author: KING, Justice,

text:
    Leslie B. SHUMAKE, Jr. v. Katarina Sitton SHUMAKE.
    No. 2012-CT-00718-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2014.
    Leslie B. Shumake, Jr., Olive Branch, Sabrina D. Howell, A.E. (Rusty) Harlow, Jr., attorneys for appellant.
    T. Jackson Lyons, Jackson, attorney for appellee.
   KING, Justice,

for the Court:

¶ 1. The DeSoto County Chancery Court granted a Final Judgment of Divorce to Leslie B. Shumake Jr. and Katari-na Sitton Shumake in February 2009. In the judgment, the chancellor ordered Leslie to pay Katarina $5,750 per month in periodic alimony. Shortly thereafter, in March 2009, Katarina filed a complaint for citation for contempt, claiming that Leslie had not paid the amount of alimony ordered by the chancellor. From the time Katarina filed her initial contempt complaint until April 2012, the chancery court held hearings and entered various orders addressing the alimony and Leslie’s ar-rearage. In the end, the chancellor concluded that Leslie owed Katarina $58,550, plus interest, in arrearage.

¶ 2. Leslie appealed the chancellor’s order, and the case was assigned to the Court of Appeals. See Shumake v. Shumake, — So.3d —, 2013 WL 6171303 (Miss.Ct.App. Nov.26, 2013). The Court of Appeals held, inter alia, that “on [the] unique facts [of the present case], we find that it would be fundamentally unfair and unjust to charge Leslie with a $58,550 arrearage.” Id. at -, 2013 WL 6171303, at *4. Thus, the Court of Appeals reversed and rendered this portion of the chancellor’s order. Id. Having granted Katarina’s Petition for Writ of Certiorari, we now consider whether the Court of Appeals erred by holding the arrearage award should be reversed and rendered.

FACTS AND PROCEEDINGS IN THE CHANCERY COURT

¶ 3. The DeSoto County Chancery Court entered a Final Judgment of Divorce, granting Katarina a divorce from Leslie on the grounds of uncondoned adultery, on February 29, 2009. In the divorce judgment, the chancellor ordered Leslie to pay Katarina $5,750 per month in alimony, which was to be paid beginning February 1, 2009. On March 12, 2009, Katarina filed an Amended Complaint for Citation for Contempt, claiming, inter alia, that Leslie had paid only $650 per week in alimony, rather than the $5,750 per month ordered by the chancellor. Around this same time, Leslie filed for Chapter 13 bankruptcy. In response to Katarina’s contempt complaint, Leslie claimed he was unable to pay the $5,750 per month alimony.

¶ 4. On August 24, 2009, the chancellor entered an Order on Katarina’s contempt complaint, finding that Leslie was in arrears to Katarina in the amount of $19,300. Some $16,400 of this amount resulted from the alimony arrearage. To address the arrearage, the chancellor ordered Leslie to convey his interest in the former marital home to Katarina via quitclaim deed. Leslie’s interest in the home was valued at $16,250. Because the value of Leslie’s interest in the home did not equal the ar-rearage amount, the chancellor ordered that Leslie immediately provide Katarina with the difference ($3,050). Also, the chancellor reserved the right to rule on any arrearage or future arrearage after a full year of accounting and analysis of Leslie’s income.

¶ 5. According to the parties, the chancellor addressed Leslie’s alimony payments and arrearage in a November 12, 2010, order. This order is not in the record, although it was discussed during an April 27, 2011, hearing. Based on the hearing testimony, Leslie had paid Katari-na $750 per week in alimony beginning September 6, 2010. During the April 2011 hearing, the parties agreed that, if the original amount of alimony — $5,750 per month — had not been modified at any point, Leslie would owe $58,550 to Katari-na in arrears. Rather than arguing any mathematical calculation, Leslie claimed that the November 2010 order retroactively modified his alimony payment.

¶ 6. A little more than one year later, on April 12, 2012, the chancellor entered an Order finding that Leslie was in arrears for $58,550. The order read, in part:

beginning May 1, 2011, the monthly permanent periodic alimony payment of $5,750 payable by Leslie to Katarina shall be the amount of $8,250.00 per month (or $750.00 per week) until the Chapter 13 Plan bankruptcy, payments of $4,293.50 are completed by Leslie in accordance with the United States Bankruptcy Court Northern District of Mississippi.... [T]he Court finds that Leslie is in arrears in the amount of $58,550.00 to Katarina plus interest at the legal interest rate. This amount shall be paid to Katarina beginning on the first day of the first month following the completion of Leslie’s Chapter 13 bankruptcy payments as ordered by the United States Bankruptcy Court Northern District of Mississippi, in the amount of $1,500.00 per month until paid in full.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 7. Leslie appealed the chancellor’s order to this Court, and the case was assigned to the Court of Appeals. Id. On appeal, Leslie claimed that the chancellor erred in ordering him to pay Katarina $58,550 in arrears for two reasons: (1) although the chancellor was aware Leslie had not paid the originally ordered $5,750 per month, he did not hold Leslie in contempt for the reduced payments or “voluntary reduction”; and (2) the chancellor increased the alimony payments from the “voluntarily reduced” payment of $650 per week to $750 per week in September 2010. Id. at-, 2013 WL 6171303, at *3. In response, Katarina argued that the $750 per week payment was only a temporary reduction because the chancellor never reached a final determination on the ar-rearage or lowered alimony payment. Id. at-, 2013 WL 6171303, at *4. As such, Katarina claimed that the arrearage should have been calculated based on the original alimony ordered — $5,750 per month. Id.

¶ 8. The Court of Appeals found that, because of the unique facts of this case, the chancellor erred in ordering Leslie to pay $58,550 in arrearage:

We acknowledge that the August 2009 order indicated that there would be a further review of the alimony-arrearage issue. It appears from the record that that review did not occur until sometime prior to September 2011, at which time the court increased Leslie’s alimony payment from $650 per week to $750 per week, or $3,250 per month, as reflected in the November 2010 order. By increasing Leslie’s alimony payment from $650 per week to $750 per week, it seems to us that the court was giving final approval of the voluntary reduction in payment that the court had allowed to continue by virtue of its August 2009 order. Therefore, on these unique facts, we find that it would be fundamentally unfair and unjust to charge Leslie with a $58,550 arrearage. Both parties agree that as of the date of the hearing on April 27, 2011, Leslie was current with his $750 weekly payments previously ordered by the court. Therefore, we reverse and render that portion of the chancery court’s April 2012 order requiring Leslie to pay $58,550 in arrear-age.

Id.

STANDARD OF REVIEW

¶ 9. This Court applies a limited standard of review in alimony cases: “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” McCardle v. McCardle, 862 So.2d 1290, 1292 (Miss.Ct.App.2004) (citing Denson v. George, 642 So.2d 909, 913 (Miss.1994)). Appellate courts will not substitute their “collective judgment for that of the chancellor.” McCardle, 862 So.2d at 1292 (citing Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978)) (“A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result”).

ANALYSIS

¶ 10. Periodic alimony is subject to modification; a party, however, may not modify on his own — or as Leslie has described it, “voluntarily reduce” — court-ordered alimony payments:

Periodic alimony is also subject to modification (by increase or decrease) or even termination, in the event of a material change of circumstances subsequent to the decree awarding alimony, although self help is pretermitted; that is, a change or modification may be made only upon order of the chancery court.

Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990). Periodic alimony vests on the date each payment becomes due. Id.; see also Gregg v. Montgomery, 587 So.2d 928, 934 (Miss.1991) (stating that, “[a] court cannot give relief from civil liability for any payments that have already accrued,” when finding that the chancellor erred in not awarding unpaid alimony). Thus, from the outset, Leslie’s actions of reducing his alimony payments from $5,750 per month to $650 per week were without legal effect. Moreover, Leslie’s bankruptcy filing shortly after the chancellor entered the judgment of divorce is of no moment. See Varner v. Varner, 666 So.2d 493, 497-98 (Miss.1995) (recognizing that filing of bankruptcy does not, in all eases, “rise to the level of a substantial change” in circumstances); see also N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody § 14-10 (6th ed. 2012) (“Obligations of child and or spousal support are not generally to be considered as or equated with any other debt known to and collectible under the law. There is more to these obligations than mere debt.”).

