author: PETERS, J.

text:
    Donald BUXTON, Sr. v. STATE of Louisiana, DEPT. OF CORRECTIONS.
    No. 13-1203.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      James D. “Buddy” Caldwell, Attorney General, Sylvia M. Fordice, Assistant Attorney General, Lafayette, LA, for Defendant/Appellant, State of Louisiana, Department of Public Safety and Corrections.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

| iThe State of Louisiana, through the Department of Public Safety and Corrections (the state), appeals a judgment of the workers’ compensation judge (WCJ) ordering it to relocate a washer and dryer from the bedroom of Donald Buxton, Sr. as part of home modifications relating to his work-related injury. For the following reasons, we reverse the WCJ’s judgment and render judgment in favor of the state.

DISCUSSION OF THE RECORD

Donald Buxton, Sr. was previously employed by the state as a corrections officer at the Paul Phelps Correctional Center in DeQuincy, Louisiana. On May 8, 2004, he fell from a guard tower at the Correctional Center and suffered multiple work-related injuries which left him totally and permanently disabled. A December 29, 2010 judgment rendered by the WCJ ordered the state, as part of its statutory obligation to provide reasonable and necessary medical treatment, to modify Mr. Buxton’s home by providing him with a handicap shower and a lifting recliner, replacing the carpeting in the house with hard flooring, and remodeling the master bedroom.

The state complied with this judgment by entering into a contract with Cypress Care, Inc. (Cypress Care), a Suwannee, Georgia contractor, to perform the necessary modifications and renovations with a completion date of May 16, 2011. When Cypress Care completed the modification and renovation work, a previously enclosed garage had become the new master bedroom; the laundry room, which was previously located off the rear of the enclosed garage, became the handicaj3jaccessible2 bathroom; and the washer and dryer previously located in the laundry room were moved into the new master bedroom. The new master bedroom is heated and cooled by a single air conditioner unit of the type found in hotel rooms. It is built into the middle of the exterior wall with the unit being approximately two and one-half feet tall and four feet wide; protruding into the bedroom approximately ten inches; and having a base located approximately six to eight inches above the bedroom floor.

While the scope of the original contract between Cypress Care and the state was not made a part of the record, it is clear that changes were effected after the initial agreement. A March 4, 2011 email from Cynthia White, a Cypress Care representative, to Susan Melancon, a claims adjuster representing the state’s interest, discusses Cypress Care’s revised proposal for the Buxton project and states that the changes proposed for Mr. Buxton’s home include “[mjoving the washer and dryer to the new bedroom and venting the dryer to the outside. We will not enclose the washer and dryer as proposed before.” Ms. White attached a new revised proposal to the email which eventually encompassed the scope of the work performed by Cypress Care. The new revised proposal included:

1. Remove the wall and ceiling coverings in the converted garage and utility rooms.
2. Move and enlarge door to bathroom to 36".
3. Cut cement for drains for the W/D, sink, toilet and shower.
4. Cut exterior wall and install 1.5 ton P-Tac A/C unit with heater.
5. Reroute existing gas line for the new water heater location.
6. Run water supply lines for the toilet, sink, W/D and shower.
7. Run electrical for the W/D, A/C, lights, vents, outlets and switches.
|⅞8. Install insulation in the walls and ceilings.
9. Install accessible shower with grab bars and bench.
10. Install water resistant sheetrock on the walls and ceiling of bathroom.
11. Widen and install interior door to main residence, using existing knob.
12. Paint walls, ceiling and trim of bedroom and bathroom.
13. Remove laminate flooring and install vinyl flooring in the bathroom and bedroom.
14. Remove carpet and install vinyl flooring in the living-room and hallway.
15. Install standard toilet, wall mounted sink, grab bars, towel rack and paper holder.
16. Form, pour and finish 4'x4' slab on the rear of the house for relocated water heater.
17. Build water heater closet walls and cover with vinyl siding.
18. Reinstall existing hot-water heater.
19. Install r-panel metal roofing with vent stack.
20. Install double-walled vent for heater.
21. Install exterior grade door with supply vent grill.
22. Install painted baseboard after the flooring is installed.
* Provide necessary permits and inspections as required by the city / parish.
* Clean and haul all construction debris.
* Provide client with color and design choices as to new flooring and paint.

On April 6, 2011, Gina Buxton, Mr. Bux-ton’s wife, signed a form entitled “Scope of Work[,]” which listed these modification proposals.

On May 16, 2011, Mrs. Buxton signed a Completion Statement provided her by Cypress Care. The text of the statement included the following language:

We trust you are pleased with the home modifications that were recently completed at your home. Please take a moment to sign and complete the statement below to indicate that the work has been completed to your satisfaction.

The following language appears immediately above the signature line:

This statement will affirm that the home modification services provided have been completed and were done so to my satisfaction.

|4In signing the Completion Statement, Mrs. Buxton left the comments section, located below the signature line, blank.

Within a few days after Mrs. Buxton executed the Completion Statement, she and her husband complained to Cypress Care of problems with the location of the washer and dryer. Specifically, the Bux-tons complained that the noise generated by the appliances was a problem in the limited space of the bedroom and that their operation had the potential of driving up the cost of utilities because the air conditioner ran non-stop to offset the heat generated by the dryer. These complaints resulted in a May 26, 2011 proposal from Ms. White to Ms. Melancon stating in part:

Mr. and Mrs. Buxton asked us to address the location of the washer and dryer in the bedroom where Donald now sleeps.

Project: Laundry Relocation

Homeowner requests that we relocate the washer and dryer from the new location in the accessible converted garage, into the main residence in a secondary bedroom. The concern is that the heat and noise generated from the washer and dryer will be uncomfortable for Mr. Buxton and would cause the new P-Tac/AC unit to run continuously, resulting in large ongoing electrical utility bills. The new location would be in an unused portion of the home and would require permits by the local parish building department.

Ms. White further states in this correspondence that the cost for relocating the washer and dryer to the bedroom would be an additional $10,937.50 in labor and materials. A counter proposal forwarded to Ms. Melancon by Ms. White on July 27, 2012, involved keeping the washer and dryer in the master bedroom, but enclosing it inside a utility closet. This solution, according to the correspondence, would only cost $6,100.00 in labor and materials.

li;The failure of the state and Cypress Care to reach an agreement on how to address the Buxtons’ complaints resulted in Mr. Buxton’s counsel writing the state on October 17, 2011, requesting the following relief:

The contractor placed Mr. Buxton’s washer and dryer in their bedroom temporarily until they could get approval to put the washer and dryer in the extra bedroom or bathroom. This makes it difficult for Mr. Buxton to rest. And when his wife uses bleach in the wash it makes him sick. Also, their utility bill has increased since the air conditioner is working harder when the dryer is running. Please approve and allow the contractor to move the washer and dryer into the extra bedroom or bathroom, or wherever they need to.

The state denied this request by a letter dated October 21, 2011, and ten days later Mr. Buxton filed a disputed claim for compensation, seeking to have the washer and dryer removed from his bedroom. He further sought penalties and attorney fees based on the state’s failure to perform this modification.

Following a hearing on the merits, the WCJ rendered oral reasons ordering the state to relocate the washer and dryer from the master bedroom to a bathroom located in another part of the house. The WCJ further assessed the state with $2,000.00 in penalties and $3,000.00 in attorney fees. The WCJ executed a written judgment conforming with its judgment on June 11, 2013, and, thereafter, the state perfected this appeal raising three assignments of error:

I. The workers’ compensation judge erred as a matter of law in ordering the washer and dryer removed from the master bedroom and relocated to the old bathroom in the absence of medical necessity pursuant to La. R.S. 23:1203(A).
II. The workers’ compensation judge erred in ordering the removal and relocation of the washer and dryer where [the state’s] denial of the request was not appealed pursuant to La. R.S. 23:1203.1(J).
IJH. The workers’ compensation court abused its discretion as it is prohibited by Article 7, Section 14(a) of the Louisiana constitution from ordering a renovation of the Bux-ton’s rental home.
IV. The workers’ compensation judge erred in awarding penalties and attorney’s fees to the claimant in the absence of proof that the removal and relocation of the washer and dryer were reasonable and necessary and where the claimant failed to appeal the denial.

OPINION

The scope of appellate review of factual findings by a WCJ is well settled.

[F]actual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Poissenot v. St.. Bernard Parish Sheriff’s Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170,174-75.

Furthermore, an issue raising a legal error is reviewed by determining whether the WCJ’s ruling is legally right or wrong. LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d 1022.

In its first assignment of error, the state basically argues that Mr. Buxton failed to establish that the removal of the washer and dryer from the bedroom constituted a medical necessity pursuant to La.R.S. 23:1203(A). In accordance with La.R.S. 23:1203(A), an employer has a statutory duty to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment” required by the employee as a result of a work-related injury. Thus, in order to receive the requested services, the employee 17must prove, by a preponderance of the evidence, the medical necessity of the service in relation to the work-related injury. McGuyer v. Fidelity & Cas. Co. of N.Y., 39,450 (La.App. 2 Cir. 3/2/05), 895 So.2d 701. A finding that the employee is entitled to the medical services is a finding of fact subject to the manifest error standard of review. Id.

