author: PAINTER, Judge. AMY, J.,

text:
    STATE of Louisiana v. Maryln A. LeBLANC.
    No. 08-1533.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.

      Alfred F. Boustany, II, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Maryln A. Leblanc.
    Michael Harson, District Attorney, Keith A. Stutes, Assistant District Attorney, Office of the District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Maryln A. LeBlanc, appeals the sentence she received in connection with her guilty plea to one count of vehicular homicide and three counts of vehicular negligent injuring. For the following reasons, we vacate the thirty-year sentence imposed on the conviction for vehicular homicide and remand the matter to the trial court for resentencing in accordance with this opinion. Furthermore, we sever Defendant’s misdemeanor sentences from this appeal and instruct Defendant that she must file an application seeking supervisory review with this court within thirty days of this ruling should she choose to seek review thereof.

FACTUAL AND PROCEDURAL BACKGROUND

Whereas Defendant pled guilty, the facts are as recited by the State at the guilty plea hearing, as follows:

[O]n or about April 21, 2007, in the evening between 7:00 and 8:00, the Hardy family from Port Barre’ was traveling by car to a family reunion here in Lafayette Parish.
Michael Hardy was driving. Kyle Hardy was a front seat passenger. Kristy Hardy and Mrs. Genevieve Hardy were the rear seat passengers in the Hardys’ 2002 Toyota Camry. These are the four individuals that represent the victims in these first four counts.
They were proceeding southbound on Louisiana Highway 724, otherwise known as South Fieldspan. Mr. Michael Hardy would come to be later examined after the collision as to his blood alcohol content, and he was found to be absolutely free of any alcohol.
The defendant, on the other hand, Maryln LeBlanc, was proceeding northbound on Louisiana Highway 724, again South Fieldspan, in a Jeep Grand Cherokee. Approaching the Hardy vehicle, she was driving rapidly, speeding, and recklessly.
There were actually three vehicles in the Hardy family caravan going to the family function. Michael was driving the lead vehicle. Michael had turned off of Highway 90 onto Highway 724 proceeding south when the defendant’s vehicle, driving erratically, veered onto and into the edge of the side ditch and came out of the ditch and straightened |2up and then abruptly crossed into the southbound lane in which the Hardy vehicle was proceeding.
Mr. Hardy, Michael Hardy, tried to swerve to the right in an attempt to miss the defendant’s vehicle, but due to the speed and the erratic driving of the defendant, the defendant’s Jeep struck violently the driver’s side of the Hardy Camry, spinning the Camry out of control into the side ditch and onto the south — off of the southbound lane, coming to rest there. The violent collision resulted in the death of Mrs. Genvieve Hardy and serious bodily injury to Kyle Hardy, Kristy Hardy, and Michael Hardy.
She turned onto 343 and proceeded south, where she was eventually stopped by the Lafayette Parish Sheriffs Office patrol units.
She exhibited slurred speech and glossy red eyes. She performed extremely poorly on the field sobriety test. Samples were taken from the defendant and were analyzed by the Louisiana State Police Crime' Lab. Her samples were found to contain — her body samples were found to contain methadone, meprobamate, hydrocodone, cocaine, diazepam, and marijuana....

Defendant was charged by bill of information with one count of vehicular homicide, a violation of La.R.S. 14:32.1, three counts of vehicular negligent injuring, violations of La.R.S. 14:39.1, one count of operating a vehicle while intoxicated, a violation of La.R.S. 14:98, one count of possession of a controlled dangerous substance, Schedule II, a violation of La.R.S. 40:967, one count of possession of a controlled dangerous substance, Schedule I, a violation of La.R.S. 40:966, one count of reckless operation of a vehicle, a violation of La.R.S. 14:99, two counts of hit-and-run driving, violations of La.R.S. 14:100, one count of failure to conform to required position and method of turning at intersections, a violation of La.R.S. 32:101(C), and one count of failure to have driver’s license in immediate possession when driving, a violation of La.R.S. 32:411(D).

|3On March 13, 2008, Defendant pled guilty to one count of vehicular homicide and three counts of vehicular negligent injuring. The remaining charges were dismissed. The trial court ordered a presen-tence investigation report. Defendant was sentenced on September 8, 2008, to the maximum sentence of thirty years at hard labor with three years to be served without the benefit of parole, probation or suspension of sentence on the conviction for vehicular homicide, and the maximum sentence of six months on each of the three counts of vehicular negligent injuring, to be served concurrently with each other and with the thirty-year sentence. Defendant filed a “Motion to Reconsider Sentence,” alleging an excessive sentence. The motion was denied without a hearing or written reasons.

Defendant now appeals asserting that the maximum sentence of thirty years is constitutionally excessive under the circumstances of the case. For the following reasons, we agree.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Although we recognize that there are two errors patent, these errors are precluded from review for the following reasons.

First, there is a misjoinder of offenses in the bill of indictment. Counts 1 and 6 of the bill of information are punishable by imprisonment with or -without hard labor, and are thus triable by a jury of six, all of whom must concur to render a verdict. La.Code Crim.P. art. 782, La.R.S. 14:32.1 and La.R.S. 40:967. The remaining counts of the twelve count bill are to be tried by the court without a jury. La.Code Crim.P. art. 779. Louisiana Code of Criminal Procedure Article 4931 .¡provides for the joinder of offenses in a single bill under limited circumstances if the offenses joined are triable by the same mode of trial. Consequently, Counts 1 and 6 were improperly joined with the remaining counts. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La.Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Thus, this error is precluded from review.

Second, the trial court failed to impose a mandatory fíne. Louisiana Revised Statutes 14:32.1(B) requires the imposition of a fíne of not less than two thousand dollars nor more than fifteen thousand dollars. The trial court’s failure to impose a mandatory fine in this case renders the Defendant’s sentence illegally lenient. However, the error is not raised by Defendant, and we will not address it herein.

We next address a procedural issue. The Defendant entered a plea of guilty to Counts 1 through 4. Because Counts 2-4, vehicular negligent injuring, were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.

Defendant has not challenged her misdemeanor convictions. Her only assignment of error concerns the alleged excessiveness of her sentence, and her argument refers specifically to her sentence for vehicular homicide. Therefore, we hereby sever the misdemeanors from this appeal and instruct the Defendant that if she chooses to seek review of the misdemeanors, she must file an application seeking supervisory review with this court within thirty days of the court’s ruling on appeal. See State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084.

Excessive Sentence Claim

Defendant argues that the sentence of thirty years is unconstitutionally excessive. She argues that maximum sentences are reserved for the worst of offenders, and compared to sentences imposed for similar crimes by this court and other courts wherein similarly situated offenders received lesser sentences, she should not have been sentenced to the maximum of thirty years at hard labor.

Vehicular homicide is punishable by imprisonment “with or without hard labor for not less than five years nor more than thirty years.” La.R.S. 14:32.1(B). Defendant received the maximum term of imprisonment.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court discussed what constituted an excessive sentence as follows:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

16While discussing a maximum sentence imposed for a conviction of vehicular homicide, this court in State v. Morain, 07-1207, p. 7 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, 70 (alteration in original), stated:

It is apparent that a reviewing court should consider sentences imposed by other courts to provide consistency in the punishment for similar crimes for similarly situated offenders. Before addressing other opinions, we are reminded of a seminal sentencing precept: “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 255.

In the current case, at the sentencing hearing, the trial court summarized the presentence investigation report, noting that it did not appear from the report that Defendant acknowledged that the drugs she had taken was the cause of the accident. According to the report, she said that she had an altercation with a person and if that had not happened, she would not have been so reckless. The trial court noted that Defendant had reported that her problem with drugs began following a car accident in which she was injured and that she began taking Lortab and Xanax for the pain. Defendant had received treatment at the methadone clinic in Breaux Bridge, but the treatment was not successful. The report also indicated that she had attempted to get treatment from other local facilities, but her addiction was not considered severe enough in one clinic, and she could not afford the services in another clinic. The trial court also noted that she was a first-time felony offender.

The trial court placed into the record several letters written by the deceased victim’s family and friends extolling the victim’s admirable attributes. Also introduced into the record were several letters written by Defendant’s family and friends extolling her virtues and their thoughts on why she had such a problem with drugs. Included in the record was a letter from Defendant acknowledging her |7problem with drugs and expressing her remorse that her actions caused the death of Mrs. Hardy.

At the sentencing hearing, the deceased victim’s husband, Michael, and three adult sons, Christopher, Kyle, and Justin, testified regarding the deceased victim and how devastating her death was to them and the rest of her family. Kyle, who was in the vehicle and suffered serious injuries, testified that a witness “said that, after she [Defendant] hit us and took off, that she was smiling, just smiling like it was a game, just took somebody’s life and it was like a game.”

Defendant’s family also testified at the hearing. Glenward and Chris Allemond testified that their sister had a normal, happy childhood and that she was always the bright light of the family until her second bad marriage and a car accident. Her current husband, who also had drug problems, was seldom home, and he did not give her any support.

