author: ROBERTS, J.,

text:
    George E. JACKSON, Appellant v. GSX POLYMERS, INC., and National Union Fire Insurance Company of Pittsburgh, PA, Appellees.
    No. 2011-WC-01668-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.

      Craig Robert Sessums, John Griffin Jones, Jackson, attorneys for appellant.
    Courtney Anne Titus, attorney for ap-pellees.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In 1987, the Mississippi Workers’ Compensation Commission awarded George E. Jackson benefits for Jackson’s asthma, which the Commission concluded had been aggravated by Jackson’s exposure to chemicals during the course of his employment at GSX Polymers Inc. The Commission also ordered GSX to pay Jackson’s ongoing medical expenses. In 2010, GSX moved to discharge its obligation based on new evidence that Jackson’s asthma could not have been caused by his employment at GSX and that any symptoms Jackson exhibited should have subsided no later than three months after Jackson stopped working at GSX. After the administrative judge and the Commission declined to discharge GSX’s obligation to pay Jackson’s medical expenses, the Warren County Circuit Court reversed the Commission’s decision. However, we find the circuit court erred because there was no evidence that GSX’s physician expert based his conclusion on evidence that would not have been available during the original determination. Accordingly, we reverse the judgment of the circuit court, render judgment for Jackson, and reinstate the Commission’s order.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jackson suffered an injury at work in 1987. In 1989, the Commission held that Jackson’s exposure to chemicals in the course of his employment caused or permanently aggravated his asthma. The Commission ordered GSX to pay all of Jackson’s related medical expenses. The Commission also awarded Jackson temporary total disability benefits and permanent partial disability benefits. GSX did not appeal the Commission’s decision.

¶ 3. However, in October 2010, GSX filed a motion to discharge its obligation to continue to pay Jackson’s medical expenses related to asthma. GSX argued that it should not be liable to pay Jackson’s medical expenses because Dr. William Pink-ston, who specializes in pulmonary medicine, had concluded that Jackson’s asthma was genetic and would have subsided between six and twelve weeks after his exposure to the chemicals. The administrative judge declined to grant the relief GSX requested. The Commission affirmed the administrative judge’s decision. However, the Warren County Circuit Court reversed the Commission’s decision and relieved GSX of its obligation to continue to pay Jackson’s medical expenses. Jackson appeals.

STANDARD OF REVIEW

¶ 4. “[T]he findings of an administrative agency will be binding on the appellate court so long as they are supported by substantial evidence, are not arbitrary or capricious, are not beyond the scope or power granted to the agency, [and are not in violation] of one’s constitutional rights.” Hale v. Fluor Daniel Corp., 830 So.2d 1252, 1254 (¶ 6) (Miss.Ct.App.2002) (citations omitted). We will reverse the Commission’s decision if it was “clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. Furthermore, “[t]he decision to reopen a workers’ compensation case is purely discretionary with the Commission, and the Commission’s order will not be reversed absent a clear abuse of discretion.” Id. at 1257 (¶ 22).

ANALYSIS

¶ 5. The circuit court discharged GSX’s obligation to pay Jackson’s medical expenses based on its application of Mississippi Code Annotated section 71-3-58 (Rev.2011). Section 71-3-53 provides:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, ... review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

¶ 6. The circuit court concluded that “[t]hrough research and advances in medical technology, it is now known that [Jackson’s] asthma was not caused by his employment and that any work[-]related aggravation would have only been temporary.” According to the circuit court, “[n]either the administrative ... judge nor the ... Commission gave any credence [to] or even considered the new medical evidence and testimony that was presented.” Based on the concept that there was no evidence to contradict Dr. Pinkston’s conclusions, the circuit court reversed the Commission’s decision and discharged GSX’s obligation to continue to pay Jackson’s medical expenses related to asthma.

¶ 7. During Jackson’s original hearings, the Commission heard evidence that Dr. Sarah Broom, a board-certified pulmonary internist, determined that there was a causal relationship between Jackson’s asthma and his employment at GSX. The Commission also heard evidence that Dr. Bernard Booth, a specialist in internal medicine, allergies, and clinical immunology, concluded that Jackson’s exposure to chemicals at GSX aggravated and contributed to his asthma. However, Dr. Booth doubted that the exposure to chemicals had actually caused Jackson’s asthma.

¶8. Since 1994, Dr. Todd Adkins, an allergist, has been treating Jackson. Dr. Adkins eventually diagnosed Jackson with severe persistent asthma, chronic sinus disease, allergic rhinitis, and aspirin sensitivity. Dr. Adkins also concluded that Jackson had a condition known as “Sam-ter’s triad.”

¶9. Dr. Pinkston evaluated Jackson on June 14, 2007. Dr. Pinkston diagnosed Jackson with severe aspirin-induced asthma characterized by the “triad” of asthma, aspirin sensitivity, and nasal polyps. According to Dr. Pinkston, Jackson’s asthma was “not occupationally induced.” Dr. Pinkston opined that Jackson’s asthma was aggravated by working at GSX, but the effects should have subsided within six weeks to three months of leaving his employment there. During a deposition, Dr. Pinkston explained that Jackson did not develop Samter’s triad because he had been exposed to something. Dr. Pinkston elaborated that people suffer from Sam-ter’s triad because “[fit’s the way they’re built.” According to GSX, Dr. Pinkston’s diagnosis means that any treatment Jackson received after the time identified by Dr. Pinkston would have no causal relationship to his exposure to chemicals at GSX.

¶ 10. “Upon proper proof of ‘change of conditions’ or ‘mistake in the determination’ of facts, the [C]ommission must not abuse its discretion or arbitrarily refuse to reopen and review a case[.]” N. Miss. Med. Ctr. v. Henton, 317 So.2d 373, 375 (Miss.1975). Jackson claims that GSX failed to sufficiently prove that Dr. Pink-ston’s opinion is based on medical science that was not available at Jackson’s 1987 hearing. We agree. GSX merely argues that “[t]he causes and cures of asthma and [Jackson’s] condition of Samter’s triad had not been as thoroughly researched in 1987.” GSX also claims that “not all of the symptoms necessary to identify [Jackson’s] Samter’s triad had manifested themselves to a point the condition could be diagnosed at the time of the original hearing.” GSX cites no expert testimony or other authority to support its contentions. The Mississippi Supreme Court has held that “an application to reopen a[w]ork[ers’] Compensation case under ... section 71-3-53 ... is not to be used as a substitute for the right of appeal[.]” Henton, 317 So.2d at 376. Based on the lack of proof that Dr. Pinkston’s conclusion was based on evidence that was not available during Jackson’s original hearing before the Commission, we find the circuit court erred when it reversed the Commission’s decision. Accordingly, we reinstate the Commission’s order.

¶ 11. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED, AND THE COMMISSION’S ORDER IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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


source: Caselaw Access Project

license: Public Domain

text:
    Victoria Sebren MAY, Appellant v. James Hilliard MAY, Appellee.
    No. 2012-CA-00402-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2013.

      William Andy Sumrall, attorney for appellant.
    Stanley Alex Sorey, Raleigh, Keely Rose McNulty, Magee, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Victoria Sebren May appeals the Simpson County Chancery Court’s decision to award custody of her son, Eli, to his father, James Hilliard May, after she and James received an irreconcilable-differences divorce. Victoria claims the chancellor improperly applied four of the familiar factors from Albright v. Albright, 437 So.2d 1003 (Miss.1983). However, we find no merit to Victoria’s claims. Accordingly, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. James and Victoria May were married on June 15, 2002. They separated on November 3, 2009. They later divorced because of their irreconcilable differences. At the time the parties went before the chancellor, James and Victoria’s son, Eli, was seven years old. Both James and Victoria sought custody of Eli. James and his parents, Hilliard and Mary, testified that James should have primary custody of Eli. However, Victoria and her parents, Kenneth and Connie, testified that Victoria should have primary custody of Eli.

¶ 3. Ultimately, the chancellor awarded custody of Eli to James. According to the chancellor, the following factors favored awarding custody of Eli to James: the age, health, and sex of the child; employment of the parent and responsibilities of that employment; and the home, school, and community record of the child. The chancellor held that the stability of the home environment and employment of each parent favored Victoria. However, the chancellor found that the remaining factors did not favor either James or Victoria. Victoria received visitation, and the chancellor held that Victoria was to pay James $300 per month in child support. Victoria appeals the chancellor’s decision to award custody of Eli to James.

STANDARD OF REVIEW

¶ 4. In domestic-relations cases, our standard of review is limited. In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010). The findings of the chancellor “will not be disturbed unless [they are] manifestly wrong or clearly erroneous.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (citing Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002)). “Under the standard ... utilized to review a [chancellorj’s findings of fact, particularly in the areas of divorce, alimony and child support, [the appellate court] will not overturn the [chancellor’s decision] on appeal unless [his] findings were manifestly wrong.” Wood, 35 So.3d at 512 (¶ 8) (quoting Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000)).