¶ 11. Originally, the chancellor ordered Leslie to pay Katarina $5,750 per month in periodic alimony. Leslie never met this obligation. Instead, he paid Katarina $650 per week in alimony. Katarina filed a contempt complaint asking the chancellor to require Leslie to comply with the divorce judgment. In response to Katari-na’s contempt complaint, Leslie requested a modification, claiming that his extreme economic hardship had resulted in a substantial and material change in his circumstances. The chancellor then entered an order requiring Leslie to transfer his interest in the marital home to Katarina to cover part of the arrearage at that time. Leslie was to pay the remaining amount of the arrearage from cash. Of particular note, the chancellor did not modify the alimony or specifically address Leslie’s request for modification. Moreover, the order states that the chancellor “reserves the right to make a ruling regarding any arrearage and/or future arrearage.... ”

¶ 12. According to the parties, the chancellor entered another order in November 2010 which required Leslie to pay Katarina $750 per week. This order is not in the record, although it was discussed at length at an April 2011 hearing, and the docket reflects that the chancellor entered an order at that time. At the hearing, Leslie argued that the November 2010 order temporarily modified the alimony. Katarina, on the other hand, maintained that Leslie was still required under the divorce judgment to pay $5,750 per month in alimony. Thus, Katarina claimed that Leslie owed $58,550 in arrears.

¶ 13. The chancellor, who was not the chancellor who entered the divorce judgment or prior orders in the case, ultimately found that the previous chancellor never entered an order permanently modifying the original divorce judgment which required Leslie to pay $5,750 per month in alimony. Thus, the chancellor found that Leslie was in arrears for $58,550 to Katari-na. The chancellor ordered that Leslie, upon completion of his bankruptcy payments, pay Katarina for the arrearage in monthly payments of $1,500.

¶ 14. After reviewing the record in today’s case and considering our law with respect to alimony modification, we cannot find that the chancellor abused his discretion. An alimony payment vests on the day it is due. Bowe, 557 So.2d at 794. And a court order is required to modify alimony. Id. Because no order expressly modified Leslie’s alimony obligation, the chancellor in today’s case did not abuse his discretion in ordering Leslie to pay the arrearage.

¶ 15. Further, the Court of Appeals’ statement that it would be “fundamentally unfair and unjust” to require Leslie to pay the arrearage is supported by neither our caselaw nor the chancellor’s order. The order considers — and provides some allowance for — Leslie’s bankruptcy by allowing him to pay the arrearage when the bankruptcy is complete. Our caselaw addressing the effect of bankruptcy on alimony payments is consistent with this approach. See Varner, 666 So.2d at 497-98. Finally, the chancellor’s decision not to punish Leslie through contempt does not absolve Leslie’s arrearage. See Hand, Mississippi Divorce, Alimony, and Child Custody § 14-6 (“If the responding party is found to be in contempt and refuses or fails without justification to pay the arrearages as previously required by the court, he may be punished by civil or criminal sanctions, or both.”) (emphasis added). Put simply, Leslie’s alimony payments vested on the day they were due and the record does not support a finding that the vested payments were or should have been modified. The chancellor did not abuse his discretion in ordering Leslie to pay the arrearage.

CONCLUSION

¶ 16. For the reasons discussed above, we find that the chancellor did not abuse his discretion in ordering Leslie to pay the alimony arrearage owed to Katarina. Therefore, we reverse the Court of Appeals’ judgment and reinstate and affirm the judgment of the DeSoto County Chancery Court.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.

      . Although the November 2010 order is not part of the record in today's case, Leslie attached a copy of the order as an exhibit to his appellate brief. It appears that the Court of Appeals considered this order as part of its analysis. Because this Court will not consider information outside of the record, the contents of this order will not be considered in today's appeal. See Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) ("Mississippi appellate courts may not consider information that is outside of the record.”).


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    John Edward CORSER a/k/a John E. Corser a/k/a John E. Corser, Sr. a/k/a John Edward Corser, Sr. a/k/a John Corser, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01453-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied June 3, 2014.
    Certiorari Denied Sept. 18, 2014.
    Office of State Public Defender by George T. Holmes, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from the Hancock County Circuit Court’s denial of John Edward Corser’s motion in limine to exclude evidence of his vasectomy and his Viagra use. A jury found Corser guilty on two counts of sexual battery, and the circuit court sentenced him to thirty-five years for each sexual-battery conviction, with the sentences to run concurrently. Corser argues that the circuit court erred in allowing the State to present evidence of his vasectomy and his Viagra use because the evidence was prejudicial and had no probative value.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. In 2009, Corser lived with his wife Amy, his twelve-year-old stepdaughter Marie, his stepson Jacob, and his and Amy’s biological son Timothy. On October 24, 2009, Timothy had a birthday party at their home. Once the birthday party concluded, Amy left, and Corser decided to stay home with their children and the remaining party guests. While Marie sat on the couch, Corser began touching her between her legs over her clothes. When she told Corser to stop, he grabbed her by her jacket and pulled her into the bathroom. Corser closed the bathroom door, bent her over the toilet, pulled her pants down, and inserted his penis into her vagina. Afterwards, Corser turned Marie around, placed his hands around her neck, and told her not to tell anyone or he would kill her and her mother.

¶ 4. Corser would always get home from work thirty minutes to an hour before Amy did and would go to his and Amy’s bedroom, close the door, and stay in the bedroom for a while. One day in December 2009, after Corser had arrived home from work and spent time in the couple’s bedroom, he told Jacob to go take a shower and told Timothy to go play in the game room. Corser took Marie to her bedroom, locked the door, and forced Marie to have sexual intercourse with him on her bed. The abuse would occur almost daily unless Amy was off work.

¶ 5. Jacob’s testimony corroborated Marie’s testimony regarding both the October and December incidents. During the October incident, Jacob knocked on the bathroom door. Marie responded that she was almost done using the bathroom, sounding scared and panicked. Soon after, Jacob saw Corser’s face when Corser opened the bathroom door slightly. During the December incident, Jacob heard Marie crying inside her bedroom while Corser was in the bedroom with her. He also heard strange noises coming from Marie’s bed. He testified that Marie had told him what happened in both incidents.

¶ 6. Amy testified that in early 2009, she was using an intrauterine device (IUD) as a contraceptive. She stated that she and Corser discussed the dangers of leaving the IUD in past its suggested removal date. Amy asked Corser if he would be willing to consider getting a vasectomy. Corser told her that he wanted to think about having another child before making a decision on having a vasectomy. Consequently, Amy went to her doctor, had the IUD removed, and got a prescription for an oral contraceptive. Amy testified that in the summer of 2009, before she got the prescription filled, Corser told her that he had decided that he was going to get the vasectomy.

¶ 7. Amy described her sex life with Corser in late 2009 as “not that of a typical marriage.” More specifically, she stated that at that time, they would only have sex “maybe once every couple of weeks,” as opposed to the previous frequency of a couple of times per week. She added that Corser seemed “withdrawn and distant at that time,” but that she knew that Corser was taking Viagra. When asked if some of the Viagra pills were missing in late 2009, she stated that there was “a whole line missing” around the time that the number of sexual encounters between them had declined. Marie told Amy about the abuse in December 2009. The first time that Amy Confronted- Corser, he denied that either incident had happened. The second time that Amy confronted him, he cried and apologized. -

¶ 8. Corser testified at trial and denied that either incident occurred. He stated that he and Amy had the initial discussion regarding the possibility of his getting a vasectomy in March or April 2009. He admitted that he did not want to get a vasectomy at first, but later changed his mind after he talked to his coworkers about it, and had the procedure done in early summer 2009. As for his Viagra use, Corser only stated that his wife knew that he was using Viagra and that she wanted him to be on Viagra.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. Corser insists that the circuit court erred in admitting evidence of his vasectomy and his Viagra use, as the evidence was irrelevant as to whether he committed sexual battery against Marie. Alternatively, he argues that the circuit court erred in “failing to conduct a balancing test to ensure that the evidence was not more prejudicial than probative.” When determining whether evidence is relevant and if the evidence that is admitted is more prejudicial than probative, the standard of review is abuse of discretion. Green v. State, 89 So.3d 543, 549 (¶ 15) (Miss.2012); Kelly v. State, 783 So.2d 744, 752 (¶ 21) (Miss.Ct.App.2000).