Stephanie Allemond LaFleur, Defendant’s sister, corroborated her brothers’ testimonies. She further stated that she knew Defendant had been in a fight that day. She testified as follows:

And I know that she had went to some friends’ house.... And I know she left there running for her life, and she probably was on pain pills, and she probably was on methadone, because she had been going to the methadone clinic to try to get off the pain pills; but her pain that was causing her back pain so much and her depression from her husband never being there when she needed him, so what was she to do? She had a child that she didn’t know what to do. [Sic.]
So I know that day, you know, she was probably on something, and I’m not here to say she wasn’t, but I know she was also seared. She was running for her life. And she would have never just hit the person and took off running and threw her hands up laughing. That would have never been Maryln. Maryln is the person that wouldn’t kill a flea. I mean, out of all five of us, she was the person that you could — I mean, she would cry for anything. I mean, that’s how much she loved everybody.

| ^Doctor John Khorsandi, whose field of practice was family medicine, testified that he had been treating Defendant since 2002. He stated that he saw her only a few times the first year and that her visits increased as time went on. He stated that she complained mostly of anxiety as well as some lower back pain. He diagnosed her as suffering from depression. He prescribed multiple medications for anxiety, including Effexor, Cymbalta, and Xanax, as well as Lortabs for pain. Of the drugs that were determined to be in her system the day of the accident, he stated that several were derivatives of the drugs he had prescribed for her.

Finally, Defendant’s two sons, Nicholas, eighteen, and Dillon, fourteen, testified regarding their mother and the pain they felt at her loss from being incarcerated since the accident.

Following testimony, the trial court stated, in pertinent part:

In determining whether someone gets the minimum or the maximum or somewhere in between, the general principle that courts follow is that the minimum sentence is reserved for those instances of this particular crime that occur in the least egregious way or the least serious or offensive way, and the maximum sentence is reserved for those crimes that appear to be the worst way that this particular crime can be committed, the most egregious, the most serious. Everything else is in between.
What I have here today is a situation where there have been the most serious consequences that there can be, a death. It doesn’t get any more serious than that. The families have discussed the issue of — -and I have read in the report that 30 years, even 30 years as a maximum seems light in exchange for a life. That is not the purpose of the law, is to even out the tragedies. [Sic.]
The reason, if you want to know, why this particular law is not life imprisonment, as murder would be, or some other crimes would be, is because, by its very definition, it is a crime of negligence, gross negligence, not intentional acts. And that’s the difference. Of course, the reason that it’s not lighter, vehicular homicide, one of the — by definition, vehicular homicide is gross negligence which can be caused by the influence of alcohol or drugs.
19And the reason it’s not lighter than it is when people say, well, it wasn’t my fault, it was the drug’s fault, it was the alcohol’s fault, or I didn’t do it intentionally, I didn’t mean to do it, is the seriousness of it. By the word homicide, someone lost their life. So that’s why the legislature has seen fit to give that range of sentencing.

The trial court then discussed the sentencing guidelines and what factors to consider to determine whether the person being sentenced should be incarcerated. He stated that there was an “extreme” risk that Defendant “would fall right back into the lifestyle that she was in before.” He determined that Defendant was in need of correctional treatment “that can be provided most effectively by commitment to an institution.” Finally, the trial court stated that “a lesser sentence would deprecate the seriousness of the crime.” Other factors the trial court considered were that Defendant “knowingly created a risk of death or great bodily harm to more than one person ... including yourself,” and that there was permanent injury and significant economic loss to the family of the deceased victim. The trial court noted that Defendant had no prior history of delinquency or criminal activity and had led a law-abiding life prior to the accident.

The trial court then summarized the factual details of the incident and the subsequent discovery of marijuana and cocaine in her vehicle, which, he stated, “shows a reckless disregard for her own life and for the lives of others, and that’s what I am trying to emphasize in this case.” He then decreed that the only punishment that “can fit the crime in this particular case” was the maximum sentence.

In her brief, Defendant argues that there was no evidence other than what the deceased victim’s son and husband had said about witnesses alleging that Defendant was smiling as she drove away from the accident. Defendant further argues:

The other point that stands out is that this crime caused a death and the sentencing judge found that point significant. But, should that Imfact have any bearing on whether to impose the maximum sentence. Every vehicular homicide necessarily involves a death. After noting that this “is a situation where there have been the most serious consequences that there can be, a death,” the lower court concluded that “the punishment must fit the crime” and that “the only punishment that can fit the crime in this particular case, everything considered, is going to be the maximum sentence.”
The fact of a death is not an aggravating circumstance. It is simply a sad fact and an essential element of every crime of vehicular homicide.

Defendant points to Morain, wherein this court held that “the trial court abused its discretion in imposing a maximum sentence for Defendant’s vehicular homicide conviction.” Morain, 981 So.2d at 73. In Morain, a seventeen-year-old had pulled over on the highway to fix a flat tire. His stepfather, mother, and two siblings showed up to help. Morain veered onto the shoulder and struck the group, killing the seventeen-year-old and seriously injuring his stepfather. Morain’s blood alcohol content was measured at 0.10g, a little over the legal limit. The trial court sentenced Morain to twenty years imprisonment, with the first eight years to be served without the benefit of parole, probation or suspension of sentence. At the time, twenty years was the maximum sentence for the offense of vehicular homicide.

In Morain, the trial court noted:

In addition, I’ve considered the additional mitigating factors of posttraumatic stress disorder, severe depression, continuing substance abuse problems and various health problems that have been suffered. As part of this analysis I’ve also had to consider the aggravating factors. Mr. Morain continued to drive in the fact of a known alcohol problem. Almost an entire family was present when Evan was killed. Single handedly Mr. Morain destroyed a family and a circle of friends, and his own family. There are terrible consequences when you choose to drink and drive.

Id. at 69.

In While discussing Morain’s maximum sentence, this court stated:

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held that:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.
In State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ denied, 06-2826 (La.8/31/07), 962 So.2d 424, we discussed the factors that a reviewing court should consider in determining if a trial court abused its discretion in imposing a sentence. In Whatley, citing State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, we annunciated three factors that a reviewing court should take into consideration in abuse of discretion cases: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts.
In following the guidelines of Lisotta, the nature of the offense in the instant matter is vehicular homicide, a violation of La.R.S. 14:32.1, which now carries a maximum sentence of thirty years at hard labor, but as we have stated, the maximum sentence was only twenty years at the time of the offense. Unquestionably, the legislature intended to convey the serious nature of the offense by the severity of the punishment at the time of the offense and by substantially increasing the punishment only months after the crime occurred in this case. Certainly, this is a serious crime as was so articulately explained by the trial court in its sentencing of Defendant. Death and serious injury was visited upon a family in them full view. There is no measure of punishment to this defendant that can erase this crime, ease their pain, or comfort this family.
112Our review of the second prong of the Lisotta guidelines reflects that Defendant had no criminal history, raised two daughters as a single parent, and served a tour of duty in Vietnam as a member of the armed forces. He had no prior DWI charges or offenses, was employed as a police officer in Baton Rouge for ten-and-a-half years, suffers from post-traumatic stress disorder, severe depression, various health problems, and has a drinking problem. His blood alcoholic content was marginally over the legal limit. Furthermore, Defendant accepted accountability for his conduct and showed great remorse for the consequences of his misconduct. Clearly, Defendant is not the worst type of offender for whom the maximum sentences are reserved.
Finally, we will address the third Li-sotta factor by reviewing the sentences imposed for similar crimes by our trial courts. It is apparent that a reviewing court should consider sentences imposed by other courts to provide consistency in the punishment for similar crimes for similarly situated offenders. Before addressing other opinions, we are reminded of a seminal sentencing precept: “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.

Id. at 70.

This court in Morain, while discussing the third Lisotta factor, reviewed two cases of vehicular homicide wherein the maximum and near maximum sentences were not excessive under the circumstances. In State v. Crenshaw, 39,586 (La.App. 2 Cir. 4/6/05), 899 So.2d 751, writ denied, 05-1531 (La.1/27/06), 922 So.2d 544, the second circuit found Crenshaw to be the worst type of offender for whom the twenty-year maximum sentence was reserved. "While driving intoxicated, he caused the death of two persons and injured another, had a blood alcohol content almost three times the legal limit, showed no remorse after the accident, was driving at speeds of eighty miles per hour on city streets, and had two prior DWI convictions and a conviction for reckless driving. In State v. Cullipher, 02-390 (La.App. 3 Cir. 10/2/02), 827 So.2d 589, this court did not find a fifteen-year sentence with five years suspended excessive when the maximum sentence was twenty years. The offender had a prior DWI, had been drinking all day and into the night, and despite drinking so much he |18became ill, he ignored pleas from his wife to let her drive him home and insisted on driving himself. Distinguishing these two cases from the situation in Morain, this court noted:

Clearly, Crenshaw and Cullipher are distinguishable from the case at bar. Both of the defendants in those cases were much more serious offenders than Defendant herein. In the instant matter, Defendant’s blood alcohol content was just slightly over the legal limit, he showed remorse for the consequences of his conduct, had no prior DWI convictions, and had not been involved in any other criminal activity. Furthermore, in Cullipher, even in light of his past conduct and the gravity of the vehicular homicide offense, he did not receive the maximum sentence of twenty years.

Morain, 981 So.2d at 71.

