author: JAMES, J., for the Court:

text:
    HARRISON COUNTY UTILITY AUTHORITY, Appellant v. Helen Peterson WALKER, Owner; and James E. Walker, Jr., as Attorney-In-Fact, Appellees.
    No. 2012-CA-00769-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.
    Rehearing Denied May 6, 2014.
    Certiorari Denied July 31, 2014.

      James C. Simpson Jr., Gulfport, Thornton Russell Nobile, attorneys for appellant.
    Gary White, Gulfport, attorney for ap-pellees.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   JAMES, J., for the Court:

¶ 1. Harrison County Utility Authority (HCUA) initiated a quick-take condemnation action relating to certain land owned by Helen Peterson Walker, which was filed in the Harrison County Special Court of Eminent Domain. After an order was entered granting HCUA the right of immediate title to and possession of the property, Walker, her husband, James Walker Sr., and her son, James Walker Jr., filed a separate lawsuit against HCUA asserting that James Sr. and James Jr. held an interest in the property by virtue of a misfiled warranty deed. The trial court dismissed HCUA’s condemnation action, without prejudice, finding HCUA had notice of James Sr. and James Jr.’s interest in the property and failed to join them in the action. HCUA appealed. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 18, 2009, HCUA, an agency authorized by Mississippi law to acquire property by eminent domain, filed a complaint to acquire an easement over the subject property, the “Walker parcel,” located in the Second Judicial District of Harrison County. HCUA required the easement in order to bring water and wastewater to a new wastewater-treatment facility being constructed in Biloxi, Mississippi.

¶ 3. Prior to filing its compliant, HCUA engaged the services of an abstractor, who conducted a title search of the land records of the Second Judicial District of Harrison County. The search revealed that the property at issue had been owned by Walker, in fee simple, since 1954. On August 13, 2008, HCUA mailed Walker a Notice to Owner, informing her that HCUA was considering acquiring an interest in her property. According to HCUA, Walker’s son, James Jr., contacted HCUA’s counsel and informed HCUA that he had power of attorney for his mother and asked to be included in any further discussions regarding the proposed acquisition of the property.

¶ 4. On November 12, 2008, HCUA sent a Formal Offer of Purchase letter to Walker and to James Jr. The letter informed Walker that HCUA needed to acquire a 50-foot easement on the Walker parcel and offered $9,000 as compensation for the easement. On March 3, 2009, Walker sent a letter to HCUA’s counsel in which she stated that selling an easement was not an option. The letter contained a counteroffer in which Walker offered to sell HCUA the entire four-acre parcel for $125,000 per acre. The letter was signed by Walker and James Jr. under power of attorney for Walker.

¶ 5. On April 13, 2009, HCUA filed a quick-take condemnation action in the Harrison County Special Court of Eminent Domain against Walker, as owner, and James Jr., as attorney-in-fact, and a Lis Pendens Notice. On May 18, 2009, the court appointed an independent appraiser. The appraisal was filed on May 27, 2009, valuing the easement to be worth $11,340. On June 5, 2009, HCUA deposited $11,340 with the clerk of the court. On June 8, 2009, the court issued an order granting HCUA immediate title and possession of the Walker parcel.

¶ 6. On February 2, 2010, Walker, James Sr., and James Jr. filed a separate action against HCUA alleging that HCUA inversely condemned the Walker parcel by failing to join all individuals with an interest in the property. In that suit, the Walkers alleged that James Sr. and James Jr. possessed an interest in the property by virtue of a 2003 warranty deed by which Walker purportedly conveyed a life estate to herself and to James Sr. with a remainder to James Jr. The 2003 warranty deed was recorded on April 21, 2008. However, the deed was recorded in the First Judicial District of Harrison County rather than in the Second Judicial District where the property is located.

¶ 7. On February 10, 2010, HCUA filed a motion to amend its complaint in order to add James Sr. and James Jr. as defendants. Meanwhile, Walker filed a motion to dismiss. A hearing on the various motions was held on December 8, 2010. On December 29, 2010, the court entered an order denying Walker’s motion to dismiss and granting HCUA’s motion to amend. However, HCUA was unable to obtain service of process on James Sr. and James Jr., and on March 2, 2010, HCUA filed a notice of voluntary dismissal of non-joined defendants under Mississippi Rule of Civil Procedure 41(a)(1)®, dismissing James Sr. and James Jr. as defendants.

¶ 8. On April 21, 2011, Walker filed a motion for a protective order, claiming that HCUA was planning to enter the property to begin installing the water lines. While this motion was pending, HCUA began installation of water lines on the Walker parcel.

¶ 9. A hearing on Walker’s motion for a protective order was held on April 26, 2011. The trial court expressed some concern about HCUA’s decision to proceed while the motion for a protective order was pending. HCUA asserted that, as the owner of the easement property, it was authorized to begin construction. At the conclusion of the hearing, the trial court granted Walker’s motion for a protective order.

¶ 10. On May 4, 2011, the trial court granted Walker’s motion to dismiss, dismissing the case without prejudice. On May 11, 2011, HCUA filed a motion to reconsider and for relief from the order of dismissal. On February 2, 2012, the court entered an order ruling that Walker was entitled to attorney’s fees pursuant to Mississippi Code Annotated section 11-27-37. In this order, the court granted Walker’s motion for an injunction ordering HCUA to remove the water line.

¶ 11. A final judgment was entered on May 1, 2012. The final judgment vacated the June 8, 2009 order that granted HCUA immediate title to and possession of the Walker parcel. Further, the court ordered HCUA to remove the water line previously installed on the property, and ordered HCUA to pay attorney's fees in the amount of $47,359.89.

¶ 12. HCUA appealed to this Court raising the following issues: (1) whether the 2003 warranty deed filed in the wrong judicial district, constituted notice to HCUA of James Sr. and James Jr.’s interest in the property; and (2) whether the trial court erred in finding that James Sr. and James Jr. were necessary parties and dismissing the action. Finding error, we reverse and remand for further proceedings below.

DISCUSSION

I. Mootness

¶ 13. Walker has filed an Amended Motion to Dismiss Appeal and Cross-Appeal as Moot. In response, HCUA has filed an Opposition to Appellees’ Amended Motion to Dismiss Appeal and Cross-Appeal as Moot. In her motion, Walker asserts that HCUA filed a second eminent-domain action seeking an easement across the Walker parcel in which it named and served Walker, James Sr., and James Jr. According to the record exhibits attached to Walker’s motion, an order was entered on February 19, 2013, granting HCUA the easement. This second eminent-domain proceeding is not before this Court.

¶ 14. We have held that “[c]ases in which an actual controversy existed at trialt,] but the controversy has expired at the time of review, become moot.” Wilson v. Mallett, 50 So.3d 366, 368 (¶ 6) (Miss.Ct.App.2010) (quoting J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006)). “[T]he review procedure should not be allowed for the purpose of settling abstract or academic questions, and ... we have no power to issue advisory opinions.” Id.

¶ 15. Although it appears that HCUA has acquired the easement at issue, we find that this appeal is not moot. HCUA argues that the trial court erred in dismissing the case. As a result of that dismissal, the trial court awarded Walker $47,359.89 in attorney’s fees pursuant to Mississippi Code Annotated section 11-27-37. Thus, if the trial court erred in dismissing the case, the award of attorney’s fees would also be in error.

II. Whether the trial court erred in finding that James Sr. and James Jr. were necessary parties to the action.

¶ 16. HCUA argues that it had no notice of the 2003 warranty deed conveying an interest in the property to James Sr. and James Jr. Therefore, HCUA asserts that the trial court erred in finding that James Sr. and James Jr. were necessary parties to the condemnation action.

¶ 17. When this Court reviews questions of law, the proper standard of review is de novo. Miss. Tramp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997). This Court must reverse misapplications of the law. Id.

¶ 18. Upon dismissing the case, the trial court found, in pertinent part: “On or about [February] 10, 2010, [HCUA] knew of the ownership interests of [James Sr. and James Jr.] in the property-Actual knowledge of the existence of a deed is the same as the filing of same at the correct courthouse.”

¶ 19. Rule 19(a) of the Mississippi Rules of Civil Procedure provides, in pertinent part, as follows:

(a) Persons to Be Joined [I]f Feasible. A person who is subject to the jurisdiction of the court shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary plaintiff.

Mississippi Code Annotated section 89-5-3 (Rev.2011) provides:

All bargains and sales, and all other conveyances whatsoever of lands ... shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded. Failure to file such instrument with the clerk for record shall prevent any claim of priority by the holder of such instrument over any similar recorded instrument affecting the same property [,] ... [b]ut as between the parties ... said instruments shall nevertheless be valid and binding.

(Emphasis added).