Mr. Buxton’s request is based on three reasons: the noise and heat; his rashes and upper-respiratory-tract infections; and the crowding of the room, which contributed to him falling and breaking five ribs.

The evidence establishes that because of his on-the-job injuries, Mr. Buxton can do little with his upper extremities, is very unstable on his feet, and is totally dependent on his wife’s care. His right extremity is more seriously injured than his left, and this requires him to sleep on the left side of the bed where he can use his left elbow to get out of bed. Additionally, because of his lack of mobility, he stays primarily in the bedroom, even taking his meals there.

A not-to-scale drawing utilized by Cypress Care for the renovation process and photographs taken after the Buxtons began to occupy the bedroom were used by both Mr. Buxton and the state to establish the physical layout of the room and its contents. These exhibits establish that Mr. Buxton’s bed is located on the interior wall directly opposite the air conditioner. The headboard of the bed doubles as a bookshelf, adding at least one foot to its overall length, and results in a maximum space between the foot of the bed and the exterior wall of three feet. That space is even smaller at the point where the air conditioner protrudes out of the exterior wall.

The washer and dryer are located to the right of the air conditioner in the corner created by the exterior-bedroom wall and the interior bathroom wall. There |Rappears to be a space of approximately three feet from the right corner of the bed to the corner of the washing machine, but the passage space is reduced by the presence of a small movable shelf located against the side of the washer. The photographs reveal that items are also located against the exterior bedroom wall to the left of the bed, including a plant, a bookcase/shelf, and a chest of drawers. However, Mrs. Buxton testified that after the photographs were taken, the bookcase/shelf and the plant were removed and replaced with a long dresser. This is the side of the bed where Mr. Buxton sleeps.

Because the left side of the bed is on the opposite end of the room from the bathroom, Mr. Buxton must exit the bed, make his way to the end of the bed, traverse the space between the end of the bed and the air conditioner, and maneuver between the edge of the bed and the small shelf on the side of the washer. In July of 2012, or over eight months after filing his disputed claim, Mr. Buxton caught his foot on something at the foot of the bed between the bed and the air conditioner and fell, fracturing five ribs.

It is clear that everything in the overcrowded bedroom keeps maneuverable space to a minimum. It is equally clear that the presence of the washer and dryer contributes to the overcrowded situation. While the space might be ample for most people, Mr. Buxton’s lack of stability makes maneuvering from the bed to the bathroom or any other area of the house a difficult task. However, removing the washer and dryer from the room would not resolve the minimal-space problem. In fact, Mrs. Buxton testified that when the washer and dryer are removed, she intends to move the long dresser to the area previously occupied by those appliances. Additionally, there is no evidence that the presence of the washer and dryer contributed in any way to Mr. Buxton’s July 2012 accident given the location 19where the accident occurred. In fact, Mrs. Buxton acknowledged that other than their contribution to the overall crowded nature of the room, the washer and dryer played no part in Mr. Buxton’s fall and resultant injuries.

Thus, the issue is not space or a lack thereof, but whether the removal of the washer and dryer from the bedroom constitutes a medical necessity pursuant to La.R.S. 23:1203(A). The only medical evidence addressing that issue was provided by Dr. Jagjit S. Chadha, a DeQuincy, Louisiana physician and Mr. Buxton’s primary physician. Mr. Buxton offered a May 1, 2012 statement from Dr. Chadha, which reads as follows:

To Whom it Concerns—

The pt-Donald Buxton is experiencing UR problems and rashes 2° to having washer and dryer in bedroom.
The washer and dryer needs to be removed to resolve his problems.

In response, the state introduced Dr. Cha-dha’s medical records. After deciphering Dr. Chadha’s handwritten notes as best we can, we note the following information:

On January 28, 2011, or before the completion of the home modifications, Mr. Buxton complained to Dr. Chadha of a rash in his genital area. Dr. Chadha’s ñóte indicates this was a problem he had previously experienced.
On April 26, 2011, he complained to the doctor of dry skin, for which Dr. Chadha recommended an over-the-counter itch cream.
On February 11, 2011, Mr. Buxton tested positive for the flu, with a fever of 99.6° F.
On September, 14, 2011, Mr. Buxton again complained of a rash in his genital area. Dr. Chadha’s note states that this is a reoccurring problem, and the doctor prescribed Nystatin cream.
ImOn November 7 and 22, 2011, Mr. Buxton complained about a rash on his neck. On the second visit, Dr. Chadha’s notes indicate a diagnosis of contact dermatitis, for which he prescribed a cortisone cream. A close review of Dr. Cha-dha’s November 7, 2011 notes reveals that he also recommended a nose spray. However, no further information is decipherable from the handwritten note.
On November 25, 2011, Dr. Chadha responded to a letter from the state’s medication-services administrator, Progressive Medical, Inc., concerning the medical necessity of Fluticasone SPR 50 meg, which Dr. Chadha had prescribed to Mr. Buxton prior to November 18, 2011. In the statement, Dr. Chadha indicated that he prescribed the medication based on a diagnosis of allergic rash and that the expected length of use of the medication by Mr. Buxton would be off and on for five years.
On December 15, 2011, Dr. Chadha again prescribed the cortisone cream for the contact dermatitis.
On February 22, 2012, Mr. Buxton complained of a frontal headache, a right earache, sore throat, cough, and a fever of 99° F. He was diagnosed by the physician assistant with serous om (otitis media or fluid in the middle ear) and a possible viral syndrome.
On May 1, 2012, Dr. Chadha’s notes indicate that Mr. Buxton complained of dry skin and that he asked for a letter concerning his rashes to give to his attorney.
On July 23, 2012, Dr. Chadha noted that Mr. Buxton fell at home on his left side. An August 22, 2012 note states that he suffered fractures of five ribs on his left side.

With regard to the claim that the washer and dryer causes Mr. Buxton’s rashes and increased upper-respiratory-tract infections, we find that Dr. Chadha’s medical notes lend little support to his claim, and no other evidence supports this claim. Prior to the completion of the home modifications, Mr. Buxton complained of a reoccurring rash in his genital area as well as dry skin. His complaint concerning the genital-area rash continued after the construction, and his first complaint to Dr. Chadha concerning a neck-area rash was on November 7, 2011, or some six months after the completion of the construction and a week after he filed the claim now before us. Dr. Chadha diagnosed this rash on the neck as |ncontact dermatitis and prescribed fluticasone, a corticosteroid spray, as treatment. Nothing in Dr. Cha-dha’s medical records establishes a causal connection between the rash and the presence of the washer and dryer in the bedroom.

The same can be said of Mr. Buxton’s complaints that the chemicals used in the washing and drying process caused him respiratory problems. Dr. Chadha’s medical records reveal only two instances of upper respiratory complaints. One occurred before construction was complete, and the other occurred over nine months after completion of the project. In the first instance, Dr. Chadha diagnosed Mr. Buxton’s condition as that of the flu, and, in the second, Dr. Chadha’s physician assistant concluded that Mr. Buxton was suffering from fluid in the middle ear and a possible viral syndrome.

We conclude that the WCJ erred in finding that Mr. Buxton established by a preponderance of the evidence that the removal of the washer and dryer from the bedroom constituted a medical necessity pursuant to La.R.S. 23:1203(A).

Finally, we find that the WCJ was clearly wrong in concluding that no evidence contradicted Mrs. Buxton’s testimony that the placement of the washer and dryer in the bedroom was intended to be temporary and that its relocation constituted a part of the original renovation agreement. This factual finding ignores the specific language of the March 4, 2011 revised proposal submitted to the state by Cypress Care, which became the final working agreement. In that proposal, Cypress Care agreed to “[c]ut cement” to install the drain from the washer; run water supply fines for the washer; and install the necessary electrical lines for both the washer and dryer. Such actions clearly do not indicate a temporary location for the washer and dryer. Additionally, despite her claims that she complained about the location of the washer and dryer before construction was Incomplete and was told that the location was temporary, she signed the Completion Statement with the clear language set forth therein and made no notation of her understanding despite space being made available on the document for just such concerns.

Finally, as to the claim of increased heat and utility bills caused by the washer and dryer, Mr. Buxton presented no evidence other than his and Mrs. Buxton’s self-serving testimony concerning this issue. Nor do we find that this problem, if proven, bears on the medical necessity of treating Mr. Buxton’s work-related injury.

Based on the foregoing, we find that the WCJ erred in ordering the state to move the washer and dryer out of Mr. Buxton’s bedroom. Accordingly, we reverse the judgment of the WCJ and render judgment in favor of the state. Having reached this conclusion, we need not consider the remainder of the state’s assignments of error.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge in favor of Donald Buxton, Sr. and against the State of Louisiana, through the Department of Public Safety and Corrections; and render judgment in favor of the State of Louisiana, through the Department of Public Safety and Corrections, dismissing the claims of Donald Buxton, Sr. We assess all costs of this appeal to Donald Buxton, Sr.

REVERSED AND RENDERED.

      . The injuries included crushing injuries to his face, eye sockets and sinuses, and fractures to his nose and elbows.