ANALYSIS

¶ 5. Victoria claims the chancellor erred in his application of the following four factors listed in Albright: continuity of care prior to the separation; parenting skills and the willingness and capacity to provide primary child care; employment of each parent and responsibilities of that employment; and the home, school, and community record of the child. The chancellor found that the first and second factors did not favor either Victoria or James. However, the chancellor found that the third and fourth factors favored James.

¶ 6. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). We are prohibited from substituting our judgment for the chancellor’s. Id. We may only reverse a child-custody determination if the chancellor was manifestly wrong, clearly erred, or applied an erroneous legal standard. Id. When a chancellor properly applied and considered the child-custody factors from Albright, there is no manifest error. See Smith v. Smith, 614 So.2d 394, 397 (Miss.1993).

¶ 7. “Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, it “is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So.2d 135, 141 (¶ 21) (Miss.Ct.App.2005). In Albright, the Mississippi Supreme Court gave a list of factors to consider to help chancellors “navigat[e] what is usually a labyrinth of interests and emotions.” Lee, 798 So.2d at 1288 (¶ 15) (citing Albright, 437 So.2d at 1005). The Albñght factors provide chancellors guidance, not a mathematical formula. Id. “[E]ven when the trial judge sensitively assesses the factors noted in Albright and [its] progeny, the best the judiciary can offer is a good guess.” Love v. Love, 74 So.3d 928, 932 (¶ 17) (Miss.Ct.App.2011) (quoting Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991)).

¶ 8. An Albright analysis is not premised solely on a scoring system to determine which parent “wins.” Blakely v. Blakely, 88 So.3d 798, 803 (¶ 17) (Miss.Ct.App.2012) (citing Lee, 798 So.2d at 1288 (¶ 15)). “Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision.” Id. And our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. See id. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor. We turn to Victoria’s claims on appeal.

I. Continuity of Care Prior to Separation

¶ 9. Victoria’s entire argument under this heading is as follows:

[Victoria] testified that she was the one [who] took [Eli] to the doctor for every visit. [James] would sometimes go with [Victoria] and [Eli,] but [Victoria] was always the primary person for doctor[’]s visits. In fact, on cross[-]examination[,] [James] state[d] that he had taken [Eli] to the doctor once. “Well, I took him to ... his pediatrician. It’d be about three or four. But Victoria mainly took him because she was able to get paid for taking off — she had time off. And me, if I missed a day, I missed a pay check. So she mainly took him.” [James], over the course of the marriage[,] had six different jobs. [Victoria] testified that she was the one who got [Eli] ready for school as [James], when not working, would sleep in. [Victoria] was the one who got [Eli’s] clothes ready[] and ironed. When [Victoria] and [Eli] did not eat at [James’s] parents’] home, [Victoria] did the cooking. [James] admitted he did not do much cooking. “I very seldom — I mean, I can do soup. I can do soup and grill stuff. That’s about all I can handle.”

Victoria did not cite any authority to support her argument that the chancellor improperly found that this factor did not favor either party. Her failure to cite relevant authority obviates our obligation to review this issue. Mann v. Mann, 904 So.2d 1183, 1185 (¶ 12) (Miss.Ct.App.2004) (citation omitted). Simply citing the Al-bright factors provides us with no insight as to how the chancellor erred when he concluded that this factor did not favor either James or Victoria.

¶ 10. Rather than relying on authority, Victoria invites this Court to simply reweigh the chancellor’s findings of fact. “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)). Victoria did not go into any more detail regarding her claim that the chancellor erred in his application of this factor. Apparently, the crux of her argument is that the chancellor should have weighed this factor in her favor because she took Eli to the majority of his doctor’s appointments, cooked for the family when they did not eat at James’s parents’ house, and got Eh ready for school in the mornings. In any event, the chancellor also heard evidence that James took Eli to at least some of Eli’s appointments with medical professionals. Because the chancellor heard evidence that James and Victoria divided the labor involved with Eli’s care, we do not find that the chancellor erred when he found that this factor weighed evenly between James and Victoria.

II. Parenting Skills and Willingness and Capacity to Provide Child Care

¶ 11. Victoria claims the chancellor erred when he found that this factor did not favor James or Victoria. Victoria’s entire argument under this heading is as follows:

The [chancellor] found this factor to be equal. However, the [c]hancellor erred in this as he gave [James] the benefit of his mother’s capacity to provide primary care for the child. Despite [James]’s father’s hard[-]to[-]believe claim that [Victoria] would push [Eli] away so he couldn’t get in her lap, [Victoria] was the one with the better parenting skills and willingness to care for [Eli]. As previously discussed, [James] would sleep in while [Victoria] got [Eli] ready for school. [Victoria] took [Eli] to the doctor and cooked. After the separation, when [Eli] failed two eye exams and had to get glasses, [James] did not take [Eli], [Victoria] had [Eli] and [James] on her insurance. [James] obtained insurance through his most recent employment but failed to notify [Victoria] of same, costing [Victoria] an unknown amount of money. [James] did not place [Eli] on his insurance when [James] obtained it. [James] testified that he and [Eli] are best friends. Being a child’s best friend, as opposed to a parent, is not the best parenting skills [sic]. The record is replete with examples of [James]’s mother doing any parenting that is done by or for [James], [James]’s mother testified that “[typically, when James is with Eli, he and I leave the house around ten minutes to seven ... [,][a]nd I meet him in the afternoon when his bus comes in.” [James’s mother also testified that Eli] “goes to school, [and] I pick him up [in] the ... same spot I do every afternoon. We come home. We get started on homework.”

¶ 12. Again, Victoria cites no authority for her argument under this heading. Again, her failure to cite relevant authority obviates our obligation to review this issue. Mann, 904 So.2d at 1185 (¶ 12) (citation omitted). As for whether the chancellor should have believed James’s father’s testimony that he had “seen [Eli] try to get in [Victoria’s] lap, and she’d push him back,” it is not this Court’s position to weigh the credibility of a witness’s testimony. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Barnett v. Oathout, 883 So.2d 563, 566 (¶ 6) (Miss.2004).

III. Employment of Each Parent and Responsibilities of that Employment

¶ 13. Next, Victoria argues that the chancellor mistakenly applied the factor that involves the employment of each parent and the responsibilities of that employment. The chancellor weighed that factor in James’s favor. Victoria does not specify whether she is of the opinion that the chancellor should have weighed that factor in her favor or whether the chancellor should have weighed that factor evenly between her and James. Instead, Victoria simply notes that James had six different jobs during the course of her nine-year marriage to James. She then notes each of their hours and draws our attention to James’s testimony that he could not take off work without losing a portion of his pay, while Victoria could take off work more easily. Finally, Victoria elaborates on the fact that James bought her father’s gutter business and later sold it to pay delinquent bills. Victoria added that James “ran the business so poorly, [James’s] bank account was levied after the separation by the State Tax Commission.”

¶ 14. The manner in which James ran the gutter business he purchased has no bearing on the factor over which Victoria laments. Furthermore, Victoria did not cite any authority to support her argument that the chancellor improperly found that this factor favored James. Again, the failure to cite relevant authority obviates our obligation to review this issue. Mann, 904 So.2d at 1185 (¶ 12) (citation omitted).

IV. The Home, School, and Community Record of the Child

¶ 15. Finally, Victoria takes issue with the chancellor’s decision that Eli’s home, school, and community record weighed in favor of awarding James custody of Eli. Victoria’s entire argument under this heading is as follows:

As has been discussed above, [James] is being given the benefit of his mother’s direct, constant participation in [Eli’s] life.... [Victoria] testified that she was living with her parents in Puckett, Mississippi. The parties, prior to the separation, lived in the Everett community of Simpson County, Mississippi. [Eli] attends school in Magee. The [chancellor] found that the parties had split the difference between Puckett and Magee. [Eli] would not be appreciatively closer to school living with [James] [rather] than with [Victoria]. [Victorians mother works the same hours as [James]’s mother, and thus has as much time to care ... for [Eli] until [Victoria] gets home as does [James]’s mother. In fact, [Eli] would have his maternal grandmother, maternal grandfather, and maternal great[-]grandmother to care for him prior [to] [Victoria] returning home from work. [Eli] previously attended day care in Puckett, played sports in Puckett, prior to the year of the separation, and has as many friends in Puckett as he does in Magee as well as other family at the school in Puckett.

¶ 16. Yet again, Victoria did not cite any authority to support her argument that the chancellor improperly found that this factor favored James, which obviates our obligation to review this issue. Mann, 904 So.2d at 1185 (¶ 12) (citation omitted).

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

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


author: ISHEE, J.,

text:
    Howard HALL, Appellant v. Varnell LEWIS, Appellee.
    No. 2011-CA-01827-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.

      James D. Moore, Tupelo, attorney for appellant.
    Valarie B. Hancock, Tupelo, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On August 27, 1999, Howard Hall and Varnell Lewis executed an “Intervi-vous and Testamentary Contract” (contract), and a respective will each. The contract provided property interests for each party in certain property located in Itawamba County, Mississippi, which was titled in Hall’s name alone. The property included a home built and paid for by Hall. Each party’s will devised the property’s ownership to the other upon that party’s death. However, in 2005, the relationship between Hall and Lewis ended. That year, Hall changed his will to reflect the passing of ownership in the property to his children as the sole heirs. He later denied Lewis’s request to move a mobile home onto the property, at which point Lewis sought legal action in the Itawamba County Chancery Court against Hall to enforce the contract. After a trial took place, the chancery court awarded Lewis $40,000, but determined that Hall’s payment of the money would fulfill the contract’s terms and dissolve any interests Lewis may have had pursuant to the contract or the wills. Aggrieved, Hall appeals claiming the chancellor erred by awarding Lewis money through the contract’s terms. Finding no error, we affirm the chancery court’s judgment.