¶ 20. HCUA acquired its interest in the Walker parcel through the quick-take condemnation procedures set forth in Mississippi Code Annotated sections 11-27-1 though 11-27-49 (Rev.2004). HCUA filed its complaint on April 13, 2009, naming the record owner of the property. After the court-ordered appraisal was filed, HCUA deposited the full amount with the clerk. On June 8, 2009, the court entered an order granting HCUA the right to immediate title and possession.

¶ 21. Harrison County is divided into two judicial districts. The property at issue is located in the Second Judicial District. It is undisputed that the 2003 warranty deed conveying an interest in the property to James Sr. and James Jr., respectively, was filed in the First Judicial District of Harrison County. Thus, when HCUA conducted its title search in the land records of the Second Judicial District, it did not discover a record of the 2003 conveyance. Mississippi law provides that “a conveyance of land shall not be good against a purchaser for a valuable consideration without notice, or any creditor, unless it be lodged with the clerk of the chancery court of the county in which the lands are situated ....” Miss.Code Ann. § 89-5-1 (Rev.2011). In counties with multiple judicial districts, “the records of conveyances in such district shall be kept and have the same effect as if they were several counties.” Miss.Code Ann. § 89-5-41 (Rev.2011). We find that the filing of the deed in the wrong judicial district is tantamount to filing in the wrong county and does not constitute constructive notice. Therefore, pursuant to Mississippi Code Annotated section 89-5-3, the 2003 warranty deed is void as to HCUA, which acquired its interest without notice of the misfiled deed.

¶ 22. The Mississippi Supreme Court has held that Rule 19 of the Mississippi Rules of Civil Procedure “is an exception to the general practice of giving the plaintiff the right to decide who shall be parties to a lawsuit.” Coats v. City of Yazoo City, 562 So.2d 64, 65 (Miss.1990). “Rule 19(a)(1) provides that a non-party ‘shall be joined’ if in his absence complete relief may not be afforded among those already parties.” Coats, 562 So.2d at 66 (quoting M.R.C.P. 19(a)(1)). We have found that the 2003 warranty deed is void as to HCUA. Thus, it is difficult to see how James Sr.’s and James Jr.’s absence would prevent the court from granting complete relief between HCUA and Walker. See id. Therefore, we find that James Sr. and James Jr. are not necessary parties pursuant to Rule 19(a)(1).

¶ 23. Rule 19(a)(2) mandates that James Sr. and James Jr. be joined if they claim an interest in the property and are so situated that disposition of the action in their absence may (1) as a practical matter impair or impede their ability to protect that interest or (2) leave any of the persons already parties to the action subject to substantial risks of double, multiple, or otherwise inconsistent obligations. We do not see how the failure to join James Sr. and James Jr. will impair their ability to protect their rights. Mississippi Code Annotated section 89-5-3 provides that an unrecorded conveyance, although void as to subsequent purchasers for value without notice, is nevertheless binding between the parties to the conveyance. Thus, if they claim an interest in the property, their claim is against Walker.

¶ 24. This is not a situation where record owners have no notice of the procedure against their property. As the record indicates, James Jr. was named in the complaint as Walker’s attorney-in-fact, and he has been involved in the matter from the time HCUA sent Walker a notice-to-owner letter in August 2008. Likewise, James Sr. has been aware of the proceeding since at least February 2010, when Walker filed the separate action. Upon learning of their alleged interest, HCUA attempted to join James Sr. and James Jr. but were unable to obtain service of process. Likewise, nothing prevented James Sr. and James Jr. from intervening pursuant to Rule 24 of the Mississippi Rules of Civil Procedure.

¶ 25. As a result of the erroneous dismissal, the trial court awarded Walker $47,359.89 in attorney’s fees pursuant to Mississippi Code Annotated section 11-27-37 (Rev.2004). Section 11-27-37 permits the award of attorney’s fees in eminent-domain cases when “the suit shall be dismissed by the plaintiff .... or the judgement be that the plaintiff is not entitled to a judgment condemning property....” HCUA did not voluntarily dismiss the condemnation action. Nor was there a finding that HCUA was not entitled to a judgment condemning the property. Here, the trial court erroneously dismissed the case without prejudice for HCUA’s failure to join necessary parties to the action. We have found that the trial court erred in dismissing the case. Therefore, we reverse the award of attorney’s fees.

¶26. Accordingly, we reverse the dismissal of the condemnation action and the award of attorney’s fees and remand this case to the trial court for proceedings consistent with this opinion.

¶ 27. THE JUDGMENT OF THE HARRISON COUNTY SPECIAL COURT OF EMINENT DOMAIN IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. ISHEE AND CARLTON, JJ., NOT PARTICIPATING.

      . Although that separate action is not before us on appeal, the allegations made in that action are pertinent to this appeal.

      . James Jr. was named in the original complaint as attomey-in-fact.

      .According to HCUA, HCUA never conceded that James Sr. and James Jr. possessed an interest in the property, but sought to add them as defendants out of caution and to ensure that all potential claimants could participate in the just-compensation proceeding.

      . Civil Action No.: D2402-12-241.


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    Donna Lee (Mayes) PROCTOR, Appellant v. Douglas Roger PROCTOR, Appellee.
    No. 2012-CA-00760-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2014.
    Rehearing Denied May 13, 2014.
    Certiorari Denied July 31, 2014.

      H.R. Garner, Jerry Wesley Hisaw, Sou-thaven, attorneys for appellant.
    Mary Lynn Damare’, attorney for appel-lee.
    Before IRVING, P.J., BARNES, ROBERTS and JAMES, JJ.
   BARNES, J., for the Court:

¶ 1. In this divorce action, Donna Proctor appeals the judgment of the DeSoto County Chancery Court, raising three issues. Donna claims the chancellor erred in the division of the marital property because she failed to subtract $35,000 from Douglas (Doug) Proctor’s share of his 401(k) retirement account, and instead deducted it from the balance’s total. (The $35,000 had been previously deducted from his account for delinquent medical and attorney’s fees he had not paid Donna.) She also claims the chancellor failed to address a pension account in the property distribution. Additionally, Donna argues that her alimony award is inadequate, and she should have been awarded lump-sum alimony. Finally, Donna contends the chancellor erred in reducing the amount of her attorney’s fees and expenses. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Doug and Donna married in 1979 and have two grown children. Before they separated, the couple lived in Hernando, Mississippi. Doug has worked for Delta Airlines (Delta) since 1986. Since approximately 2005, Doug has been living and working in Singapore. At the time of trial, he worked as an airline quality-control manager. His W-2 from 2009 showed gross wages of $148,000, but in 2011 his wages dropped to $87,972. He works twenty days straight, and then has sixteen days off. In Singapore, he resides in a hotel and is paid per diem for his days of work there. On his days off, he is free to leave Singapore, but he must pay for his own living expenses. Donna, who is approximately fifty years old, suffers from severe depression and anxiety, for which she has been hospitalized and is on medication. She has been a homemaker for most of the marriage, and at the time of separation, had no other form of support besides Doug’s income.

¶ 3. The parties separated in July 2007, and Donna filed for divorce. The chancery court ordered Donna to have exclusive use of the marital home, and Doug to pay the mortgage. Doug was to continue to provide health insurance for Donna, and pay her temporary support of $2,250 per month. During the divorce trial in January 2009, Donna moved to amend the pleadings and to add a complaint for separate maintenance. The chancery court granted the amendment and awarded Donna separate maintenance, requiring Doug to pay Donna $2,000 per month, pay the mortgage of $937 per month, provide Donna’s health insurance, pay her medical expenses not covered by insurance, and pay her attorney $10,000 in partial attorney’s fees. Each party also received a partial distribution of $37,000 in assets from a joint marital savings account. Doug filed a petition to terminate the separate maintenance, which was denied by the chancery court on August 3, 2010.

¶ 4. In September 2010, Doug moved to Tennessee and filed for divorce there. In October 2010, Donna filed an amended complaint for divorce based on several grounds in the DeSoto County Chancery Court.

¶ 5. In April 2011, the court entered an order of contempt against Doug in the separate-maintenance action because he had not paid the attorney’s fees and medical bills as ordered on August 3, 2010; the contempt order required him to withdraw $35,000 from his Delta 401 (k) account to pay these delinquent expenses.

¶ 6. In August 2011, a trial was held on the divorce action. The chancellor granted Donna a divorce on the ground of adultery and ordered Doug to pay $1,500 per month in permanent-periodic alimony for eight years, when it would then be reduced to $500 per month. Doug was also ordered to provide health insurance for Donna under his employer’s COBRA plan for the maximum time allowed. Donna was to be responsible for her medical bills not covered by insurance.

¶ 7. The court also divided the marital property. Essentially, the two main marital assets were the marital home and Doug’s 401 (k) account. The marital home was appraised at $240,000, with a mortgage balance of $104,711.44 and a monthly mortgage payment of $923.72. The marital home was ordered to be sold, with Doug to pay the mortgage until then. If the house did not sell within a year, the court would readdress the mortgage payments at that time. Doug’s 401 (k) account had a balance of $215,228.02 in April 2011, before the court ordered the $35,000 to be withdrawn by Doug to pay for expenses he owed. Chancellor Cobb specifically ordered the $35,000 to “be taken off of the top” of this amount, and the remaining balance of $180,228.02 to be divided equally between the parties.