      . The record establishes that the new bedroom is 18 feet long and 10.6 feet wide, and the new bathroom is 10.8 feet long by 6.6 feet wide.

      . The record does not contain a to-scale drawing of the project, and the estimations of the size of the air condition unit are based on examination of the photographs introduced into evidence.

      . Mrs. Buxton testified that she is paid through the workers’ compensation coverage tó function as her husband’s caregiver.

      . The disputed claim also contained an issue pertaining to dental care. However, that dispute was not considered during the hearing and is not part of the judgment rendered.

      . The letter is handwritten on a plain piece of paper, with a stamped address of Dr. Cha-dha’s clinic, and signed "Chadra[,]” with "Dr. J.S. Chadha” written under the signature.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Shirley ARVIE v. STATE FARM FIRE & CASUALTY COMPANY, et al.
    No. 13-1096.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2014.

      David T. Lawson, Gregory J. Chiartano, Morris Bart, LLC, New Orleans, Louisiana, for Plaintiff/Appellant: Shirley Arvie.
    Jackson B. Bolinger, John E. Ortego & Associates, Lafayette, Louisiana, for Defendants/Appellees: State Farm Fire & Casualty Company Charles Bourgeois.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

11 Plaintiff, Shirley Arvie, appeals the judgment rendered by the trial court in favor of Defendants, Charles Bourgeois and State Farm Fire & Casualty Company. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Arvie was involved in a one-car accident when the vehicle she was operating struck a cow on Highway 90 in Jefferson Davis Parish. The cow was owned by Bourgeois, a cattle farmer. Bourgeois maintains several pastures near his home in Jefferson Davis Parish where he raises cattle. Prior to this accident, numerous cows had knocked down Bourgeois’ fence in one of his pastures. The cows subsequently knocked down a neighbor’s fence and another fence in a third pasture that ran along the highway. Arvie subsequently hit one of these escaped cows.

As a result, Arvie suffered bodily injuries and filed suit against Bourgeois and his insurer, State Farm. Arvie alleged that Bourgeois was negligent in allowing his livestock to go at large in contravention of La.R.S. 3:2803 and for failing to take all reasonable and prudent measures and precautions to enclose his livestock.

Defendants contended that Bourgeois took all reasonable and prudent measures and precautions to enclose the livestock. Defendants alleged that a coyote caused the cattle to stampede and destroy the fence surrounding them.

Following a bench trial and after taking the matter under advisement, the trial court ruled in favor of Bourgeois and found that he did not act unreasonably.

Arvie is now before this court asserting that: (1) the trial court erred by applying the incorrect standard of law; (2) the trial court erred by finding that Bourgeois carried his burden of proof to exculpate himself by proving when, where, 12and how his livestock escaped his enclosure; (3) the trial court erred by finding that Bourgeois carried his burden of proof to exculpate himself by proving that he took reasonable and prudent precautions to enclose his livestock; and (4) the trial court erred by not awarding special and general damages.

STANDARD OF REVIEW

When a trial court makes an error of law, the appellate court is required, whenever possible, “to redetermine the facts de novo from the entire record ... and render a judgment on the merits.” Luneau v. State ex rel. Dep’t of Transp. and Dev., 03-1064, p. 8 (La.App. 3 Cir. 6/2/04), 879 So.2d 266, 272 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742). Additionally, an appellate court “may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ” Morrell v. Fisher, 08-1260, p. 3 (La.App. 3 Cir. 4/1/09), 7 So.3d 1264, 1266 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

DISCUSSION

I. Trial Court’s Application of the Standard of Law

In its Amended Reasons for Ruling (reasons), the trial court ruled in favor of Bourgeois based on La.Civ.Code 2321, which provides, in pertinent part:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

In its reasons, the court further cited La. R.S. 3:2803 which provides, in pertinent part, that “[n]o person owning livestock shall knowingly, willfully, or negligently permit his livestock to go at large upon the ... public highways of this state.”

|sThe jurisprudence interpreting La.R.S. 3:2803 provides that “[i]t is well settled that when an automobile strikes a horse or cow in a closed range area, the burden of proof rests upon the owner of the animal to exculpate himself from ‘even the slightest degree of negligence.’ ” Morrell, 7 So.3d at 1268 (citing Willis v. Lecompte, 93-167 (La.App. 3 Cir. 2/9/94), 640 So.2d 304, unit denied, 94-562 (La.4/22/94), 641 So.2d 203). Under La.R.S. 3:2803, the defendant is presumed negligent, and he must prove that he had taken reasonable precautions to keep his livestock in an enclosed area and to prove how the livestock escaped from their enclosure. Id. To rebut the presumption of negligence, a defendant must not only show that he has taken all “reasonable and prudent measures and precautions to enclose his livestock, but must also explain the presence of the animal on the highway by showing when, where, and how the animal escaped from its enclosure, that is, his complete freedom from fault.” Young v. Sentry Ins. Co., 315 So.2d 93, 95 (La.App. 3 Cir.), cert. denied, 319 So.2d 419 (La.1975) (citing Womack v. Rhymes, 300 So.2d 226 (La. App. 2 Cir.), unit denied, 303 So.2d 179 (La.1974)). “[Gjeneral evidence as to reasonable precautions is not sufficient.” Morrell, 7 So.3d at 1266.

Arvie takes issue with the trial court’s finding that Bourgeois acted as a “reasonably prudent owner of livestock.” Arvie contends that the foregoing is not the standard required to rebut the presumption of negligence that arises under La.R.S. 3:2803. Arvie alleges that there is a difference between acting reasonably and acting without the slightest degree of fault. Arvie contends that the trial court allowed Bourgeois to rebut the presumption of negligence with general evidence as to reasonable precautions, which was not sufficient to rebut said presumption. Ar-vie alleges that Bourgeois did not carry his burden of proof as he (1) did not 14prove when, where, and how his livestock escaped its enclosure and (2) failed to take all reasonable and prudent precautions to enclose his livestock.

In its reasons, the trial court cited the standard discussed above. The trial court noted that immediately after the accident, Bourgeois inspected the fence and found a large hole in the fence which was approximately thirty to forty feet across. The trial court found that based on the evidence, the fence had been pushed down by cows. It further found that Bourgeois visited his pasture at least every forty-eight hours, and he did not detect any problems when he was present.

According to the foregoing reasons, “when” the cows escaped is stated by the trial court as being within the time Bourgeois last visited the cows to feed and care for them. Bourgeois testified that he visited the cows at least within forty-eight hours of the accident. “Where” the cows escaped is stated by the trial court as being the downed fence located on Bourgeois’ property. This location is marked on the aerial map of the scene and referred by the trial court as being the downed fence. The trial court explained “how” the cows escaped by stating that “many cows pushed their way through the fence.” The trial court noted that Bourgeois presented compelling evidence indicating that a stampede occurred which caused the fence to break and the cows to escape onto the highway. The court found that it was reasonable to conclude that a coyote started the stampede given the evidence.

According to its reasons, the trial court then discussed the reasonable and prudent measures taken by the owner and made a specific finding that the “defendant acted as a reasonably prudent owner of livestock” in his efforts to inspect and maintain his fence. The trial court noted that Bourgeois testified that he had moved the cattle to the enclosure a few days before the accident and that | ^before moving the animals, he had inspected the entire fence line surrounding the pasture. The trial court stated that Bourgeois did not find any defects during that inspection. Instead of the more commonly accepted practice of placing the posts twelve feet apart, the trial court noted that the surrounding fence had a fence post placed every six feet. The trial court stated that the fence consisted of four strands of barbed wire which were routinely used by cattle ranchers in the area. The trial court indicated that Bourgeois stated that he fed the cattle every other morning and that there was no indication that there were any problems with the fence when he last fed the cattle.

Based on the above, the trial court applied the correct standard of law to the case. The trial court was not erroneous in this regard. Arvie’s assignment of error is without merit.

II. When, Where, and How Bourgeois’ Livestock Escaped

Arvie contends that there is no evidence supporting a finding of when, where, and how Bourgeois’ livestock escaped its enclosure. In opposition, Defendants contend that there is evidence supporting a finding of when, where, and how Bourgeois’ livestock escaped its enclosure.

With respect to “when,” Bourgeois testified that he was made aware of the accident at approximately six o’clock in the morning on the day of the accident. He testified that he had been to that specific pasture to feed the cows within twenty-four hours before the accident. When he fed the cattle prior to the incident, he travelled through a gate, drove his truck into the pasture, and dropped the food off for the cows. Bourgeois testified that, at that time, the cows were in the small pasture and that the fencing was fine. From this testimony, Defendants established that the cows were in the pasture within twenty-four hours before the accident and 1 cwouId have escaped between the time when Bourgeois last fed the cows and the following morning.

With respect to “where,” Bourgeois identified the location of the fencing that the fifty-three cows knocked down. He identified this location on an aerial photograph to the trial court. This was examined by the trial court and can be found in the exhibits. The photograph marks the first of the three fences that the cows went through as point number one, and Bourgeois pointed this out to the trial court during his testimony. Bourgeois identified the extent of the opening in the fence made by the cows, stating that the “posts, the wire, everything, like 50 feet long” were down on his piece of property.