In Morain, following the analysis of the nature of the offense, the nature and background of the offender, and sentences imposed for similar crimes by the same court and other courts, this court stated that “[wjhile this is a tragic and unforgivable accident, based on the foregoing analysis where offenders received maximum sentences, Defendant’s conduct and offense contrast notably from the others. Accordingly, we find that Defendant was not the worst type of offender for whom maximum sentences are typically reserved.” Morain, 981 So.2d at 72-73.

We find that, as in Morain, Defendant is not the worst type of offender for whom maximum sentences are reserved. Testimony established that Defendant did not have a problem with drugs until five to eight years prior to the accident which killed Mrs. Hardy. Prior to her own injury in a car accident, she had no problems with the law and was not involved in illegal activity. She became addicted to pain killers and suffered depression due to her bad second marriage and her inability to overcome her addiction. Defendant was also raising two sons, virtually on her own, during this time.

|]4Notably, in Morain, the trial court considered Morain’s depression, health problems, and alcohol abuse as mitigating factors. In the current case, the trial court did not appear to consider Defendant’s health problems and continuing substance abuse as mitigating factors but rather ignored the cause of her substance abuse and her attempts to get help for the problem. The only mitigating factor the trial court mentioned was that Defendant had no prior criminal record.

More recently, this court did not find a sixteen-year sentence imposed on a first-time felony offender excessive. This court agreed with the trial court that “in light of Defendant’s blood alcohol concentration of twice the legal limit at the time of the offense, and the fact that his actions resulted in the death of a human being and serious bodily injury to two others, the trial court determined that any lesser sentence would deprecate the seriousness of the offense.” State v. Kotrla, 08-364, p. 6 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, 1228.

A sentence of twenty years out of a possible thirty years was not found to be excessive in State v. Barber, 42,548 (La.App. 2 Cir. 10/24/07), 968 So.2d 829, wherein Barber, after he struck and killed a truck driver standing beside the roadway, fled the scene on foot. He attempted to get his wife to lie for him regarding the accident. Although he admitted he was intoxicated at the time, because he was not arrested until several days later, there was no indication of how drunk he was. However, there was testimony that prior to the accident he was seen drinking excessively, and he had two prior DWIs, one of which he was still on probation for when the accident occurred.

The trial court is in the best position to determine the aggravating and mitigating circumstances in order to particularize the sentence. State v. Cook, 95-278415 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). Furthermore, a sentence shall not be set aside as excessive absent a showing of manifest abuse of discretion by the imposing judge. However, considering the nature of the crime, the nature and background of Defendant, and the sentences imposed for similar crimes by the same court and other courts, Defendant is not the worst of offenders for whom maximum sentences are reserved. Where maximum sentences were affirmed, the offenders had prior DWI violations and continued to drink and drive, or had records óf other criminal offenses, or both, and they exhibited no remorse for their victims. In cases where the offenders were guilty of driving intoxicated and causing accidents in which deaths resulted, and who were either first-time felony offenders or whose criminal history was minor, the sentences tended to be only one-half to three-quarters of the maximum sentences. Finally, in the two recent cases, Kotrla and Barber, wherein the offenses occurred after the maximum punishment was increased to thirty years imprisonment, under circumstances similar to the current case, the sentences imposed were one year more than one-half the maximum in the case of Kotrla, a first-time felony offender, and two-thirds of the maximum in the case of Barber, who hid for several days after the accident, attempted to get his wife to lie for him, and had two prior DWIs.

Therefore, we find that the trial court abused its discretion when it sentenced Defendant to the maximum without adequate consideration of the circumstances in the case. Defendant was a first-time felony offender. She admitted that she had taken various drugs on the day of the accident. She pled guilty, thereby taking some responsibility for her actions. Testimony established that she had taken steps to try and fight the addiction. While the trial court correctly determined that Defendant was |1fiin need of treatment and that the seriousness of the offense required incarceration, we find that the circumstances of her case indicate that a lesser sentence would have served the same purpose. Thus, we find that the maximum sentence of thirty years in this ease is grossly disproportionate to the severity of the crime and is nothing more than a needless imposition of pain and suffering.

DECREE

We hereby sever Defendant’s misdemeanor sentences on the conviction for the three counts of vehicular negligent injuring and instruct Defendant that she must file an application seeking supervisory review thereof with this court within thirty days of this opinion if she chooses to seek review of the misdemeanor sentences. Finding that the maximum sentence of thirty years on the conviction for vehicular homicide is grossly disproportionate to the severity of the crime in this case, we vacate said sentence and remand the matter to the trial court for resentencing in accordance with this opinion.

VACATED AND REMANDED.

AMY, J.,

dissenting.

hi respectfully dissent from the majority’s view that the thirty-year sentence imposed for vehicular homicide is excessive. As explained by the State in its presentation of the underlying facts at the plea hearing, toxicology results indicated that the defendant’s system contained “methadone, meprobamate, hydrocodone, cocaine, diazepam, and marijuana” at the time of the accident. Thus, not only was the defendant under the influence of a number of prescription medications that were arguably available to her, but she was also under the influence of cocaine and marijuana. The trial court remarked on this combination of substances, noting that the defendant had a “cocktail of drugs in her system.” Further, quantities of cocaine and marijuana were found in the defendant’s vehicle at the time she was stopped. These factors, in my opinion, differentiate the criminal aspect of the defendant’s behavior from other cases wherein the maximum sentence was found inappropriate for vehicular homicide defendants with elevated blood alcohol levels. See, e.g., State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. Also, the trial court found significance in the defendant’s flight from the scene and the fact that she only stopped after a police chase onto a highway. The trial court concluded that these circumstances demonstrated the defendant’s reckless disregard for her life and those of others. In light of these factors, I find no abuse of the trial court’s discretion in imposing the maximum period of incarceration.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Roderick Terrell LEVY.
    No. 08-1467.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.

      John R. DeRosier, District Attorney, Cynthia S. Killingsworth, Chief Felony Prosecutor, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Ap-pellee, State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant-Appellant, Roderick Terrell Levy.
    Court composed of SYLVIA R. COOKS, OSWALD A. DÉCUIR, and MICHAEL G. SULLIVAN, Judges.
   COOKS, Judge.

1,FACTS AND PROCEDURAL HISTORY

The Defendant, Roderick T. Levy, was living with the victim, Herman LeBlanc. On or about March 17, 2003, the two became involved in an argument. A fist fight took place and the Defendant struck the victim several times, then left the house, leaving the victim on the floor battered. The victim was subsequently taken to the hospital where he died as a result of the beating.

On April 10, 2003, the Calcasieu Parish District Attorney’s Office filed a bill of information charging Defendant, Roderick Levy, with second degree murder. On January 29, 2007, the State amended the charge to manslaughter, a violation of La. R.S. 14:31. On that same date, Defendant entered a plea of guilty to the amended charge. The court ordered a pre-sentence investigation (PSI).

The court held a sentencing hearing on April 4, 2007. After hearing victim impact statements from members of the -victim’s family, and statements from counsel, the court sentenced Defendant to twenty-five years at hard labor, without benefit of probation, parole, or suspension of sentence. On April 13, 2007, Defendant filed a Motion to Reconsider Sentence and Correct Illegal Sentence. The court held a hearing on the motion on May 25, 2007. After hearing statements from Defendant’s family, the court deferred ruling and reset the matter for July 6. On that date, the court heard arguments from counsel for both parties, then denied the motion in open court.

Defendant then sought review of his sentence in this court, assigning three errors. This court remanded for resentenc-ing. State v. Levy, 07-1289 (La.App. 3 Cir. 4/30/08), 981 So.2d 293. On July 30, 2008, the district court held a hearing on the matter, and again sentenced Defendant to twenty-five years at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant again appeals, |2assigning two errors.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant argues the trial court erred by ordering the sentence to be served without benefit of parole, probation or suspension of sentence. This same argument was asserted in Defendant’s previous appeal. We noted that the sentencing provision for manslaughter, La.R.S. 14:31(B), did not provide the trial court with authority to order that the sentence be served without benefits. This court vacated the sentence and remanded the case for resentencing. At the resentencing hearing, the judge explained:

THE COURT:
This Court remembers well the facts that were presented and I do remember the situation, the circumstances, the facts that were given to this Court at the time that the plea was taken at the time of the sentencing.
Mr. Rubin, I understand your arguments also and you’re very correct in that I think this is a situation where I could possibly take into consideration what you have requested, but I am not.
I’m going to deny that at this time. Accordingly, I’m going to resentence Mr. Levy at this time to 25 years Department of Corrections, without benefit of probation, parole, or suspension of sentence.
I recognize that the prior sentencing by this Court was in error. However, I still stand by my decision to sentence the young man as I have sentenced him.
And I duly recognize that that is not mandated, but that is my sentence.

We note that La.R.S. 14:31(B) does not authorize the exclusion of benefits, unless the victim is less than ten years old. In the present case, the victim was an adult, and thus La.R.S. 14:31(B) does not apply. However, La.Code Crim.P. art. 893 prohibits suspension of sentence and probation for crimes of violence. Thus, the trial court’s exclusion of probation or suspension of sentence is correct. We did not Rdiscuss La.Code Crim.P. art. 893 in our earlier opinion because the State effectively conceded that a sentencing error had occurred.