¶ 8. A separate hearing was held on attorney’s fees, and a final judgment of divorce was entered on May 1, 2012. That same day, the court also denied Donna’s motion to reconsider. Donna timely appealed.

STANDARD OF REVIEW

¶ 9. The standard of review in domestic-relations cases is limited. The appellate court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.... For questions of law, [the] standard of review is de novo.” In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010) (quoting Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000)).

ANALYSIS

I. Property Division

¶ 10. Donna argues that in dividing the 401(k) account, the chancellor erred by not subtracting $35,000 from Doug’s share and adding it to her share, instead of taking it “off of the top.” Also, Donna claims the chancellor failed to make any findings regarding Doug’s pension with Delta, valued at $7,058.72.

¶ 11. The distribution of marital assets will be affirmed if “it is supported by substantial credible evidence.” Bowen v. Bowen, 982 So.2d 385, 393-94 (IT 32) (Miss.2008). First, the chancellor must determine whether the parties’ assets are marital or nonmarital. Craft v. Craft, 825 So.2d 605, 608 (¶ 11) (Miss.2002). Assets accumulated during the marriage are considered marital and are subject to equitable distribution. Id. (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Second, the assets will be equitably divided according to the factors set out in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Craft, 825 So.2d at 608 (¶ 11).

¶ 12. In the April 2011 contempt order, which was entered under the separate-maintenance action and by a different chancellor (Judge Lynchard), Doug was “permitted to withdraw up to $35,000 from his share of the assets” (either stock, retirement account, 401(k), deferred compensation, or IRA) to pay Donna’s delinquent attorney’s fees and medical bills, which he had been ordered to pay in August 2010. In the divorce action, Chancellor Cobb took judicial notice of this order, among others, in her final judgment; however, she ordered the $35,000 “be taken off of the top,” and the remaining balance of the 401(k) account be divided equally. Additionally, at the divorce hearing, the chancellor was very specific in her ruling about the 401(k) distribution:

I want Mr. Proctor’s 401K to be divided half and half. I know there was testimony that he has taken some funds out of that 401K ... to pay some of the obligations that he has been required to pay. But nonetheless, ... I have taken all of that into consideration and I am going to say that his 401K needs to be divided equally at its present value ... [as of the August 18, 2011 hearing].

¶ 13. Donna does not dispute the application of the Ferguson factors on this matter. Instead, she argues that the ruling on the $35,000 is contrary to the prior chancellor’s April 2011 contempt order in the separate-maintenance action, which stated the $35,000 would be withdrawn from “his share of the assets.” Indeed, there does appear to be an inconsistency.

¶ 14. The prior chancellor (Judge Lynchard) had the authority to order the $35,000 be taken from Doug’s share of the assets; however, he was not ruling on the distribution of marital assets, and could not bind the hands of the subsequent chancellor (Judge Cobb) in a different cause of action. Chancellor Cobb was free to take the rulings of the prior chancellor on the separate-maintenance proceeding into consideration in distributing the marital property in the divorce action and reject it. She found the 401 (k) account should be equally divided after the deduction of the $35,000. Had she not done so, Chancellor Cobb may well have assigned other assets to Doug to make up for the difference, as her issue was equitable, not equal, distribution of assets.

¶ 15. Moreover, it was not inequitable for Chancellor Cobb to deduct the $35,000 “off of the top” of the 401(k). Originally, this money was deducted from Doug’s 401(k) to pay $21,831.43 of Donna’s attorney’s fees in the separate-maintenance action. “Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees.” Evans v. Evans, 75 So.3d 1083, 1089 (¶ 22) (Miss.Ct.App.2011) (citing Voda v. Voda, 731 So.2d 1152, 1157 (¶29) (Miss.1999)). We presume that, at the point in the separate-maintenance proceedings that Judge Lynchard awarded Donna attorney’s fees, she did not have assets sufficient to pay attorney’s fees. However, at this point in the divorce proceedings, Donna has the ability to pay her share of the attorney’s fees by “taking [these fees] off of the top” of Doug’s 401(k) account, and dividing the remainder equally. We see nothing “inequitable” in Chancellor Cobb’s distribution of the 401 (k) account. The ruling on the 401(k) account was supported by substantial evidence, and we cannot find error.

¶ 16. Regarding the pension worth $7,058.72, Donna claims the chancellor failed to classify, divide, or address it in any way. This statement is incorrect. In her ruling from the bench, the chancellor stated that besides the 401(k), the parties could have any other accounts solely in their names — this would include the pension. Additionally, in the final judgment, the chancellor stated that all other assets (excluding the ones discussed), whether marital or not, would belong to the party who held them in his/her possession or control.

II. Alimony

¶ 17. Donna argues that the alimony award was inadequate, and she should have been awarded lump-sum alimony. Additionally, she claims reversal is mandated because the chancellor did not make an on-the-record analysis of all of the Armstrong factors for alimony. Further, Donna states the chancellor was using an inappropriate “blend” of alimony and property-distribution factors in her findings. Lastly, Donna argues that the chancellor’s “arbitrary reduction in alimony” after eight years is also grounds for reversal.

¶ 18. “In the case of a claimed inadequacy ... of alimony, [the appellate court] will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (citing McNally v. McNally, 516 So.2d 499, 501 (Miss.1987)). In determining whether to award permanent-periodic alimony, the chancellor must analyze the factors set out in Armstrong, 618 So.2d at 1280:

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

The chancellor must consider this test on the record, or it is manifest error. Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009) (citing Armstrong, 618 So.2d at 1280). However, this Court has stated that “[i]n examining these factors, the chancellor may consider them as an ‘overall combination’ and need not individually list each one.” Gable v. Gable, 846 So.2d 296, 300 (¶ 16) (Miss.Ct.App.2003) (quoting Hoggatt v. Hoggatt, 766 So.2d 9, 12 (¶ 9) (Miss.Ct.App.2000)).

¶ 19. The chancellor awarded Donna “permanent-periodic alimony” of $1,500 per month for eight years (beginning December 2011), with the amount then reduced to $500 per month. This amount is in addition to Doug’s paying the mortgage for at least a year, unless the marital home sold, and paying Donna’s COBRA health insurance for as long as possible. From the bench, the chancellor stated that she realized Doug “was going to have to cut back for a little while because I know I am putting it on him pretty heavy right now.”

¶20. The evidence presented at the divorce trial related to the Armstrong factors showed the following. Doug listed on his Rule 8.05 financial-declaration form that his net monthly income after taxes and insurance was $6,771.46. Included in this amount is his per diem income of $68 a day while in Singapore and $33 a day while in the United States, paid only on the days he works. He reported expenses of $5,180, including his separate-maintenance payment and marital-home mortgage. With credit card and loan payments, his total expenses are $7,273.77. Doug has $24,000 in credit-card debt.

¶ 21. Donna reported on her Rule 8.05 form that her post-tax income from her $l,500-per-month support was $1,401.41, with monthly living expenses of $4,381.72. Her reported monthly expenses included certain items that Doug paid, such as the mortgage ($923.72) and COBRA insurance ($400). They also included her school tuition ($543), although she had applied for and was expected to receive a federal loan. Donna’s expert witness, psychologist Dr. L.D. Hutt, testified that when he interviewed her in 2008, due to her mental conditions, Donna would not be able to “maintain substantial gainful employment in a standardized work environment.” In his opinion, she would be considered “disabled” under the Social Security Administration criteria if she were to apply, but she could not as she has not worked a sufficient time. Donna testified she had no other sources of income besides Doug’s temporary support.

¶ 22. From the bench, the chancellor made the following on-the-record findings on the Armstrong factors. At the time of trial, Doug was fifty-one years old, and Donna was forty-nine. The parties had been married for thirty-two years, which was a considerable length of time, even though they have been separated for a while and Doug was under the separate-maintenance order. Donna remained in the marital home, and there was “quite a discrepancy” in their earnings, earning capacity, and expenses. Donna’s only income at the time was from Doug — her separate-maintenance award of $1,500 per month. '

¶ 23. Alternatively, Doug has been employed by Delta for quite some time. He has a good job and salary working overseas. In addition to his paycheck, he receives a per diem to offset his living expenses in Singapore. Doug was indisputably guilty of adultery, and is romantically involved with a woman in Singapore. He is also fostering her children and has plans to adopt them. The Proctors’ children are grown, but Doug helps support them.