I. Vasectomy

¶ 11. In its ruling on Corser’s motion in limine, the circuit court determined that evidence of Corser’s vasectomy and his Viagra use was relevant because it “show[ed] the jury the whole picture as to the allegations.” We note that Corser and Amy had discussed the possibility of his having a vasectomy several months before the sexual battery began, and the operation had occurred several months before the first incident. It may very well be that Corser elected to have the vasectomy in preparation for the sexual battery, but on the other hand, his decision to finally have the vasectomy may have simply been in compliance with his wife’s earlier suggestion. The circuit court found that the evidence of Corser’s vasectomy was relevant, and we see no reason to disturb that finding because even if the court erred in its finding, the error is harmless, as the Mississippi Supreme Court has held that an error is harmless “[wjhere the prejudice from [an] erroneous admission of evidence dims in comparison to other overwhelming evidence [of guilt.]” Tate v. State, 20 So.3d 623, 639 (¶ 42) (Miss.2009) (quoting Carter v. State, 722 So.2d 1258, 1262 (¶ 14) (Miss.1998)). The overwhelming evidence against Corser supports his sexual-battery conviction absent any reference to Corser’s vasectomy. Accordingly, this issue is without merit.

II. Viagra Use

¶ 12. The circuit court did not err in determining that Corser’s Viagra use was relevant as to whether he committed sexual battery. There is sufficient evidence to make a reasonable inference that the Viagra was used in preparation for the sexual battery, as Amy testified that a “whole line” of the pills were missing, despite the decline in the frequency of their sexual encounters. Additionally, Corser would always get home from work earlier than his wife and go to their bedroom. Marie testified that after he would emerge from the bedroom, he would tell her brothers to go take a shower or go play in order to get her into her bedroom to have sexual intercourse with her. On these facts, we cannot say that the circuit court abused its discretion in finding that evidence of Cor-ser’s Viagra use was relevant.

¶ 18. Corser argues that the circuit court did not conduct a Rule 403 balancing test on the record. Rule 403 of the Mississippi Rules of Evidence states that even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The circuit court stated during the hearing on Corser’s motion in limine that evidence of Corser’s Viagra use was “probative as to the elements of the crimes charged.”

¶ 14. Our supreme court has held that a circuit court’s failure to state Rule 403’s “magic words” does not mean that the court did not consider Rule 403’s requirements or that the court erred in its decision on admissibility. Tate, 20 So.3d at 639 (¶ 40). We need not determine whether the circuit court’s statement that Cor-ser’s Viagra use was “probative as to the elements of the crimes charged” constituted a proper Rule 403 balancing test. Even if the court erred and should have conducted a more thorough Rule 403 analysis on the record, the error was harmless, as there is no evidence that Corser was prejudiced by admission of the Viagra evidence or that its admission misled the jury or led to a confusion of the issues. Moreover, the totality of the evidence weighs overwhelmingly in support of Corser’s conviction. This issue is without merit.

¶ 15. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF THIRTY-FIVE YEARS; AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY-FIVE YEARS, WITH BOTH SENTENCES TO RUN CONCURRENTLY AND TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PARDON, PAROLE, OR SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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

      . To protect the identity of minor victims of sexual abuse, we substitute fictitious names for the victim and close relatives of the victim.


author: ROBERTS, J.,

text:
    Debra LUDWIG a/k/a Debra Ann Ludwig a/k/a Debbie Ann Lumpkin, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01552-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2014.
    Rehearing Denied June 17, 2014.
    Certiorari Denied Sept. 18, 2014.

      Debra Ludwig, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Debra Ludwig pled guilty to two counts of selling less than one kilogram but more than thirty grams of marijuana. Subsequently, Ludwig filed a motion for post-conviction relief (PCR) and claimed that the indictment against her was fatally defective because it did not specifically allege the weight of the marijuana that she sold. Ludwig also claimed that she was entitled to relief because she received ineffective assistance of counsel. That is, Ludwig claimed her attorney was ineffective for declining to claim that the indictment was fatally defective. The DeSoto County Circuit Court summarily dismissed Ludwig’s PCR motion. Ludwig appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2010, Ludwig was indicted for two counts of selling less than a kilogram but more than thirty grams of marijuana. Additionally, Ludwig was indicted as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev.2013) and a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Approximately one year later, the prosecution had agreed to dismiss the habitual-offender portion of the indictment against Ludwig, so she pled guilty to both charges as a subsequent drug offender. After it accepted Ludwig’s guilty pleas, the circuit court sentenced her to twenty years in the custody of the Mississippi Department of Corrections for Count I. For Count II, the circuit court sentenced Ludwig to twenty years of post-release supervision, with the first five years designated as “reporting” post-release supervision.

¶ 3. In July 2012, Ludwig filed a PCR motion. Ludwig claimed that the indictment against her was fatally defective because both counts accused her of selling less than one kilogram but more, than thirty grams of marijuana, and neither charge accused her of selling a specific quantity of marijuana. Because her attorney had not objected to the indictment or attempted to dismiss it, Ludwig also claimed that she received ineffective assistance of counsel. Without requiring a response from the prosecution, the circuit court summarily dismissed Ludwig’s PCR motion. Ludwig appeals.

STANDARD OF REVIEW

¶ 4. “In reviewing a circuit court’s decision to dismiss a motion for post-conviction relief, we will not disturb the circuit court’s factual decisions unless they are clearly erroneous.” Harris v. State, 17 So.3d 1115, 1117 (¶ 4) (Miss.Ct.App.2009). “However, we review questions of law de novo.” Id.

ANALYSIS

I. SUFFICIENCY OF THE INDICTMENT

¶ 5. Ludwig claims that the indictment did not sufficiently notify her of the charges she faced because the indictment did not allege the specific amount of marijuana that she sold. Ludwig also claims that the indictment was defective in that it alleged that she “did willfully, unlawfully[,] ... feloniously, knowingly[,] and intentionally sell, barter, transfer, distribute^] or dispense a controlled substance....” According to Ludwig, the indictment should have specified whether she was accused of selling, bartering, transferring, distributing, or dispensing marijuana. Ludwig reasons that this Court should reverse the circuit court’s judgment and remand this matter for an evidentiary hearing. We disagree.

¶ 6. An indictment must contain “a plain, concise[,] and definite written statement of [the] essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006). The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing a defense. Medina v. State, 688 So.2d 727, 730 (Miss.1996).

¶ 7. Under the circumstances, there is no requirement that Ludwig’s indictment contain the amount of marijuana she sold. The indictment alleged that Ludwig sold less than one kilogram but more than thirty grams of marijuana. Ludwig was also indicted as a subsequent drug offender. Mississippi Code Annotated section 41 — 29—139(b)(1) (Supp.2013) provides that a subsequent drug offender who is convicted of selling less than one kilogram but more than thirty grams of marijuana “may, upon conviction, be imprisoned for not more than thirty ... years....” Consequently, the penalty for selling any quantity of marijuana that is less than one kilogram but more than thirty grams is the same.

¶ 8. In Smith v. State, 973 So.2d 1003, 1007 (¶ 10) (Miss.Ct.App.2007), this Court rejected an argument that an indictment was fatally defective because it omitted the precise weight of cocaine that a defendant allegedly sold. Because the penalty for selling cocaine was the same regardless of the precise quantity sold, this Court held that the exact quantity was not an essential element of the crime. Id. We reiterated that point in Fair v. State, 93 So.3d 56, 59 (¶ 8) (Miss.Ct.App.2012).

¶ 9. As for Ludwig’s claim that the indictment should have specified whether she was accused of selling, bartering, transferring, distributing, or dispensing marijuana, we find no merit to Ludwig’s position. In Tran v. State, 962 So.2d 1237, 1241 (¶ 17) (Miss.2007), the Mississippi Supreme Court held that an indictment is generally sufficient if it tracks the language of the relevant criminal statute. In large part, the charges that Ludwig faced tracked the language of Mississippi Code Annotated section 41-29-139(a)(l) (Rev. 2013). Therefore, there is no merit to this issue.

II. EFFECTIVE ASSISTANCE OF COUNSEL

¶ 10. Next, Ludwig claims that her attorney was ineffective because her attorney did not move to dismiss the indictment for its failure to allege the specific amount of marijuana that Ludwig sold. To prove that she received ineffective assistance of counsel, Ludwig was obligated to prove that: (1) her attorney’s performance was deficient, and (2) she was prejudiced by her attorney’s deficient performance. Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Under Strickland, there is a strong presumption that counsel’s performance was effective.” Id. “To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 11. Ludwig’s claim that she received ineffective assistance of counsel is inherently linked to her position in the previous issue. That is, she claims that her attorney should have moved to dismiss the indictment under the theory that it was fatally defective for its omission of a specific weight of marijuana that she sold. We have found no merit to that claim. It follows that her attorney’s performance was not deficient for declining to raise a meritless claim. There is no merit to this issue.

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

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

JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, C.J.,

text:
    Rhoda COFIELD, Appellant v. IMPERIAL PALACE OF MISSISSIPPI LLC, Appellee.
    No. 2013-CA-00037-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Rehearing Denied July 29, 2014.