With respect to “how,” Bourgeois’ testified that fifty-three cows escaped his pasture by pushing over fencing that had been in place the day before. Bourgeois pointed out to the trial court the escaped cows’ path using a map. Bourgeois testified that the cows moved first through his fencing surrounding a small pasture and then through two other fences. Bourgeois testified that the cows each weighed approximately six hundred pounds. Bourgeois also testified that there had been problems with coyotes in the area previously and that he had lost cattle as well as his dog to coyote attacks in the past. Bourgeois testified that he assumed a coyote most likely made the cows stampede through the gates and onto the highway.

Accordingly, the foregoing evidence supports a finding of when, where, and how Bourgeois’ livestock escaped its enclosure. The trial court was not erroneous in this regard. Arvie’s assignment of error is without merit.

III. Reasonable and Prudent Measures

Arvie contends that Bourgeois was at fault by failing to show that he had taken all reasonable and prudent measures to enclose his livestock. In opposition, 17Pefendants contend that the evidence shows that Bourgeois had taken all reasonable and prudent measures to enclose his livestock.

Bourgeois testified that these cows had been weaned from the mothers approximately five weeks before being moved to this pasture, and he did not feel that they would be trying to get back to their mothers. Bourgeois testified that this was a small pasture and that prior to this accident, he had re-enforced the traditional wooden fence poles with metal poles put in between each wooden post. Bourgeois testified that the foregoing method exceeded the normal way of spacing fence posts and provided a well-enclosed pasture for these cows. Bourgeois testified that these cows had only been in this pasture for about six days before the accident. Prior to moving the cows to this pasture, Bourgeois testified that he had inspected the pasture by riding the fence line the day before the cows were moved and that all fencing looked good. Bourgeois testified that there would have been no reason for the cows to look elsewhere for food as they were fed every other day.

Bourgeois also testified that he used to shoot coyotes around his property. Bourgeois testified that he curtailed his shooting after he was warned by the game warden that he could not hunt coyotes on his property without the proper permit. Bourgeois testified that getting such a permit was too burdensome. He also testified that such a permit was not effective as it required an applicant to specifically describe exactly where the applicant planned to shoot. Bourgeois testified that he used to have state officers trap coyotes around his property, although he had not used those trappers for several years prior to the accident because the trappers were no longer available.

IsBased on the foregoing, Bourgeois established that he took all reasonable and prudent measures to endose his livestock. The trial court was not erroneous in this regard. Accordingly, Arvie’s assignment of error is without merit.

IV. Damages

We will not address this assignment of error given our affirmation of the trial court’s ruling.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal are assessed against Shirley Arvie.

AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana v. Cornelius Eugene WILSON a/k/a N.O.
    No. 13-1164.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2014.
    James C. Downs, District Attorney, Thomas R. Willson, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Cornelius Eugene Wilson, a/k/a “N.O.”.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PER CURIAM.

hThe defendant pled guilty to home invasion, a violation of La.R.S. 14:62.8, and attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. The trial court sentenced the defendant to twenty years at hard labor on each count, to run concurrently with each other. Further, the trial court ordered that the first ten years of the defendant’s sentence for attempted second degree murder be served without the benefit of probation, parole, or suspension of sentence. The defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we deny defense counsel’s motion to withdraw and order additional briefing to be filed within fifteen days of the date of this opinion. We also order the State of Louisiana to file a brief within thirty days of the date of this opinion.

Discussion

The State alleged that the defendant, Cornelius Eugene Wilson, along with several accomplices, forced his way into a residence in Alexandria. The record indicates that the allegations were that the defendant and his accomplices shot one of the residents and beat another, and that they took various items from the residence. The defendant was initially charged with attempted first degree murder, a violation of La.R.S. 14:27 and La. R.S. 14:30; home invasion, a violation of La.R.S. 14:62.8; second degree kidnapping, a violation of La.R.S. 14:44.1; conspiracy to commit home invasion, a violation of La.R.S. 14:26 and La.R.S. 14:62.8; conspiracy to commit aggravated burglary, a violation of La.R.S. 14:26 and La.R.S. 14:60; and accessory after the fact, a violation of La.R.S. 14:25.

Thereafter, the defendant pled guilty to attempted second degree murder, a violation of |2La.R.S. 14:27 and La.R.S. 14:30.1, and home invasion, a violation of La.R.S. 14:62.8. Pursuant to a plea agreement, the State agreed to a sentencing cap of twenty-five years and to nolle prosequi the defendant’s other charges. At the defendant’s sentencing hearing, the trial court sentenced the defendant to twenty years at hard labor on each count, to be served concurrently with each other. The trial court also ordered that the first ten years of the defendant’s sentence for attempted second degree murder be served without the benefit of probation, parole, or suspension of sentence. A motion for reconsideration was denied.

The defendant appealed, and his appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no non-frivolous issues exist upon which to base an appeal and seeking to withdraw as the defendant’s counsel.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the appellate review of Anders briefs, stating:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

This approach was approved by the supreme court in State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176. Further, although “[a]n Anders brief need not catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit[,]” it “must preview not only the procedural history of the case and the evidence presented at trial but must also provide, as did the advocate’s brief in Mouton, ‘a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.’ ” State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 241-42.

Pursuant to Anders, appellate counsel has filed a brief which cites an excessive sentence as a potentially appealable error. However, the defendant’s appellate counsel also notes that the defendant agreed to a twenty-five year sentencing cap and that the twenty-year sentence that was imposed was below the sentencing cap. Louisiana Code of Criminal Procedure Article 881.2(A)(2) prohibits a defendant from appealing a sentence which was “imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Further, where a defendant enters into a plea agreement for a specific sentencing range or sentence, that specific sentencing range or sentence is recognized by the court at the sentencing hearing and the defendant is actually sentenced in conformity with that agreement, the defendant may not seek appellate review of his sentence. State v. Jordan, 98-101 (La. App. 8 Cir. 6/3/98), 716 So.2d 36 (quoting State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96), 684 So.2d 58). Thus, we conclude that the defendant’s appellate counsel correctly determined that the defendant cannot make a non-frivolous argument on appeal alleging that his sentence is excessive.

This court has performed a thorough review of the record, including the pleadings, minute entries, the charging instrument, and the transcript. The record indicates that the defendant was present and represented by counsel at all crucial stages of the proceedings and that he acknowledged his guilty plea on the plea Lform. Further, the record indicates that the trial court properly informed the defendant of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and discussed the defendant’s sentencing exposure for the crimes of home invasion and attempted second degree murder.

However, our review of the record reveals a potential issue for appeal which was not addressed in the Anders brief. At the guilty plea hearing, the trial court stated:

On Home Invasion, this is what the State would have to prove: That is the Unauthorized entering of an Inhabited Dwelling, or other structure, belonging to another and used in whole or in part as a home or a place of abode by a person. Where a person is present, with the intent to use force or violence upon a person of another, or to vandalize the face [sic], damage the property of another.... Attempted Second Degree Murder, I’m going to read to you the definition of Second Degree Murder, even though you’re not pleading guilty to that, because you’re charged with an attempt to do this, okay? So, Second Degree Murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of a Second Degree Kidnapping, or an Armed Robbery, even though he has no intent to kill or inflict great bodily harm — okay. And, so what you’re charged with doing, is attempting to do that. And, that is any person who having a specific intent to commit a crime, does an act for the purpose of intending directly toward the accomplishing of his object, is guilty of an attempt to commit the offense intended. And, it shall be immaterial, whether under the circumstances; he would have actually accomplished his purpose. So, what that means is, someone who has a specific intent to commit a crime, the State says that you had a specific intent to commit the crime of Armed Robbery, Second Degree Kidnapping, and Home Invasion, and you do an act for the purpose of intending directly towards the accomplishing of this object. Any act in furtherance. You sit down and you make a plan, you go to the house, you get a gun, you knock on the door, those are act[s] in furtherance. You’re guilty of and [sic] attempt to commit the offense intended. And, if the offense so attempted is punishable by death or life imprisonment, you shall be imprisoned at hard labor not less than 10, no more than 50 years, and that’s with without benefit of probation, parole or suspension of sentence. Do you understand what the State would have to prove and what the possible penalties could be?

| .^Louisiana Code of Criminal Procedure Article 556.1(A)(1) requires the trial court, in felony cases, to inform the defendant of and to determine that a defendant understands “[t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Our review of the transcript of the defendant’s guilty plea hearing indicates that an arguable basis for appeal exists with regard to whether the trial court properly informed the defendant that specific intent to kill is an essential element of attempted second degree murder. See State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434.

Accordingly, we deny appellate counsel’s motion to withdraw. Further, we order defense counsel, within fifteen days of the date of this opinion, to brief the issues of:

1) whether the trial court properly informed the defendant of the essential elements of the offense to which he pled, and

2) whether the defendant’s guilty plea was rendered involuntary as a result of any such failure. The State of Louisiana shall file a brief on the same issues within thirty days of the date of this opinion.

DECREE

For the foregoing reasons, defense counsel’s motion to withdraw is denied. Further, defense counsel is ordered to brief, within fifteen days of the date of this opinion, the issues of whether the trial court properly informed the defendant of the essential elements of the offense to which he pled, and whether the defendant’s guilty plea was rendered involuntary as a result of any such failure. The State of | (¡Louisiana shall file a brief on the same issues within thirty days of the date of this opinion.