¶ 24. There was also a disparity in the parties’ health. Donna has been “very ill” for quite some time with some “mental and emotional issues.” Her illness has been aggravated by the separation, and has hurt her “ability to perform regular work” and some of her own daily “care giving needs.” Dr. Hutt testified about Donna’s mental issues. It was noted Donna has been going to community college, “trying to improve her situation.” She is working on an accounting degree. She has been helping her attorney at his law office working on her own and other cases. The chancellor stated that she thought Donna is “being rehabilitated,” and that she anticipated her “getting better” and “being able to do some things for herself,” but at the present time, she cannot.

¶ 25. The parties’ main assets were the marital home and the 401(k) account. The chancellor found no evidence of any “wasteful dissipation of assets” by either party, with the possible exception of $500 per month Doug was paying for his overseas “foster children.” The chancellor suggested that once the marital home was sold, with Donna’s share of the proceeds she could buy something “more manageable” than the couple’s current 2,800-square-foot home on one and one-half acres of land. The chancellor stated that the standards of living during the marriage and after, as well as the tax consequences of the support order, were taken into consideration in making her determination for alimony.

¶ 26. The award of permanent-periodic alimony was supported by substantial evidence. The award does not “shock the conscience” in inadequacy, as Donna suggests. Further, there is no error in the chancellor’s awarding permanent-periodic alimony over lump-sum alimony. The chancellor has substantial discretion in reaching a decision in these matters that is both “equitable and fair to both parties.” See Seale v. Seale, 863 So.2d 996, 999 (¶ 14) (Miss.Ct.App.2004). We find that she did so.

¶ 27. Further, there is no merit to Donna’s argument that the chancellor did not make a proper on-the-record Armstrong analysis. It is apparent the chancellor went to great lengths to analyze adequately the factors in her ruling from the bench. Further, her discussion of the alimony and property-distribution factors together was completely proper. “All property division ... [and] lump sum or periodic alimony payment ... should be considered together. ‘Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce.’ ” Lauro v. Lauro, 847 So.2d 843, 848-49 (¶ 13) (Miss.2003) (quoting Ferguson, 639 So.2d at 929).

¶ 28. Finally, the chancellor’s reduction in alimony after eight years was not “arbitrary,” as Donna claims. Donna cites Box v. Box, 622 So.2d 284, 290 (Miss.1993), in support of her argument. The Box court held that “a chancellor cannot reduce an award of periodic alimony unless [she] gives specific reasons for that reduction which are supported by the record.” Id. Here, the chancellor explained that the $1,500 alimony for eight years “will allow [Donna] time to get on her feet, to get through with her education,” after which the alimony would be reduced to $500 per month. We find no error with this ruling, or the manner in which it was made.

¶29. In conclusion, the chancellor did not abuse her discretion in awarding Donna permanent-periodic alimony.

III. Attorney’s Fees

¶ 30. Donna argues she is entitled to a full award of attorney’s fees, and the chancellor should not have reduced her award by $22,062.20.

¶ 31. After the divorce trial, a separate hearing was held on attorney’s fees. Donna submitted to the court $46,196.72 in attorney’s fees and expenses. Her attorney reported 160 billable hours at $150 an hour, for a total of $24,000. Expenses of $22,196.72 included $11,062.20 in fees for. a lawyer in the Tennessee divorce action, which Doug had filed in September 2010. Donna had an attorney expert witness testify that her attorney’s fees were reasonable and customary, as did Donna herself and her own attorney. A paralegal for Doug’s attorney testified about Donna’s legal bill, as well as Doug. Doug’s counsel objected to the inclusion of the Tennessee legal fees.

¶ 32. The chancellor ruled that the fees were reasonable under the McKee factors, and that Donna had some ability to pay her legal fees, because she had been working at her attorney’s office “in an effort to pay some of her attorney’s fees by services in kind.” Accordingly, the chancellor deemed Donna responsible for $11,000 of her attorney’s fees. Additionally, the chancellor found it improper for Doug to have to pay Donna’s attorney’s fees for the Tennessee action. Therefore, Donna was ordered to be responsible also for the $11,062.20 in Tennessee attorney’s fees, and Doug was required to pay her remaining fees.

¶ 33. On appeal, Donna somewhat contradictorily argues that the chancellor “arbitrarily” reduced her attorney’s fees by $22,062.20, and then proceeds to explain the two reasons stated by the chancellor for doing so — Donna’s inability to pay the entire fee, and the lack of propriety in awarding attorney’s fees for Doug’s action in Tennessee. Donna also claims that she should not have to pay the attorney’s fees for a Tennessee attorney she was forced to employ because her husband filed suit in Tennessee.

¶ 34. The standard of review regarding an award of attorney’s fees is abuse of discretion. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (¶ 7) (Miss.2002). Accordingly, the reviewing court will be “reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award.” Evans, 75 So.3d at 1089 (¶ 22) (citing Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)). “Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees.” Id. (citing Voda, 731 So.2d at 1157 (¶ 29)). When awarding attorney’s fees, a chancellor should make specific findings regarding the recipient’s ability to pay. Id. (citing Hankins v. Hankins, 729 So.2d 1283, 1286 (¶ 13) (Miss.1999)). The chancellor should apply the McKee factors to determine the proper amount of the award:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id. (quoting McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)).

¶ 35. Donna claims that reducing her attorney’s fee award by $11,000 allegedly due to her assisting her attorney was error. At the hearing, Donna testified that she performed work on her case for her attorney, such as making charts and graphs, so that she would not be billed for these tasks, and thereby reduced costs. Her attorney corroborated this fact. The crux of Donna’s argument appears to be her ability to pay her fees was already taken into account because she was not billed for this work. Yet Donna’s working on her case was not the only factor cited by the chancellor when she concluded that Donna could pay some, but not all, of her attorney’s fees. The chancellor noted Donna has received assets and income during the divorce by which she could pay some of her attorney’s fees. The chancellor’s ruling was supported by substantial evidence. Further, it was not unreasonable for Donna to pay for her Tennessee attorney’s fees; Donna could have submitted the matter to the Tennessee court for consideration. Accordingly, the chancellor did not abuse her discretion regarding this issue.

¶36. Donna makes a cursory request that this Court award her attorney’s fees on her appeal, in an amount equal to one-half of the amount that was awarded by the chancery court, according to Grant v. Grant, 765 So.2d 1268, 1268 (¶ 19) (Miss.2000), and Durr v. Durr, 912 So.2d 1033, 1041 (¶ 30) (Miss.Ct.App.2005). The distinguishing feature of these cases, however, is that the appellee was requesting attorney’s fees for defending the case on appeal, not the appellant prosecuting the appeal, unsuccessfully. Therefore, we deny Donna’s request.

CONCLUSION

¶ 37. The chancellor’s decision was equitable and supported by substantial evidence. Therefore, the judgment of the DeSoto County Chancery Court is affirmed.

¶ 38. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . See. 26 U.S.C. § 401(k) (2006).

      . The amount was later reduced to $1,500 per month because Doug was awarded custody of the remaining minor child.

      . The parties' separate maintenance and divorce actions have been heard by three different chancellors over the course of five years. The divorce proceedings were heard by Chancellor Vicki Cobb. The prior separate-maintenance-action proceedings were heard by Chancellors Mitchell Lundy Jr. and Percy Lynchard Jr.

      . In the April 2011 contempt order, Doug was found in contempt for failure to pay certain dental and out-of-pocket medical expenses totaling $2,316.24. Further, he was assessed with $4,977.42 in attorney's fees and expenses for Donna’s attorney through February 2011, as well as $16,854.01 in prior attorney's fees for Donna in the separate-maintenance action, and $201.20 in a shortage on his support payment.

      . See UCCR 8.05.

        . McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

      . In Doug's brief, he notes that Donna received a total of $37,000 from the joint marital savings account in 2007, and one-half of Doug's 401(k) account, or approximately $90,000, as well as the fact she will receive one-half the proceeds from the sale of the marital home.


author: ISHEE, J., for the Court:

text:
    Eddie Joseph BROWN a/k/a Eddie Joseph Brown, Jr. a/k/a Eddie J. Brown, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01256-COA.
    Court of Appeals of Mississippi.
    March 18, 2014.
    Rehearing Denied May 20, 2014.
    Certiorari Denied July 31, 2014.

      Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before ISHEE, P.J., CARLTON and FAIR, JJ.
   ISHEE, J., for the Court:

¶ 1. In March 2012, Eddie Joseph Brown was convicted in the Harrison County Circuit Court, Second Judicial District, of possession of cocaine. He was sentenced as a habitual offender to serve thirty-two years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Brown subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied the motion. Aggrieved, Brown now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On December 20, 2010, Brown and his on-again-off-again girlfriend, Jamise Floyd, were arrested in Biloxi, Mississippi, for possession of cocaine after police officers discovered the substance in the console of the couple’s vehicle. Brown and Floyd both testified at trial. However, their versions of the events that occurred on the night in question are divergent.

