text:
    Walter McCOMB a/k/a Walter Eddie McComb a/k/a Johnny a/k/a Walter E. McComb, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00215-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2014.
    Certiorari Dismissed April 3, 2014.

      Walter McComb, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Walter McComb appeals the Harrison County Circuit Court’s dismissal of his motion for post-conviction relief (PCR) as a successive writ and as time-barred. McComb argues that his attorneys violated his constitutional rights and failed to provide effective assistance of counsel by: (1) failing to file a motion for “bond relief’; (2) recommending that he take money to his plea hearing to pay his fines; and (3) failing to pursue an appeal of the adverse ruling on his Motion to Dismiss for Denial of Speedy Trial.

¶ 2. The procedural history of this case reflects that McComb filed his first PCR motion on March 12, 2007, and he filed this current motion on June 21, 2012. The record contains an order from the circuit judge dated July 16, 2007, which denied McComb’s first PCR motion. The docket sheet also reflects this information, showing that McComb filed his first PCR motion on March 12, 2007, and that the circuit court denied this first PCR motion on July 16, 2007.

¶ 3. Finding no error in the circuit court’s dismissal of McComb’s present PCR motion as time-barred and successive-writ barred, we affirm.

FACTS

¶ 4. The underlying convictions stem from an indictment issued by a Harrison County grand jury charging McComb with Count I, aggravated domestic violence pursuant to Mississippi Code Annotated section 97-8-7(4) (Rev.2000), and Count II, aggravated assault pursuant to Mississippi Code Annotated section 97 — 3—7(2)(b) (Rev. 2000). The grand jury indicted McComb on each count as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000).

¶ 5. Count I of the indictment for aggravated domestic violence charged that McComb “did unlawfully, feloniously, purposely or knowingly cause bodily injury with a deadly weapon, to-wit: a handgun, to Debra Joanne McComb, who was at the said time: a current spouse of Walter Eddie McComb, by striking her with a handgun....” Count II of the indictment charged McComb with committing aggravated assault as part of a common scheme or plan, wherein McComb “did unlawfully, feloniously, wilfully and knowingly cause bodily injury to Walter O. Butler, with a deadly weapon, to-wit: a handgun, by shooting him with said weapon.... ”

¶ 6. On June 3, 2004, McComb pleaded guilty to both counts charged in his indictment. The circuit court sentenced him as a habitual offender under section 99-19-81 to serve fifteen years on each count, with the sentences to run concurrently to one another, for a total of fifteen years, and to be served day for day.

¶ 7. On March 12, 2007, McComb filed his first PCR motion, in which he claimed: (1) his indictment was fatally defective; (2) his plea was involuntary; and (3) his attorneys provided ineffective assistance of counsel. On July 22, 2008, this Court affirmed the denial of McComb’s first PCR motion in McComb v. State, 986 So.2d 1087, 1092 (IT 17) (Miss.Ct.App.2008). Writing for the Court, Presiding Judge Myers found that all McComb’s assignments of error lacked merit.

¶ 8. McComb filed this current PCR motion on June 21, 2012, more than eight years after his sentencing on June 3, 2004. He alleges that his attorneys violated his constitutional rights and provided ineffective assistance of counsel by: (1) failing to file a motion for “bond relief’; (2) recommending that he take money to his plea hearing to pay his fines; and (3) failing to pursue an appeal of the adverse ruling on his Motion to Dismiss for Denial of Speedy Trial. The circuit court concluded that the claims set forth in this second PCR motion lacked merit and found McComb’s motion time-barred and successive-writ barred. See Miss.Code Ann. § 99-39-5(2) (Supp. 2013); Miss.Code Ann. § 99-39-23(6) (Supp.2013). The circuit court therefore entered an order dismissing McComb’s second PCR motion on January 10, 2013. Aggrieved by the circuit court’s ruling, McComb appeals.

STANDARD OF REVIEW

¶ 9. “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 358, 360 (¶10) (Miss.Ct. App.2011).

