, but that she had refused since the home was in such disarray.

¶ 9. The chancery court determined that the parties made an unauthorized change to the agreement and broke with the chancery court’s judgment by extending the payment date for the $50,000 by one year. The chancery court admonished the parties for their unauthorized outside agreement and for failing to take any steps to preserve, protect, or maintain the marital home once it was vacant. The chancery court acknowledged that, at present, the home is in no condition to refinance. Accordingly, the only option was for Phillip to quitclaim the house to Trayce immediately and pay all outstanding taxes and liens on the property.

¶ 10. With regard to the child-custody matters, the evidence presented at trial showed that the Pogues did not share joint physical custody. Instead, Trayce and Phillip had agreed that- the children would live with Phillip during the week so that they could remain in the school they were attending prior to the divorce. As such, the children lived with Phillip full time and visited Trayce every other weekend.

¶ 11. Prior to the trial, the chancellor appointed a guardian ad litem (GAL) to conduct a full investigation and provide a report. After reviewing the evidence regarding custody, the chancellor conducted an on-the-record Albright analysis and relied heavily on the GAL’s report. The chancellor determined that the parties’ behavior since the divorce in allowing the children to live with Phillip during the week and with Trayce on alternating weekends was a material change in circumstances. The chancery court stated that continuation of the prior joint-custody order would prove impractical. So as not to disrupt the children’s lives, the chancery court granted Phillip primary physical custody with the parties to maintain joint legal custody. Trayce was granted liberal visitation rights and physical custody every other weekend, as well as a summer vacation schedule. Holidays and special events were evenly divided.

DISCUSSION

¶ 12. In domestic-relations cases, appellate courts are limited in their review of the issues. Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong [or] clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So.3d 1134, 1137 (¶ 6) (Miss.Ct.App.2012).

I. Marital Home

¶ 13. We first address the contempt issue regarding the marital home. The chancellor properly cited the case of Dalton v. Dalton, 874 So.2d 967, 972 (¶ 13) (Miss.2004), to support the notion that chancery courts have deference in enforcing property-settlement agreements and resolving disputes between parties regarding those agreements during a contempt proceeding. Additionally, we recognize that “[t]he chancellor sits as the fact finder and is the sole judge of the credibility of a witness when resolving factual disputes.” Stokes v. Campbell, 794 So.2d 1045, 1048 (¶ 11) (Miss.Ct.App.2001).

¶ 14. Here, the chancellor determined that Trayce initiated the change in the agreement by offering Phillip an extension of time to refinance the home and pay her $50,000. Phillip was still unable to refinance the home after the extension. At the time of the hearing, the chancellor found that the home was in no condition to qualify for refinancing. Therefore, the chancellor stated that the only viable option was to invoke the alternate term of the agreement — quitclaiming the home to Trayce.

¶ 15. We agree with the chancery court. Trayce cannot claim Phillip violated the terms of the agreement when she initiated the violation. She afforded Phillip more time to refinance the home and refused to accept Phillip’s offer to quitclaim the property to her. This gave Phillip no recourse other than to continue attempting to refinance the home.

¶ 16. The law provides that the chancellor was in the best position to determine how this dispute should be resolved. See Dalton, 874 So.2d at 971 (¶ 9). The chancellor’s ruling merely upheld the terms of the agreement that were enforceable with regard to the marital home. In doing so, the chancellor attempted to remain in keeping with the parties’ original intent when entering into the agreement. We cannot find manifest or clear error or an erroneous application of the law in the chancellor’s judgment. This issue is without merit.

II. Child Custody

¶ 17. We next address the child-custody claim. The record indicates that the children attend a private school in Wiggins, Mississippi. Phillip has ensured that they are transported to and from the school every weekday since the divorce. Trayce is unable to get the children to and from school due to her work schedule and her current living situation.

¶ 18. Trayce is employed as a registered nurse at both the Covington County Hospital and the Pearl River County Hospital Emergency Room. Her work hours are usually from 7 a.m. until 7 p.m. However, Trayce testified that she sets her own work hours based on available shift work.

¶ 19. After the divorce, Trayce moved from Poplarville to Sumrall, Mississippi, and later to Columbia, Mississippi, where she presently lives with her fiancé. The distance alone between the children’s school in Wiggins and Trayce’s home in Columbia prevents her from being able to provide continuity in school for the children. Additionally, Trayce’s current home does not provide enough space for all three of the children to live. Her fiancé has two children who visit from time to time, and there are not enough bedrooms for Trayce’s three children, much less the couple’s combined five children.

¶ 20. The GAL’s report was admitted into evidence at the trial. In the report, she found that the children are primarily with Phillip during the school year and that Trayce only has them every other weekend. She also stated that she found no adverse consequences from the children living at Phillip’s house and having Phillip’s house serve as their custodial home. The GAL conducted an Albright analysis, and reported that four of the twelve Al-bright factors weighed in favor of Phillip, with the remaining factors being neutral to both parties. The chancellor adopted the GAL’s Albright analysis, and reiterated the findings on the record when determining that enforcement of the prior joint-physical-custody agreement would be impractical.

¶ 21. We agree. In McRee v. McRee, 728 So.2d 1217, 1218 (¶¶ 2-4) (Miss.Ct.App.1998), we addressed a similar situation where parents were given joint custody of a child following a divorce, but one party later sought to modify the agreement pursuant to the parties’ actions that were contrary to the agreement. Id. at 1218 (¶¶ 2-4). There, we stated:

Taking the parties as he found them, ... the chancellor had to determine what was in the best interest of the child. Quickly determining that leaving custody unchanged was impractical, he was not required to force that decision into some general framework that just was not applicable. To look at custody anew and apply the correct Albright factors was in the best tradition of what chancellors are supposed to do, and that is to seek equity.

Id. at 1220 (¶ 11) (citing Bredemeier v. Jackson, 689 So.2d 770, 776-77 (Miss.1997)).

¶ 22. Likewise, the chancellor merely sought equity here. The record reflects that the parties never abided by the original joint-physical-custody agreement. Due to Trayee’s work and living situations, the children have remained primarily with Phillip during the week so that they can continue to attend them current school in Wiggins. The evidence shows that Trayce is unable to provide this continuity to the children. The record also indicates that if the joint-physical-custody agreement were enforced, not only would the children’s school change, their community would also change due to Trayce’s move to Columbia.

¶ 23. Enforcing the original joint-physical-custody agreement would alter the lifestyle that the children have grown accustomed to since before the divorce was final. The original agreement has never been acted upon by the parties, and should not be acted upon now. This issue is without merit.

¶ 24. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).