¶ 3. Brown testified that on that night, Floyd called him to pick her up from a friend’s house that evening. Brown was with his cousin, Willie Taylor, who was driving Brown and Floyd’s vehicle at the time Brown received the alleged call. Brown asserted that another cousin was also present in the vehicle at the time.

¶ 4. Brown stated that after picking up Floyd, the four of them drank beer together before the two cousins were dropped off at home. Brown then said he drove himself and Floyd to a local gas station, where he bought drinks and cigarettes, and where they both used the restroom. While Floyd was still in the restroom, Brown stated he got back in their vehicle, opened the center console to change a compact disc in the vehicle’s audio system, and then noticed police lights in his rear-view mirror.

¶ 5. The lights belonged to Officer Richard Hilliard of the Biloxi Police Department. Officer Hilliard was accompanied by two other members of the Biloxi Police Department, who were responding to a call regarding the suspicious behavior of a man and woman at the gas station in a vehicle matching Brown and Floyd’s vehicle’s description.

¶ 6. Brown asserted that Officer Hilliard asked Brown to step out of the vehicle, and then went into the gas station to find Floyd. After retrieving Floyd from inside the gas station, the officers asked to search the vehicle. Brown stated that Floyd vehemently refused to allow the officers to search the vehicle and caused a scene in the gas-station parking lot. The officers arrested her for public drunkenness. Brown was arrested soon thereafter when the officers discovered he had a warrant issued for his arrest for a misdemean- or offense.

¶ 7. Officer Hilliard called for a tow truck to retrieve the vehicle, but did an on-site inventory search prior to the vehicle’s departure. He discovered a small plastic bag of a white substance in the center console. The substance was later tested by the Mississippi Crime Laboratory and determined to be 4.7 grams of cocaine.

¶ 8. Floyd’s testimony at trial differs greatly from Brown’s allegations. Floyd testified that she broke up with Brown on the day in question, and told Brown to remove his belongings from their home. She asserted that she was socializing at a friend’s house when Brown found her and forced her into their car. She affirmed that two other people were present in the vehicle when Brown forced her into the back seat.

¶ 9. After dropping off the other two people, Floyd and Brown had a heated argument in the vehicle while Brown was driving. Floyd demanded that Brown stop the vehicle and let her out. She asserted that he refused, so she attempted to choke him with a seatbelt.

¶ 10. Shortly thereafter, Brown stopped at the gas station. Floyd stated that both of them went into the gas station. She claimed she went to the restroom with the intent of calling a friend to pick her up. While in the restroom, the officers arrived on the scene and asked her to come back to the car. When she arrived at the vehicle, the officers asked for Brown and Floyd’s permission to search the car. Floyd admitted that she adamantly refused, claiming she did not feel the officers had cause to search the vehicle because they did not stop the car.

¶ 11. Officer Hilliard also testified. He stated that upon arriving at the gas station, he parked behind Brown’s car and left his police lights on. He noted that Brown was the only occupant in the vehicle. He further stated that he observed Brown open the center console and reach into the console. During this time, Officer Hilliard could see Brown’s face through the driver’s window and in the rearview mirror. He stated that Brown began looking around frantically and appeared nervous.

¶ 12. Officer Hilliard asked Brown to step out of the vehicle. He asked Brown for identification, at which point Brown told Officer Hilliard that he was simply waiting for his fiancé, Floyd, to return from the restroom. Officer Hilliard retrieved Floyd, and immediately noticed that she was glassy eyed, smelled of alcohol, and was stumbling. Officer Hilliard testified that he asked Brown and Floyd for identification, which they told him was in their vehicle. When Officer Hilliard asked if he could retrieve their identification cards for them, Floyd became irate. Officer Hilliard confirmed that Floyd was arrested for public drunkenness, Brown was arrested for an outstanding warrant, and the 4.7 grams of cocaine was discovered by him during an inventory search of the vehicle.

¶ 13. After a March 2012 trial on the merits in the circuit court, a jury returned a guilty verdict for Brown for possession of cocaine. He was sentenced as a habitual offender to thirty-two years in the custody of the MDOC. He filed a motion for a JNOV or, in the alternative, a new trial, which was denied. Brown now appeals on the sole issue of the circuit court’s denial of his motion for a JNOV or a new trial.

DISCUSSION

¶ 14. In reviewing the denial of a motion for a JNOV or a new trial, we analyze the circuit court’s decision under an abuse-of-discretion standard. Vaughn v. State, 972 So.2d 56, 59 (¶ 11) (Miss.Ct.App.2008) (citing Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005)). A motion for a JNOV challenges the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The Mississippi Supreme Court has stated that in considering the denial of a motion for a JNOV, “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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 15. A motion for a new trial tests the weight of the evidence. Vaughn v. State, 926 So.2d 269, 271 (¶4) (Miss.Ct.App.2006) (citing Hawthorne v. State, 835 So.2d 14, 22 (¶ 32) (Miss.2003)). We have held that matters regarding the weight of the evidence are within the province of the jury. Stegall v. State, 765 So.2d 606, 610 (¶ 10) (Miss.Ct.App.2000). “When reviewing a denial of a motion for a new trial, this Court ‘will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Bush, 895 So.2d at 844 (¶ 18).

¶ 16. In support of his arguments, Brown contends that the cocaine discovered in the console of his vehicle belonged to his cousin, who was riding in the front seat of the vehicle shortly before officers detained Brown and Floyd. Brown asserts that the State failed to provide sufficient evidence to prove that the cocaine belonged to him.

¶ 17. Nonetheless, the supreme court has held that “[pjossession of a controlled substance may be actual or constructive.” Knight v. State, 72 So.3d 1056, 1063 (¶ 26) (Miss.2011) (citation omitted). Constructive possession exists when the evidence shows that the defendant knowingly exercised control over the contraband. Id. One factor in determining whether constructive possession existed is the defendant’s proximity to the drug; however, other incriminating circumstances must also be met. Id. Such circumstances have historically included:

[W]hen: (l)[t]he defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.

Id. (citation omitted). Furthermore, the supreme court has reiterated the well-settled principle of law that “the owner of a vehicle is presumed to be in constructive possession.” Wall v. State, 718 So.2d 1107, 1111 (¶ 13) (Miss.1998).

¶ 18. In Wall, Jerome Wall was the owner and operator of a vehicle in which marijuana was discovered. Id. The marijuana was discovered in the passenger compartment of the vehicle, where a friend of Wall’s had been located. Id. at 1109 (¶ 5). Wall maintained that the marijuana was not his, but must have belonged to his passenger. Id. at 1111 (¶ 13). Nonetheless, Wall failed to present any evidence to overcome the constructive-possession presumption other than his insistence that there was a passenger present in the vehicle with him. Id. The supreme court noted that the presence of a passenger in the vehicle with Wall was of no consequence to the presumption that he constructively possessed the marijuana. Id. Rather, the supreme court stated that, at best, it was “quite possible to have joint constructive possession.” Id. (citation omitted).

¶ 19. Here, the officers who responded to the call at the gas station each testified that Brown was acting nervously and suspiciously. One officer even testified that Brown continued to try to get back into the vehicle, claiming he wanted a cigarette. Officer Hilliard testified that when he approached the vehicle, he could see Brown open the center console, where the cocaine was later discovered, and reach into it. Brown himself testified that he opened the center console to look for a compact disc prior to realizing the officers were behind him. Finally, the record reflects that Brown is an official owner of the vehicle in which the cocaine was found. As in Wall, Brown presented no evidence to rebut the constructive-possession presumption other than a showing that another person had been in the passenger’s seat immediately prior to the incident. Accordingly, Brown’s arguments that the evidence was insufficient and the verdict was against the overwhelming weight of the evidence fail. The circuit court’s judgment was proper, and these issues are without merit.

¶ 20. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Robert Philip SEGREST, Appellant v. Dennis Wayne STARNES and Timothy Austin Starnes, Appellees.
    No. 2012-CA-01364-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Rehearing Denied July 29, 2014.

      Luden C. Gwin Jr., attorney for appellant.
    Wayne Smith, Robert Binnion Andrews, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court:

¶ 1. This case arises from a land dispute in Claiborne County, Mississippi, involving three parties: Robert Philip Segrest, Dennis Wayne Starnes, and Timothy Austin Starnes (the Starnes brothers). In 2009, Segrest filed a complaint against the Starnes brothers in the Claiborne County Chancery Court, claiming title to certain land and adverse possession. In response, the Starnes brothers filed an answer and counter-complaint alleging ownership of the land. After a trial on the merits, the chancery court found that the Starnes brothers owned the disputed land and dismissed Segrest’s claim. Aggrieved, Seg-rest appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In 2006, Wayne Starnes hired Grady Anderson, a local surveyor, to partition land among his five sons, including Dennis and Timothy. Dennis and Timothy were each given 116 acres, which included portions of the land in controversy in this case. Upon partition, a discrepancy arose between Segrest and the Starnes brothers as to the ownership of the disputed land. The land in question consists of 75.94 acres located in the southeast quadrant of Section 19, east of Brandywine Creek (also known as “Little Bayou Pierre”), and the south half of Section 20.