      James E. Smith Jr., Carthage, attorney for appellant.
    Patrick R. Buchanan, Pascagoula, attorney for appellee.
   LEE, C.J.,

for the Court:

¶ 1. In this premises-liability case, we must decide whether the trial court erred in granting summary judgment in favor of Imperial Palace (IP).

PROCEDURAL HISTORY

¶ 2. Rhoda Cofield was visiting the IP casino in Biloxi, Mississippi, on September 13, 2008, when she slipped and fell in the lobby near the elevators. Cofield was walking toward an open elevator when, she claims, she slipped in a puddle of an undetermined liquid. Cofield filed her negligence action against IP in the Harrison County Circuit Court. IP ultimately moved for summary judgment. After a hearing on the matter, the trial court granted IP’s motion for summary judgment. Cofield now appeals, asserting the trial court erred in granting summary judgment in favor of IP.

STANDARD OF REVIEW

¶ 3. In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶7) (Miss.2001) (citation omitted). The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” Karpinsky v. American Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 11) (Miss.2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production, if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶ 11) (citations omitted). Specifically, in premises-liability cases, “Mississippi law further requires that when a dangerous condition exists that was ‘created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.’ ” Id. at (¶ 12) (quoting Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (¶ 17) (Miss.2007).) The supreme court again clarified that “while [defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial.” Id. at (¶ 13).

DISCUSSION

¶ 4. Mississippi uses a three-step process in analyzing premises liability: “First, we must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury. Next, we must determine what duty was owed to the injured party by the business owner/operator. Finally, we must determine whether that duty was breached.” Rod v. Home Depot USA Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006) (internal citations omitted).

¶5. It is undisputed that Cofield was a business invitee because she entered IP “in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Id. at (¶ 10) (citation omitted). “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Id. (citation and internal quotation marks omitted).

¶ 6. To succeed in her premises-liability action, Cofield must prove one of the following: “(1) a negligent act by [IP] caused [her] injury; or, (2) that [IP] had actual knowledge of a dangerous condition, but failed to warn [her] of the danger; or (3) the dangerous condition remained long enough to impute constructive knowledge to [IP].” Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶ 6). Furthermore, mere proof “of the occurrence of a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor.” Id. (citation omitted).

¶ 7. Under the first theory of recovery, we find Cofield has failed to prove that a negligent act by IP caused her injury. Cofield had no knowledge of the source of the liquid or how long the liquid had been on the floor. Cofield also admittedly had no physical evidence to support her negligence theory. There is nothing in the record to indicate that a negligent act of IP or its employees caused Cofield’s injuries. Additionally, Juliette Murray, who was with Cofield at the time of her accident, did not see any liquid on Cofield’s shoes after Cofield fell. Murray had no knowledge regarding the existence of the liquid.

¶ 8. Cofield did offer an expert in the field of hospitality safety, Fred Del Marva, who testified that the liquid on the floor came from guests using the elevators to access IP’s pool or from IP’s employees using the elevators. However, this testimony from Del Marva is mere speculation and not based upon any evidence in the record. Julia Jones, IP’s assistant risk manager, testified she had no knowledge of any incidents involving liquid on the floor by the elevators in the year prior to Cofield’s fall.

¶ 9. Under the second theory of recovery, we find Cofield has failed to prove that IP had actual knowledge of the dangerous condition but failed to warn her of the danger. Cofield was unable to show that any employees had actual knowledge that the liquid was on the floor. Cofield admittedly was not looking down and did not see the liquid on the floor.

¶ 10. Under the third theory of recovery, we find Cofield has failed to prove that the dangerous condition remained long enough to impute constructive knowledge to IP. Furthermore, Cofield failed to “present specific proof as to the relevant actual length of time” that the hazard existed. Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶8) (Miss.Ct.App.2007). As previously stated, neither Co-field nor Murray knew how long the liquid had been on the floor.

¶ 11. It is clear that Cofield has failed to meet her burden of proof. However, Cofield maintains this was due to IP’s decision not to preserve video evidence of the floor prior to her fall. Paul Dillon, the IP investigator who handled Cofield’s accident, saved the security footage of Cofield’s fall. The video clip begins twenty-six seconds before Cofield entered the lobby area, and it documents Cofield’s approach to the elevator and subsequent fall. Cofield cites to Thomas v. Isle of Capri Casino, 781 So.2d 125, 133 (¶ 37) (Miss.2001), for the proposition that “[w]hen evidence is lost or destroyed by one party ..., thus hindering the other party’s ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss.” However, “for purposes of summary judgment, the destruction or spoliation of evidence, standing alone, is not enough to allow a party who has produced no evidence — or utterly inadequate evidence — in support of a given claim to survive summary judgment on that claim.” Bolden v. Murray, 97 So.3d 710, 718 (¶ 31) (Miss.Ct.App.2012) (citation and internal quotations marks omitted).

¶ 12. According to IP policy, security footage automatically records over itself every seven to ten days. And pursuant to IP internal procedures, security footage of Cofield’s accident was preserved. Dillon testified he decided how much of the footage to retain and did so prior to any notice of pending litigation. Although footage of Cofield’s accident was preserved, Cofield contends it was insufficient and that more footage should have been retained in order to determine how the liquid was deposited on the floor. However, the evidence shows IP followed its internal policies in retaining the appropriate security coverage of Cofield’s accident. Cofield offered no evidence to the contrary or any evidence that IP intentionally or negligently destroyed the security footage. We find no merit to this argument.

¶ 13. We find Cofield has failed to show a genuine issue of material fact as to IP’s alleged negligence. Therefore, we find the trial court’s decision to grant summary judgment in favor of IP was proper.

¶ 14. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Alisha VANWEY a/k/a Alisha Gadd a/k/a Alisha Renae Gadd a/k/a Alisha Renea Gadd a/k/a Alisha R. Gadd a/k/a Alisha R. Vanwey a/k/a Alisha Renee Van Wey a/k/a Alisha R. Vanway a/k/a Alisha Renee Woods a/k/a Alisha Woods a/k/a Alisha Renae Wey a/k/a Alisha Renae Vanney, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00818-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Rehearing Denied Sept. 16, 2014.

      Alisha Vanwey, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for Appel-lee.
    Before IRVING, P.J., ROBERTS and FAIR, JJ.
   IRVING, P.J.,

for the Court.

¶ 1. Alisha Vanwey appeals from the judgment of the DeSoto County Circuit Court dismissing her motion for post-conviction collateral relief (PCR). She argues that the court erred in denying her PCR motion because the State failed to introduce testimony from the witness who certified the documents that were used to prove her prior convictions for establishing habitual-offender status.

¶ 2. Finding no error, we affirm,

FACTS

¶ 3. In March 2007, a DeSoto County grand jury indicted Vanwey, as a habitual offender, on four counts of the sale of hydrocodone within 1,500 feet of a park, and on one count of conspiracy to sell a controlled substance. On May 29, 2007, pursuant to a plea agreement with the State, Vanwey entered guilty pleas to three counts of selling hydrocodone. The circuit court deferred sentencing until a later date.

¶ 4. On August 15, 2007, Vanwey filed a motion to set aside her guilty pleas. After a hearing, the circuit court denied the motion. On September 17, 2007, the court sentenced Vanwey, as a habitual offender, to three concurrent eleven-year sentences on the three counts and remanded to the files the other two counts contained in the indictment.

¶ 5. In March 2008, Vanwey filed a PCR motion, which the circuit court denied. Vanwey appealed, and this Court affirmed the circuit court’s judgment. Vanwey v. State, 55 So.3d 1133, 1139 (¶ 15) (Miss.Ct.App.2011). Vanwey submitted another PCR motion in October 2011, which the circuit court denied as time-barred and successive-writ barred. Van-wey appealed, and while the appeal was pending on this Court’s docket, Vanwey filed yet another PCR motion in December 2012, alleging that an intervening decision from the United States Supreme Court requires the State to produce testimony from the person who certified the documents used to prove her prior convictions for habitual-offender status. This Court affirmed the circuit court’s judgment denying Vanwey’s October 2011 PCR motion. Vanwey v. State, 2012-CP-00668-COA, — So.3d —, —, 2013 WL 4055366, at *4 (¶ 16) (Miss.Ct.App. Aug. 13, 2013).