STATEMENT OF FACTS

¶ 2. Prior to Hall’s purchase of the property, he and Lewis were involved in a romantic relationship for several months. In 1998, Hall purchased the property, which is titled in his name alone. He then built a home on the property. The property is valued at approximately $80,000.

¶ 3. In 1999, Hall and Lewis executed the contract which stated the following:

WHEREAS the parties to this contract have a mutually rewarding relationship, in which each has contributed to the acquisition of certain property and the improvement and enjoyment of said property, and
WHEREAS[] the parties are desirous of providing for the future of each party and the sure inheritance of the property, and
WHEREAS[] each party has this day executed an Individual Last Will and Testament providing for the inheritance of their property, (a copy of the deeds describing said property being attached hereto), and
WHEREAS each party wants to secure the future ownership of the property, or of any property which replaces this in the future,
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), cash in hand paid, and other good and valuable consideration flowing between the parties, the receipt and sufficiency of all of which is hereby acknowledged, we, Howard Hall and Varnell Lewis, do hereby pledge that Varnell Lewis shall have a life estate in and to the attached described property, and that in the event that the property is sold during her lifetime, she will be entitled to one-half of the proceeds from the sale, and shall in addition be entitled to a life estate in any property acquired to replace this property, and that the Last Will and Testament executed by Howard Hall and Varnell Lewis on [the] 27th day of August 1999, shall remain in full force and effect and may not be changed by either party. We further agree that a violation of this agreement may result in a suit for damages for the value of the property.

Each party then'executed a will devising the property’s ownership in its entirety to the other party upon that party’s death.

¶ 4. In 2005, the couple ended their relationship. Hall soon changed his will to reflect the inheritance of the property by Hall’s grown children as the sole heirs, with Lewis not receiving any interest in the property. In 2007, Lewis attempted to move a mobile home onto the property. She asserted that the contract granted her adequate property rights to do so. Nonetheless, Hall refused to allow Lewis’s mobile home on the property.

¶ 5. Lewis soon filed a complaint in the chancery court seeking enforcement of the contract. After a trial on the merits, the chancery court determined that the contract was valid and binding. As such, the chancery court stated: “[P]ursuant to the last sentence of [the] contract concerning damages, the [c]ourt is of the opinion that Ms. Lewis should be and is hereby awarded a judgement [sic] against Mr. Hall in the amount of $40,000, which is one-half of the value of the property.” The chancery court went on to note that “by paying this $40,000, Mr. Hall has satisfied all the terms of the contract. There is no longer a life estate in any property, and all restrictions are lifted from the property in question, both [the] personal property and the real property.”

¶ 6. Hall appeals, claiming the chancery court erred in awarding Lewis $40,000. Hall asserts the contract did not represent a meeting of the minds between himself and Lewis. Accordingly, he claims the chancery court erred by enforcing the contract.

DISCUSSION

¶ 7. Our scope of review of a chancellor’s decision is limited. Howard v. Gunnell, 68 So.3d 589, 597 (¶ 16) (Miss.Ct.App.2011). ‘We acknowledge that this Court will not disturb a decision of a chancellor absent a finding that he or she is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. (citation and quotation omitted). Nonetheless, we are not required to engage in an analysis of any decision when the appellant’s argument is not supported by authority. Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citation omitted). “Failure to cite authority to support an argument renders an issue procedurally barred.” Wackenhut Corp. v. Fortune, 87 So.3d 1083, 1094 (¶ 35) (Miss.Ct.App.2012) (citation omitted).

¶ 8. The appellant provides this Court with a nineteen-page brief, but fails to cite a single authority for his claims. As such, we are procedurally barred from adjudicating his appeal. However, assuming ar-guendo that Hall’s claim is not procedurally barred, it is without merit.

¶ 9. Hall’s challenge to the contract is predicated upon the notion that the signature on the document is not Hall’s and that the contract is unconscionable because it prevents him from devising the property to his chosen heirs. However, with regard to Hall’s claim that he did not sign the contract, the contract was notarized and witnessed by paralegal Kimberly Fears, who attested to the parties’ signatures on the contract. This is valid evidence in itself that the signature on the contract is Hall’s. This issue is without merit.

¶ 10. Additionally, Mississippi law provides that a contract to devise or bequeath property by will is enforceable. Williams v. Mason, 556 So.2d 1045, 1048 (Miss.1990) (citing Trotter v. Trotter, 490 So.2d 827, 830 (Miss.1986) (citation omitted)). With regard to oral promises to devise property, the Mississippi Supreme Court has held that “[a] will, when written in conformity and compliance with the agreement, was a consideration which belonged to the appellee. The testator had no right to revoke it, and its attempted revocation, if deliberately made, constituted a fraud upon [the appellee.]” Johnston v. Tomme, 199 Miss. 337, 347, 24 So.2d 730, 732 (1946).

¶ 11. Here, not only did Hall’s and Lewis’s wills reflect the agreement between them, the agreement itself was written by an attorney, signed by both parties, and notarized. This constitutes “clear, definite[,] and certain evidence” of the parties’ intentions. Trotter, 490 So.2d at 830. Hall’s assertion that the contract is unconscionable is, therefore, also meritless. Accordingly, we cannot find error in the chancery court’s enforcement of the contract.

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

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


author: ROBERTS, J., CARLTON, J., FAIR, J.,

text:
    Steve E. HOLLIS, Appellant/Cross-Appellee, v. Myra Hollis BAKER, Appellee/Cross-Appellant.
    No. 2011-CA-00799-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.

      Mark G. Williamson, Starkville, attorney for appellant.
    Joseph N. Studdard, Columbus, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal requires this Court to address whether a provision in a property-settlement agreement is alimony subject to termination upon the remarriage of the alimony recipient. Steve Hollis and Myra Hollis Baker were granted a divorce on April 17, 2003, on the ground of adultery. Hollis and Baker entered into a written agreement disposing of the issues of child custody, child support, alimony, and division of property. This agreement was approved by the Oktibbeha County Chancery Court as adequate and sufficient, and it was incorporated into the divorce decree. The agreement required Hollis to pay $500 per month in child support and $500 per month in alimony to Baker. The chancery court later reduced the alimony amount from $500 to $350 on July 17, 2006, based upon a material change in circumstances. Then, on December 7, 2010, Hollis filed a petition to terminate child support and alimony because Baker had remarried in April 2010 and their daughter had reached the age of twenty-four. The chancery court denied Hollis’s request to terminate alimony because the provision in the parties’ agreement did not specifically state that the alimony obligation terminated upon Baker’s remarriage. Hollis filed a motion for reconsideration and Baker filed a cross-motion for reconsideration. The chancery court denied both motions. Aggrieved by the chancery court’s decision, Hollis executed the current appeal. Baker cross-appealed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hollis and Baker were married on August 24, 1973. Together, they had one daughter named Stephanie Holly Hollis (Holly) born in May 1985. On November 7, 2002, Baker filed a complaint for divorce from Hollis on the ground of adultery. Hollis answered Baker’s complaint and filed a cross-complaint for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.

¶ 3. On April 17, 2003, the chancery court entered a final decree of divorce granting Baker a divorce from Hollis on the ground of adultery. The chancery court approved and incorporated the parties’ proposed written agreement disposing of child custody, child support; alimony, and property division into the final decree. The agreement gave full physical and legal custody of Holly to Baker, with Hollis receiving reasonable visitation rights. Hollis was ordered to pay $500 per month in child support and to pay for Holly’s health insurance. Both obligations terminated when Holly finished college, turned twenty-four, or was otherwise emancipated, whichever occurred first. He was also ordered to pay Baker’s health insurance “until she remarrie[d].” Baker was required to pay Holly’s college tuition while she was a freshman and sophomore, with Hollis responsible for her remaining college years. In regard to alimony, the agreement stated that Hollis would pay Baker $500 per month in alimony. He would be required to “increase alimony to $1,000 ... per month beginning the month after child support ceases, to continue for the life of [Baker].” If Baker died, Hollis would be required to pay “these $1,000 per month payments ... to the minor child” until his death. Hollis was also ordered to establish a trust for Holly and to fund the trust with $25,000 from the sale of his father’s property. In addition, Hollis was to pay Baker $25,000 from the sale of his father’s property. The parties’ marital property, such as cars, retirement accounts, and personal belongings, was also distributed by the agreement.