MOTION TO WITHDRAW DENIED. ADDITIONAL BRIEFING ORDERED.


author:
KITCHENS, Justice, for the Court:
      PIERCE, Justice,

text:
    Michael A. HUSETH v. Tavia M. HUSETH.
    No. 2012-CA-01576-SCT.
    Supreme Court of Mississippi.
    April 10, 2014.

      Mark A. Chinn, Matthew Thompson, Jackson, attorneys for appellant.
    Amanda Jane Proctor, William R. Wright, Ridgeland, attorneys for appellee.

      Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. Michael Huseth (Mike) appeals the judgment of the Chancery Court of the First Judicial District of Hinds County which granted his wife Tavia Huseth (Ta-via) an award of separate maintenance, full physical custody of their son, and attorney fees. Tavia has requested attorney fees on appeal equal to half of the fees she was awarded at trial. We affirm the chancellor’s judgment in part, reverse it in part and remand the case to the chancery court, and we deny Tavia’s request for attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mike and Tavia have been married since 1998. They have one child together, who was born April 9, 1999. The couple separated in October 2011. Mike claims that the couple’s stormy relationship ended “when Tavia punched Mike in the side” and told him to pack his bags and get out. Mike claims that he had a number of pictures on his phone from previous instances of Tavia’s hitting him, which Tavia had found and erased. On the night in question, Mike took a picture of a bruise he claims to have suffered when Tavia “sucker punched” him in the kidney. According to him, when Mike said to Tavia that she could not delete the picture, she told him to pack his bags and “get the hell out of there.” At that point, Mike left. He claims that, after their separation, Tavia prevented him from seeing his son, at one point forcing him to leave the school the son attends and telling Mike that he shouldn’t be there.

¶ 3. Tavia’s version of events, which generally was not disputed by Mike, provides a more expansive story. In October 2011, the couple went to San Diego to see Mike’s son from a previous marriage as he returned home from Afghanistan. When they returned to Jackson, Mike left home and told Tavia he needed to “cool off for no more than two weeks” and get some marital therapy. Mike returned on October 27, 2011, and met Tavia for lunch. According to Tavia, when she sat down, Mike handed her his divorce attorney’s business card and told her, “It’s over.” They continued discussing the matter in the driveway of their home, and Mike kept repeating to Tavia that the marriage was over. Later that evening, Mike returned and told Tavia that he was going to come home and live with her again. That night, the two had sexual relations. The next day, Mike took their son to school and did not return. When Tavia asked him what was going on, Mike again told her that it was over.

¶ 4. The next month, Mike filed a petition for divorce based upon irreconcilable differences. . He continued to pay the household bills through January 2012. Ta-via claims that she did not want a divorce, and after two postponed mediations, Mike dismissed the complaint for divorce and filed a petition seeking sole legal and physical custody of the couple’s son. He did not ask for joint custody. Tavia filed a countercomplaint, seeking separate maintenance and custody. Prior to this separation, Mike had paid most of the household bills, but he admitted that his parents had loaned him the money to pay almost all of these amounts. Tavia alleged that she did not in any way cause Mike to leave the marital home and relationship, that she depended upon Mike to support and maintain herself and their child, and that she was therefore entitled to separate maintenance until Mike returned home. She also asked for physical custody of their son and attorney fees. Mike argued that she was completely at fault for his departure from the home, and that she specifically had asked for him to leave with no intention of reconciling.

¶ 5. The chancellor held a hearing on both parties’ pleadings on August 8 and 9, 2012. Extensive testimony was elicited regarding Mike’s income, work history, and earning potential. Over the course of the marriage, Mike held several different jobs. Mike has a degree in economics, a master’s degree in public administration, and a master’s degree in Biblical studies. He currently is the president of Lakin Enterprises, a company owned by his mother and stepfather. At the time of trial in August 2012, that company owned one rental property. Mike’s duties as president include “communicating with the attorneys ... we have and then also the CPA, and the accountant and then with the folks that lease our building over on Highway 18.” When asked whether usually there was a day in the week when he had anything to do with Lakin Enterprises, he replied, “There is not a whole lot, no. I mean I have to balance the accounts and I check the balance every day.” For this job, Mike is paid $3,709.06 per month. From 2006 to 2010, Mike also worked at the Lutheran Episcopal Services Agency (“LES”). When he was terminated in 2010, Mike was being paid $114,000 a year by LES. Since losing that job, Mike’s only source of income has been from Lakin Enterprises. Tavia is a social worker at Baptist Medical Center. She is paid approximately $5,122.16 per month after taxes.

¶ 6. Mike and Tavia gave testimony regarding their respective fitness to have custody of their son, each person’s relative earning capacity and present income, and the reasons for their separation. Mike and Tavia were cross examined thoroughly. At the hearing, Mike testified that he really wanted joint custody of their child, but had filed for sole custody on the advice of his attorney. Tavia and Mike agreed that Mike was a good father, and Tavia said she was seeking joint legal and sole physical custody of their son, with provisions for reasonable visitation for Mike. Beyond testifying about his income, Mike elaborated concerning the money he had borrowed from his parents to pay his bills, as well as the more than $200,000 house his parents had purchased for him so his son could have a good environment while visiting his father. He testified that, after the separation, Tavia would not allow him in the marital home, she had dumped all of his clothes in the driveway, and she would not permit him to retrieve his personal effects, including his bicycle. Tavia testified that she verbally had asked Mike several times to come home and he had refused. She testified that, if he asked to come home that night, she would let him.

¶ 7. The chancellor found that Tavia’s fault in causing the separation was not equal to or greater than Mike’s and awarded her separate maintenance in the amount of $3,000 per month and child support in the amount of $988 per month. The chancellor ordered Mike to bring the mortgage current and instructed Tavia to pay the $2,248 per month mortgage out of the $3,000 monthly separate maintenance payment, leaving $752 per month in additional support. To determine the amounts of these awards, the chancellor looked beyond Mike’s income from Lakin Enterprises and included the regular loans he received from his parents as well as his earning capacity to impute to him an income of $7,058 per month. The chancellor granted full physical custody of their son to Tavia and set up a visitation schedule for Mike. The chancellor also awarded attorney fees of $25,000 to Tavia, based upon her attorney’s billing sheet and testimony regarding the representation. Mike timely perfected his appeal.

TAVIA HUSETH’S MOTION TO STRIKE MIKE HVSETH’S SUPPLEMENTAL BRIEF

¶ 8. On October 1, 2013, Mike filed a supplemental brief to inform this Court of the recent decision of the Court of Appeals in Houston v. Houston, 121 So.3d 283 (Miss.Ct.App.2013). The case involved imputation of income based upon parental financial assistance. On October 7, 2013, Tavia filed a motion to strike the supplemental brief from the record. Tavia argues that citation to supplemental authority should be made only through a letter to the Court pursuant to Mississippi Rule of Appellate Procedure 28(h). She also notes that Mississippi Rule of Appellate Procedure 28(d) states that, after the appellant has filed a reply brief, “[n]o further briefs may be filed except with leave of the Court.” M.R.A.P. 28(d). Tavia also has filed with this Court a letter notifying the Court of the Houston decision, in compliance with Rule 28(k).

¶ 9. Tavia is correct. Mike filed his supplemental brief in violation of Rule 28(d) and failed to comply with the procedures of supplemental citation provided by Rule 28(k). Further, Tavia has complied with those rules and has made the Court aware of the supplemental authority at issue. We therefore grant Tavia’s motion to strike Mike’s supplemental brief.

STANDARD OF REVIEW

¶ 10. Decisions to allow separate maintenance and amounts awarded are “matters within the discretion of the chancellor. Further, these decisions will not be reversed unless they are against the overwhelming weight of the evidence.” Hants v. Hants, 690 So.2d 1151, 1153 (Miss.1997). “On appeal, this Court will not overturn the chancery court unless its findings were manifestly wrong.” Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993).

ANALYSIS

¶ 11. On appeal, Mike raises the following issues:

I. The chancellor erred in awarding separate maintenance.
II. The chancellor erred in imputing income to Mike and awarding separate maintenance in the amount of $3,000 per month.
III. The chancellor erred in awarding child support as a percentage of gross income instead of adjusted gross income and failed to properly calculate the taxes on such incorrect and imputed income for both support and maintenance.
IV. The chancellor erred in failing to award Mike joint custody, or at least more than standard time of visitation with his son.
V. The chancellor erred in awarding attorney fees and in awarding them in the amount of $25,000.

¶ 12. Tavia disputes all of this and further argues that she should be awarded attorney fees on appeal of one-half the amount awarded at trial, or $12,500.

I. Whether the chancellor erred in awarding separate maintenance.

¶ 13. “Separate maintenance is ‘a court-created equitable relief based upon the marriage relationship.” Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993) (quoting Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989)). It is a command from the court that the married couple resume cohabitation, and, failing that, the party at fault for the separation must provide suitable maintenance to his or her spouse until they are reconciled. Lynch, 616 So.2d at 296.