However, La.R.S. 14:31 and La.Code Crim.P. art. 893 do not provide authority for a district court to deny Defendant the benefit of parole. When such errors occur, we typically delete the portion of the sentencing language that erroneously denies parole. We also order amendment of the minutes to reflect the change. State v. Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966; State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, unit denied, 07-362 (La.10/5/07), 964 So.2d 938; State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04), 888 So.2d 1123.

Therefore, we amend the sentence to delete the language denying him eligibility for parole, and direct the district court to record the amendment in the minutes.

ASSIGNMENT OF ERROR NO. 2

In this assignment, Defendant argues the trial court failed to articulate the aggravating and mitigating factors used in formulating his sentence. After a review of the record, we find the trial court properly considered the relevant aggravating and mitigating factors in this case, as evidenced by the following:

THE COURT:
Mr. Rubin, you’re well aware there are some mitigating circumstances that this Court must take into consideration.
MR. RUBIN:
That’s correct.
THE COURT:
One of those being the lack of a prior record.
Let me assure you that regardless of what this Court sentences your client to, that it’s going to take those into consideration. I have no intent of doing something illegal.

|4Pefense counsel noted Defendant’s mental health issues, as he had been found incompetent to proceed at one point in pretrial proceedings. The court made the following comments, and asked Defendant a question:

THE COURT:
Now, if this would have been a single incident where there would be some perception that the victim prompted something that this young man may not have been in tune with, that’s one situation. We all know better than that.
Even if he’s correct in his perception of the situation between him and the victim, this had been going on for quite some time.
MR. RUBIN:
Oh, yes, sir.
THE COURT:
Are you finished saying what you want to say?
THE DEFENDANT:
No, sir.
THE COURT:
Go ahead.
MR. RUBIN:
Judge, I’ll instruct him that’s all right now.
THE COURT:
Let me have my say this time. What concerns me is that today he finds it in his heart to have some remorse for what he’s done, and we all know why that’s taking place at this time because now you’re facing these people and now you’re facing the music for what has happened.
It distresses me a lot your actions at the time. Of course, in some vein I think I understand that, Roderick, because you’ve got to be tough, you’ve got to be the man, things don’t bother you, things don’t hurt you.
Where you’re going — and you’re going there for a while — you better be the man. Because you know what’s going to happen if you’re |5not the man. So you go ahead and you be tough and you be strong, but I’ll take care of thq rest of it myself. Okay?
Anything else, Mr. Rubin?
MR. RUBIN:
I just want to, out of fairness to Levy, everybody is saying that he didn’t express any remorse before. And I reiterate from the record, he was going through a psychotic period up until recently to tell you the truth.
When he was treated and was able to come to his senses, or whatever you want to call it, that’s whenever he was able to contemplate what happened.
Before that period of time, Judge, I can assure you Mr. Levy was not in touch with reality. And we’ve went through two or three sanity commissions that would prove — that is part of the record.
And now he’s taking his medication and somewhat is functioning, Your Hon- or, it’s not even 100 percent I feel, but it’s enough for him to get by.
But in all fairness, I think up until recently he really just didn’t have the mental capacity to contemplate what happened.
THE COURT:
You did read the portion of the pre-sentence investigation done by Mr. Ash-ford regarding — I’ll read the statement.
Quote, “Although, he expressed remorse for the death of Leblanc, Levy did so in a very matter of fact fashion that was in the writer’s opinion practically devoid of emotion.”
Now, I understand Mr. Ashford is not a psychologist and this is not a professional statement, but he’s been around a long time and seen a lot of these types of people.
Should I not even take that into consideration?
MR. RUBIN:
Judge, I understand it’s a strong statement, but from what we’ve — the hearings we’ve had on his mental capacity, and what I can represent to the Court — and we know each other. I wouldn’t misrepresent anything.
This is my sincere impression from Mr. Levy. And I just don’t | (¡want him to be penalized because he had a mental illness and was suffering.
We know schizophrenics, we know schizophrenics are paranoid and think people are after them. And Dr. Anderson said he was psychotic. I mean, that’s the professional — I’m not a psychiatrist, but I’m going on what the psychiatrist said and what I observed.
THE COURT:
I understand, Mr. Rubin. I do respect your opinion. And yes, you’ve done a lot of these type of matters. I sincerely believe that you would not mislead this Court intentionally.
This Court has to deal with what it has to deal with. And Mr. Levy I’m going to ask you the question that I didn’t allow Ms. Gary to ask you because I didn’t want there to be any exchanges that would get you into any more trouble here.
I’m going to ask the question; why didn’t you call for help? Why didn’t you call for some medical help for him, after he was down on the ground?
MR. LEVY:
I can’t answer that question, Your Honor.

The trial court heard from members of Defendant’s family at the first hearing on the motion to reconsider sentence, then deferred ruling on the motion. In doing so, the court stated, “Unfortunately, because I can’t have all the information that I need, I’m not going to make a decision here today, but I did want to give you the opportunity to say what you needed [to] today.” Earlier in the hearing, the court expressed a desire to review the record before ruling on the motion. When the court reconvened to rule on the motion, the trial judge indicated he had reviewed the materials previously submitted. The record is clear that the court considered Defendant’s mental health and his status as a first offender; it also considered the seriousness of the offense and Defendant’s lack of remorse. Therefore, the trial court adequately complied with La.Code Crim.P. art. 894.1.

DECREE

17For the foregoing reasons, we amend Defendant’s sentence to delete the language denying him eligibility for parole, and direct the district court to record the amendment in the minutes. In all other respects, the sentence is affirmed.

AFFIRMED, AS AMENDED.


author: EZELL, Judge. COOKS, J.,

text:
    Kimberlee Coraine BLACK v. Kimberly Renae SIMMS.
    No. CA 08-1465.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.
    Joseph L. McReynoIds, Deutsch, Kerri-gan & Stiles, New Orleans, LA, for Plaintiff/Appellant Kimberlee Corianne Black.

      Walter Marshall, Sanchez Sanchez Law Firm, Lake Charles, LA, for Defendant/Appellee Kimberly Renae Simms.
    Michelle D. Bradley, Lake Charles, LA, for Plaintiff/Appellant Kimberlee Corianne Black.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

11 Kimberlee Black filed a petition seeking sole custody, or in the alternative, joint custody with reasonable visitation of Brae-lyn Simms. Braelyn is the biological daughter of Kimberly Simms. Ms. Black appeals the granting by the trial court of a involuntary dismissal of her case finding that she failed to meet her burden of proof under La.Civ.Code art. 133.

FACTS

Ms. Black and Ms. Simms were an unmarried, same-sex couple living in Shreveport. After artificial insemination, Ms. Simms gave birth to Braelyn on January 29, 2000. Subsequently, using the same sperm donor, Ms. Black gave birth to Eli Black on May 1, 2002.

The couple began experiencing problems, and in 2004, Ms. Simms moved out. Initially, she moved in with her brother in Texas. However, she realized she could not be around her family due to issues she had with her father when she was young, so she moved in with Ms. Black and her parents, Sheri and Robert. Ms. Black’s parents were very active in helping with the children. During that time, Ms. Simms and Braelyn lived upstairs at the Black home until she left again in February 2006. Ms. Simms became involved with another woman and moved to Lake Charles to be with her.

Initially, there were some weekends in which the Blacks would meet Ms. Simms halfway and take Braelyn for the weekend. However, it appears that emotions continued to run high, and in May 2006, there was a confrontation between all parties when Ms. Simms went to Shreveport to pick up Braelyn at the Blacks’ home. After that incident, Ms. Black did not see Braelyn again.

|2On June 1, 2007, Ms. Black filed an ex parte petition for custody of Braelyn. Affidavits referring to the events in May 2006 were attached but failed to include the year. Braelyn was taken from Ms. Simms’ home by Calcasieu Parish deputies. A stipulation was entered at a hearing on June 19, 2007, in which custody of Braelyn was returned to Ms. Simms. Ms. Simms was also ordered to let Braelyn call Ms. Black on Wednesday nights and talk to her for fifteen minutes. A mental health evaluation was also ordered to determine if it was in Braelyn’s best interest to be allowed access to the Blacks and Eli.

A hearing on the custody petition was held on July 9 and 10, 2008. At the close of Ms. Black’s presentation of evidence, Ms. Simms moved for an involuntary dismissal. Finding that Ms. Black failed to proved that substantial harm would come to Brae-lyn if she continued in the current custody situation with Ms. Simms, the trial court granted the involuntary dismissal. It is from this ruling that Ms. Black appeals.

LOUISIANA CIVIL CODE ARTICLE 133

Ms. Black first argues that the trial court erred by holding her to a higher burden of proof under Article 133, i.e. that sole custody of the legal parent would cause substantial harm to the child when this court has held that joint custody awards between parent and non-parents are governed by La.Civ.Code arts. 131 and 134. Ms. Black cites the cases of Matter of Landrum, 97-826 (La.App. 3 Cir. 12/10/97), 704 So.2d 872, and Williams v. Boone, 99-106 (La.App.Cir.5/19/99), 733 So.2d 1257, which held that the “substantial harm” burden of proof of Article 133 does not apply when joint custody is awarded to a parent and non-parent. For the following reasons, we respectfully disagree with those panels of this court.