¶ 4. Hollis filed a petition for modification on October 21, 2005, requesting that he no longer pay Baker alimony, provide her health insurance, or pay for Holly’s college tuition. His petition claimed that he was unable to afford the payments because there was a “substantial decrease in his income which has hampered his ability to pay his financial obligations;” therefore, his income had significantly decreased. On July 17, 2006, the chancery court made a judicial determination that these monthly spousal support, payments were alimony and reduced Hollis’s monthly alimony payment from $500 to $350, but denied his remaining requests. Baker did not appeal this judgment modifying alimony. The chancery court also found in this July 17, 2006 decree that Hollis owed Baker $6,082 for past due medical bills and that he had failed to establish a $25,000 trust for Holly. Hollis was found in contempt for failing to establish the trust. Hollis filed bankruptcy on July 26, 2006, and was discharged on November 29, 2006.

¶ 5. Hollis again failed to fulfill his obligation to pay Baker $6,082 in medical bills, $5,292 in health-insurance payments, $1,201.14 and $1,280.19 in other medical expenses, $1,200 in attorney’s fees, and $25,000 for Holly’s trust. Baker filed a petition to find Hollis in contempt. Hollis contended that his filing of bankruptcy discharged those debts; however, the chancery court disagreed and, on May 21, 2007, found Hollis was required to pay Baker the above amounts plus $750 in attorney’s fees. Holly also received a judgment against Hollis for the $25,000 owed to her trust.

¶ 6. On December 7, 2010, Hollis filed a petition to terminate child support and alimony. Holly had turned twenty-four years old on May 28, 2009, and Baker had married Stan Baker in April 2010. According to his petition, Hollis claimed that the child-support payments were still being automatically deducted from his paycheck even though Holly had reached the age of twenty-four the year before. He requested the chancery court enter an order terminating his child-support obligation and that he receive a credit of $9,000 for his overpayment. The credit would be used against the balance of what he owed to Baker from the May 21, 2007 judgment of $15,805.33. He also requested the chancery court approve an arrangement that he pay Baker $250 per month until the remainder of the judgment against him was paid off. Lastly, he requested that his alimony obligations be terminated since Baker had remarried and no longer required spousal support from him. Baker filed a counterclaim requesting the chancery court find Hollis in contempt for his failure to comply with the May 21, 2007 judgment.

¶ 7. The chancery court issued its order on April 11, 2011. Hollis was given credit for $5,500 in child-support payments and $2,500 in payments he had made toward the judgment. Hollis was left with a balance of $7,805.33 plus interest. The chancery court terminated his obligations to pay child support but not his obligation to pay Baker alimony. As for Hollis’s alimony payments, the chancery court found that Hollis should continue paying $850 in alimony because he and Baker had intended for the alimony to be extended beyond possible remarriage by stating in their agreement that the payments would last until Baker’s death. Hollis was found in contempt for his failure to pay alimony and other expenses; therefore, he was also required to pay Baker $1,500 in attorney’s fees, to be paid within sixty days of the order.

¶ 8. Both Hollis and Baker filed motions for reconsideration. Hollis sought reconsideration on the issue of alimony; Baker sought reconsideration on the issue of the amount owed to her under the judgment. She alleged that Hollis owed her $13,305.33 and not $7,805.33 because he should not have received credit for child-support payments. The chancery court denied both motions on May 17, 2011. Hollis executed his notice of appeal on June 6, 2011, and Baker executed her notice of cross-appeal on June 17, 2011.

¶ 9. On appeal, Hollis raises the following issue: “[Whether the chancery court] erred in concluding that [Hollis] had an obligation of support to his former wife, [Baker], through periodic alimony payments after the time that she had remarried to another husband.” Baker’s issue on cross-appeal is whether the chancery court erred in calculating the past-due payments owed to her.

STANDARD OF REVIEW

¶ 10. A chancery court’s final judgment receives much deference on review from an appellate court. Holley v. Holley, 892 So.2d 183, 184 (¶ 6) (Miss.2004). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, [was] clearly erroneous[,] or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 782 So.2d 876, 880 (¶ 13) (Miss.1999)).

ANALYSIS

I. Alimony

¶ 11. Over fifteen years ago, the Mississippi Supreme Court urged parties, attorneys, and judges to carefully draft property-settlement agreements to avoid future confusion and litigation over ambiguously drafted provisions. McDonald v. McDonald, 683 So.2d 929, 932-33 (Miss.1996). In McDonald, the supreme court stated:

[ The] freedom to contract is not absolute, however, and parties and judges should be mindful of the traditional characteristics of lump[-]sum and periodic alimony in drafting their agreements and decrees for alimony payments. When possible, it would be advisable for parties and judges to pattern their alimony agreements and decrees for non-modifiable lump[-]sum alimony according to established precedent of this Court.

Id. at 932. The case before us is illustrative of the need for clear and careful drafting of property-settlement agreement provisions, particularly as these provisions relate to periodic monthly payments being considered by the parties as alimony or as a contractual division of marital property.

¶ 12. Hollis’s sole issue on appeal involves the chancery court’s finding that the provision in the agreement regarding alimony required him to continue paying Baker alimony even after she remanded. According to Hollis, this alimony provision is permanent periodic alimony, making it subject to termination upon remarriage of the alimony recipient.

¶ 13. There are four types of alimony available in Mississippi: periodic, lump sum, rehabilitative, and reimbursement. West v. West, 891 So.2d 203, 212 (¶ 20) (Miss.2004). “As a general rule, periodic alimony has no fixed termination date; instead, it automatically terminates at the death of the obligor or the remarriage of the obligee.” Id. at (¶ 21) (emphasis added). There is no dispute that permanent periodic alimony is modifiable and terminable even within the context of a property-settlement agreement. See Taylor v. Taylor, 392 So.2d 1145, 1146-47 (Miss.1981); Stone v. Stone, 385 So.2d 610, 613 (Miss.1980); Hughes v. Hughes, 221 Miss. 264, 268, 72 So.2d 677, 678 (1954). Additionally, it is accepted that there are other provisions of a property-settlement agreement that are not modifiable. See McDonald v. McDonald, 683 So.2d 929, 932-33 (Miss.1996). Ultimately, the issue before us is whether the chancery court erred in determining that this provision was a property settlement provision and not permanent periodic alimony subject to termination upon remarriage of the recipient.

If 14. At issue is a portion of the agreement titled Child Custody and Property-Settlement Agreement that was signed by both Hollis and Baker prior to their divorce and incorporated into their divorce decree by the chancery court. Among other things, this agreement detailed the amount of alimony Hollis would pay Baker. Paragraph IV, subsection H of the agreement provides as follows:

[Hollis] shall pay [Baker] $500 ... in alimony per month beginning on the first day of the month after the sale of the marital home is finalized. [Hollis] will increase alimony to $1,000 ... per month beginning the month after child support ceases, to continue for the life of [Baker]. In the event [Baker] dies, these $1,000 ... per month payments shall be made to the minor child until the death of [Hollis].

¶ 15. This provision was modified by the chancery court on July 17, 2006. The chancery court stated in its July 17, 2006 decree and judgment that “the alimony [Hollis] is currently paying should be reduced from the sum of $500 ... per month, to $850 ... [per] month, effective July 1, 2006.” By modifying this provision, the chancery court acknowledged that this alimony was permanent periodic alimony and not some type of hybrid of alimony and property settlement as Baker claims. It is well settled that permanent periodic alimony is subject to modification and ceases upon the recipient’s remarriage or the payor’s death. See McDonald, 683 So.2d at 931; Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995); Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990); Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981).

¶ 16. In the dissent authored by Judge Fair, he would find that the chancellor was correct in viewing Hollis’s obligation to continue paying alimony as a non-modifiable contract obligation between the parties. To support this position, he cites to In re Kennington’s Estate, 204 So.2d 444, 445 (Miss.1967) involving a settlement agreement between husband and wife that he would pay her a monthly sum until she died or was remarried and that it would be a binding obligation upon his estate. The following language was included in the provision:

[Husband] shall pay [wife $750] on June 1, 1954, and [$750] on the first day of each successive month thereafter throughout the lifetime of said [wife], or until she remarries. If she remarries, this [provision] shall thereafter be ineffective but this [provision] shall not be affected by the death of [husband]. [Husband] binds himself, his heirs, executors and assigns, to this covenant and obligation to her even after his death.

Id. at 445-46. In its opinion, the supreme court quoted the following language of the chancery court’s opinion: “The attorneys for the respective parties understood the legal differences between alimony and a property settlement and carefully and skillfully avoided the death of the then husband having any affect on the agreed payment each month.... In the [above-quoted provision] of this agreement[,] there is no doubt as to the intention of the parties.” Id. at 447. The supreme court then stated that “[i]t was the manifest intention of the parties that the obligation to make the payment should survive the death of [husband].” Id. at 449. We submit that the facts of the current case are easily distinguishable from the facts in Remington primarily on the ground that the provision in the current case is completely silent as to whether alimony terminates upon her remarriage. In the above quoted language of Remington, the provision explicitly states that it is the intent of the parties to have the $750 payments continue beyond the husband’s life. Thus, it was abundantly clear that as long as wife did not remarry, she was entitled to payment by either husband or husband’s estate for the remainder of her life.