While the law does not require a wife who leaves her husband to be blameless, misconduct on her part which materially contributes to the separation, so that it may be said that the fault of the wife is equal to or greater than that of the husband, or that his fault was not sufficient to justify her leaving the domicile, is a defense to her suit for separate maintenance.

Robinson v. Robinson, 554 So.2d 300, 304 (Miss.1989) (quoting King v. King, 246 Miss. 798, 801, 152 So.2d 889, 891 (1963)). In other words, the chancellor may grant separate maintenance if the wife can show separation without fault on her part combined with wilful abandonment by the husband and the husband’s refusal to support her. Lynch, 616 So.2d at 296.

¶ 14. Mike argues that the evidence shows that Tavia requested the separation, and therefore, she is completely at fault for the separation. Tavia did testify that, one night, when Mike was taking a photograph of a bruise from a punch he said was administered by Tavia, she told him something along the line of, “if you are just going to sit around the house and take silly pictures like this then leave.” He also argues that she would not let him back into the home to recover his possessions, see his son, or otherwise show any indication that she wanted to resume cohabitation. He also emphasizes that, one day, Tavia told their lawn man to “tell Mike to kiss my ass.” Mike argues that Tavia’s complaints about his behavior, whether it be his drinking, affinity for pornography, or general unemployment, show that she does not want him to come back. Overall, Mike argues that the fault of the separation lies almost entirely with Tavia, or that she is at least as much at fault as he.

¶ 15. Tavia responds that Mike unequivocally abandoned the home. He left for two weeks, and when he returned, he handed her a divorce attorney’s business card and told her it was over. Mike did not dispute this. He repeated to her that it was over during the course of several hours, as the two discussed it. That night, they engaged in sexual relations; but the next morning, he left for good and again told her that it was over. She further explained that her “kiss my ass” comment was in response to the lawn man’s telling her that she had to pay him for mowing the lawn, even though Mike had told him to mow it. We conclude that Mike failed to prove any specific behavior on the part of Tavia that prompted his leaving the house. Instead, the evidence shows that Mike wanted to leave, and he left. Additionally, Tavia testified that she had asked Mike to return several times, and that if he were to ask to return that night, she would say yes. However, he did not ask to return that night.

¶ 16. Mike also argues that the chancellor applied the wrong legal standard in granting the award. The chancellor, in announcing her ruling, stated that “there must be some evidence of treatment that would rise to the level of cruelty” on the part of the wife to justify a denial of separate maintenance. Mike is correct that this is not the appropriate standard. Instead, the wife must not be at fault at a level equal to or greater than the husband, and the husband must have abandoned the home and refused support. See Lynch, 616 So.2d at 296. But, ultimately, the chancellor did not use the wrong standard. In announcing her opinion, the chancellor cited Robinson for the proposition that the court must deny separate maintenance “where the fault of the wife is equal to or greater than that of the husband.” The chancellor then looked to the conduct of the parties and found that “Mr. Huseth left the marriage with the direction that the marriage was over.” The chancellor found that the situation was one of incompatibility, looked at all of the facts presented, and determined that Tavia’s fault was not equal to or greater than Mike’s.

¶ 17. Both parties presented extensive testimony and evidence regarding the cause of the separation. The chancellor applied the correct legal standard to determine whether Tavia, as the petitioner for separate maintenance, had materially contributed to the separation to the point that she was at least as much at fault as was Mike. The chancellor did not find that she was. “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Rainey v. Rainey, 205 So.2d 514, 515 (Miss. 1967). This decision was not against the overwhelming weight of the evidence, nor was it manifestly wrong. The chancellor’s award of separate maintenance is affirmed.

II. Whether the chancellor erred in imputing income to Mike and awarding separate maintenance in the amount of $3,000 per month.

¶ 18. Mike argues that the chancellor erred in granting Tavia separate maintenance in the amount of $3,000 per month when the record showed that Mike earns only about $3,700 per month before taxes. When the separate maintenance is combined with the $988 per month that Mike must pay in child support, Mike argues that he is responsible for paying more money per month than he earns. He argues that the chancellor erred by imputing income to him based on gifts and loans from his parents as well as his earning potential.

¶ 19. This Court has held that the amount of a separate maintenance award should be enough “to provide, as nearly as possible, the same sort of normal support for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation.” Thompson v. Thompson, 527 So.2d 617, 622 (Miss.1988). “However, the allowance should not unduly deplete the husband’s estate.” Id. When making an award of separate maintenance, a court must consider:

(1) The health of both husband and wife;
(2) Their combined earning capacity;
(3) The reasonable needs of the wife and children;
(4) The necessary living expenses of the husband;
(5) The fact that the wife has free use of the home and furnishings; and
(6) Other such facts and circumstances bearing on the subject that might be shown by the evidence.

Robinson, 554 So.2d at 305 (citing Gray v. Gray, 484 So.2d 1032, 1033 (Miss.1986); Tanner v. Tanner, 481 So.2d 1063, 1065 (Miss.1985)).

¶ 20. Mike testified that his only source of income is his paycheck from Lakin Enterprises of $3,709.06 per month. After taxes, he nets $2,520.47 per month. When he was fired from his previous job at LES in 2010, he was earning $114,000 per year from that source. Since then, he says he has been searching for work ceaselessly but has been unable to find anything. Mike testified that he currently is living in a house that was purchased by his mother and stepfather for which he pays no rent. He often gets by on loans from - his parents. He testified that he probably owes his parents around $800,000. He also has a debit card for Lakin Enterprises with which he may make purchases beyond his salary if he gets approval from his parents. Tavia submitted that she earns $5,122.16 per month after taxes. She also submitted a list of monthly expenses paid by Mike, the largest of which is a $2,248 mortgage payment.

¶ 21. It is undisputed that Mike’s parents provided substantial financial assistance to him after he was discharged by LES. When he still was living with Tavia, his monthly expenses exceeded his monthly income, but he was able to meet them through loans from his parents. The chancellor noted that Mike’s parents purchased a home for him worth $275,000, for which he pays no rent. She noted that Lakin Enterprises pays for his car, car insurance, and telephone and internet bills. She found that “it’s clear that [Mike’s parents] stepped into the role of helping to provide for the expenses....” The chancellor considered this, along with Mike’s earnings at LES, as a baseline for his earning potential and imputed an adjusted gross income to Mike of $7,058 per month. She awarded fourteen percent of that, or $988, as child support. The chancellor found that a separate maintenance award of $8,000 was equitable, which was to be used by Tavia to pay her monthly expenses.

¶ 22. Mike argues that the chancellor erred in imputing to him a salary based upon loans from his parents and an earning capacity related to a salary he had been unable to attain in the two years prior to trial. Tavia argues that the chancellor did not base the award on money from his parents, but rather based it upon the expenses paid for Mike by Lakin Enterprises. The chancellor found that Mike pays no rent, no car payment, no car insurance payment, no telephone bill, and no internet bill. He has a debit card from Lakin Enterprises that he may use with his parents’ permission. Tavia argues that the monthly combined estimated value of the items and services that Mike’s parents are paying for is $4,497.15. According to her, if that value is added to his actual salary of $3,709.06 per month, then it was reasonable for the chancellor to impute an income of $7,058 to Mike.

¶ 23. The Court of Appeals recently decided a case in which gifts from parents were imputed to the salary of a spouse forced to pay alimony. In Houston v. Houston, 121 So.3d 283 (Miss.Ct.App. 2013), the Court of Appeals affirmed the chancellor’s decision to compute the wife’s income partially based upon regular gifts from her wealthy parents. There, the chancellor found that the wife’s income was “$3,000 per month based on the average value of the amount of money her parents gave her each month.” Id. at 292. The wife cited the decision in Robinson, 554 So.2d at 305, in which this Court held that it was improper to consider gratuities to the payee of separate maintenance in determining the amount of maintenance for which the payor was responsible. The wife argued that, in her case, the court should not consider gratuities given to her by her parents in determining her income. Houston, 121 So.3d at 292. In Houston, it was clear that the wife’s parents consistently had provided her an allowance of between $2,000 and $4,000 per month throughout her marriage. Id. The Court of Appeals rejected that argument, stating that the chancellor was not penalizing the wife for the gifts given by her parents. Id “Instead, the chancellor merely accepted the reality of the unique circumstances-Kellye’s parents consistently paid for practically all of Kellye’s expenses and regularly supplemented her income.” Id.

¶ 24. We are faced with a problem in this case, because the chancellor never outlined the amounts of the separate living expenses, paid for by Lakin Enterprises for Mike, upon which the imputed income amount was based. We are able to look only at the lump sum amount of the imputed income, without any consideration of the expenses that imputed income went to pay. There are other reasons that the award may have been proper. For example, the evidence admitted at trial showed that Mike’s monthly expenses, when he was living with Tavia after being laid off, were $5,741.01. When confronted with those expenses, Mike said, “That looks about right.” Those expenses included the monthly mortgage payment of $2,248. Ta-via is now responsible for paying the monthly house note out of the $3,000 separate maintenance payment from Mike. This leaves her with an additional $752 per month in support through separate maintenance.