Louisiana Civil Code Article 133 provides:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award |scustody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Landrum, 704 So.2d 872, relied heavily on the first circuit cases of Rupert v. Swinford, 95-395 (La.App. 1 Cir. 10/6/95), 671 So.2d 502, and Robert v. Gaudet, 96-2506 (La.App. 1 Cir. 3/27/97), 691 So.2d 780. Specifically, in Rupert, 671 So.2d at 504, the first circuit determined that an award of joint custody to the father and a grandparent would first require the court to find “that joint custody to the mother and father would result in substantial harm to [the child], that sole custody to the mother would result in substantial harm to [the child], and that sole custody to the father would result in substantial harm to [the child].” The first circuit then went on to hold that under Article 133, “a finding that an award of sole custody to a parent would result in substantial harm to the child does not preclude that parent from being considered in a joint custody award with a non-parent.” Id. at 505.

In Landrum, 704 So.2d 872, this court jumped to the conclusion that the language of Article 133 is inapplicable when a parent is awarded joint custody with a non-parent. This is not what Rupert, 671 So.2d 502, held. It must first be determined that an award of sole custody to the parent would result in substantial harm to the child. Comment (b) to Article 133 explains that the heavier burden is “an efficient means of giving effect to a parent’s paramount right to custody of his child as against any non-parent.” Otherwise, non-parents are placed on the same footing as parents when seeking joint custody if we were simply to apply the “best interests” standard set forth in Articles 131 and 134.

As further explained by the first circuit, even though a court may determine that an award of sole custody to a parent would result in substantial harm, the parent is not precluded from being considered in a joint custody award with a non-parent. Rupert, 671 So.2d 502. Rupert relied on Comment (c) to Article 133 and Schloegel v. Schloegel, 584 So.2d 344 (La.App. 4 Cir. 1991), which awarded joint custody to a father and maternal grandmother after it was determined that an award of sole custody to the father was detrimental to the child’s welfare. See also Smith v. Tierney, 04-2482 (La.App. 1 Cir. 2/16/05), 906 So.2d 586, where the first circuit held that the trial court erred in awarding sole custody to the paternal grandparents when there was no evidence that the mother should be divested of all of her custody rights of the child. The first circuit did find that substantial harm would result to the child if the mother had sole custody and awarded joint custody between the mother and the paternal grandparents.

This finding is further supported by Comment (a) to Article 133 which provides that the redundant dual test for divesting a parent of custody of his or her child is still applicable. The redundant dual test is a dual-pronged test. Lions v. Lions, 488 So.2d 445 (La.App. 3 Cir.1986). First, before a trial court deprives a parent of the custody of his or her child, the trial court must first determine that an award of custody would cause substantial harm to the child. If so, then the courts look at the best interest of the child factors in Article 134 to determine if an award of custody to a non-parent is required to serve the best interest of the child. Wilson v. Paul, 08-382 (La.App. 3 Cir. 10/1/08), 997 So.2d 572 (citing Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274).

Ms. Black has also argued that the legislature has been silent on the issue of children of gay and lesbian relationships, so this court must act in equity to protect the rights of these children. While we agree that there are no laws governing these | stype of relationships, we also observe that there are no laws governing heterosexual relationships in which only one of the parties is the biological parent. Any non-parent who has a relationship with a biological parent and develops a relationship with the child has to meet the same standard in establishing a basis for custody of the child. This includes grandparents and step parents.

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), recognized the special liberty interest of parents in the care, custody, and control of their children as one of the oldest of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment. The Supreme Court held that:

[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

Id. at 68,120 S.Ct. 2054.

Over the years, there has been litigation between “psychological parents” and parents regarding custody and visitation of children. Most often the cases involved grandparents of children seeking custody or visitation with the children with whom they bonded. The Louisiana Legislature has addressed some of these concerns providing for visitation rights under certain circumstances. See La. Civ.Code art. 136 and La.R.S. 9:344. Recognizing the paramount right of a parent in the care, custody, and control of his or child, the legislature has provided that an award of custody to a non-parent as opposed to a parent can only occur in rare circumstances.

For these reasons, we find that before a court can award joint custody to a parent and a non-parent, Article 133 first requires a finding that an award of sole custody to the parent would cause substantial harm to the child. It is only after this finding that the best interest of the child comes into play. Therefore, we find that the Rtrial court applied the proper legal standard.

SUBSTANTIAL HARM

Ms. Black argues that even if Article 133 does apply, the trial court erred when it found that the harm caused by separating a child from a functional parent cannot be sufficient to establish substantial harm. She claims that granting sole custody to Ms. Simms would cause Braelyn substantial harm because it would sever her relationship with Ms. Black, her brother, and her remaining grandparent, Robert Black.

Comment (b) of Article 133 states that the use of the language “substantial harm,” while a change in terminology, was not entirely new to Louisiana jurisprudence. The comment refers to the cases of In the Matter of Stewart, 602 So.2d 212 (La.App. 3 Cir.1992), and Pittman v. Jones, 559 So.2d 990 (La.App. 4 Cir.) writ denied, 565 So.2d 451 (La.1990), which uses the language “substantial harm” to describe the term “detrimental to the child” which was the standard found in former Article 146. Reviewing the cases cited by both of these cases, one case is cited by both, Merritt v. Merritt, 550 So.2d 882 (La.App. 2 Cir.1989). Merritt, 550 So.2d at 889, held that the term “detrimental to the child” broadened “the former jurisprudential rule to include, in addition to parental unfitness, inability to provide a home, and abandonment of parental rights, other circumstances that would cause the child to suffer positive and substantial harm.”

“The words ‘substantial harm’ carry no magical connotation. ‘Detrimental’ and ‘substantial harm’ have been used interchangeably in the jurisprudence.” Robert, 691 So.2d at 783. In Mills v. Wilkerson, 34,694, p. 6 (La.App. 2 Cir. 3/26/01), 785 So.2d 69, 74, the court held that substantial harm “includes parental unfitness, neglect, |7abuse, abandonment of rights, and is broad enough to include ‘any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.’ ”

In an initial custody dispute between a parent and non-parent, the non-parent bears the burden of first proving that granting custody to the parent would cause substantial harm to the child; if the non-parent meets that burden of proof, the non-parent must then prove that joint or sole custody in the non-parent is in the best interest of the child in order to prevail. Wilson v. Paul, 997 So.2d 572. The judgment of the trial court regarding custody is subject to the manifest error standard of review. Id.

Ms. Black argues that she shares a parent-child bond with Braelyn and severing that bond would cause substantial harm to Braelyn. She claims that she and Ms. Simms made a joint decision to have a child. Ms. Black testified that she helped pay for part of the assisted reproduction procedures, went with Ms. Simms to the appointments, and was present at the birth of Braelyn. Ms. Black claims that she and Ms. Simms raised Braelyn and her brother together as a family unit and that Ms. Black’s parents acted as grandparents toward Braelyn. Ms. Black’s parents both testified to the love that they have for Braelyn and about how involved they were in her life, school, and activities. Ms. Black and her parents all testified at trial to the love, devotion, and time they had spent raising Braelyn for the approximately first six years of her life when she lived with them.

Cindy Nassar, a licensed professional counselor, became involved in the case pursuant to a mental health order issued on June 19, 2007. Ms. Nassar testified that Braelyn has an emotional connection to the Black family. During her interviews with Braelyn she became concerned that Ms. Simms was making alienating comments to |8BraeIyn about the Blacks. It was Ms. Nassar’s opinion that the judgments Ms. Simms made regarding her daughter had been harmful. Ms. Nassar testified that it was really important that Braelyn have contact with both women. She testified that when Braelyn initially came to her office, she believed she had two mothers. Ms. Nassar indicated that Braelyn’s view of dependability and predictability would be threatened if she did not reestablish her relationship with her psychological family. Ms. Nassar did admit that a parent is not unfit because they decide that a child can no longer associate with a family friend that has been close to the family for years.

Robbie Dowden, a social worker working with Ms. Simms, also involved Braelyn in a couple of the sessions. Braelyn told her that she did miss the Blacks when she first moved to Lake Charles. Ms. Dowden opined that the Blacks’ behavior was more alienating than Ms. Simms’ behavior and thought that Braelyn would be served best by denial of access to the Black family.

There is no dispute that these women had a “toxic” relationship as described by Ms. Nassar. Both have made bad decisions. Ms. Black got in trouble with her nursing job for drug use in 2004, around the same time that Ms. Simms left Shreveport. Eventually, Ms. Simms cut off all communication between Braelyn and the Blacks, people that have nurtured and cared for Braelyn since she was young. It was not until after approximately a year of no contact with Braelyn, that Ms. Black initiated this custody proceeding. While Ms. Simms’ actions have deprived Braelyn of the love the Blacks have for her, we cannot say that this amounts to substantial harm to the child. Plain and simple, Ms. Simms is the mother of Braelyn and has the right to direct how Braelyn is raised. Troxel, 530 U.S. 57, 120 S.Ct. 2054. While we may find that her actions are harsh and inconsiderate of Braelyn’s and the Blacks’ obvious affection and attachment to each other, we cannot say that this amounts to substantial harm in [¡¡which the courts should interfere with Ms. Simms’ fundamental right to the custody, care, and control of Braelyn.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Kimberlee Black.