¶ 6. In April 2013, the circuit court entered an order finding that Vanwey’s December 2012 PCR motion was successive-writ barred, barred by the applicable statute of limitations, and had no merit. Vanwey’s current appeal emanates from this order.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶8. “We review a circuit court’s denial of a PCR motion under a clearly-erroneous standard of review.” McLaurin v. State, 114 So.3d 811, 813 (¶ 4) (Miss.Ct.App.2013) (citing Holloway v. State, 31 So.3d 656, 657 (¶5) (Miss.Ct.App.2010)).

¶ 9. The Uniform Post-Conviction Collateral Relief Act provides:

[A]ny order dismissing the petitioner’s (PCR] motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive'motion under this article.... [E]x-cepted from this prohibition are those cases in which the petitioner can demonstrate ... that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence^]

Miss.Code Ann. § 99-39-23(6) (Supp. 2013). Vanwey has filed two prior PCR motions, both of which were denied by the circuit court, and the denials were affirmed by this Court. Additionally, as noted, Vanwey was convicted on May 29, 2007, and sentenced on September 17, 2007. She did not file the PCR motion at issue until December 2012, outside of the prescribed three-year statute of limitations provided in Mississippi Code Annotated section 99-39-5(2) (Supp.2013). Therefore, the circuit court did not err in determining that Vanwey’s December 2012 PCR motion is successive-writ barred and time-barred. Although these procedural bars have exceptions, Vanwey has not shown that she has met any of these exceptions.

¶ 10. Vanwey argues that Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), is an intervening Supreme Court decision, and based on its holding, the documents used to prove her prior convictions for her habitual-offender status are testimonial. Therefore, Vanwey claims, the State’s failure to introduce testimony from the witness who certified the documents deprived her of her right to confrontation and invalidated the enhanced portion of her sentence. A document is testimonial when it is created for the sole purpose of the State’s use as evidence against the defendant. Grim v. State, 102 So.3d 1073, 1078 (¶ 12) (Miss.2012). The certificate on the documents showing Vanwey’s prior crimes “indicates that the custodian of the records swore that the documents were true and correct copies, not that [Vanwey] actually committed any act.” Frazier v. State, 907 So.2d 985, 997 (1142) (Miss.Ct.App.2005). We have held that self-authenticating records of a defendant’s prior convictions are not testimonial evidence, and do not trigger a defendant’s constitutional right to confront witnesses. Id. at 996 (¶ 36).

¶ 11. Bullcoming does not address self-authenticating records of a defendant’s prior convictions. In fact, Bullcoming addresses a forensic laboratory report made by an analyst and used to prove a fact at a criminal trial. Clearly, the report was testimonial in nature. Bullcoming, 131 S.Ct. at 2717. The certified documents used to prove Vanwey’s prior convictions are not testimonial, and the holding in Bullcoming does not change that. Therefore, Bull-coming is not an intervening decision that excepts Vanwey’s PCR motion from the procedural bars. Accordingly, the circuit court did not err in dismissing Vanwey’s PCR motion.

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

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


author: FAIR, J.,

text:
    George AARON, Appellant v. Annie AARON, Appellee.
    No. 2013-CA-00925-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Candace Cooper Blalock, attorney for appellant.
    Tammy Woolbright, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. George Aaron appeals the Monroe County Chancery Court’s denial of his request to reconsider the judgment of divorce, in which he was ordered to pay his former wife a monthly payment from his retirement account. Finding no error, we affirm.

FACTS

¶2. George Aaron and Annie Aaron were married on May 25, 1991, in Monroe County, Mississippi. Annie filed for divorce in 2001. On August 12, 2002, a judgment of divorce was entered in Monroe County on the ground of irreconcilable differences. As part of the divorce, George agreed to pay Annie one-half of his retirement funds acquired during the marriage. The judgment stated the funds would be transferred through a Qualified Domestic Relations Order (QDRO). At the time the judgment was entered, George was not receiving any retirement benefits. The judgment did not state which party was responsible for entering the QDRO.

¶ 3. In August 2011, George retired from the Amory Police Department. He began receiving benefits through the Mississippi Public Employees’ Retirement System (PERS). On November 4, 2011, Annie filed a motion to cite George for contempt, further requesting that he pay to her the share of her past-due retirement funds with interest. In his motion to dismiss, George claimed that it was Annie’s responsibility to transfer the funds through a QDRO; he also claimed he had done nothing to prevent Annie from doing so.

¶ 4. The court held a hearing on February 19, 2013. George testified that he had not made payments to Annie because he expected her to initiate the collection of the funds through the QDRO. Annie testified that she thought it was George’s responsibility to draft the QDRO. When Annie realized George was about to retire, she contacted her attorney to garner her share of the funds. Annie was unable to collect due to the fact that PERS retirement benefits are exempt from a QDRO. George’s PERS statement reflected that he received around $1,629 per month in retirement benefits.

¶ 5. On March 6, 2013, the chancellor entered an order ruling that Annie was entitled to her share of George’s retirement funds as specified in the original divorce decree. The chancellor calculated the amount owed by dividing the years of marriage (eleven years) by the total years of accumulated retirement (twenty) to determine that fifty-five percent of his retirement benefits were acquired during the marriage. The chancellor then divided that percentage by two to arrive at the twenty-seven and a half percent to which Annie was entitled. Finally, the chancellor multiplied that percentage by $1629.09— the amount that George was receiving per month in retirement benefits, ordering George to pay Annie $448 per month until further order of the court. The chancellor also determined that George owed Annie $8,512 at the rate of three percent per annum for the amount of unpaid retirement funds from August 2011 to February 2013. As a result, the chancellor ruled that George would pay an additional $100 each month in addition to the $448 until the unpaid amount with interest was paid in full. The chancellor did not find George in contempt.

¶ 6. George timely filed a motion to reconsider the judgment under Mississippi Rule of Civil Procedure 59. The chancellor denied his motion. George appeals.

STANDARD OF REVIEW

¶ 7. “A motion for reconsideration is to be treated by the trial court as a post-trial motion under [Mississippi Rule of Civil Procedure] 59(e).” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004) (citations omitted). “An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Curtis v. Curtis, 59 So.3d 623, 629 (¶ 19) (Miss.Ct.App.2011) (quoting Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001)).

¶ 8. Annie failed to file a responsive brief. See M.R.A.P. 28(c). As such, the appropriate standard of review comes from Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citation omitted): “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.”

DISCUSSION

¶ 9. “[I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks, 882 So.2d at 233 (¶ 15). George claims that the following rulings by the chancellor result in clear error: (1) George’s PERS benefits are subject to equitable division; (2) Annie is entitled to half of George’s retirement funds acquired during the marriage; and (3) such benefits are to be paid until further order of the court.

I. George’s PERS Account

¶ 10. George argues that, because the divorce decree states that the benefits will be transferred through a QDRO, Annie is not entitled to his PERS funds. George further claims that, under PERS, no retirement accumulated during the marriage.

¶ 11. “Agreements created in the process of the termination of the marriage by divorce are contracts, ‘made by the parties, upon consideration acceptable to each of them, and the law will enforce them.’” Warren v. Warren, 815 So.2d 457, 460 (¶ 10) (Miss.Ct.App.2002) (citation omitted) (quoting Lewis v. Lewis, 586 So.2d 740, 745 (Miss.1991)). In the divorce decree, George expressly agreed to pay Annie one-half of his retirement funds. George was enrolled in PERS at the time the agreement was signed. The fact that the funds could not be transferred through a QDRO does not in itself render the agreement void. See Warren, 815 So.2d at 461 (¶ 11).

¶ 12. George also claims that “no retirement accumulated during the. marriage, given that the retirement is calculated based upon the highest four years of payment,” which he argues occurred after the divorce. At the time of the divorce, George was employed with the Amory Police Department, with a PERS retirement account. Our supreme court has stated that retirement plans are considered marital assets when dividing marital property. Phillips v. Phillips, 904 So.2d 999, 1002 (¶ 9) (Miss.2004). In Phillips, the court ruled that the wife was entitled to one-half of her husband’s PERS account benefits acquired during the marriage, regardless of the fact that the couple was not married the entire time of the husband’s state service. Id. Here, the right to future payments was acquired during the marriage, even though George claims he reached his highest earning potential after the divorce. This argument has no merit.

¶ 13. We agree with the chancellor’s determination that George’s PERS benefits were subject to equitable division, notwithstanding the fact that the Annie’s rights to collection of those benefits does not authorize the use of a QDRO.