¶ 17. The provision in the current case is simply silent on whether Hollis would continue paying Baker alimony after her remarriage. Moreover, in the present case, a prior judicial determination that the monthly payments for support were alimony subject to modification had been made by the chancellor, a determination from which Baker did not appeal. Such circumstance did not exist in Remington. Without such an explicit provision requiring Hollis to continue alimony payments beyond Baker’s remarriage, we decline to require Hollis to continue such payments. Baker has a new husband capable of providing adequate spousal support.

¶ 18. Because this type of alimony terminates upon the subsequent marriage of the recipient, Hollis’s obligation to continue paying Baker alimony was terminated when Baker remarried in April 2010; therefore, we reverse and render the chancery court’s decision on this issue and the finding that Hollis was in contempt for his missed alimony payments after Baker remarried.

II. Past-Due Payments

¶ 19. In her cross-appeal, Baker submits that the chancery court erred by reducing the judgment Hollis owed her. The chancery court reduced the $15,805.33 judgment against Hollis by $5,500 and $2,500, making the total he owed $7,805.33 plus four percent interest per year until the judgment is paid. We find that the chancery court erred in calculating the credit Hollis received; therefore, we reverse and remand this matter to the chancery court for a determination of the proper amount Hollis may owe on the judgment.

¶ 20. According to the original agreement, Hollis was required to pay $500 in child support until Holly turned twenty-four, finished college, or was emancipated, whichever occurred first. Also, the agreement required that Hollis pay Baker $500 in alimony per month, and alimony would increase to $1,000 per month after his child-support obligations ended. The chancery court subsequently modified Hollis’s alimony payment from $500 per month to $350 per month until his child-support obligations ended on May 28, 2009. However, the language requiring him to pay Baker an additional $500 in alimony once child-support obligations ended was not modified. Under the agreement, Hollis should have paid Baker a total of $850 per month from June 2009, the end of his child-support obligations, until April 2010, Baker’s remarriage. He did not do so.

¶ 21. Instead of paying Baker $850 per month, Hollis paid her $750 per month. Of the $750, $500 was withheld from Hollis’s paycheck as child support. The other $250 was to pay toward the $15,805.33 judgment. But according to the provision in the parties’ agreement, the amount Hollis owed Baker in alimony would increase upon the ending of his child-support obligation; therefore, it appears to us that the $5,500 credit was granted in error. The $500 per month, even though withheld from his cheek as child support, was still owed by Hollis under the alimony provision. Granting Hollis a $500 credit for those payments would result in Baker only receiving $250 per month to go toward the judgment and nothing for alimony during the period of ten months after Holly turned twenty-four and before Baker remarried. Moreover, it is impossible for us on appeal to determine how much, if any, alimony Hollis has continued to pay Baker since the entry of the decree entitling him to credit for those amounts as well.

¶ 22. Therefore, we reverse and remand this issue for the chancery court to determine the proper amount of money Hollis may owe Baker.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS REVERSED AND RENDERED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

LEE, C.J., GRIFFIS, P.J., AND MAXWELL, J., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J.; FAIR, J., JOINS IN PART. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND ISHEE, JJ. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 24. I respectfully dissent from the majority’s opinion. The majority errs in stating that the alimony awarded in this case is periodic alimony and therefore subject to modification. The agreement incorporated into the divorce decree specified a duration of monthly alimony payments in providing that Hollis would pay Baker alimony until either of their deaths, and the agreement provided that if Baker died, then Hollis was required to make the payments to their minor child instead of Baker. The agreement in the divorce decree did not order a monthly payment amount with no fixed duration or payment period, such that the termination date would be set by operation of law upon the death of either party. Therefore, the majority errs in identifying and treating the alimony award as periodic alimony, which is subject to modification. See East v. East, 493 So.2d 927, 931-38 (Miss.1986).

¶ 25. The agreement incorporated into the divorce decree specifies termination events and contains an expressly defined duration, and the terms fail to identify remarriage of Baker as a termination event. Hollis cannot now rewrite their prior agreement incorporated into the underlying divorce decree. The failure of the agreement, incorporated into the decree, to use the words “lump sum” is not fatal. Cunningham v. Lanier, 589 So.2d 133, 137 (Miss.1991); Bowe v. Bowe, 557 So.2d 793, 794-95 (Miss.1990)(finding that provision included in the divorce judgment requiring husband to pay wife $5,000 in monthly installments of $200 per month constituted lump-sum alimony, rather than periodic alimony).

¶ 26. In Chroniger v. Chroniger, 914 So.2d 311, 315 (¶¶ 13-14) (Miss.Ct.App.2005), this Court recognized that even though alimony may have a superficial similarity to payments of periodic alimony, the alimony award of thirty-six fixed monthly payments in fixed amounts constituted lump-sum alimony, not subject to modification. “[W]hat is commonly referred to as lump[-]sum alimony is that ordered by a court in such form and manner that from the outset it becomes fixed and irrevocable.” Bowe, 557 So.2d at 795. “Lump[-]sum alimony may be payable in a single lump[-]sum or in fixed periodic installments. It may be payable in cash or in kind or in combination thereof.” Id.

¶ 27. Based on the foregoing, I respectfully dissent.

BARNES, J., JOINS THIS OPINION. FAIR, J., JOINS THIS OPINION IN PART.

FAIR, J.,

dissenting:

¶ 28. I join the majority in urging that agreements between divorcing spouses should be drafted carefully to avoid future confusion and litigation. The agreement drafted in this case required interpretation, and the chancellor found that it provided “alimony” payments following the wife’s remarriage were no longer alimony but contractual in nature. His determination was supported by evidence in the record and within the chancellor’s discretion under Mississippi law. I would affirm, and therefore respectfully dissent.

¶ 29. In re Kennington’s Estate, 204 So.2d 444, 447 (Miss.1967), involved a settlement agreement that provided for postmortem “alimony” payments. As in this case, the agreement contradicted the established nature of periodic alimony — alimony terminates on the payor’s death just as it does on the payee’s death or remarriage. Id. at 446. Nevertheless, the Mississippi Supreme Court, without dissent, found the Kenningtons’ agreement enforceable because of its origin in contract; the post-mortem payments required by the agreement were not alimony but contractual obligations. Id. at 450. The court added that contractual rights in support agreements that vary from established concepts of spousal support may be enforced through civil contractual remedies. Id. They may not be enforced by “the drastic remedies provided by law — contempt proceedings,” which are limited to necessary support whether it is agreed upon or judicially imposed. Id. The court specifically held:

(1) The contract is valid and the obligation assumed by Kennington under it as to the monthly payments is binding upon his estate.
(2) This obligation rests upon contract, the post-mortem payments are not alimony.
(3) Being purely contractual obligations, liability is absolute, not contingent, and may be dealt with as provided [by the existing law] relating to unmatured claims against estates of decedents.

Id. (emphasis added).

¶ 80. Relying on Kennington, the right of spouses to contract and have that contract enforced in post-divorce proceedings was upheld unanimously in Burnett v. Burnett, 362 So.2d 828 (Miss.1978). In that case, the court upheld and enforced an agreement that after divorce the ex-wife would remain an heir-at-law of the ex-husband and be entitled to regular support “if the same becomes necessary during the remainder of her natural life.” Id. at 828-29. When the ex-husband died, the court required that she receive “an interest in his estate to the extent of a child’s part in this case, an undivided one-fifth (1/5) interest” Id. at 830. Citing Kennington, the court held that the provision for the ex-wife’s status as an heir “amounted to either an agreement for support or a property settlement....” Id. at 829. The right to enforce a contract between divorced spouses has been acknowledged most recently in Lestrade v. Lestrade, 49 So.3d 639 (Miss.Ct.App.2010). This Court unanimously held that “this is not equitable distribution; we are addressing a property settlement agreement, a contract between the parties.” Id. at 645 (¶ 22).

¶ 31. Because the chancellor properly viewed the post-remarriage obligation of Hollis to Baker as a contract between the parties, and not alimony, I would affirm his judgment.

BARNES AND ISHEE, JJ., JOIN THIS OPINION.

      . Chroniger v. Chroniger, 914 So.2d 311, 315 (¶ 13) (Miss.Ct.App.2005) (monthly payments in fixed amount agreed to in property settlement were clearly lump-sum alimony and not subject to modification).

      . See, e.g., Boone v. Boone, 80 So.3d 150, 156 (¶ 20) (Miss.Ct.App.2012) (“Property settlements that are incorporated into a divorce decree become part of the final judgment for all legal intents and purposes.”).


text:
    Eric WARD a/k/a Eric Laquintay Ward, Appellant v. STATE of Mississippi, Appellee
    No. 2011-CP-00957-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.

      Eric Ward, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In October 2010, Eric LaQuintay Ward was charged in the Grenada County Circuit Court with sexual battery. Ward later pleaded guilty to the charge. Since he was on probation at the time of his arrest and plea, his sentence was enhanced. The circuit court sentenced Ward to thirty years, with eighteen years to serve in the custody of the Mississippi Department of Corrections (MDOC) followed by twelve years of post-release supervision (PRS). Ward then filed several motions requesting post-conviction relief (PCR). The circuit court denied the motions in an order entered in March 2011. Ward filed another PCR motion on May 20, 2011. The circuit court dismissed the motion as a subsequent writ. Ward now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Ward was charged in Duck Hill, Mississippi with sexual battery of a female in October 2010. Ward pleaded guilty to the charge on the same day. The prosecution advised Ward that it had recommended to the circuit court a sentence of thirty years, with eighteen years to serve in the custody of the MDOC, followed by twelve years on PRS. The circuit court accepted the State’s recommendation, and Ward was sentenced accordingly.