AFFIRMED.

COOKS, J., concurs with written reasons.

COOKS, J.,

concurs in the result.

I,Even if we look beyond the substantial harm to the child issue, in this case, at this time, the record indicates Ms. Black’s acrimonious relationship with the mother suggests the child’s best interest would not be served by an award of custody.

      . Acts 1993, No. 261, § 1, effective January 1, 1994, amended former La.Civ.Code art. 131(B) and reenacted it as Article 133. The substance of Article 133 was formerly found in La.Civ.Code art. 146(B), which was in ef-feet from January 1, 1983, until December 31, 1990. Former Article 146 provided that a non-parent had to prove that parental custody be shown to be “detrimental” to the child.

      . At the time of the trial, Sheri Black was receiving treatment for cancer. She passed away on December 1, 2008.


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

text:
    Tony B. SESSUMS, Appellant, v. Tammy VANCE a/k/a Tammy V. Sessums, Appellee.
    No. 2008-CA-00198-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.
    Rehearing Denied July 21, 2009.

      P. Shawn Harris, Forest, attorney for appellant.
    Jason Avery Mangum, Newton, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Tony B. Sessums (Sessums) and Tammy Sessums Vance (Vance) were divorced in the Newton County Chancery Court on June 28, 2005. Sessums was ordered to pay $750 per month in child support for their three children. At the time of the divorce, Sessums had two jobs, one his regular job as a truck-shop foreman and the other a part-time job as a farmhand in which he earned $600 per month. In February 2007, Sessums found another full-time job. By that time Ses-sums had ceased working as a farmhand and decided not to seek other part-time employment..

¶ 2. In 2007, Sessums filed a motion for modification of his child support obligation stating that a material change in circumstances had occurred and that he was entitled to a reduction in child support. After a hearing on the matter, the chancellor denied Sessums’s motion and awarded attorney’s fees in the amount of $1,750 to Vance. Sessums now appeals, asserting that the chancellor erred in denying his motion to reduce his child support payments and in awarding attorney’s fees to Vance.

STANDARD OF REVIEW

¶ 3. “This 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 used.” Southerland v. Southerland, 875 So.2d 204, 206(¶ 5) (Miss.2004) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999)). “In cases involving child support, we afford the chancellor considerable discretion, and his findings will not be reversed unless he was manifestly in error or abused his discretion.” Id. at 208(¶ 12).

DISCUSSION

I. DID THE CHANCELLOR ERR IN DENYING SESSUMS’S MOTION FOR MODIFICATION OF HIS CHILD SUPPORT OBLIGATION?

¶ 4. In his- first issue on appeal, Sessums argues that the chancellor erred in denying his motion to reduce his child support payments by $132 per month. Child support can be modified if there has been “a substantial or material change in the circumstances of one or more of the interested parties.” Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991) (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). A material change in circumstances can be shown by proof of the following:

(1) increased needs caused by advanced age and maturity of the children [,] (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence.

Id. (quoting Adams v. Adams, 467 So.2d 211, 215 (Miss.1985)). Sessums’s argument on appeal concerns the reduction in his income. At the time of the divorce in June 2005, Sessums had two jobs, one his regular job as a truck-shop foreman and the other a part-time job as a farmhand in which he earned $600 per month. By February 2007, Sessums had voluntarily ceased work as a truck-shop foreman and begun working for Coca-Cola Bottling Company in Meridian. Sessums drives 102 miles a day round trip to his job in Meridian, but he testified that he has more earning potential working for Coca-Cola than his previous employer. Sessums also ceased working as a farmhand in December 2006 because the farm was sold.

¶ 5. The chancellor denied Sessums’s request for a reduction in his child support payments for several reasons. At the time of the divorce, Sessums was living with his father and receiving monetary support from him. At the time of the modification hearing, Sessums was living with his girlfriend and paying some of her expenses. The chancellor stated, “I don’t know that it would be prudent or wise to request that your child support be reduced so you can go live with your girlfriend.” The chancellor also considered that Sessums voluntarily changed his employment and has failed to seek other employment to replace his part-time job. The chancellor noted that Sessums’s net income per month was $1,913 and his monthly expenses were roughly $1,650. Sessums also testified that he wanted a $132 reduction, in part, because he wanted more money to spend on his children and, in part, because he would eventually need a new car. The chancellor determined that, although Ses-sums’s expenses had increased, Sessums had failed to show a substantial or material change in his circumstances to warrant a reduction in his child support payments. We cannot find that the chancellor’s ruling was manifestly in error or an abuse of his discretion; thus, this issue is without merit.

II. DID THE CHANCELLOR ERR IN AWARDING VANCE ATTORNEY’S FEES?

¶ 6. An award of attorney’s fees is generally left to the chancellor’s discretion. Gray v. Pearson, 797 So.2d 387, 395(¶ 31) (Miss.Ct.App.2001). Furthermore, the chancellor’s findings on the issue of attorney’s fees will not be disturbed unless manifestly wrong. Cumberland v. Cumberland, 564 So.2d 839, 844 (Miss.1990). In McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the supreme court established certain factors to be considered in making an award of attorney’s fees, including the 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, the time and labor required, the customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

¶ 7. The chancellor based his award of attorney’s fees to Vance on her defense of the modification action as well as other requests which were settled off the record. The chancellor stated that, in addition to the modification, the parties discussed visitation, an income tax issue, and a contempt action due to Sessums’s failure to keep his child support payments and other court-ordered payments current. Although the chancellor awarded Vance attorney’s fees in the amount of $1,750, there is no evidence included in the record to support this award. We note that the chancellor did not specifically find Sessums in contempt for failing to keep his child support payments and other court-ordered payments current. According to the record before this Court, the chancellor heard no evidence concerning the ability of either party to pay, the time spent by the attorney on the action, the services rendered, or the customary charge by the attorney. This Court cannot determine whether this award was reasonable without evidence to support it.

¶ 8. “When the husband files a petition against his former wife in which he is unsuccessful, he is generally assessed’with attorney’s fees.” Gregg v. Montgomery, 587 So.2d 928, 934 (Miss.1991). However, the wife “should be required to show the reasonableness of such fees.” Id. We reverse and remand for the chancellor to determine the reasonableness of the attorney’s fees.

¶ 9. THE JUDGMENT OF THE NEWTON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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


author: GRIFFIS, J., for the Court.

text:
    NORTH MISSISSIPPI MEDICAL CENTER, Appellant v. Susan STEVENSON, Appellee.
    No. 2008-WC-00040-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.

      William G. Armistead, Sr., Tupelo, attorney for appellant.
    Gregory W. Harbison, Tupelo, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. The claimant, Susan Stevenson, moved to reopen her workers’ compensation claim after a settlement with North Mississippi Medical Center (“NMMC”) because of a mistake in fact and/or a change in conditions. The administrative law judge (“ALJ”) determined that Stevenson had failed to prove a causal connection between her work-related injury and subsequent surgery, and that she had failed to prove a change in condition. The Mississippi Worker’s Compensation Commission (“Commission”) affirmed the ALJ’s decision. Stevenson appealed to the Lee County Circuit Court and argued that: (1) the Commission erroneously found that there was no mistake in determination of fact about her work-related injury; (2) the Commission erroneously found that she had failed to show a change in condition; and (3) her request to depose Dr. Hunt Bobo was improperly denied. The circuit court reversed the Commission. NMMC’s appeal of the circuit court’s judgment has been deflected to this Court by the Mississippi Supreme Court. Finding reversible error, we reverse the judgment of the circuit court and render judgment to reinstate the Commission’s decision.

FACTS

¶ 2. On July 13, 2003, Stevenson suffered a lower back injury while on the job at NMMC. Dr. Bobo, a neurosurgeon, treated Stevenson for her injury. On February 24, 2004, Dr. Bobo stated that he did not anticipate surgery for any of Stevenson’s work-related injuries. However, Dr. Bobo opined that as her arthritis progressed, she would probably develop spinal stenosis and need a laminectomy.

¶ 3. After discovery, including obtaining the pertinent medical records and taking depositions, the parties settled. On July 13, 2005, the Commission approved a 9(i) settlement between the parties, and Stevenson signed a “Release of all Claims.”

¶ 4. Subsequently, based on Stevenson’s ongoing pain, Dr. Bobo ordered a standing myelogram and CT scan. As a result, Dr. Bobo recommended surgery because the standing myelogram showed a complete block at L3-4 and high-grade stenosis at 4-5. Dr. Bobo did not attribute these problems to Stevenson’s work injury. After surgery, Stevenson’s condition improved. This was Stevenson’s third back surgery; she had lumbar surgeries in 1989 and 1998.

¶ 5. On June 29, 2006, Stevenson moved to reopen her case, alleging a mistake in fact and/or a change in condition. The ALJ denied Stevenson’s motion because: (1) Dr. Bobo’s notes did not indicate a causal connection between her work-related injury and her surgery, and (2) she failed to prove that her condition in 2006 had changed from that at the time she settled her work-related condition in 2005.