¶ 25. In reaching her decision, the chancellor listed all of the payments made for Mike by his parents and Lakin Enterprises. She listed the house that was purchased for him, his automobile payments, and his “expenses related to telephone or technology expenses.” She continued:

And the Court does impute those payments to his income. And after the Court imputes those payments, the income is between $6,500 and $7,000 per month, a benefit that he receives. And his prior salary over the years has ranged from $90,000 approximately. I believe ... that last job was $110,000. So based upon his prior, his abilities, his earning capacity, the Court finds that it’s reasonable to impute the income to an amount of $7,058.
Now, with regard to separate maintenance, it is correct that Mrs. Huseth does make more money if you look at actual income. But, of course, if you look at the computing, imputing of the income then he does make more money.
So even if you look at the figure that the Court has imputed, even a 50 percent award would be equitable. And that amount is $3,000, which would have to be used for the payment of the expenses, which is listed on the exhibit, monthly expenses paid by Mike Huseth. And I know in the past I had divided it up into payment for specific expenses. But this will be a lump sum amount.

¶ 26. The difference between this situation and that in Houston is that the cash gifts to the wife in Houston were easily identifiable and went directly into the wife’s pocket. Here, the gifts given to Mike were payment of his living expenses, including rent, automobile payments, insurance premiums, cable and internet charges, and cell phone charges. By imputing those payments as income to Mike, without offsetting the income with the legitimate expenses paid by that income, the chancellor assumed Mike had the money available to pay separate maintenance. In effect, the chancellor determined that, hypothetically, if Mike had been paying for all of the expenses provided to him by Lakin Enterprises, and he had $3,709.56 per month left over (his actual wages from his only current job), then it would be as if he received a salary of $7,058 per month. The difficulty is that, if Mike’s income was $7,058 per month, but he was spending $3,349 per month on his living expenses, he would have only $3,709 left from which to pay child support and separate maintenance. Viewed this way, the award of $3,988 per month in separate maintenance and child support payments is erroneous, as it requires Mike to pay more money per month than he actually has. Further, because Mike nets only $2,520.47 per month after taxes, he is being ordered to pay nearly $1,500 more per month than he has available. The amount that Mike was ordered to pay for separate maintenance was calculated without appropriate regard for “[t]he necessary living expenses of the husband.” Robinson, 554 So.2d at 305.

¶ 27. This is a difficult and unique case. Mike’s living expenses are paid entirely by his parents and/or Lakin Enterprises. In addition to that, he receives a salary from Lakin Enterprises. When living with Ta-via, he somehow managed to pay more than $5,000 dollars per month in bills while netting only $2,520.47 per month in salary. This was accomplished through assistance from his parents. Now that he has moved into the house his parents purchased for him, he receives the same amount of cash, his living expenses are covered by his parents, and he contends that $3,988 per month in separate maintenance and child support is too much. Mike works minimal hours, and two years ago, he received more than $100,000 per year in wages. These circumstances are compelling in imputing additional income to Mike. However, if imputed income is applied to Mike’s actual living expenses, those expenses offset the imputed income and must be taken into account when determining the amount of separate maintenance which Mike must pay.

¶ 28. Mike is on the hook for more money than he has the ability to pay at present. While the imputation of income may have been correct, the amount of separate maintenance awarded was improperly based on the chancellor’s incorrect belief that the money was available to Mike for separate maintenance payments. Further, we are left to guess how much of the imputed income was due to Mike’s earning potential, especially in light of the fact that the chancellor’s determination of earning potential was seemingly based upon a salary that Mike had not received for two years. We require more detail in such judgments so that we may properly determine if the chancery court has abused its discretion. Accordingly, we reverse the chancellor’s determination of imputed income and award of separate maintenance, and remand the case to the chancery court for a more detailed and more accurate finding to support the amount of imputed income available for separate maintenance, and for a determination of whether an award of separate maintenance is appropriate, and that, if so, takes into account Mike’s reasonable living expenses.

III. The chancellor erred in awarding child support as a percentage of gross income instead of adjusted gross income. The chancellor failed to make specific findings of fact regarding the support and maintenance determination.

¶ 29. Mike argues that the chancellor erred in awarding child support based upon fourteen percent of his gross monthly income, rather than his adjusted gross monthly income. He argues that this is clear because the chancellor did not include a tax analysis in her determination. He also argues that it is unclear how the chancellor reached her determination of his imputed income, and that the chancellor should have included specific findings.

¶ 30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike. The chancellor’s judgment specifically stated that $7,058 per month was Mike’s imputed “adjusted gross income.” In accordance with the foregoing discussion regarding imputed income and separate maintenance, this Court requires a more detailed finding by the chancellor regarding the numbers used to support her award of imputed income. Accordingly, we reverse the chancellor’s award of child support and remand for a computation supported by her detailed computation of Mike’s imputed income. Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider

1. The health of the husband and his earning capacity.
2. The health of the wife and her earning capacity;
3. The entire sources of income for both parties;
4. The reasonable needs of the wife;
5. The reasonable needs of the child;
6. The necessary living expenses of the husband;
7. The estimated amount of income taxes the respective parties must pay on their incomes;
8. The fact that the wife has the free use of the home, furnishings, and automobile, and
9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.

Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955)).

¶ 31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So.2d 410, 422 (Miss.1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account.

IV. Whether the chancellor erred in failing to award Mike joint custody, or at least more than standard time of visitation with his son.

¶ 32. Mike argues that the chancellor failed to conduct a full Albright analysis before making her custody determination, and her determination therefore should be reversed. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Tavia counters that it was clear that the chancellor considered the factors, even though she may not have given a detailed account of her findings.

¶ 33. This area of the law is mixed in Mississippi. One commentator has noted that “[fjailure to make the required findings is one of the most common reasons for reversal of a custody award.” Deborah Bell, Bell on Mississippi Family Law § 12.03[1] (2011).

Ideally, the court should (1) list each factor; (2) if a factor is inapplicable, briefly state the reason the factor does not apply; (3) under each relevant factor, discuss the evidence as it relates to each parent; (4) under each factor, indicate which parent appears stronger; and (5) state which parent should be awarded custody, discussing the overall balance of the factors in light of the child’s best interests.

Id.

¶ 34. This Court has reversed custody determinations based upon a chancellor’s failure to make specific findings on the Albright factors. In Powell v. Ayars, 792 So.2d 240, 244 (Miss.2001), this Court reversed and remanded to the chancellor a custody determination to make findings on each applicable Albright factor. The Court “refuse[d] to attempt to correspond the Albright factors to the evidence found within the record.... ” Id. That case was reversed even though the chancellor discussed the evidence presented at trial.

¶ 35. However, in Sobieske v. Preslar, 755 So.2d 410, 411-12 (Miss.2000), this Court held that, under the circumstances of the case, the chancellor’s failure to analyze the Albright factors was not reversible error. “While it certainly would have been preferable for the Chancellor to have expressly considered each Albright factor, it is perhaps understandable that he did not do so in the present case, given that the testimony established that both [parents] were fit and loving parents.” Id. at 412. There, both parents testified that the other was a good and loving parent, and other witnesses testified to the same. Id. The Court said that it would have “greater confidence” in the ruling if the chancellor had conducted an Albright analysis, but “it can be inferred from his citation to Al-bright that he felt that both parents were fit under Albright, and we can not say that he abused his discretion in emphasizing that Carley has more friends and relatives in the Corinth area and in awarding custody to Ricky, at least in part, on that basis.” Id. at 413.

¶ 36. The facts of this case lend themselves toward the Court’s determination in Sobieske. The chancellor did not conduct a detailed analysis of the Albright factors on the record. She did state that she had weighed the factors, however. Additionally, significant evidence was adduced by each party which was relevant to the Al-bright factors and the determination of custody. In its ruling, the chancellor stated:

Based upon the Albright factors, and I can enumerate them, but in the [interest] of time, let me just say that I have weighed the Albright factors and also the actions of Mr. Huseth in leaving the family and find that the mother is awarded the primary care and custody of the minor child of the parties.

¶ 37. In her order granting sole physical custody of the child to Tavia, the chancellor stated:

It is in the best interests of the minor child that the parties share joint legal custody and that Tavia be awarded sole physical custody. Tavia and Mike are hereby awarded joint legal custody. Ta-via is hereby awarded sole physical custody of the minor child, subject to Mike’s rights of visitation as set forth below....

¶ 38. Each parent testified that the other was a good and loving parent, as in Sobieske. While Tavia expressed some complaints about Mike’s parenting, she nevertheless testified that he was a good and loving father. Additional testimony from other witnesses corroborated that assertion. The chancellor did find that it was in the best interest of the minor child to be in the sole physical custody of Tavia. Additionally, the chancellor noted that the child should have “a consistent, regular schedule at his home, which is with the mother.” This speaks to the Albright factor of stability of the home environment. Clearly, the chancellor considered it. Additionally, on appeal, Mike asserts that joint custody is in the best interest of their child. However, he never pled for joint custody. His request, as pled, was for sole custody. At trial, he testified that he wanted joint custody, but he never amended his pleadings in that regard.