¶ 3. After Ward was sentenced, he filed several PCR motions, which the circuit court denied in an order dated March 1, 2011, which the circuit court treated as a PCR motion. Ward subsequently filed another PCR motion titled “Motion for Probable Cause” on May 20, 2011. The circuit court dismissed Ward’s last PCR motion for being barred as a subsequent writ. Aggrieved, Ward appeals the circuit court’s judgment.

DISCUSSION

¶ 4. We review a circuit court’s denial of a PCR motion under a clearly-erroneous standard of review. Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010) (citation omitted). Mississippi Code Annotated section 99-39-23(6) (Supp. 2012) applies to successive writs and provides that an issue raised by a prisoner and addressed in a final judgment with specific findings of facts and conclusions of law cannot be raised by the movant again. Any motion filed after entry of the final judgment which asserts the same issue is proeedurally barred as a successive writ.

¶ 5. Here, in the circuit court’s order dismissing Ward’s PCR motion, the court referenced a prior PCR motion filed by Ward in March 2011. The circuit court went on to note Ward’s instant PCR motion was barred as a successive writ. However, since the first PCR motion and the order denying the PCR motion are not before us in the record, this Court is unable to determine whether Ward’s current PCR motion falls within the purview of a successive writ. As such, we will address Ward’s claims on the merits.

¶ 6. While Ward asserts seven issues on appeal, he only asserted the following two issues in the circuit court in his PCR motion: that his guilty plea was not voluntarily and intelligently entered, and as a result, that he received ineffective assistance of counsel. We have held that “issues not raised [in the circuit court] may not be raised on appeal.” Willis v. State, 66 So.3d 740, 743 (¶ 12) (Miss.Ct.App.2011) (citation omitted). As such, we will only review Ward’s claims of an involuntarily, unintelligently entered guilty plea and ineffective assistance of counsel.

¶7. When reviewing the volun-tariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Additionally, “[t]he burden of proving that a guilty plea [is] involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. (citation omitted).

¶ 8. Ward’s claim that his guilty plea was not voluntarily or intelligently entered rests on his assertion that he was misinformed as to the maximum and minimum sentences available to him for the crime of sexual battery. He bases this argument upon his guilty-plea petition, which lists the possible sentence as “0 to 3 years[’] imprisonment and/or a fine of $0 (minimum) to $10,000 (maximum).” However, immediately thereafter, the petition also states:

I also know that the sentence is up to the [c]ourt; that the [c]ourt is not required to carry out any understanding made by me and my attorney with the [district [attorney; and further, that the [c]ourt is not required to follow the recommendation of the [district [a]ttor-ney, if any. The [district [ajttorney ... shall make no recommendations to the [c]ourt concerning my sentence except as follows: 30 years; after serving 18 years to be on post[-]release [supervision] for 12 years.

¶ 9. Furthermore, during the plea hearing, the following dialogue ensued:

The court: Do you understand you could be sentenced anywhere from suspended jail time up to thirty years and be fined no fine up to $10,000?
The defendant: Yes, sir.
The court: And I see the petition says zero to three years, which I believe your attorney forgot to write the zero out there, but he did tell you the maximum was thirty years; is that correct?
The defendant: Yes, sir.

¶ 10. Additionally, Ward acknowledged that he was on probation or parole at the time of his plea. His guilty-plea petition stated that by pleading guilty, his probation or parole may be revoked, resulting in a sentence of an additional fifteen years’ imprisonment that may be consecutive to or in addition to his sentence for sexual battery.

¶ 11. Accordingly, Ward was aware the prosecution would seek the sentence imposed. While the minimum and maximum sentences written on the guilty-plea petition may have been incorrect, the circuit court noted the typographical error, and Ward admitted he understood the possibility of receiving up to thirty years in prison. Moreover, he was aware that any sentence he received could be enhanced by up to fifteen years due to his status as a probationer or a parolee. As such, Ward had full knowledge that he could be sentenced to thirty years in the custody of the MDOC. He was also aware of the prosecution’s recommendation that he serve eighteen years of his sentence in prison and twelve years on PRS. Since Ward was fully informed of the potential sentence he faced by pleading guilty, this issue is without merit.

¶ 12. Finally, Ward bases his claim of ineffective assistance of counsel on his assertion that he was allowed to plead guilty unknowingly and involuntarily. Finding our holding regarding Ward’s guilty-plea claim to be dispositive of his ineffective assistance of counsel claim, all of Ward’s issues are meritless.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT. JAMES, J„ NOT PARTICIPATING.


author: CARLTON, J.,

text:
    Corian D. BYERS a/k/a Corian Dandre Byers, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01706-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.

      Corian D. Byers, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Corian Byers appeals the Warren County Circuit Court’s order dismissing his motion for post-conviction relief (PCR). Byers raises the following assignments of error: (1) whether the indictment was defective; (2) whether his trial counsel rendered ineffective assistance; (3) whether he entered an intelligent and voluntary guilty plea; and (4) whether he was entitled to an evidentiary hearing. Finding no error, we affirm.

FACTS

¶ 2. On May 10, 2007, a grand jury before the Warren County Circuit Court indicted Byers for drive-by shooting under Mississippi Code Annotated section 97-3-109(1) (Rev.2006). Byers’s indictment stated, in part, as follows:

INDICTMENT
DRIVE[-JBY SHOOTING
The Grand Jurors of the State of Mississippi, elected, summoned, empaneled, sworn and charged to inquire in and for Warren County, State of Mississippi, at the term aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present that Corian Dandre Byers and Rico Larence Thomas on or about February 10, 2007, in the County aforesaid, and within the jurisdiction of this Court did attempt, other than for lawful self[-] defense, to cause bodily injury to another, or caused such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle in violation of [section] 97-3-109(1), contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

On June 4, 2010, Byers pled guilty to the charge. The trial court sentenced Byers to ten years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended, followed by five years of post-release supervision.

¶3. Byers thereafter filed a PCR motion, which the trial court dismissed. Byers now appeals, asserting the following: that his indictment was defective due to insufficient notice of the charge against him; that his counsel at trial rendered ineffective assistance of counsel by failing to object and by allowing him to plead guilty to a defective indictment; and that his plea was unknowing and involuntary based on similar grounds.

STANDARD OF REVIEW

¶ 4. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 858, 860 (¶ 10) (Miss.Ct.App.2011).

DISCUSSION

¶ 5. Byers argues that his indictment for drive-by shooting was fatally defective because it did not contain the word “serious” before the words “bodily injury.” Since “serious bodily injury” is included in the elements of drive-by shooting, Byers claims that the indictment, as worded, failed to provide sufficient notice to allow him to defend against the charge. “The supreme court [has] stated that ‘Rule 7.06 of the Mississippi Uniform Rules of Circuit and County Court ... provides what is required to be provided in an indictment.’ ” Gordon v. State, 977 So.2d 420, 429 (¶ 27) (Miss.Ct.App.2008) (quoting Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss.2006)); see also Caston v. State, 949 So.2d 852, 858 (¶ 14) (Miss.Ct.App.2007) (finding that an indictment that complied with Rule 7.06 and gave the defendant notice of the charges against him was legally sufficient).

¶ 6. “Additionally, the inclusion of the specific subsection of the statute under which the defendant was charged has been held to provide actual notice of the crime charged.” Gordon, 977 So.2d at 429 (¶ 27) (citing Caston, 949 So.2d at 858 (¶ 13)). Significant to the resolution of this issue raised in this appeal, the indictment in its text sets forth the Mississippi Code section charged in citing to Mississippi Code Annotated section 97-3-109(1), the applicable statute for drive-by shooting. By setting forth the statutory section charged, the indictment gives Byers sufficient notice, meeting the requirements of Rule 7.06 and due process. See, e.g., Gordon, 977 So.2d at 429 (¶ 27). As such, we find Byers’s indictment to be legally sufficient. This issue is without merit.

¶ 7. Byers also argues that his trial counsel rendered ineffective assistance, but his ineffective-assistance-of-counsel claim rests upon his claim of a defective indictment. Byers claims that his counsel rendered ineffective assistance by failing to object to the indictment and allowing him to plead guilty to the allegedly defective indictment for drive-by shooting. Byers also faults his counsel for not being more diligent on his behalf.

¶ 8. In order to succeed on an ineffective-assistance-of-counsel claim, Byers must prove that his counsel rendered ineffective performance, which prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record shows that Byers indicated his satisfaction with the advice and services provided by his trial counsel. When asked whether his trial counsel properly represented him in his case, Byers responded affirmatively. Byers also admitted under oath he was guilty of the crime to which he pled guilty. Furthermore, since we have already determined that Byers’s indictment provided him with sufficient notice under Rule 7.06 by setting forth the Mississippi Code section for the offense charged, we find that Byers failed to meet even the first prong of Strickland. Byers assertion of ineffective assistance of counsel lacks merit.