¶ 3. On November 2, 2009, Segrest filed a complaint alleging ownership of 18 acres in Section 19 and the total acreage of Section 20. Segrest claimed that his title to the property dated back more than sixty years. Segrest declared that, on April 25, 1975, he received fee-simple title to the disputed land by partition deed from Oren P. Segrest. A plat of the Segrest property, created by R.D. Wade Jr., was attached to the deed. Segrest also claimed title to the disputed land by adverse possession.

¶ 4. The Starnes brothers counterclaimed alleging ownership of the entire 75.94 acres. They declared that their title to the property also dated back more than sixty years. The Starnes brothers claimed to be record title holders to this property through deeds gifted to them by their father on December 29, 2006. The Starnes brothers claimed, based on the survey made by Anderson and the concept of bounding, that the description of the property in their deeds included the entire 75.94 acres.

¶5. A trial was held over four days. Segrest claimed title to 20 acres of the disputed land in the southern portion of Section 19. He admitted that he did not have a deed that conveyed this portion of the land. Rather, he relied on a description in a deed from the Starnes family’s chain of title that excluded 20 acres previously conveyed to D.T. Segrest. While Segrest originally claimed title to all of the disputed land in the southern portion of Section 20, he only claimed title to 16.44 acres at trial. He contended that title to this property dates back to a deed from 1854 in his chain of title, in which the description provided: “Fractional Section 20, Township 10 North, Range 5 East containing seventy-nine acres.... ”

¶ 6. The Starnes brothers testified that Segrest did not have any claim of title to the disputed land. While Segrest maintained that these past deeds were ample proof, the Starnes brothers contended that the 1975 deed from Oren to Segrest failed to include any of the disputed land, as evidenced by the plat of Segrest’s property created by Wade. Further, the Starnes brothers argued that Oren acknowledged and honored the boundary lines as provided in that plat.

¶ 7. Segrest countered that this was an error and that it was later corrected by a quitclaim deed between himself and his family in August 2011, which included the disputed land in Section 19 and Section 20. The Starnes brothers maintained that they held legal title to the land dating back to a deed from 1897, which provided: “In aid of description ... 30 acres, more or less, are in the southeast corner of Section 19[,] and 10 acres, more or less, are off the south end of Section 20 in said Claiborne County....” This deed also provided a bounding description for the disputed property.

¶ 8. Segrest asserted that his family had used the property since 1853. Segrest testified that an ancient fence cut through the disputed property of both Section 19 and Section 20. Testimony was presented that Segrest had hunted, cut timber, and paid taxes on the land. He admitted, however, that he had not used any of the property south of the fence. The evidence shows that, for several years, Segrest paid property taxes on 2.2 acres in Section 19 and 30.50 acres in Section 20. Segrest also testified that he was familiar with the property, as he had visited it with his family throughout his life.

¶ 9. The Starnes brothers testified that their family had used the land as their own since the 1940s. They contended that they had hunted, farmed, and maintained the land since that time. They argued that the ancient fence referenced by Segrest was actually a fence put in place by their predecessors in title to keep cattle from straying. The evidence shows that, for several years, Dennis paid property taxes on all the acres in Section 19 and 25.3 acres in Section 20. The Starnes brothers stated that they were very familiar with the property, including references to the general topography, as well as specific landmarks.

¶ 10. On the last day of trial, the chancellor viewed the premises. After considering the pleadings, the testimony of witnesses, the evidence presented, and the land itself, the chancellor found that Seg-rest did not own the land by record title and he had failed to prove his claim of adverse possession. The chancellor concluded that the Starnes brothers held ownership, and even if they did not hold record title, they had adversely possessed the disputed land. Aggrieved, Segrest appeals.

DISCUSSION

¶ 11. A limited standard of review is applied to appeals from chancery court. Rodgers v. Moore, 101 So.3d 189, 193 (¶ 8) (Miss.Ct.App.2012) (citations omitted). This Court “will not disturb .the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, [was] clearly erroneous, or applied an erroneous legal standard.” Jones v. Graphia, 95 So.3d 751, 753 (¶ 6) (Miss.Ct.App.2012) (citations omitted). Questions of law are reviewed de novo. Id.

¶ 12. Segrest alleges, and lists, numerous grievances he claims were made by the chancellor in the case. He contends that the chancellor erred in making his factual findings and applied erroneous legal standards. However, the center of Segrest’s argument is that he holds title to, or has adversely possessed, the disputed land. Segrest asserts that the chancellor erred in ruling that the Starnes brothers owned the land in question, by either title or adverse possession. Therefore, he maintains that the chancellor erred in dismissing his claim of title and his adverse-possession claim. We disagree.

I. Claim of Title

¶ 13. On appeal, Segrest asserts a claim of title to 11.85 acres in the southeast quadrant of Section 19, all east and north of the ancient fence and east of Brandywine Creek. At trial, however, Segrest admitted under oath that he did not have a deed that directly stated that he owned the land. Rather, he argued that his title derives from the recorded deed of C.C. Goza to T.L. Rush in the Starnes brothers’ chain of title, dated December 7, 1896, which provides: “All the East half of Section 19, T.10, R.5 E, less 20 acres hereafter conveyed to D.T. Segrest, containing 300 acres more or less.... ”

¶ 14. Segrest also maintains a claim of title to 16.44 acres in the south half of Section 20, north of the ancient fence and north of the Starnes brothers’ ten acres in the south end thereof. The deed from which he claims this title vests is the deed he received from Oren in 1975, which included a plat created by Wade. This deed, however, did not include the disputed area to which Segrest claims ownership. At trial, Segrest testified that while he did not realize it at the time, the disputed land had been excluded. He maintained that this error was corrected in a quitclaim deed between him and his family, dated August 16, 2011.

¶ 15. Segrest argues that he holds record title to the disputed land in both Section 19 and Section 20. We disagree. Based on the testimony and exhibits presented at trial, Segrest failed to establish that he held record title to the disputed area. Further, the deeds presented by the Starnes brothers to the chancery court included a specific amount of acreage as well as a bounding description. It is well settled that, “[g]enerally, ‘the canons of construction for deeds make specific boundaries control over acreage and fractions of property.’ ” Harrison v. Roberts, 989 So.2d 930, 932 (¶13) (Miss.Ct.App.2008) (citation omitted). As such, we find that the Starnes brothers hold record title to the disputed land.

II. Adverse Possession

¶ 16. Mississippi Code Annotated section 15-1-13(1) (Rev.2012) defines adverse possession as follows:

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

In order to prevail on a claim of adverse possession, one must establish the following six elements: “[ (1) ] the property must be ... under claim of ownership; [and the possession must be] (2) actual or hostile;. (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Massey v. Lambert, 84 So.3d 846, 848 (¶ 7) (Miss.Ct.App.2012) (citing Cook v. Robinson, 924 So.2d 592, 595 (¶ 11) (Miss.Ct.App.2006)). The claimant has the burden of proving adverse possession by clear and convincing evidence. Id.

A. Claim of Ownership

¶ 17. There is little evidence that Seg-rest occupied the disputed area under a claim of ownership. Segrest could not provide a deed that supported his claims. In contrast, the Starnes brothers’ deed was specific as to the amount of acreage as well as included a bounding description. Further, the evidence shows that the Starnes brothers, not Segrest, paid taxes for the majority of Section 19 and Section 20. We find Segrest failed to establish a claim of ownership to the disputed area by clear and convincing evidence.

B. Actual or Hostile

¶ 18. Evidence was provided to the chancery court that the Starnes brothers had used the property since the 1940s. Maps of the area from the Claiborne County Tax Assessor’s Office showed that the Starnes brothers owned the disputed land. Further, the chancellor heavily weighed the testimony describing the land as well as his personal view of the property.

¶ 19. The evidence reflects that Segrest was not familiar with obvious landmarks and the basic topography of the area. Segrest placed much emphasis on the ancient fence that divided the disputed area, but was unable to state who built or maintained it. He contended that there were roads and trails throughout the area, but the chancery court concluded that none existed. Ultimately, Segrest lacked the detailed knowledge of the land that the Starnes brothers had presented at trial.

C. Open, Notorious, and Visible

¶ 20. Segrest argues that he had performed at least five timber cuts in the area in the last sixty-four years without any challenge by the Starnes brothers. However, the chancery court concluded that the only evidence of a timber cut by Seg-rest was in 2003. Further, there was testimony that the Starnes brothers had also performed timber cuts, as well as farmed, hunted, and maintained the property.

D. Continuous and Uninterrupted for a Period of Ten Years

¶ 21. Testimony at trial provided that the Starnes brothers had used the property since 1944. Although Segrest argues that he and his family had used the land for more than one hundred years, the record reflects that this was “sporadic at best.”