¶ 39. In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor’s indication that she had considered the factors by noting the stability achieved by the child’s staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor’s custody determination. Additionally, Mike’s argument that the chancellor erred in giving him too little visitation time is without merit. The visitation schedule is within statutory guidelines, and the chancellor’s decision is not manifestly wrong or against the weight of the evidence.

V. Whether the chancellor erred in awarding attorney fees and in awarding them in the amount of $25,000, and whether this Court should award Tavia attorney fees in the amount of $12,500 for litigating this appeal.

¶ 40. The chancellor awarded Ta-via $25,000 in attorney fees, finding that the amount of $30,000 was reasonable. She assigned that amount based only upon the present separate maintenance and custody action, and not on the prior divorce action which Mike had dismissed. The chancellor found that Tavia had the ability to pay $5,000, and that Mike therefore was responsible for $25,000. Mike argues that this is excessive, and that he is unable to pay it. Tavia argues that Mike’s attempt to gain sole custody was frivolous, and that the chancellor’s award was reasonably based upon Mike’s misconduct.

¶ 41. Chancellors have broad discretion to determine attorney fees. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). “We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and of the amount of [any] award.” Id. (quoting Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988)). Initially, we find that the chancellor’s determination that $30,000 was a reasonable amount for attorney fees is supported by substantial evidence and is not manifestly wrong. The bill was admitted into evidence and the attorney testified about the reasonableness of the fees. Therefore, the amount of attorney fees is affirmed. It is another question, however, whether Mike should be responsible for $25,000 of the bill. In awarding the attorney fees, the chancellor wrote:

The Court is in the opinion that Tavia Huseth is entitled to attorney fees. Ms. Huseth has impressed upon the court her inability to pay all of her attorney fees. Additionally, there have been a number of decisions upholding the award of attorney’s fees to one party where the other party’s actions caused additional legal fees to be incurred. Chesney v. Chesney, 849 So.2d 860, 863 (Miss.2002). Testimony was offered that Michael Huseth initiated the custody action and it was meritless.

¶ 42. At trial, Tavia’s attorneys submitted their bill into evidence. Her attorney, William Wright, also testified and submitted to questioning by Mike’s attorney, Mark Chinn. Chinn stated that he did not object to Wright’s hourly rate or the rates of his staff, his qualifications, or the entries on his bill; he simply wanted to understand the necessity of all the expense. Wright contended that Mike’s petition for sole custody clearly was not made in good faith, since he had testified that he really wanted joint custody but filed for sole custody so that he could negotiate with Tavia. He also argued that Tavia was entitled to attorney fees because Mike was the one who had left the marriage and the one who had caused the chancery proceeding to occur.

¶ 43. Tavia argues that her inability to pay, combined with Mike’s allegedly frivolous suit for sole custody, justify the award. She cites the Litigation Accountability Act of 1988, which provides, in pertinent part:

[I]n any civil action ... the court shall award ... reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct. ...

Miss.Code Ann. § 11-55-5 (Rev.2004). Similarly, our Rules of Civil Procedure state: “If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.” M.R.C.P. 11(b).

¶ 44. Tavia cites this Court’s holding in In re Spencer, 985 So.2d 330 (Miss.2008), in which this Court affirmed a chancellor’s findings that several motions filed by a party were frivolous because they had no hope of success. She argues that, similarly, this chancellor awarded the fees based on Mike’s misconduct. In Spencer, this Court noted that “a pleading is frivolous ‘only when, objectively speaking, the pleader or movant has no hope of success.’” Id. at 339 (quoting City of Madison v. Bryan, 763 So.2d 162, 168 (Miss.2000)). Tavia argues that Mike’s petition for custody was frivolous, as it was intended only to bring her to the negotiating table. However, that does not mean that the petition had no hope of success. Objectively, it was possible that Mike’s petition could have been granted. Mike’s intentions in filing the pleading are irrelevant, because the pleading itself was capable of succeeding. Accordingly, the pleading is not frivolous, and Rule 11 sanctions are not appropriate.

¶ 45. However, the chancellor still has discretion to award attorney fees based upon a party’s misconduct. “A party who incurs legal fees as the result of another’s conduct may be awarded fees without regard to need.” Bell on Mississippi Family Law § 10.03[1], “There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred.” Chesney v. Chesney, 849 So.2d 860, 863 (Miss.2002). There, this Court reversed the Court of Appeals’ denial of attorney fees based upon the petitioner’s ability to pay them. Id. This Court held that the chancellor’s reasoning behind awarding the fees, which was to impose sanctions for “conduct during the pendency of the case that obstructs litigation and results in additional fees,” justified the award regardless of the petitioner’s ability to pay her attorney. Id.

¶ 46. Here, the chancellor was presented evidence regarding Tavia’s attorney fees, which totaled more than $47,000. The trial court limited the fees to the portion that was incurred in the defense of Mike’s custody petition, and found that $30,000 was a reasonable amount. She found that Mike’s petition for sole custody of the child was meritless, since he actually had wanted joint custody, and Tavia stated that the matter would have been settled long ago if that had been all that he requested. The chancellor found that Tavia could pay $5,000, and Mike could pay $25,000. Based upon Chesney, we cannot say that the chancellor abused her discretion or was manifestly wrong. Therefore, we affirm the chancellor’s award of attorney fees.

¶ 47. However, we deny Ta-via’s request for $12,500 in attorney fees on appeal. Typically, this Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial. Monroe v. Monroe, 745 So.2d 249, 258 (Miss. 1999) (quoting Klumb v. Klumb, 194 So.2d 221, 225 (Miss.1967)). In Monroe, the Court denied attorney fees because the petitioner “presented no evidence ... of the fees charged by her attorney or of the amount of work involved.” Monroe, 745 So.2d at 253. Tavia has presented no evidence of the fees charged by her attorney or the amount of work involved on appeal. Further, as noted by the Court in Monroe, the fees awarded in Klumb were awarded to the 'prevailing party. Monroe, 745 So.2d at 253. Tavia has not prevailed. Therefore, we deny her request for attorney fees on appeal.

CONCLUSION

¶48. We affirm the judgment of the chancellor in part and reverse it in part. The chancellor’s grant of separate maintenance and child support was supported by substantial evidence and was not manifestly wrong. The chancellor’s determination of the amount of imputed income was not supported by sufficient findings by the chancellor, and in the absence of her specific computation of the amount, we must reverse and remand for specific findings detailing how the chancellor arrived at that amount, and upon what she relied. Because we reverse and remand for a new finding of imputed income, we also must reverse and remand the chancellor’s determination of child support, in which the chancellor shall consider all of the facts and circumstances regarding the parties’ ability to support the child, rather than relying on the statutory guidelines. Further, the chancellor’s award of separate maintenance did not take into account Mike’s necessary living expenses, and therefore must be reversed. The amount of separate maintenance may be based upon imputed income, but the amount of that income that goes towards living expenses must be considered. The chancellor should have conducted an Albright analysis in awarding custody and visitation, but the record reveals that she did consider those factors, and the evidence supported her judgment, and we therefore affirm the chancellor’s custody and visitation determinations. We affirm the award of $25,000 in attorney fees to Tavia, because the chancellor’s decision was not manifestly wrong. Finally, because Tavia offered no evidence concerning her actual costs in litigating this appeal, we deny her request for $12,500 in attorney fees for the appeal.

¶ 49. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND CHANDLER, JJ.

PIERCE, Justice,

concurring in part and in result:

¶ 50. I respectfully concur in part and in result only. My opinion parts ways with my learned colleagues based on the majority’s use of Houston v. Houston, because I disagree with the holding in that case. Houston v. Houston, 121 So.3d 283 (Miss.Ct.App.2013). This Court was unable to speak to the issues in Houston, as writ of certiorari was not filed with this Court. As the majority opinion states, in Houston, the Court of Appeals upheld the trial court’s decision to include monetary gifts from the wife’s parents when calculating her income during the determination of whether she would be awarded alimony. Id. However, this Court has held that gratuities from parents may not be included when considering the income of the payee to determine an award of separate maintenance. Robinson v. Robinson, 554 So.2d 300, 305 (Miss.1989) (citing McNeil v. McNeil, 127 Miss. 616, 90 So. 327, 329 (1922)). Specifically, this Court has stated the following:

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

Robinson, 554 So.2d at 305 (citing McNeil, 127 Miss. 616, 90 So. at 329).

¶ 51. Because the situation before us involves a payor receiving gratuities from his parents, it differs factually from the situation in both Robinson and McNeil, where gratuities were bestowed upon the payee. Nevertheless, the analysis remains the same. Monetary gifts from Mike’s parents should not be included in the amount of imputed income. If it is found that Mike should provide separate maintenance, it is his duty alone to provide that support. Based on Mike’s education and work history, it is not improper to impute income as long as a determination of Mike’s earning capacity and current income does not include gratuities from his parents.

¶ 52. I agree with the majority’s opinion that this case should be remanded. The trial court must determine Mike’s earning capacity without any consideration of the parents’ contributions.

RANDOLPH, P.J., LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

      . “When pertinent ... authorities come to the attention of counsel after the party’s brief has been filed, ... the party may promptly advise the clerk of the Supreme Court, by letter with a copy to all counsel, setting forth the citations.” M.R.A.P. 28(k).