¶ 9. Byers next argues that he entered an involuntary and unintelligent guilty plea. When determining whether a plea is freely and voluntarily entered, this Court considers if “the defendant knows what the elements are of the charge against him[,] including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Kelley v. State, 913 So.2d 379, 382 (¶ 5) (Miss.Ct.App.2005). “Specifically, the defendant must be told that a guilty' plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. (quotation marks omitted). The plea colloquy shows that the trial court fully questioned Byers on his understanding of the offense charged and its elements, and his knowledge of the consequences of the guilty plea. Byers indicated his knowledge of the charge, the maximum sentences available, and what rights he waived by entering his guilty plea. Byers also admitted under oath that he was not threatened, coerced, or promised anything to plead guilty. We find no merit to this issue.

¶ 10. Mississippi Code Annotated section 99-39-11(2) (Supp.2012) provides that a trial court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any reliefi.]” The trial court’s dismissal of Byers’s PCR motion is consistent with the evidence presented in the record. Thus, we affirm the circuit court’s judgment.

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

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

      . Byers also pled guilty in a different cause number to uttering a forgery. For this conviction, the trial court sentenced Byers to two years in the custody of the MDOC and ordered him to pay restitution to the victim of the crime. The trial court ordered this sentence to run concurrently with Byers's sentence for his conviction of drive-by shooting.

      . Section 97-3-109(1) provides that:
      [a] person is guilty of a drive-by shooting if he attempts, other than for lawful self-defense, to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle.


author: MAXWELL, J„

text:
    Tommie HARRIS a/k/a Tommie C. Harris a/k/a Tommie Harris, Jr. a/k/a Dic, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01312-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J„

for the Court:

¶ 1. Tommie Harris challenges the sufficiency of the evidence supporting his child-exploitation conviction. A jury found him guilty of violating Mississippi Code Annotated section 97-5-33(6) (Supp.2012), which prohibits anyone from knowingly enticing, inducing, persuading, seducing, or soliciting a child to meet with him or any other person “for the purpose of engaging in sexually explicit conduct.”

¶ 2. At trial, Harris admitted sending a series of late-night text messages to his girlfriend’s fourteen-year-old daughter expressing his sexual attraction to her and that he wanted to touch her behind. Harris was inside the young girl’s residence, just down the hall from her bedroom, when he sent these messages. Viewing the evidence in the light most favorable to the State, including the nature of the various texts and Harris’s close physical proximity to the child while texting her, the jury could have reasonably inferred Harris was trying to entice or solicit the child to meet him to engage in sexually explicit activity. We therefore affirm Harris’s conviction and sentence.

Background

¶ 3. Harris had been in a long-term relationship with Teresa Gregory. Though Harris did not live with Gregory and her three daughters, he did have a key to her house and was often there — even at times when Gregory was not. Gregory’s oldest daughter referred to Harris as her “step,” as in stepfather, due to their close relationship.

¶ 4. Late one night, after the oldest daughter had gone to her room to sleep, Harris sent her a text message. Harris, who was down the hall in Gregory’s living room, asked the daughter if she was still awake. When she replied yes, Harris texted that he had something to tell her. Harris then proceeded to send her a series of messages about how he was sexually attracted to her. He mentioned that she was sexy and fine and that he wanted to know if her behind was soft. Harris asked if he could touch her behind. The daughter testified that her initial reaction was that Harris must be joking. But when the messages continued, she rebuked Harris, telling him that he needed to go somewhere and pray and that she thought of him as a father.

¶ 5. The messages ended with Harris instructing the daughter to erase the messages he had just sent. But the daughter did not erase the messages. Instead, the next day she showed them to a woman at church and her mother, who contacted law enforcement. Harris was charged with exploitation of a child in violation of section 97-5-33(6).

¶ 6. A jury trial commenced in the Lowndes County Circuit Court, and at the close of the State’s case-in-chief, Harris moved for a directed verdict. He argued the State had failed to prove child exploitation because his text messages did not support an enticement, inducement, persuasion, or solicitation to meet with Harris to engage in sexually explicit conduct. This motion was denied.

¶ 7. Harris testified in his defense. He maintained that the reason he sent the messages was to shock Gregory into breaking up with him. According to Harris, he had tried several times to break up with Gregory but could not end the relationship because Gregory threatened suicide each time he mentioned leaving her. Harris acknowledged the prurient content of his messages and that he should not have sent them. But he insisted he had not intended to entice or solicit the daughter to meet him to engage in sexual activity.

¶ 8. The jury found Harris guilty of child exploitation. And the circuit judge sentenced Harris to twenty years in the custody of the Mississippi Department of Corrections, with ten years to serve and ten years suspended. He also ordered Harris pay a $50,000 fine, of which $45,000 was suspended, and to register as a sex offender. The circuit court denied Harris’s motion for a judgment notwithstanding the verdict or a new trial.

¶ 9. Harris appeals, arguing his motions for a directed verdict and/or a judgment notwithstanding the verdict should have been granted.

Discussion

¶ 10. Motions for a directed verdict and a judgment notwithstanding the verdict test the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the denial of either, we “view[ ] the evidence in the light most favorable to the prosecution” and ask if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” based on that evidence. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Viewing the evidence in this light, we find a rational juror could have found Harris guilty of child exploitation beyond a reasonable doubt.

A. Mississippi’s Child-Exploitation Statute

11. To find Harris guilty of child exploitation, the jury had to find that Harris, “by any means including computer, [did] knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with [him] or any other person for the purpose of engaging in sexually explicit conduct.” Miss.Code Ann. § 97-5-33(6).

¶ 12. Harris clearly knew he was messaging Gregory’s fourteen-year-old daughter, who by statutory definition was a “child.” See Miss.Code Annotated § 97-5-31(a) (Rev.2006) (explaining that a “child” is “any individual who has not attained the age of eighteen (18) years”). In these messages, he communicated his sexual attraction to her and expressed his desire to engage in sexually explicit conduct with her. “Fondling or other erotic touching of the ... buttocks” is by statutory definition “sexually explicit conduct.” Miss.Code Ann. § 97-5-31 (b)(vi) (Rev.2006). And Harris specifically asked the daughter if her behind was soft and if he could touch it.

¶ 13. Section 97-5-33(6) does not require that any actual, physical sexual act occur. Nor must an actual, confirmed meeting be set or take place. Rather, the mere attempt to exploit a child is enough. As our supreme court recently explained, because “[solicitation is sufficient to violate” section 97-5-33(6), the statute is violated and the crime of exploitation is complete when one attempts to exploit a child. Schaffer v. State, 72 So.3d 1070, 1072 (¶¶ 4-5) (Miss.2011); cf. State v. Farrington, 161 N.H. 440, 20 A.3d 291, 296 (2011) (holding that “[n]owhere in the plain and ordinary meaning” of New Hampshire’s similarly worded child-exploitation statute is there “any requirement that the defendant must explicitly or affirmatively ask the victim to engage in sexual [conduct]”). So the pertinent inquiry is whether Harris, by knowingly communicating to the child his desire to engage in sexually explicit conduct with her, was attempting to entice, induce, persuade, seduce, or solicit the child to meet him to engage in that conduct.

B. Enticement or Solicitation

¶ 14. We realize the State is seldom privy to direct evidence of intent because of the obvious impossibility of peering inside a defendant’s mind. Thus, the question of whether Harris intended to exploit the young child was “a question of fact to be gleaned by the jury.” Shanklin v. State, 290 So.2d 625, 627 (Miss.1974). In evaluating Harris’s underlying intent, the jury was free to consider Harris’s acts, expressions, and declarations coupled with the facts and circumstances surrounding him at the time. Id, Based on the. content of his communications to the child and the particular context in which they were made, we find the jury could have reasonably decided Harris was trying to entice, induce, persuade, seduce, or solicit Gregory’s daughter to meet him for the purpose of engaging in sexually explicit conduct.

¶ 15. The meanings of these charging verbs — entice, induce, persuade, seduce, and solicit — “draw upon the common theme of tempting, attracting or leading someone astray.” Farrington, 161 N.H. 440, 20 A.3d at 296. Indeed, “entice” means “[t]o lure” or “wrongfully solicit.” Black’s Law Dictionary 611 (9th ed.2009). Considering Harris’s late-night communications, which expressed his desire to engage in sexually prohibited conduct with the child and were sent while he was just down the hall from her bedroom, the jury could have reasonably concluded he was attempting to lure or tempt her to meet him to engage in the requested conduct.

¶ 16. We also note that Harris need not have actually succeeded in luring the daughter to meet him to complete the exploitation. As our supreme court recently recognized, the “solicitation” itself— which is defined as “the act or an instance of requesting or seeking to obtain something” — is alone sufficient to violate the child-exploitation statute. Schaffer, 72 So.3d at 1072(5) (quoting Black’s Law Dictionary 1520 (9th ed.2009)). So Harris’s text to the child asking if he could touch her buttocks could qualify as criminal child-exploitation if the jury deemed he was soliciting a sexual encounter -with her, which it obviously did.