E. Exclusive

¶ 22. The chancery court concluded that the Starnes brothers had exclusive use of the property until the 2003 timber cut made by Segrest. Although this act by Segrest interrupted the exclusivity of the Starnes brothers, this was only six years prior to the filing of this suit and did not meet the time element necessary to prove adverse possession.

F. Peaceful

¶ 23. There was no evidence of any disputes among the parties until this suit was filed in 2006.

¶ 24. “In a bench trial, the chancellor is the finder of fact and, thus, solely determines the credibility of witnesses and the weight to give to the evidence.” Webb v. Drewrey, 4 So.3d 1078,1081 (¶ 11) (Miss.Ct.App.2009) (citation omitted). “This Court gives great deference to a chancellor’s findings of fact.” Id. We find that there is substantial evidence in the record that supports the chancellor’s findings. We conclude that the chancellor correctly determined that record title was vested in the Starnes brothers and Segrest did not succeed on his claim of adverse possession. As such, the issue raised by Segrest that the chancellor erred in finding that the Starnes brothers also adversely possessed the land if they did not hold record title is moot. Accordingly, this issue is without merit. We affirm the judgment of the chancery court.

¶ 25. THE JUDGMENT OF THE CLAIBORNE 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, FAIR AND JAMES, JJ., CONCUR.


text:
    Brandon CELESTINE, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00348-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Brandon Celestine, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J., for the Court:

¶ 1. In 2008, Brandon Celestine was sentenced by the Pike County Circuit Court to ten years in the custody of the Mississippi Department of Corrections (MDOC) for gratification of lust. The sentence mandated that Celestine serve two years of the sentence in prison, with eight years suspended and five years of post-release supervision (PRS). In April 2010, the circuit court held a PRS revocation hearing after Celestine tested positive for alcohol usage in violation of the terms of his PRS. The circuit court subsequently revoked Celestine’s PRS and remanded him to serve the remainder of his sentence in prison. Celestine filed subsequent pleadings attacking the judgment of revocation. The pleadings were treated as motions for PCR by the circuit court. On January 23, 2013, the last such motion was dismissed as a successive writ. Aggrieved, Celestine now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On June 16, 2008, Celestine was sentenced to ten years in the custody of the MDOC, with eight years suspended. After serving two years, he was released on PRS for a period of five years. Shortly after his release, on March 25, 2010, Celes-tine met with his PRS officer, Officer Todd Dillon. Officer Dillon tested Celestine for alcohol usage, and the results were positive. Since one of the terms of Celestine’s PRS was a prohibition against the consumption of alcohol, Celestine was in violation of his PRS.

¶ 3. A revocation hearing took place on April 19, 2010. Officer Dillon testified that he had collected samples for a drug and alcohol test on the day in question. He stated that he then sent the samples to a State laboratory for testing. Upon receipt of the positive test results, Officer Dillon confronted Celestine, who admitted his use of alcohol, contrary to the terms of his PRS. At the PRS revocation hearing, Cel-estine testified and apologized on the record for his usage of alcohol. The circuit court then revoked his PRS and ordered him to serve the remainder of his sentence in prison.

¶ 4. In February 2011, Celestine filed a motion for reconsideration. The circuit court treated the motion as one for PCR, and denied it. Celestine then filed a second document titled “Factual Matters” in July 2012, alleging that Officer Dillon failed to follow proper procedures in administering the drug and alcohol test. The circuit court again treated the document as a PCR motion and dismissed it as a successive writ. Later, in December 2012, Celestine filed a document titled “Notice and Proposal Order.” Therein, he asked for reconsideration of his prior motion. The circuit court treated it as another PCR motion and dismissed it as a successive writ. Celestine now appeals.

DISCUSSION

¶ 5. We will not disturb a circuit court’s denial of a PCR motion unless the decision is found to be clearly erroneous. Carbin v. State, 942 So.2d 231, 233 (¶4) (Miss.Ct.App.2006). Questions of law are reviewed de novo. Id. Furthermore, Mississippi Code Annotated section 99-39-23(6) (Supp.2013) provides that a PCR movant cannot raise any issue that has been addressed in a final judgment with specific findings of facts and conclusions of law. Any motion filed after entry of the final judgment and asserting the same issue is procedurally barred as a secondary or successive writ. Id.

¶ 6. Here, Celestine raises issues presented to the circuit court in his prior PCR motions regarding the legality of the circuit court’s revocation of his PRS. Since these issues have been previously adjudicated by the circuit court prior to Celestine’s final PCR motion, the issues were procedurally barred. We find no error in the circuit court’s dismissal of Celestine’s PCR motion.

¶ 7. Procedural bar notwithstanding, Celestine’s issues on appeal remain meritless. He asserts that his rights were violated during the revocation hearing. Specifically, Celestine argues that it was manifest error for the lab analyst who provided the results of the drug and alcohol test to not testify at the revocation hearing. Celestine claims that his right to confront witnesses against him was violated when the lab analyst’s written report and accompanying certificate of validity were introduced at the hearing in place of live witness testimony.

¶ 8. It is well settled that Mississippi enforces minimal due-process requirements for revocation hearings. See Riely v. State, 562 So.2d 1206, 1210 (Miss.1990). Such requirements have been gleaned from the United States Supreme Court, which has noted that “the revocation of parole is not part of a criminal prosecution and thus the panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The following requirements are all that must be met in order for due process to have been provided in revocation hearings:

(a) [W]ritten notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking [probation or] parole.

Riely, 562 So.2d at 1210.

¶ 9. Here, Celestine failed to make a contemporaneous objection at the time the lab analyst’s report was presented at the hearing. Furthermore, he never requested to question the lab analyst. These issues were not raised until Celestine’s second and third PCR motions. The Mississippi Supreme Court has previously held that the failure to make a contemporaneous objection to an issue serves as a procedural bar on appeal. See Grubb v. State, 584 So.2d 786, 789 (Miss.1991).

¶ 10. Finally, Celestine argues that the evidence before the circuit court did not prove beyond a reasonable doubt that he failed the drug and alcohol test in violation of his PRS. This assertion is misplaced. In order to revoke PRS, the State must show either proof of an actual conviction or that an act occurred which constitutes violation of a PRS term and that it was the probationer who more likely than not committed the act. See McClinton v. State, 799 So.2d 123, 127 (¶ 9) (Miss.Ct.App.2001) (citations omitted). This standard is significantly lower than the beyond-a-reasonable-doubt standard noted by Celestine. Moreover, the State provided substantial evidence showing that Celestine used alcohol in violation of the terms of his PRS. These issues are without merit.

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

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


author: GRIFFIS, P.J., for the Court:

text:
    James LUSTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00552-COA.
    Court of Appeals of Mississippi.
    July 29, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. James Luster appeals his murder conviction and life sentence. He argues that the verdict was against the overwhelming weight of the evidence, his trial counsel was ineffective, and the trial court committed plain error when it allowed jury instruction S-l. We find no error and affirm.

FACTS

¶2. On March 6, 2012, around 11:00 p.m., Carlos “Moe” Wright was shot multiple times while at home. Moe’s neighbor, David Ross, heard the gunshots and saw two men run across his backyard. Ross could not identify either man. He contacted the police.

¶ 3. Natchez Police Officer Elvis Prater was dispatched. While in route, Officer Prater spotted Cedrick Jones. Jones was loading a body into a vehicle. Jones waved at Officer Prater. Officer Prater stopped. Jones told Officer Prater that his friend, Moe, had just been shot and that he was about to take Moe to the hospital. Officer Prater noticed that Moe was unresponsive and had no pulse. Officer Prater called for an ambulance and back-up.

¶ 4. Investigator Otis Mozique was also dispatched to the scene. Investigator Mo-zique testified that when he arrived, Officer Prater was already there. Investigator Mozique saw Moe lying face-up on the passenger seat of Jones’s vehicle. Moe appeared to have been shot four or five times. The ambulance was there. Investigator Mozique asked Officer Prater to take Jones to the police station, because Investigator Mozique wanted to speak with him.

¶ 5. Investigator Mozique took photographs and processed the scene. Investigator Mozique also took photographs of Moe. Investigator Mozique then went to Moe’s house and took photographs of the bullet casings he found. One empty casing was on the porch and was a .40 caliber. Investigator Mozique noticed blood around the side of the house. Investigator Mo-zique found a .40 caliber casing and two spent projectiles on the ground and took photographs of them. Investigator Mo-zique then went to the police station to speak with Jones. Investigator Mozique could not testify to what Jones told him but did state that after he spoke with Jones, Investigator Mozique and several other police officers went to an address that belonged to Luster. At the address, the officers found Robin Tyler but did not find Luster. Tyler was questioned.

¶ 6. On March 7, Luster voluntarily turned himself in after he learned that the police were looking for him. Luster was accompanied by his girlfriend, Alexis Williams, Ethel Williams, and Ethel’s boyfriend, Kacy Campbell. Luster told Investigator Mozique that he had been in Vida-lia, Louisiana, with Alexis, at the time of the homicide.