¶ 6. Stevenson appealed the ALJ’s decision to the Commission and, additionally, filed a motion to depose Dr. Bobo. Without issuing an opinion, the Commission affirmed the ALJ’s decision and denied Stevenson’s motion to depose Dr. Bobo. Stevenson appealed the Commission’s decision to the Lee County Circuit Court. The circuit court reversed the findings of the Commission. It is from the circuit court’s judgment that NMMC appeals.

STANDARD OF REVIEW

¶ 7. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶ 8); Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997).

¶ 8. “[A] finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” J.R. Logging v. Halford, 765 So.2d 580, 583(¶ 13) (Miss.Ct.App.2000). “Where no evidence or only a scintilla of evidence supports a Worker’s Compensation Commission decision, this Court does not hesitate to reverse.” Foamex Prods., Inc. v. Simons, 822 So.2d 1050, 1053(¶ 11) (Miss.Ct.App.2002).

ANALYSIS

1. Whether the Commission erroneously found that there was no mistake in determination of fact about Stevenson’s work-related injury.

¶ 9. Stevenson claims that there was a mistake in determination of fact because Dr. Bobo thought no surgery was necessary for her work-related back injury, but she did eventually require surgery. Mississippi Code Annotated section 71-3-53 (Rev.2000) provides:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

¶ 10. Stevenson relies on Bailey Lumber Co. v. Mason, 401 So.2d 696 (Miss.1981) for support that a mistake is sufficient grounds for reopening a settlement. The nature of the mistake in Bailey is very different than the mistake alleged by Stevenson. “The kind of mistake that will warrant reopening is ordinarily a mistake on the part of the fact[-]finder, not on part of one of the witnesses.” Id. at 704. The complainant in Bailey was illiterate and “did not know what was in the most recent reports of his attending physicians.” Id. at 707. The carrier “failed to set forth material facts necessary for the petition to be passed on by the Commission” and “took unfair advantage of the claimant.” Id. (internal quotation omitted). Unlike Bailey, Stevenson can read her reports, where Dr. Bobo plainly stated that he thought that back surgery was probable in her future. NMMC did not withhold information from the Commission to gain approval of the settlement and never took advantage of Stevenson.

¶ 11. In Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293, 1295 (Miss.1990), the supreme court found a mistake in fact because Stovall’s 9(i) settlement labeled her permanently partially disabled, but in actuality, she was permanently totally disabled. The court also found “the attorney for Stovall was less than candid or complete in dealing with the Commission” which led to the Commission’s mistake about the nature of her disability. Id. at 1297. Stovall proved a causal connection when the surgeon who performed the second surgery “causally relate[d] Stovall’s problems to the work-related injury.” Id. at 1296.

¶ 12. Here, the record reflects that the Commission was fully apprised of all medical facts surrounding Stevenson’s work-related injury and her pre-existing condition when it approved the settlement. Unfortunately, the facts indicate that surgery was a possibility if Stevenson developed spinal stenosis from her pre-existing condition, and ultimately, Stevenson did develop spinal stenosis and required surgery. Therefore, we find the Commission’s ruling that there was no mistake in determination of fact about her work-related injury was supported by substantial evidence.

2. Whether the Commission erroneously found that Stevenson failed to show a change in condition.

¶ 13. The Commission found that Stevenson did not prove that her condition in 2006 was a change from her work-related condition at the time she settled, nor did she prove a causal connection between her back condition, which required surgery, and her 2003 work accident. “A change in conditions is usually considered to mean a change in physical conditions due to the original injury which affects an employee’s earning capacity or ability to work.” N. Miss. Med. Ctr. v. Henton, 317 So.2d 373, 375 (Miss.1975). After reviewing the record, we find Stevenson cannot reopen her case based on a change in conditions because she did not show a causal connection between her surgery and her work-related injury.

¶ 14. The trial judge and Stevenson place the burden of proof concerning causation on NMMC, relying on Marshall Durbin Cos. v. Warren, 633 So.2d 1006 (Miss.1994). The supreme court stated:

Once it is shown that a disability was produced by an injury and that the employee continues to be disabled, the presumption is that the disability continues to be causally related to the injury, and the burden of proof is upon the employer to show that the continuing disability is due to some other intervening cause or pre-existing condition for which he is not responsible.

Id. at 1009 (citation omitted).

¶ 15. However, this presumption is inapplicable here, because Warren does not involve the reopening of a claim after a settlement. The “burden is upon the party alleging a change in the claimant’s medical condition to prove that change by a preponderance of the evidence.” J.R. Logging, 765 So.2d at 584(¶ 17). Stevenson had the burden to prove a change in her medical condition, not NMMC.

¶ 16. Dr. Bobo’s records did not causally connect the surgery and the compensa-ble injury, and his pre-settlement notes clearly stated that as Stevenson’s arthritis progressed, she would probably develop spinal stenosis and need additional surgery. Dr. Bobo expected that Stevenson’s pre-existing condition would cause spinal stenosis that would require surgery, and he eventually performed surgery because Stevenson had spinal stenosis. Stevenson failed to causally connect her stenosis with the compensable injury.

¶ 17. We find that the Commission did not err when it refused to reopen Stevenson’s claim, finding that she failed to meet her burden of proof because there was no indication that there was a causal connection between her work-related injury and her need for surgery. Therefore, we do not reach the issue of whether her earning capacity or ability to work has been affected.

3. Whether Stevenson’s request to depose Dr. Bobo was improperly denied.

¶ 18. Stevenson argues that she has never had the opportunity to present Dr. Bobo’s testimony on causal connection because it was not available until after the settlement. However, Stevenson had the opportunity to present evidence at the evi-dentiary hearing before the ALJ. Workers’ Compensation Commission Procedural Rule 9 states that “[a]ll testimony and documentary evidence shall be presented at the evidentiary hearing before the Administrative Judge ... [.] Where additional evidence is offered on the review before the Full Commission, it shall be admitted in the discretion of the Commission.”

¶ 19. Stevenson claims it was error to deny her request to depose Dr. Bobo, relying on Smith v. Container General Corp., 559 So.2d 1019 (Miss.1990). In Smith, Smith made his motion to reopen the case to offer additional evidence to the ALJ, but his motion was overruled. Id. at 1023. The supreme court reversed and allowed him to introduce additional evidence. Id. at 1024. However, in the present case, Stevenson did not bring her motion to offer additional evidence until her claim was being reviewed by the Commission.

¶ 20. On the Commission’s review, it is within its discretion to accept or deny the offer of new evidence. Rules of Miss. Workers’ Comp. Comm’n, Procedural Rule 9. The rule requires that Stevenson “state with particularity the nature of such evidence, the necessity therefor, and the reason it was not introduced at the evidentia-ry hearing.” Smith, 559 So.2d at 1024. Although she stated the nature of and need for the evidence, Stevenson failed to offer any explanation for her failure to introduce Dr. Bobo’s opinion at the eviden-tiary hearing. We find the Commission did not abuse its discretion when it denied Stevenson’s motion to introduce new evidence.

¶ 21. “If the Commission’s finding of fact and order are supported by substantial evidence, then we are bound by them even though we as fact-finder would have been convinced otherwise.” J.R. Logging, 765 So.2d at 586(¶ 26). Accordingly, we reverse the judgment of the circuit court and render judgment to reinstate the order of the Commission.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS REVERSED, AND JUDGMENT IS RENDERED REINSTATING THE ORDER OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.


text:
    Denise A. CUEVAS, Appellant v. Margaret K. KELLUM, Appellee.
    No. 2007-CA-01590-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Christopher E. Fitzgerald, Ocean Springs, Attorney for Appellant.
    Earl L. Denham, Ocean Springs, and Henry P. Pate, Attorneys for Appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Denise Cuevas appeals the chancellor’s decision to forgo a formal accounting and trial in the dissolution of her partnership with Margaret Kellum. Cuevas alleges that: (1) the chancellor denied her the right to a trial on the merits of the claims asserted in her complaint, and (2) the adoption of the special master’s report was manifestly wrong.

FACTS

¶ 2. On September 8, 1999, Cuevas and Kellum entered into a partnership agreement with the purpose of operating an elderly-care facility, Settler’s Point Assisted Living. Kellum submitted the general partnership agreement — signed by both parties — to the chancellor. The partnership owned Settler’s Point and other real property located in Jackson County, Mississippi. On October 23, 2003, Kellum informed Cuevas that she intended to dissolve the partnership, and from that time on, Cuevas alleges that Kellum denied her access to the financial records of the business.

¶ 3. On October 27, 2003, Cuevas filed a compliant that requested injunctive relief and alleged that Kellum: (1) breached the partnership, (2) breached her fiduciary duties, and (3) tortiously breached the partnership agreement warranting punitive damages. Cuevas also demanded a full and complete accounting of all accounts billed and monies received and paid out starting on October 1, 2003, to present.

¶ 4. By agreed order, the chancellor, on May 4, 2004, appointed Haidee Oppie Sheffield as the special master with instructions to determine: (1) the capital contributions from each party to the business; (2) the personal-related withdrawals from the business; (3) the ownership interest of each party in the business as of the date of the filing of this litigation; and (4) the ownership interest of each party in the real property as of the date of the filing of this litigation. The chancellor also stated that the trial would be reset following the special master’s report.