¶ 17. For these reasons, we find sufficient evidence supports Harris’s child-exploitation conviction. Thus, we find the circuit judge did not abuse his discretion in denying Harris’s motions for a directed verdict and/or a judgment notwithstanding the verdict.

¶ 18. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF EXPLOITATION OF A CHILD AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE, TEN YEARS SUSPENDED, AND FIVE YEARS POST-RELEASE SUPERVISION, TO PAY A FINE OF $50,000, WITH $45,000 SUSPENDED, AND TO REGISTER AS A SEX OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . The statute also forbids a person to "advise, coerce, or order” a child to meet with him to engage in sexually explicit conduct. Miss. Code Ann. § 97-5-33(6). Because Harris's indictment did not charge him with advising, coercing, or ordering a child to meet with him, these prohibited actions will not be discussed.

      . The record does not contain the exact wording of the messages. Though law enforcement attempted to record the messages by taking pictures of the daughter’s phone, the pictures were too distorted for the messages to be legible. But Harris conceded that his messages did in fact contain what the daughter testified they contained — expressions of his sexual attraction to her, questions about her buttocks, and a request to touch her buttocks.

      . Harris was also charged with fondling and statutory rape based on other accusations the daughter made during the investigation. The jury found him not guilty of these charges.


author: IRVING, P.J.,

text:
    Darryl R. NEWSON a/k/a Darryl Newson a/k/a Darryl Roychanna Newson a/k/a Power Pak, Appellant. v. STATE of Mississippi, Appellee.
    No. 2011-KA-01732-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.

      David L. Walker, attorney for appellant.

      Office of the Attorney General by Ladonna C. Holland, Scott Stuart, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On September 13, 2011, a jury convicted Darryl R. Newson of felony shoplifting. The Tate County Circuit Court sentenced him as a habitual offender to five years in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole or probation. Feeling aggrieved, Newson appeals and argues that the circuit court erred in denying his post-trial motions and in sentencing him to the maximum term allowed without conducting a proportionality analysis.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 30, 2010, Newson entered the Shell Gas Mart in Senatobia, Mississippi. Barbara Hill, the store’s cashier, was mopping the floor as Newson and other customers entered. Hill finished mopping the floor and took her position at the cash register. Newson stood at the end of the counter — out of Hill’s eyesight. While Hill was completing a transaction with Rebbie Bobo, her first customer, Bobo whispered to her that Newson was stealing. Hill looked in Newson’s direction but did not see him take anything. Lyvae Gardner, another customer, also told Hill that she had witnessed Newson steal boxes of Black & Mild cigars. According to Gardner, Newson held the boxes underneath his arm. When Newson exited the store, Hill called the store’s manager, Monica Kelly, to report the incident. Hill then exited the store and confronted Newson in the store’s parking lot about the stolen property. Newson insisted that he had not stolen anything from the store.

¶ 4. After confronting Newson in the parking lot, Hill went back into the store, and Newson followed her. He told her that he did not get the Black & Mild cigars from the Shell Mart but had purchased them at another store and wanted to sell them to the Shell Mart. At trial, Hill testified that, after Newson left the premises, she found the Black & Mild cigars on the floor inside the store. According to Hill, Newson left the store when it became obvious that she was going to call the police.

¶ 5. Bobo testified that while she was paying for her items, Newson was standing at the counter to her right. She saw Newson reach over the counter, grab several boxes of cigars, and hide them in the waistband of his jeans. When she left the store, Newson followed her, got into the backseat of her car, and asked her to drop him off at a corner. When she refused, Newson got out of the car. She witnessed Hill confront Newson about stealing the cigars, but she left the store soon after the confrontation started.

¶ 6. Gardner testified that she and New-son had two minor altercations at the store on the day of the incident. Inside the store, Newson accused Gardner of “watching him” while she stood in line to pay for gas. Gardner told Hill that she saw New-son reach behind the counter and get boxes of Black & Mild cigars, which he held underneath his arm. After leaving the store, Newson confronted Gardner in the store’s parking lot. She said that Newson cursed at her for watching him and for telling Hill what he had done. When Hill confronted Newson in the parking lot, she also asked Gardner to come back into the store and give her name and number. Gardner left the store after she gave her information to Hill.

¶ 7. Detective Lisa Sanders, with the Senatobia Police Department, interviewed Newson at the Tate County Jail. Before beginning the interview with Newson, Detective Sanders obtained court abstracts from the Senatobia Municipal Court confirming that he had two prior shoplifting convictions within the past seven years. Detective Sanders testified that she read Newson his Miranda rights, which he waived. During the interview, Newson told Detective Sanders that he had gotten the Black & Mild cigars from behind the counter at the store and that he had intended to steal them. However, he said that he decided not to take the cigars when Bobo said that she might have a job for him. Newson was steadfast in the interview that he threw the cigars on the floor before leaving the store.

¶ 8. During his trial testimony, Newson confirmed that he had intended to steal the cigars from the store. He testified that he abandoned his plan to steal the cigars because Bobo said that she had a job for him and because Gardner was watching him. Newson denied leaving the store with the cigars, and he denied hiding the cigars in his clothing or underneath his arm. He also denied ever telling Hill that he had gotten the cigars from another store and wanted to sell them to her store.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Post-Trial Motions

¶ 10. Newson argues that the circuit court erred in denying his post-trial motions. Specifically, Newson contends that he was entitled to a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV).

a. Motion for a New Trial

¶ 11. “A motion for a new trial challenges the weight of the evidence.” Knight v. State, 72 So.3d 1056, 1064 (¶ 81) (Miss.2011) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). An appellate court will not disturb a jury’s verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)). Additionally, an appellate court must view the evidence in the light most favorable to the verdict. See id. at 1065 (¶ 34).

¶ 12. Newson contends that, as a matter of law, he cannot be convicted of shoplifting because he did not leave the premises with the merchandise. We disagree. Mississippi Code Annotated section 97-23-93(1) (Rev.2006) provides that shoplifting is committed when a defendant “wilfully and unlawfully take[s] possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store[,] or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant’s stated price[.]”

¶ 13. By definition, physically removing the merchandise from the merchant’s premises is not an essential element of the crime of shoplifting. Instead, the crime is completed at the moment that the defendant takes possession of the merchandise with the intention of taking the merchandise without paying for it. See Sykes v. State, 846 So.2d 307, 309 (¶ 9) (Miss.Ct.App.2003). Here, Newson admitted that he took the cigars from behind the counter at the Shell Mart. He admitted to Detective Sanders that he intended to steal the cigars and resell them later. Therefore, Newson had completed the crime of shoplifting at the moment that he took possession of the cigars with the intent to take them without paying for them. Whether he left the premises with the cigars is of no moment. As such, this issue is without merit.

b. Motion for a JNOV

¶ 14. Newson also contends that the circuit court erred in denying his motion for a JNOV because the State did not prove the essential elements of shoplifting beyond a reasonable doubt. A motion for a JNOV challenges the legal sufficiency of the evidence. Knight, 72 So.3d at 1063 (¶ 24). If, after viewing all credible evidence in the light most favorable to the State, reasonable jurors “could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.” Id. (internal quotations omitted) (citing Bush, 895 So.2d at 843 (¶ 16)).

¶ 15. As previously discussed, the crime of shoplifting is complete at the moment that the defendant takes possession of the property with the requisite criminal intent. Newson admitted to Detective Sanders that he took possession of the cigars without paying for them and intended to steal them. While there was conflicting testimony regarding whether Newson left the store with the cigars under his arm or in the waistband of his jeans, this testimony is irrelevant because leaving the premises with the merchandise is not an essential element of the crime. Accordingly, we find that there is sufficient evidence to support the jury’s verdict. This issue is without merit.

2. Proportionality

¶ 16. Newson asserts that his five-year sentence is disproportionate to his crime. The circuit court sentenced New-son to five years because he had two prior felony convictions and two prior shoplifting convictions. Newson’s prior felony convictions established his status as a habitual offender. Mississippi Code Annotated section 99-19-81 (Rev.2007) provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony ... and who shall have been sentenced to separate terms of one (1) year or more ... shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Additionally, section 97-23-93(6) states: “[ujpon a third or subsequent shoplifting conviction[,] the defendant shall be guilty of a felony and ... imprisoned for a term not exceeding five (5) years.... ” The circuit court sentenced Newson, as a habitual offender pursuant to section 99-19-81 and as a third shoplifting offender pursuant to section 97-23-93(6), to the maximum term allowed by the statute — five years without parole or probation.

¶ 17. “It is well[ jsettled in this state that sentencing is within the complete discretion of the trial court.” Long v. State, 52 So.3d 1188, 1195 (¶ 26) (Miss.2011) (citing Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996)). Furthermore, the Mississippi Supreme Court has held that “sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Johnson v. State, 950 So.2d 178, 183 (¶ 22) (Miss.2007) (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). Newson’s sentence is within the maximum term allowed by section 97-23-93(6). Thus, according to Johnson, the sentence is not considered to be grossly disproportionate. Accordingly, this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).