II. Calculation and Duration of Benefits

¶ 14. In the alternative, George claims that the agreement’s reference to use of a QDRO shows the parties’ intent to transfer the benefits through a finite, lump-sum payment (a separate-interest QDRO) as opposed to a monthly payment. George seemingly fails to take into account the shared-payment QDRO, a QDRO which assigns the alternate payee a portion of each monthly payment. U.S. Dep’t of Labor, The Division of Pensions Through Qualified Domestic Relations Orders, http://www.dol.gov/ebsa/publications/ qdros.html, Question 3 — B; see generally 29 U.S.C. § 1056 (2012). “Under [the shared-payment] approach, the alternate payee will not receive any payments unless the participant receives a payment or is already in pay status.” Id. George’s argument is without merit.

¶ 15. George further claims that the court erred in failing to provide a termination date for the monthly payments made to Annie. He cites no authority to support his argument. “Failure to cite to relevant authority results in a waiver of the issue on appeal.” Bennett v. State, 933 So.2d 930, 953 (¶ 86) (Miss.2006). Further, the payments ordered are in the nature of alimony, based on a vested retirement income stream, the right to which is based on George’s earnings, fifty-five percent of which were earned during the marriage. The termination of alimony, unless contracted for otherwise, terminates on the death of either the payor or the payee. In re Remington’s Estate, 204 So.2d 444, 449 (Miss.1967). Therefore, this argument is also without merit.

¶ 16. Finding no error in the chancellor’s calculation and determination of benefits owed to Annie, we affirm.

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

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


author: BARNES, J., for the Court:

text:
    Norman FERGUSON, Appellant v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 2013-CA-01219-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Mary Schillesci McPherson, attorney for appellant.
    Patrick H. Zachary, Matthew D. Shoemaker, Hattiesburg, attorneys for appel-lee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J., for the Court:

¶ 1. Norman Ferguson sued Mississippi Farm Bureau Casualty Insurance Company (Farm Bureau) for breach of contract and bad-faith refusal to pay his claim. The suit stemmed from an accident where Ferguson received a serious spinal injury while working on a farm owned by Robert Wilson in Hancock County, Mississippi. Wilson was insured by Farm Bureau under a general liability policy with a limit of $50,000 for an employer’s liability.

¶ 2. The Circuit Court of Hancock County granted Farm Bureau’s motion for summary judgment because there was no genuine issue of material fact about Ferguson’s complaint being time-barred; the court found the three-year statute of limitations commenced on the date of the injury and had expired. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On January 21, 2008, Ferguson was working on Wilson’s farm, roping calves from a four-wheeler in order to tag them, when the four-wheeler tipped over. As a result, Ferguson suffered a severe spinal-cord injury and was initially paralyzed from the neck down. He was in a wheelchair for approximately fifteen months after the accident, leaving him permanently disabled and unable to work.

¶ 4. Wilson was insured by Farm Bureau under a general liability policy with limits of $10,000 for farm employees’ medical payments and $50,000 for farm employer’s liability. It is undisputed the policy was in effect at the time of the accident. Ferguson made a claim on the insurance policy based on his injuries. Farm Bureau paid $10,000 for Ferguson’s medical bills, and offered to pay Ferguson the $50,000 limit of liability. Ferguson claims he accepted the offer but Farm Bureau has since refused to pay him, while Farm Bureau claims Ferguson refused to accept the offer.

¶ 5. On March 26, 2008, Farm Bureau claims representative James Corley wrote a letter to Ferguson to follow up on a meeting they had at Ferguson’s home. Corley offered the limit of Wilson’s policy ($50,000), and $10,000 for the medical-payments coverage. Corley also explained that “due to the nature of [his] bill from Memorial Hospital,” where Ferguson was treated, Ferguson should obtain “a medical waiver from [the hospital] stating they will waive their medical hen so we can move forward in settling this case.” There is no indication in the record Ferguson accepted the offer at this time. On July 9, 2008, MedPay Assurance, which coordinated benefits for the hospital, sent a letter to Corley, informing him that Ferguson had assigned benefits to the hospital, and Med-Pay had asserted a lien on any payments made on this claim.

¶ 6. In October or November 2009, Ferguson claimed he went to Farm Bureau to pick up the check for $50,000, and Corley informed him the benefits had to be signed over to the hospital due to the medical lien. Ferguson wanted the money to be given to him personally; so he refused to sign the check over to the hospital.

¶7. On April 8, 2010, attorney Mary McPherson advised Farm Bureau that she was representing Ferguson on his claim. She also asked for documents relating “to any assignments of benefits to any providers.” On April 18, 2010, Farm Bureau informed McPherson that it had indicated to Ferguson, in writing and verbally, that it “would extend the limits of liability on this policy for settlement which is $50,000.” On July 25, 2010, Ferguson filed for Chapter 7 bankruptcy because he owed approximately $256,547 in medical bills. Ferguson listed his claim on Wilson’s insurance policy as an asset. In November 2010, Ferguson was granted a bankruptcy discharge.

¶ 8. On September 29, 2011, Ferguson’s counsel sent Farm Bureau a letter stating that the medical lien should only apply to the “medical expense limit” of the policy, and not the $50,000. She demanded payment of the $50,000 directly to Ferguson. Farm Bureau claimed this letter was the first time that Ferguson had contacted it about the claim since Ferguson’s bankruptcy discharge. On October 11, 2011, Farm Bureau replied by letter to Ferguson that the statute of limitations had expired on January 21, 2011, or three years after the date of the injury. Farm Bureau also stated that it had made numerous attempts to reach a settlement with Ferguson, but “there [was] no indication in [its] file that the offer was accepted.” Another letter by Farm Bureau in December 2011 indicated that Ferguson’s counsel had not responded to its previous letter and it was closing the file.

¶ 9. In October 2012, Ferguson filed a complaint against Farm Bureau in Hancock County Circuit Court for “breach of contractual duty to pay insurance proceeds and bad faith refusal to pay” the claim. Farm Bureau filed a motion to dismiss or, alternatively, for summary judgment, arguing that the complaint was time-barred under the applicable three-year statute of limitations. Farm Bureau also argued that the complaint violated the prohibition of direct actions against insurers without privity of contract. Ferguson filed a response, asserting that the complaint did not allege a breach of Farm Bureau’s liability-insurance policy with Wilson, but a breach of contract between Ferguson, individually, and Farm Bureau. Farm Bureau filed a reply, attaching certain correspondence as exhibits that it argued demonstrated no independent contract was ever created between it and Ferguson.

¶ 10. The trial court granted summary judgment in favor of Farm Bureau, holding that any cause of action accrued on January 21, 2008, the date Ferguson was injured, and expired on January 21, 2011; thus, his complaint, filed on October 1, 2012, was time-barred. Ferguson timely filed a motion for a new trial, amendment of the judgment, or relief from the judgment under Mississippi Rules of Civil Procedure 59 and 60, arguing the complaint was not time-barred. Farm Bureau responded to the motion stating Ferguson’s motion was filed under Rule 59 and relief was inappropriate. After a hearing, the trial court treated the motion as one under Rule 59. The trial court denied the motion, finding no proof existed showing a contract between Ferguson and Farm Bureau was breached on or after October 1, 2009; thus, the complaint was time-barred.

STANDARD OF REVIEW

¶ 11. A trial court’s denial of a motion for reconsideration under Rule 59 is reviewed for an abuse of discretion. City of Jackson v. Internal Engine Parts Grp., Inc., 903 So.2d 60, 66 (¶ 19) (Miss. 2005). However, “[a]n appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding-” Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001). Statute-of-limitations issues are reviewed de novo. Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 835 (¶ 10) (Miss.2010).

¶ 12. The standard of review for a trial court’s grant or denial of summary judgment is de novo as well. Gorton v. Rance, 52 So.3d 351, 354 (¶ 6) (Miss.2011). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The burden rests on the moving party.” Gorton, 52 So.3d at 354 (¶6). “Once the absence of genuine material issues has been shown, the burden of rebuttal falls upon the nonmoving party,” who “must produce specific facts showing that there is a genuine material issue for trial.” Id. at 355 (¶7). The evidence will be viewed “in the light most favorable to the nonmoving party.” Id. at 354-55 (¶ 6).

ANALYSIS

¶ 13. Ferguson claims the trial court erred in holding the statute of limitations accrued on the date Ferguson was injured, January 21, 2008. Instead, he argues that the statute of limitations accrued from the date that Farm Bureau allegedly “first breached” its agreement with him by refusing to pay him $50,000 in October or November 2009. Around that time, Ferguson went to Farm Bureau to obtain the $50,000 check, but he claims Corley told him the check would not be given to him; he had to sign it over to the hospital. Ferguson argues the three-year statute of limitations did not expire until October or November 2012, and his complaint, filed October 1, 2012, was timely. We disagree.