DISCUSSION

I. Successive-Writ Bar

¶ 10. As provided by the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a motion filed after entry of a final judgment that asserts the same issues is procedurally barred as a successive writ. See Ratcliff v. State, 120 So.3d 1058, 1060 (¶ 5) (Miss.Ct.App.2013); Williams v. State, 110 So.3d 840, 843 (¶ 13) (Miss.Ct. App.2013) (citing Miss.Code Ann. § 99-39-23(6)). As the movant, McComb bears both the burden of demonstrating that his claims are not barred as successive writs and that he has met an exception to the procedural bars. See Williams, 110 So.3d at 843 (¶¶ 13,15). We recognize that while errors that affect fundamental constitutional rights are excepted from the UP-CCRA’s procedural bars, bare assertions regarding such violations are insufficient. Id. at (¶ 15).

¶ 11. Mississippi precedent establishes “that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991) (citing Ellzey v. State, 196 So.2d 889, 892 (Miss.1967)). The Mississippi Supreme Court has also recognized the right to a speedy trial as being included in this class of rights that a defendant may waive or forfeit. Id. at 392. McComb’s valid guilty plea therefore waived the argument that he received ineffective assistance of counsel because his attorney failed to appeal the adverse ruling on his Motion to Dismiss for Denial of Speedy Trial. Likewise, McComb’s guilty plea waived his remaining arguments asserting that he received ineffective assistance of counsel because his attorneys failed to file a motion for “bond relief’ and recommended that he take money to his plea hearing to pay his fines.

¶ 12. Based on the record and applicable case law, McComb has failed to meet his burden to show that an exception to the UPCCRA’s procedural bars applies. Therefore, the circuit court properly dismissed McComb’s PCR motion as a successive writ.

II. Time-Bar

¶ 13. Because McComb entered a plea of guilty to the counts charged in his indictment, section 99-39-5(2) provides that he had three years from the entry of his judgment of conviction to file his PCR motion. As acknowledged above, there are exceptions, such as errors that affect fundamental constitutional rights, to the UPCCRA’s procedural bars, but the mov-ant bears the burden of demonstrating that he has met an exception. See Williams, 110 So.3d at 843 (¶ 15). In the present case, McComb failed to meet this burden.

¶ 14. The circuit court sentenced McComb on June 3, 2004, and he filed his current PCR motion on June 21, 2012. This delay spanned eight years, and McComb’s filing was therefore well outside the three-year time limit provided in section 99-39-5(2). In addition, like the successive-writ issue discussed above, McComb has failed to show that an exception applies to the time-bar. As a result, we affirm the circuit court’s dismissal of McComb’s PCR motion as time-barred.

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

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

      . In an order entered on January 10, 2013, dismissing McComb's most recent PCR motion filed on June 21, 2012, the circuit court mistakenly wrote that McComb filed a PCR motion on November 13, 2007, which the circuit court denied on January 11, 2008. This order reflects a scrivener’s error, however, and should have provided that McComb’s motion was filed March 12, 2007, not November 13, 2007, and denied July 16, 2007, not January 11, 2008.

      . McComb, 986 So.2d at 1089-92 (¶¶ 7-16).

      . In support of its ruling, the circuit court cited the following cases: Jackson v. State, 19 So.3d 106, 107 (¶¶ 6-7) (Miss.Ct.App.2009); Jones v. State, 995 So.2d 822, 824 (¶¶ 4-5) (Miss.Ct.App.2008); and Wildee v. State, 930 So.2d 478, 480 (¶ 5) (Miss.Ct.App.2006).

      . See also Jefferson v. State, 855 So.2d 1012, 1014 (¶11) (Miss.Ct.App.2003) (stating that "a plea of guilty waives any evidentiary issue" (citing Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002))); URCCC 8.04 (discussing the consequences of a defendant’s entry of a guilty plea).