¶ 5. On March 28, 2005, the special master made her findings, and no timely objections were made to her findings. On April 19, 2005, Cuevas filed a motion to allow out-of-time objections to the special master’s report, which was denied. On February 10, 2006, the chancellor adopted the special master’s findings. The trial was set and continued numerous times.

¶ 6. On May 25, 2007, the chancellor heard motions to compel at which time she stated, “I thought this case was over. What’s left?” Cuevas’s attorney explained to the chancellor that: (1) there had never been a formal accounting; (2) documents were recently produced; (3) depositions had been set; (4) the partnership was never dissolved; and (5) trial on the remaining issues was set for June.

¶ 7. On July 17, 2007, the chancellor entered an order nunc pro tunc to the special master’s findings and gave the parties thirty days to agree to an implementation of the special master’s report dividing the partnership’s assets, and if they could not agree, then the order allowed for the appointment of a special commissioner.

STANDARD OF REVIEW

¶ 8. “The findings of a chancellor will not be disturbed when supported by substantial evidence unless there was manifest error or a[n] improper legal standard was applied.” In re Estate of Temple, 780 So.2d 639, 642(1115) (Miss.2001) (citation omitted). However, an appellate court conducts a de novo review on any question of law. In re Admin. of the Estate of Abernathy, 778 So.2d 123, 127(¶ 13) (Miss.2001) (citation omitted).

ANALYSIS

1. Did the chancellor deny Cuevas the right to a trial on the merits of claims asserted in her complaint?

¶ 9. Cuevas claims that the special master’s report does not negate the need for a trial on the merits of her complaint. For the first time, Kellum argues that the chancery court had no jurisdiction to hear Cuevas’s complaint on the merits.

¶ 10. First, we address whether all of Cuevas’s claims were resolved by the special master. In her complaint, Cuevas alleged that Kellum: (1) breached the partnership, (2) breached her fiduciary duties, and (3) tortiously breached the partnership agreement warranting punitive damages.

¶ 11. A special master was appointed by the chancellor pursuant to Mississippi Rule of Civil Procedure 53 to aid in the resolution of this case. The supreme court has stated that under Rule 53(d):

The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearing and for the filing of the master’s report.

(Emphasis added). See also Massey v. Massey, 475 So.2d 802, 805 (Miss.1985). Here, the chancellor limited the special master to a determination of (1) the capital contributions to the partnership by each party; (2) the value of personal-related withdrawals from the partnership; (3) the ownership interest of each party in the partnership as of October 27, 2003; and (4) the ownership interest of each party in three parcels of real estate.

¶ 12. The special master’s authority was limited to the assignment given to her by the chancellor. The chancellor’s specific delegation to the special master did not instruct her to address the merits of Cue-vas’s claims — nor did she address Cuevas’s claims for breach of partnership, breach of fiduciary duties, and tortious breach of the partnership agreement. All of Cuevas’s claims were not resolved by the special master’s report.

¶ 13. Next, we turn to the issue of a trial. The special master was appointed on May 4, 2004, and submitted her report on March 28, 2005. The findings were adopted by the chancellor on February 10, 2006, and for the first time on May 25, 2007, the chancellor opined that no trial was necessary. In the order appointing the special master, the chancellor specifically stated that the trial would be reset following the special master’s report. Furthermore, in the two years following the special master’s report, numerous references were made by the chancellor and Kellum’s counsel to the impending trial.

¶ 14. Kellum argues that the chancellor’s order should be affirmed because the chancery court lacked the jurisdiction to address Cuevas’s claims for damages for breach of fiduciary duty, breach of the partnership agreement, and tortious breach of the partnership agreement, which are claims at law and subject to a jury trial. Cuevas claims that the chancery court has pendent jurisdiction over her claims. “Jurisdiction is a question of law which [the appellate court] reviews de novo.” Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2d 747, 749(¶ 5) (Miss.2008) (citation omitted).

¶ 15. “To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928(¶ 11) (Miss.2007) (citations omitted). “The dissolution of a partnership requires the settling of accounts. A Mississippi chancery court holds the authority to hear a case for an accounting.” Crowe v. Smith, 603 So.2d 301, 307 (Miss.1992) (internal citation omitted). The supreme court “has stated, where there appears from the face of the well-pleaded complaint an independent basis for equity jurisdiction, our chancery courts may hear and adjudge law claims.” Issaquena Warren Counties Land Co., LLC, 996 So.2d at 751(¶ 10). “In such circumstances, the legal claims lie within the pendent jurisdiction of the chancery court.” Id. Cuevas’s claims for dissolution of the partnership were properly brought in a court of equity; therefore, the other claims asserted fall within the chancery court’s pendent jurisdiction. The chancellor did not consider the claims for breach of fiduciary duty or the tortious breach of the partnership agreement warranting punitive damages; therefore, we reverse the judgment of the chancellor. On remand, the chancellor should permit a hearing to allow evidence to be presented on the remaining claims.

2. Was the chancellor’s adoption of the special master’s report manifestly wrong?

¶ 16. Cuevas argues the adoption of the special master’s report was manifestly wrong due to a lack of formal accounting. Kellum argues that Cuevas is not entitled to a formal accounting because the special master’s report is sufficient.

¶ 17. Cuevas claims that a partner has an absolute right to a formal accounting in the event of the dissolution of a partnership under Mississippi Code Annotated section 79-12-43 (Repealed Jan. 1, 2007). That statute was repealed effective January 1, 2007. “The effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed ... unless the repealing or modifying statute contains a saving clause.” City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 303(¶ 28) (Miss.2003). The Uniform Partnership Act — which repealed sections 79-12-1 through 79-12-119 — provides a savings clause. Mississippi Code Annotated section 79-13-1206 (Supp.2008) states that “[tjhis chapter does not affect an action or proceeding commenced or right accrued before this chapter takes effect.”

¶ 18. Cuevas filed her complaint on October 27, 2003, well before section 79-12-43 was repealed by Chapter 13, the Uniform Partnership Act, on January 1, 2007. Section 79-12-43 states that “any partner shall have the right to a formal account as to partnership affairs: (a) [i]f he is wrongfully excluded from the partnership business or possession of its property by his copartners.” Miss.Code Ann. § 79-12-43(l)(a) (Rev.2001). In her initial complaint, Cuevas argued that she had been wrongly excluded from the partnership because Kellum removed her from the bank accounts, barred her from the premises, and refused to allow her access to the financial affairs of the business.

¶ 19. Cuevas has a statutory right to a formal account of the partnership’s finances under section 79-12-43. However, it is unclear what constitutes a formal account of a partnership because there is no Mississippi case law addressing the issue. Therefore, we look to other areas of the law where a formal account is required for guidance. Under estate law, an executor has a duty, at least once a year, to “present under oath an account of his administration, showing the disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher, and it shall also show the receipts of money and from what sources.” Miss.Code Ann. § 91-7-277 (Rev.2004). A formal account of a partnership — as in an estate — should contain, at minimum, the partnership’s disbursements and receipts of money. It is undisputed that the dissolution proceedings did not report the partnership’s receipt of income.

¶20. In her brief, Kellum acknowledges that Cuevas had a right to a formal account at Cuevas’s expense. However, Kellum cites no authority that requires Cuevas — the ousted partner — to bare the expense of the accounting. Kellum admits the chancellor did not direct the special master to render a formal account, and that the special master did not require her to produce a monthly accounting for the period that she ran Settler’s Point without Cuevas. However, Kellum claims that a formal accounting means nothing more than an adjusting of the equities of the parties, and that the chancellor’s judgment should be affirmed because the chancellor adjusted the equities of the parties. Barry v. Mattocks, 156 Miss. 424, 432-33, 125 So. 554, 556 (1930). We find no support for this proposition in Barry. It is undisputed by Cuevas, Kellum, and the special master that a formal accounting was not conducted.

¶ 21. Cuevas is entitled to a formal accounting, but the need for a formal accounting does not invalidate the special master’s report. As we have said, the special master was given four specific tasks, which did not include conducting a formal accounting. The special master was diligent and reasoned in her determination of the specific findings. Cuevas waived her objections to the findings when she failed to timely object within ten days as required under Mississippi Rules of Civil Procedure 53(g)(2). Cuevas has given this Court no reason to reject the findings of the special master. The chancellor did not err by adopting the special master’s report, but the chancellor did err in refusing to order a formal accounting and to allocate those costs. Accordingly, we find that the chancellor should order a formal accounting on remand.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Unlike an estate, however, a partnership is a business organization that typically accounts for its operations on an annual basis. The account for operations can be accomplished by using a computer accounting software program that prepares, or has the functions to prepare, a trial balance, income statement, balance sheet, statement of cash flow, or other accounting statements that are used in the business. We recognize that not every business organization follows generally accepted accounting principles or uses a Certified Public Accountant to prepare its accounting records. However, every business organization must account for its operations, if for no other reason than to prepare and file the required tax returns. Indeed, there is no statutorily required specific form that must be used for an "accounting.” Indeed, an accounting may be as simple as a list of receipts and disbursements or as complex as an audited financial statement. However, the accounting must show the results of operations either through income that remains in the organization, liabilities of the organization, or equity balances of the owners.