¶ 14. Because Ferguson’s complaint did not state a claim with a specifically prescribed statute of limitations, the parties are correct that Mississippi Code Annotated section 15-1-49(1) (Rev. 2012) applies. It provides: “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” The Mississippi Supreme Court “has held that a cause of action accrues ‘when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.’ ” Weathers v. Metro. Life Ins. Co., 14 So.3d 688, 692 (¶ 14) (Miss.2009) (quoting Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (¶ 11) (Miss.2006)). “In other words, the statute of limitations ‘begins to run when all the elements of a tort, or cause of action, are present.’ ” Id. (quoting Caves v. Yarbrough, 991 So.2d 142, 147 (¶ 22) (Miss.2008)).

¶ 15. The trial court held that the cause of action is based upon injuries Ferguson sustained on January 21, 2008, and thus any cause of action accrued on that day. We agree. Any claim Ferguson had to recover for his injury on Wilson’s farm accrued on January 21, 2008; therefore, Ferguson’s complaint, filed on October 1, 2012, was time-barred under the applicable statute of limitations. Furthermore, Farm Bureau makes the argument that Ferguson’s complaint constitutes an impermissible direct action by a third party against an insurer. Under Mississippi law, direct actions against insurance companies by third parties are allowed “for the purpose of seeking declaratory judgment on the question of coverage.” Miss. Mun. Liab. Plan v. Jordan, 863 So.2d 934, 942 (¶ 19) (Miss.2003) (quoting Jackson v. Daley, 739 So.2d 1031, 1038 (¶ 23) (Miss.1999)). Here, Ferguson was not an insured of Farm Bureau, but a third party to the policy issued to Wilson. There was no enforceable judgment against Wilson at the time Ferguson’s complaint was filed, nor did the complaint seek declaratory relief.

¶ 16. Even if Ferguson’s complaint was not based on his injuries, but breach of contract, as Ferguson argues, there was no written or oral contract formed between Ferguson and Farm Bureau that could have been breached on or after October or November 2009. A basic principle of contract law is that “a contract is not formed between the parties absent the essential elements of offer, acceptance, and consideration.” Whiting v. Univ. of So. Miss., 62 So.3d 907, 915 (¶ 14) (Miss.2011). We agree that Farm Bureau offered to settle Ferguson’s claims against Wilson for $50,000, confirmed by letter on March 26, 2008, and then again on April 13, 2010. There is no evidence that Ferguson ever accepted Farm Bureau’s offer, as he claims, in June or July 2008. All of Farm Bureau’s offers to settle had provided that Ferguson had to obtain a waiver of the medical lien from the hospital, but to the contrary, Ferguson assigned benefits to the hospital. Accordingly, he could not accept Farm Bureau’s offer without obtaining a waiver of the lien, and later, a reassignment of benefits. Ferguson rejected Farm Bureau’s offer of settlement when he refused to sign the check in October or November 2009. Because Ferguson refused to accept Farm Bureau’s settlement offer, no contract was formed between Ferguson and Farm Bureau. See Heritage Bldg. Prop., LLC v. Prime Income Asset Mgmt. Inc., 43 So.3d 1138, 1143 (¶ 10) (Miss.Ct.App.2009) (“[A] contract is not formed until the offeree accepts the terms stated by the offeror.” (quoting Vice v. Hinton, 811 So.2d 335, 338 (¶ 12) (Miss.Ct.App.2001))). Moreover, after his refusal of the offer, Ferguson waited until September 29, 2011, to write a letter to Farm Bureau making a formal demand for payment of the $50,000. Farm Bureau claims this was the first time Ferguson had contacted it about the $50,000 since his bankruptcy proceedings closed nearly ten months earlier in November 2010. Farm Bureau noted in its October 11, 2011 letter to Ferguson’s counsel that there was “an indication in November 2010 that the Bankruptcy Court would decide whether the offer could be accepted and if so where the proceeds would have to go,” but Farm Bureau never received a response about the outstanding offer. Farm Bureau stated that after reviewing the bankruptcy order, it appeared that MedPay Assurance’s hen was discharged, but again, Ferguson made no attempt to secure or accept the offered proceeds. By the time Ferguson’s complaint was filed, the three-year statute of limitations on his claim against Wilson had run.

¶ 17. Ferguson never argued that the September 2011 demand letter was an attempt to accept Farm Bureau’s offer. Even if Ferguson had made this argument, however, it would not have been successful due to lack of consideration to form a valid contract. It has been long established that “[a] benefit to the promisor or detriment to the promisee is sufficient consideration for a contract. This may consist either in some interest, right, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Lowndes Coop. Ass’n v. Lipsey, 240 Miss. 71, 76, 126 So.2d 276, 278 (1961) (citations omitted). “Where no consideration exists, and is required, the lack of consideration results in no contract being formed....” 3 Williston on Contracts § 7:11 (4th ed. 2013). Ferguson had nothing to offer, such as relinquishing the right to sue the insured, in exchange for the policy proceeds, because his right to sue Wilson had expired. Also, Farm Bureau would have obtained no benefit, because Ferguson could no longer sue the insured. There could have thus been no consideration, and no contract formed.

¶ 18. In conclusion, there was no genuine issue of material fact that Ferguson’s complaint was time-barred. Accordingly, we affirm the trial court’s grant of summary judgment for Farm Bureau.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Ferguson cannot provide a definitive date that the alleged breach occurred.

      . Farm Bureau claims it offered to pay $50,000 under the farm employer's liability coverage of Wilson's insurance policy to Ferguson and known lienholders in exchange for the execution of a valid release whereby Ferguson waived any right to bring an action against Wilson.


text:
    James E. FULLER, Jr., Appellant v. Rachel WEIDNER, Appellee.
    No. 2013-CA-00963-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.
    William Carl Miller, Biloxi, attorney for appellant.
    Suzanne Baker Steele, Biloxi, attorney for appellee.
   LEE, C.J.,

for the Court:

¶ 1. In this appeal, we must determine whether the chancellor erred in terminating the father’s parental rights. Finding no error, we affirm.

PROCEDURAL HISTORY

¶2. James E. Fuller Jr. and Rachel Weidner are the parents of Remmy Fuller, born February 13, 2009. Fuller and Weid-ner had a tumultuous relationship, which ended when Remmy was approximately fourteen months old. On April 23, 2010, an order to renew and extend a temporary domestic-abuse protective order was entered in the Jackson County Justice Court. This order extended a prior temporary domestic-abuse protective order dated April 14, 2010, for one month, and ordered Fuller to have “no contact involving the child until [the] chancery court establishes custody.”

¶ 3. On April 27, 2010, the Harrison County Chancery Court entered a judgment for support and other relief pursuant to a Department of Human Services action to establish child support for Remmy. The chancellor set child support and entered a separate withholding order for the payments. Fuller was also assessed past-due child support.

¶ 4. On May 22, 2012, Weidner filed an action in the Harrison County Chancery Court to terminate Fuller’s parental rights. She filed an amended action on July 3, 2012. After two continuances, a hearing was held on April 16, 2013. During this time, a guardian ad litem was appointed to assess the situation and make a recommendation. The chancellor determined that Fuller had abandoned Remmy and entered an order terminating his parental rights.

¶ 5. Fuller now appeals, asserting the chancellor erred by (1) misapplying the law, and (2) finding Fuller abandoned his daughter.

STANDARD OF REVIEW

¶6. Our appellate review of a chancellor’s decision to terminate parental rights is limited to a review of the chancellor’s findings of fact under the manifest-error/substantial-credible-evidence test. S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (¶ 7) (Miss.2000) (quotation marks omitted). “[W]e look for whether credible proof exists to support the chancellor’s finding of fact by clear and convincing evidence, keeping in mind the best interest of the child is the paramount consideration.” In re K.D.G. II, 68 So.3d 748, 751 (¶ 12) (Miss.Ct.App.2011) (internal quotation marks and citations omitted). Questions of law are reviewed de novo. S.N.C., 755 So.2d at 1080 (¶ 7).

DISCUSSION

I. MISAPPLICATION OF LAW

II. CLEAR AND CONVINCING EVIDENCE OF ABANDONMENT

¶ 7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93 — 15—103(3)(b) and (f) allow for the termination of parental rights if:

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment_

In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.

¶ 8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.

¶ 9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[Qailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So.2d 874, 877 (Miss.1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So.2d 331, 338 (¶ 29) (Miss.2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So.2d 322, 324-25 (¶¶ 8-10) (Miss.Ct.App.2008).