      .The Uniform Rules of Circuit and County Court discuss the rights that a defendant may waive. Along with other pretrial issues, pretrial bond issues are waived upon a defendant’s guilty plea. See URCCC 8.02; URCCC 8.04; see also Hodgin v. State, 710 So.2d 404, 405 (¶ 2) (Miss. 1998) (finding that the affirmation of the denial of the defendant's original PCR motion rendered his motion for bond pending that PCR appeal moot); Langston v. State, 373 So.2d 613, 614 (Miss.1979) (holding that the defendant’s argument regarding denial of bond was rendered moot since the appeal on his criminal charge had been resolved against him); Robinson v. State, 875 So.2d 230, 240 (¶¶ 29-30) (Miss.Ct.App.2004) (holding that the affirmation of the defendant’s conviction rendered her arguments as to her appeal bond moot).


source: Caselaw Access Project

author: ROBERTS, J., for the Court:

license: Public Domain

text:
    Karen GARSON and David Garson, Appellants v. CIRCUS CIRCUS MISSISSIPPI, INC. d/b/a Gold Strike Casino Resort, Appellee.
    No. 2013-CA-00498-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      Lincoln Hodges, attorney for appellants.
    Scott Burnham Hollis, Olive Branch, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J., for the Court:

¶ 1. Following the Tunica County Circuit Court’s grant of Circus Circus Mississippi Incorporated d/b/a Gold Strike Casino Resort’s motion for summary judgment, Karen and David Garson (Garsons) filed the present appeal asking this Court to determine whether the circuit court erred in granting summary judgment. Finding no genuine issue of material fact, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 24, 2007, Karen rented a hotel room at Gold Strike Casino Resort, which is owned by Circus Circus. According to Karen, she struck her right ankle against a portion of the metal bed frame protruding from the bed but concealed by the bed spread. She reported that she believed she had broken her ankle to the front desk. Several Gold Strike employees came to her room to provide assistance. Karen testified at her deposition that the employees took pictures of her ankle and the placement of the bed before maintenance put the bed back in its place. She did not seek medical attention that day.

¶ 3. Karen was seen by Dr. Michael Heck for her injury. According to Karen’s deposition, Dr. Heck informed her that she had fractured the tibia or the fibula of her ankle bone. She wore a cast for two and a half weeks, then she wore a boot for two- and-a-half weeks, and she was prescribed physical therapy. She testified that she still experiences some pain and swelling as a result of her injury.

¶ 4. The Garsons filed a complaint on March 23, 2010, against Circus Circus alleging negligence in regard to Karen’s injury and a loss-of-consortium claim from David. Circus Circus filed its answer and affirmative defenses. It then filed its notice of service of interrogatories and request for production of documents on June 3, 2010. Circus Circus also deposed Karen on December 9, 2011. The Garsons responded to those requests, but they did not request any discovery on their own behalf.

¶5. Then, on August 20, 2012, Circus Circus filed a motion for summary judgment alleging that the Garsons “have failed to propound written discovery to Gold Strike, have failed to notice a single deposition, and have failed to designate a liability expert.” Further, the Garsons “cannot prove the existence of a hazardous condition” that caused Karen’s injuries. The circuit court heard the motion on February 7, 2013, and granted summary judgment in favor of Circus Circus on Karen’s claims and David’s claim of loss of consortium.

¶ 6. The Garsons appeal and ask this Court to determine whether the circuit “court err[ed] in granting [Circus Circus’s] motion for summary judgment when it ruled that there [was an] absence of a genuine issue of material fact contained in the record[J”

ANALYSIS

¶ 7. This Court employs a de novo standard of review when considering a circuit court’s grant or denial of summary judgment. Estate of Luster ex rel. Gusman v. Mardi Gras Casino Corp., 121 So.Sd 962, 965 (¶ 8) (Miss.Ct.App.2013) (citing Sutherland v. Estate of Ritter, 959 So.2d 1004, 1007 (¶ 8) (Miss.2007)). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where “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.” In Karpinsky v. American National Insurance Co., 109 So.3d 84, 89 (¶13) (Miss.2013), the Mississippi Supreme Court explained that in premises-liability cases where the defendant files a motion for summary judgment, he carries the initial burden of persuading the trial judge that no issue of material fact exists and that he is entitled to summary judgment based upon the established facts, and he does not carry any burden of production at the summary-judgment stage. However, the plaintiff “carries the burden of producing sufficient evidence of the essential elements of the claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id.

¶ 8. The Garsons argue that Karen’s sworn answers to factual interrogatory questions and sworn deposition testimony were not self-serving and conclusory as the circuit court found when it granted Circus Circus’s motion for summary judgment. They submit that these answers and testimony were sufficient to show a genuine issue of material fact.