¶ 7. Alexis testified that Ethel, Luster, Campbell, and she were all at Ethel’s home in Vidalia. Luster arrived there between 4:30 p.m. and 5:00 p.m. Luster asked to borrow Alexis’s Chevrolet Malibu between 10:30 p.m. and 11:00 p.m. Luster told Alexis that he was going to meet “Tiger, [Gerald Davis], and [Frederick Hunt].” Alexis testified that Luster returned to the house between midnight and 1:00 a.m. Alexis overheard Luster tell Campbell that “he had killed someone by the name of Moe.” Alexis testified that she heard Luster confess that he had gone to Moe’s house, had knocked on the door, and told Moe to “give up everything he had.” Moe started to wrestle with Luster, and Luster shot Moe. Davis and Hunt were present afterwards. Alexis also testified that the next day, Luster asked Ethel, Campbell, and her to take him to the police department. Before they arrived, Luster told them to tell the police that he had not left Vidalia the day before.

¶ 8. Initially, Alexis told Investigator Mozique that Luster never left the house the night of the murder. Investigator Mo-zique was not satisfied with the alibi that Alexis provided for Luster. Alexis and Ethel were questioned again between March 17 and March 20. Alexis changed her story and told Investigator Mozique that she had lied to him, because Luster told her to lie, and she was seared of Luster. Alexis gave information to Investigator Mozique that incriminated Luster. Luster was arrested and formally charged with Moe’s murder.

¶ 9. Ethel testified that Luster came to her house to visit his cousin, Campbell. Luster arrived before Ethel went to work at 5:00 p.m. Ethel returned to her house after she got off work at 9:30 p.m. When she got home, Ethel ate, got her son ready for bed, and went to sleep around midnight. Luster was at Ethel’s house when she returned from work. Ethel testified that Luster left her house around 10:30 p.m., and she did not see him again until the next day. Ethel also testified that she, Alexis, and Campbell took Luster to the police station on March 7. Luster did not tell Ethel why he needed to go to the police station.

¶ 10. Hunt testified that he had not known Luster for very long. Hunt testified that on March 6, between 10:00 p.m. and 11:00 p.m., he, Davis, and a few others were shooting dice. Luster arrived in a Malibu. While there, Luster got a .40 caliber gun from Gerry Byrd. Hunt wanted some “weed,” so he and Davis got in the car with Luster and drove to Moe’s house. Luster got out of the Malibu, and Moe came outside. Luster and Moe started to talk. Hunt testified that he saw Luster pull out a gun and heard Moe tell him that his landlord lived next door. Moe tried to run, but Luster started to shoot. Hunt got out of the vehicle and ran up and down the street. Hunt testified that he got back in the vehicle because he was afraid. Luster told Davis that Moe was not dead and that Moe had seen their faces. Hunt jumped out of the vehicle and started to run. Hunt heard more shots and turned to see Davis running behind him. Davis threw a gun in the bayou. Hunt testified that he and Davis met up with Luster on Alabama Street. Luster drove Hunt and Davis back to where they played dice.

¶ 11. Davis testified that he had known Luster for five or six years. On March 6, Davis, Hunt, and others were shooting dice. Luster told them, “I’m fixing to hit a lick.” Davis and Hunt wanted some money, so they got in the Malibu with Luster. Hunt had a .38 caliber gun with him. Luster drove to Moe’s house. Luster and Moe got into an argument, and Luster shot Moe. Luster walked to the car and told Davis to get out. Luster told Davis to shoot Moe or else Luster would shoot Davis. Davis testified that he shot Moe twice in the buttocks. Davis did not know if Moe was alive or dead. Davis testified that he ran back to the vehicle and then ran up the street with Hunt. Davis and Hunt ran behind Ross’s house and through the bayou, where Davis threw his gun. Davis testified that after they ran through the bayou, Luster saw them, picked them up, and dropped them off at a store. Luster told Davis and Hunt “not to say nothing, and if we did we would be killed too.” Davis testified that Luster gave him the .40 caliber pistol Luster used, so Davis could return it to Byrd. Davis admitted that he was in the Bloods gang.

¶ 12. On July 23, 2012, Luster, Davis, and Hunt were all charged with Moe’s murder. Luster’s trial was held on January 29-30, 2013. Luster was found guilty of Moe’s murder and sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 13. On February 4, 2013, Luster filed a motion for a new trial, or in the alternative, a judgment notwithstanding the verdict, which the trial court denied. Luster now appeals to this Court.

ANALYSIS

I. Whether the verdict was against the overwhelming weight of the evidence.

¶ 14. Luster argues that he should be granted a new trial because the weight of the evidence does not support a conviction of premeditated murder. Alternatively, Luster argues that if this Court does not grant him a new trial or an acquittal, the evidence only supports a manslaughter conviction.

¶ 15. Luster was charged with murder, under Mississippi Code Annotated section 97-3-19(l)(a) (Supp.2013), which is defined as “[t]he killing of a human being without authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being....”

¶ 16. The jury instructions asked the jury to decide whether Luster “willfully, unlawfully, feloniously, and with deliberate design” killed Moe by shooting him. Another instruction read:

The court instructs the jury that “deliberate design” ... means an intent to kill without authority of law, and not being legally justifiable, or legally excusable. “Deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, or contemplate. “Deliberate design” to kill a person may be formed very quickly, and perhaps only moments before the act of killing the person. However, a “deliberate design” cannot be formed at the very moment of the fatal act.

¶ 17. The jury was also given a manslaughter instruction. Manslaughter is “[t]he killing of a human being, -without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 18. When we review a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). This Court must consider the evidence in the light most favorable to the verdict. Id. “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶14) (Miss.Ct.App.2001).

¶ 19. Here, the jury was given the option to decide whether the evidence supported a conviction of murder or manslaughter. Alexis and Ethel testified that Luster was not at Ethel’s house at the time Moe was killed. Alexis stated that before Luster left Ethel’s house, he told her that he was going to meet “Tiger, [Davis], and [Hunt].” Alexis testified that Luster told her to tell the police he did not leave Ethel’s house on the night of the murder. Luster’s codefendants both testified that they saw Luster shoot Moe.

¶ 20. When we consider the evidence presented in the light most favorable to the verdict, we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Accordingly, we find no merit to this issue.

II. Whether Luster received ineffective assistance of counsel.

¶ 21. Next, Luster argues that his trial counsel was constitutionally ineffective under the Sixth and Fourteenth Amendments, because (1) counsel did not object to jury instruction S-l as nonconforming to the charge as set out in the indictment, and (2) counsel did not ask the trial court to instruct the jury that the codefendants’ testimony should be viewed with great caution and suspicion.

¶ 22. To prove ineffective assistance of counsel, Luster must prove that (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Luster to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Luster “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

¶ 23. The merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). The supreme court has held:

The question presented ... is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial[ ] sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice. Parham v. State, 229 So.2d 582, 583 (Miss.1969).

Id. at 1102 (¶8). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. at 1101 (¶ 5). Review of an ineffective-assistance-of-counsel claim on direct appeal is “confined strictly to the record.” Id. at 1102 (¶ 6).

¶24. Here, we have thoroughly reviewed the record, and we do not find that the record affirmatively shows ineffectiveness of constitutional dimensions. Further, the parties have not stipulated that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Therefore, we affirm as to the issue of ineffective assistance of counsel without prejudice to Luster’s right to raise the ineffective-assistance-of-counsel issue in post-conviction proceedings.

III. Whether the trial court committed plain error when it gave jury instruction S-l.

¶ 25. Luster argues that the trial court committed plain error when it granted jury instruction S-l. Luster contends that this allowed the jury to convict Luster on an element of the offense not charged in the indictment.

¶ 26. The plain-error doctrine requires an appellant to show that there was an error in the trial court that resulted in a “manifest miscarriage of justice.” Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss.Ct.App.2011). The plain-error doctrine only applies when the error complained of affects a defendant’s fundamental right. Id. Luster asserts that his fundamental right of due process of law under the Sixth and Fourteenth Amendments of the U.S. Constitution was infringed upon.

¶ 27. The indictment and instruction S-1 both defined murder as provided in section 97 — 3—19(l)(a). The indictment read “that James Luster, Frederick Hunt, and Gerald Davis[,] ... on or about March 6, 2012, acting in concert, one with the other, did knowingly, intentionally ... and of their malice aforethought, kill and murder one Carlos Wright.” Instruction S-l provided that if the jury found from the evidence beyond a reasonable double that “James Luster, either by himself or acting in concert with another or others,” murdered Moe, Luster must be found guilty of murder.

¶ 28. The addition of the language “either by himself’ did not change the elements that must be proven for the jury to find Luster guilty of murder. Therefore, we find no merit to this issue.

¶ 29. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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