¶ 10. Upon review of the record, we find credible proof supports the chancellor’s decision to terminate Fuller’s parental rights. This issue is without merit.

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

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

      . This order is not included in the record.

      . Fuller was represented by counsel during these proceedings.


text:
    Harold Maurice DEAN a/k/a Harold M. Dean a/k/a Harold Dean, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01717-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.

      Office Of State Public Defender by George T. Holmes, attorney for appellant.
    Office Of The Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   LEE, C.J.,

for the Court:

¶ 1. A jury in the Harrison County Circuit Court convicted Harold Maurice Dean of fraudulent use of identity. Dean was sentenced to serve two years in the custody of the Mississippi Department of Corrections, and ordered to attend the long-term drug and alcohol treatment program facility during his incarceration.

¶ 2. Dean’s post-trial motions were denied. Dean now appeals, asserting (1) there was insufficient evidence to support his conviction, and (2) the verdict is contrary to the overwhelming weight of the evidence.

FACTS

¶ 3. On January 13, 2012, Dean was arrested in Gulfport, Mississippi, for public intoxication. Dean admittedly told the police his name was Jeffrey Jenkins. Jenkins is Dean’s brother. After being held at the jail, Dean was released to an American Medical Response (AMR) ambulance for transportation to Gulfport Memorial Hospital (GMH) to treat a cut on his hand. Dean signed the AMR patient form on the “signature of patient” line using the last name Jenkins. However, the first name Dean wrote on the signature line was illegible.

¶ 4. Dean received treatment at GMH and was released. In February 2012, Jenkins learned that his flexible spending account through his employer-provided medical insurance was empty. Jenkins discovered a $1,600 charge for an emergency-room visit on January 13, 2012, at GMH. Jenkins was advised to report this to the Gulfport Police Department. Jenkins also testified that Dean admitted to him that Dean had used Jenkins’s name as his own.

¶ 5. After being arrested for the crime of fraudulent use of identity, Dean admitted to Detective Brandon Bang that he had used Jenkins’s name to conceal his identity. Dean testified that he told the AMR attendant that he falsely used Jenkins’s name when arrested.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶ 6. In his first issue on appeal, Dean contends the evidence was insufficient to support the guilty verdict. In reviewing the sufficiency of the evidence, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation and internal quotation marks omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 7. Mississippi Code Annotated section 97-19-85 (Supp.2013) states, in part, that:

(1) Any person who shall make or cause to be made any false statement or representation as to his or another person’s or entity’s identity, social security account number, credit card number, debit card number or other identifying information for the purpose of fraudulently obtaining or with the intent to obtain goods, services or any thing of value, shall be guilty of a felony....
(2) A person is guilty of fraud under subsection (1) who:
(a) Shall furnish false information willfully, knowingly and with intent to deceive anyone as to his true identity or the true identity of another person. ...

At the time of Dean’s arrest, he used his brother’s identity to deceive the police. He continued to use his brother’s identity when he was transported to GMH for medical treatment. Upon arrival at GMH, Dean received a wristband with Jeffrey Jenkins’s name on it. GMH thought Dean’s name was Jeffrey Jenkins because it filed the emergency-room visit with Jenkins’s insurance provider, assessing a charge of approximately $1,600. Furthermore, Dean admittedly used Jenkins’s name, initially because he had outstanding warrants for failure to pay fines. Jenkins testified Dean admitted to using his identity to receive treatment at GMH.

¶8. Dean testified he admitted to the AMR attendant that he had used a false identity, but Dean never informed GMH upon his arrival or at any time during his treatment in the emergency room. It was within the jury’s discretion to determine Dean’s credibility. Viewing the evidence in the light most favorable to the State, a rational juror could have found beyond a reasonable doubt that Dean was guilty of fraudulent use of identity. This issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 9. In his other issue on appeal, Dean contends the guilty verdict is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 10. Dean’s arguments are similar to those expressed in the previous issue. From the evidence described in the previous issue, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶11. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF FRAUDULENT USE OF IDENTITY AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: MAXWELL, J.,

text:
    Eddie J. DAVIS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-01584-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.
    Eddie J. Davis, appellant, pro se.
    Albert Bozeman White, Madison, Leanne Franklin Brady, attorneys for ap-pellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In his appeal of the denial of benefits from the Mississippi Department of Employment Security (MDES), Eddie J. Davis focuses only on why he thinks the decision by the administrative law judge (ALJ) was wrong. But the merits of the ALJ’s decision are simply not before us. The ALJ’s decision became final and binding on MDES’s Board of Review when Davis failed to appeal within fourteen days. Because there is nothing in the record to show “good cause” for why Davis’s appeal was late, we affirm.

Procedural History

¶2. Davis applied for unemployment benefits after being fired from the sales department of Columbus Nissan, Inc. MDES initially denied benefits because Davis had been terminated for acting inappropriately during a sales-team meeting. Within fourteen days of being mailed this initial decision, Davis requested a hearing. See Miss.Code Ann. § 71-5-517 (Rev. 2011).

¶ 3. On May 21, 2013, the ALJ conducted a telephonic hearing with Davis and Davis’s former general manager. During this hearing, the ALJ confirmed not once, but twice, that Davis’s mailing address was correct. At the end of the hearing, the ALJ concluded Davis had in fact been fired for misconduct connected to his work, which disqualified him from receiving unemployment benefits. See Miss.Code Ann. § 71 — 5—513(l)(b) (Rev. 2011).

¶ 4. The very next day, May 22, 2013, the ALJ mailed her decision to Davis. The decision expressly stated that the “decision will become final on 06/05/13, which is fourteen (14) calendar days from the date this decision was mailed, unless you file an appeal with the Board of Review and/or request a hearing of the case by 06/05/13.” While Davis did appeal, he waited too late. He filed his appeal June 6, 2013 — one day after the ALJ’s decision had become final. Thus, the Board dismissed Davis’s appeal as untimely.

¶ 5. Davis appealed to the circuit court. He began his brief by claiming the reason his appeal to the Board of Review was late was that he had never received the ALJ’s decision. The circuit court affirmed the Board’s decision.

¶ 6. Davis further appealed to this court. In his brief submitted to this court, he does not mention the fact his appeal to the Board of Review was dismissed as untimely. Nor does he try to explain why his tardiness should be excused.

Discussion

¶ 7. Though Davis’s appeal ignores the fact the ALJ’s decision became final and binding on June 5, 2013, we cannot. The procedures for unemployment-benefits cases like Davis’s are governed by statute. While Mississippi Code Annotated section 71-5-519 (Rev. 2011) allows a party to appeal a decision by the ALJ to the Board of Review, the appeal must be made within fourteen days. And “[u]nless the notification of the decision is made by means other than mailing, the fourteen-day time period to appeal to the Board of Review begins to run on the date that notice is mailed to the parties.” Miss. Emp’t Sec. Comm’n v. Marion Cnty. Sheriff’s Dep’t, 865 So.2d 1153, 1156 (¶8) (Miss. 2004) (citing Wilkerson v. Miss. Emp’t Sec. Comm’n, 630 So.2d 1000, 1002 (Miss. 1994)). Here, the ALJ gave Davis notice by mail on May 22, 2013, using the address Davis had just confirmed the day before during the telephonic hearing. So his fourteen-day period to appeal began running on May 22, 2013. Because he did not appeal the ALJ’s decision within those fourteen days, “that decision [became] binding on the Board of Review.” Id.

¶ 8. While Davis’s appeal was only one day late, the Mississippi Supreme Court has made clear that this fourteen-day period must be strictly construed. Id. (citing Wilkerson, 630 So.2d at 1002). In fact, in Wilkerson, the supreme court chastised the MDES for accepting an appeal filed one day late, because the agency had no authority to go outside the statute’s confines and allow parties an extra three days to appeal. Wilkerson, 630 So.2d at 1001-02.

¶ 9. The only way to get around this hard deadline is to show “ ‘good cause’ ... that the mailing to the last known address was not reasonably calculated, under all circumstances, to apprise the party of the decision.” Marion Cnty. Sheriff’s Dep’t, 865 So.2d at 1157 (¶ 10) (citations omitted). But merely denying notice was received — which is all Davis did — is not enough to establish good cause. Id. Instead, Davis needed to put forth “sufficient evidence to show that [he] failed to receive the mailing due to delays in the mail or because of an act beyond [his] control.” Id. But Davis offered no such evidence. Thus, we find the circuit court properly affirmed the Board of Review’s decision that Davis’s appeal was untimely.

¶ 10. For the same reason, we too affirm.

Ull. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED.

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