¶ 9. Mere “proof of an injury is not the basis for premises liability.” Gusman, 121 So.3d at 965 (¶ 9) (quoting Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶ 7) (Miss.Ct.App.2007)). Rather, the negligence of the business owner must be shown. Id. To succeed on a premises-liability claim, the plaintiff must show: “(1) a negligent act by the defendant caused the plaintiffs injury; or, (2)[the] defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant.” Stanley v. Boyd Tunica Inc., 29 So.3d 95, 97 (¶ 9) (Miss.Ct.App.2010) (quoting Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003)). “All three types of premises-liability claims require a showing of a dangerous condition. In other words, a ‘property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists.” ’ Id. at 97-98 (¶ 10) (quoting Delmont v. Harrison Cnty. Sch. Dist., 944 So.2d 131, 133 (¶5) (Miss.Ct.App.2006)).

¶ 10. The Garsons have presented no evidence that the bed was a dangerous condition. Assuming arguendo that the bed was a dangerous condition, they failed to show that Circus Circus caused the dangerous condition or that Circus Circus had actual or constructive knowledge of the bed’s dangerous condition. The sole evidence of the bed’s condition comes from Karen’s deposition testimony that the dangerous condition in the hotel room was that “[t]he bed was moved. You could [not] see it. It was a hidden obstacle.” At her deposition, she could not explain what caused the bed frame to stick out or how long the bed frame had been in that position. Karen’s affidavit, as it reiterates statements from her deposition, is also insufficient to overcome Circus Circus’s motion for summary judgment. “Not every affidavit presented for a court’s consideration is competent summary-judgment evidence[.]” Karpinsky, 109 So.3d at 91 (¶ 21) (citing Sweet v. TCI MS, Inc., 47 So.3d 89, 93 (¶ 19) (Miss.2010)).

¶ 11. The Garsons failed to offer any proof that the bed frame, which caused her injury, was a result of a dangerous condition caused by any negligent act or omission of Circus Circus. As the circuit court pointed out, the Garsons had “ample opportunity to conduct discovery to find some proof to substantiate [Karen’s] claim that Gold Strike caused or knew about the alleged hazardous condition.” The Gar-sons did not carry their burden of producing sufficient evidence to establish each element of their premises-liability claim. Without additional supporting evidence, her statements are not sufficient to create a genuine issue of material fact.

¶ 12. We find that the circuit court did not err in granting Circus Circus’s motion for summary judgment.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: JAMES, J., for the Court:

text:
    Christopher ROBERTS, Appellant v. Yolanda ROBERTS, Appellee.
    No. 2012-CA-01523-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.

      Kelly Michael Rayburn, Gulfport, attorney for appellant.
    William E. Tisdale, attorney for appel-lee.
    Before GRIFFIS, P.J., ROBERTS, FAIR and JAMES, JJ.
   JAMES, J., for the Court:

¶ 1. The Harrison County Chancery Court granted Yolanda Roberts a fault-based divorce from Christopher Roberts on the grounds of uncondoned adultery. The chancellor made an equitable division of the marital property and awarded Yolanda $500 per month in periodic alimony. Christopher appeals the judgment, raising the following issues:

I. The chancellor erred in awarding Yolanda Roberts the sum of $50,000.00 with 8% interest from Christopher Roberts, representing one-half of the funds used by Mr. Roberts to start a business, and erred in awarding Yolanda Roberts the sum of $18, 877.83, representing one-half of the Christopher Robert’s E-Trade account, and awarding her the sum of $1,100.00, representing one-half of the IRA Franklin Money Account.
II. The [cjhancellor erred in awarding Yolanda Roberts [periodic] alimony in the amount of $500.00 per month when Christopher Roberts was unemployed, among other factors.
III. The [c]hancellor erred in finding Christopher Roberts in contempt and ordering him to pay $1,852.85 to Yolanda Roberts for their son’s college living expenses, [and] by not considering payments made by Christopher Roberts directly to the child for this purpose.

Finding no error, we affirm the judgment of the chancery court.

FACTS

¶ 2. Christopher and Yolanda were married on April 23, 1985, and separated on August 14, 2007. Two children were born of the marriage, Price J. Roberts, born December 27, 1987, and Lauren R. Roberts, born February 3,1988.

¶ 3. During the marriage, Christopher was employed as an off-shore installation manager and certified diver with Phoenix International. Christopher was also involved in an informal partnership with his friend, Mark Drake, in which they bought, renovated, and resold houses. This partnership venture was created upon Christopher and Drake each contributing $100,000. Yolanda worked as a part-time PRN nurse. On January 24, 2008, Yolanda filed her complaint for divorce on the ground of uncondoned adultery. On May 2, 2008, an agreed temporary judgment was entered into by the parties. The agreed temporary order provided, in part, as follows: the parties were each to pay one-half of the college room, board, and tuition for their son, Price; Yolanda was awarded temporary use and possession of the marital residence located in Gulfport, Mississippi, including all household goods, appliances, furniture, and fixtures; and Christopher was to pay temporary spousal support to Yolanda of $1,000 per month, beginning March 25, 2008, and continuing until further order of the court.

¶ 4. On October 1, 2008, the chancellor entered a judgment of divorce on the ground of uncondoned adultery, reserving jurisdiction over the parties in order to hear and rule on all other matters at a later date.

¶ 5. Yolanda filed a complaint for contempt on September 23, 2009, alleging that Christopher had failed to comply with the May 2, 2008 agreed temporary judgment. A trial regarding the remaining issues of equitable division of marital property and contempt was held August 13, 2009, January 28, 2010, May 19, 2010, September 9, 2010, and February 28, 2011.

¶ 6. On February 28, 2011, Christopher filed a motion to terminate temporary spousal-support payments. In support of his motion, Christopher attached a letter from Phoenix International showing that his employment position was terminated on October 19, 2010. By order entered March 2, 2011, all temporary spousal-support payments were abated until the entry of a final judgment. On March 2, 2012, the chancellor entered a final judgment in which he made a final ruling on all outstanding issues, including the division of marital property, award of alimony, and Yolanda’s motion for contempt.

¶ 7. The chancellor found Christopher in contempt for his failure to pay his portion of Price’s reasonable living expenses for the months of March, April, and May 2009, and ordered Christopher to pay Yolanda $1,852.85. The chancellor made a determination of marital and nonmarital property and equitably divided the marital property. As to real property, Yolanda was awarded the marital home located in Gulfport. The marital home was appraised at $120,000. At the time of the trial, Christopher resided at a house in Long Beach, Mississippi, a property appraised at $106,000. The chancellor awarded this property to Christopher. The chancellor identified one other property in Gulfport, as being marital. As no appraisal was conducted on this property, the chancellor ordered the parcel sold and the proceeds divided equally among the parties. The chancellor found all other properties in which Christopher had an interest to be the separate property of Christopher.

¶ 8. In addition to real property, Christopher’s Franklin Money IRA account and E-Trade account were found by the chancellor to be marital property. Accordingly, the chancellor awarded Yolanda $1,100, representing her one-half interest in the IRA account and $18,877.88, representing her one-half interest in the E-Trade account. The chancellor also ordered Christopher to pay Yolanda $50,000, representing one-half of the funds that he used to start his business with Drake. Finally, the chancellor awarded Yolanda periodic alimony of $500 per month, beginning March 1, 2012.

¶ 9. Christopher filed a motion for a new trial or, in the alternative, for reconsideration. Likewise, Yolanda filed a motion for reconsideration, or to amend or alter the judgment. Both motions were denied. Christopher now appeals.

DISCUSSION

¶ 10. We will not reverse a chancellor’s decision unless the chancellor’s findings were clearly erroneous or manifestly wrong, or the chancellor applied an incorrect legal standard. Byrd v. Byrd, 100 So.3d 443, 447 (¶ 5) (Miss.2012). “The chancellor’s ruling will be upheld if supported by substantial credible evidence.” Id.

I. Whether the chancellor erred in the distribution of the marital assets.

¶ 11. Christopher characterizes the chancellor’s judgment dividing the marital property as “wholly inequitable.” Yolanda was awarded the marital residence, valued at $120,000, while Christopher was awarded the Long Beach property, valued at $106,000. Christopher maintains that while Yolanda received one hundred percent of the equity in the marital residence, he only received fifty percent of the equity in the Long Beach property because the property was jointly owned by Drake. Thus, while Yolanda received a value of $120,000, Christopher only received a value of $53,000, a difference of $67,000. Christopher further asserts that the chancellor erred in awarding Yolanda $50,000, representing one-half of the marital funds Christopher used to start his partnership with Drake, while failing to divide or consider $50,000 in Certificates of Deposit (“CDs”) in Yolanda’s possession.

¶ 12. In sum, Christopher argues that the chancellor’s findings were unfair in that Yolanda received the majority of the marital assets, with no showing that she made a larger contribution to the accumulation of marital assets. We disagree.

¶ 13. We first note that “equitable distribution does not mean equal distribution.” Brabham v. Brabham, 950 So.2d 1098, 1100 (¶ 7) (Miss.Ct.App.2007) (citing Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994)). The Mississippi Supreme Court’s decision in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), sets forth the framework for property designation and distribution. In light of that decision and its progeny, when dividing marital property, “chancellors are directed to (1) classify the parties’ assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson; and (4) consider the appropriateness of alimony if either party is left with a deficiency.” Dickerson v. Dickerson, 34 So.3d 637, 643-44 (¶ 23) (Miss.Ct.App.2010). The Ferguson factors include:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Id. at 644 (¶ 23) (citing Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App. 2009)). Furthermore, “in applying the Ferguson factors, chancellors should consider each party’s marital fault.” Id.

¶ 14. Here, the chancellor first characterized each asset as marital or nonmarital using the factors set forth in Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), then equitably divided it using the Ferguson factors. The chancellor identified three parcels of real property as being marital property: the marital residence; the Long Beach home; and a third property located on Pass Road in Gulfport. The chancellor awarded Yolanda the marital residence and Christopher the Long Beach property. No testimony was received regarding the value of the Pass Road property; thus, the chancellor ordered that the property be sold and the proceeds divided equally between the parties.

¶ 15. The chancellor found that Yolanda had no retirement accounts. Yolanda did have $50,000 in CDs, which the chancellor found to be her separate property. Christopher testified to possessing two retirement accounts: a 401(k) account and an IRA account. Christopher testified that during the pendency of these matters, he withdrew all funds from the IRA account, which totaled $2,200, and gave none of these funds to Yolanda. Christopher further testified that the 401(k) account contained over $90,000, which Christopher converted to E-Trade accounts. The chancellor found both accounts to be marital property subject to equitable distribution and awarded Yolanda $1,100, representing her one-half share of the IRA and $18,877.83, representing her one-half share of the present value of the E-Trade account.

¶ 16. As to the $100,000 that Christopher used to begin his partnership with Drake, the chancellor found that the funds were drawn during the marriage and prior to the separation of the parties, and were therefore marital funds subject to distribution. The chancellor further noted that “the record shows and supports this [e]ourt’s finding that Christopher set about on a frolic of his own utilizing marital funds he secreted from Yolanda for non-marital purposes.” Accordingly, the chancellor ordered Christopher to pay Yolanda $50,000, representing her one-half interest.

¶ 17. Christopher’s argument that the division was not equitable fails to take into account Christopher’s separate assets not subject to distribution. Although the chancellor found that the funds Christopher used to start his partnership with Drake were marital, the chancellor noted that “the record makes it impossible for this court to go through each [partnership] property and determine what part, if any, constitutes martial property.” Thus, the chancellor found the eight additional partnership properties to be the separate property of Christopher; thus, Christopher retained his fifty percent interest in each property.

¶ 18. As we note above, chancellors need not divide the marital estate equally when ordering equitable division. To the contrary, “an unequal division may be appropriate under certain circumstances.” Id. After reviewing the record and the chancellor’s findings, we find that the chancellor acted well within his discretion in applying the Ferguson factors and distributing the marital property. Accordingly, we find this issue to be without merit.

II. Whether the chancellor erred in awarding Yolanda periodic alimony.

¶ 19. The Mississippi Supreme Court, in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), set forth the factors to be used to determine whether a spouse is entitled to alimony. These factors include:

1. The parties’ expenses and income;
2. The parties earning capacity and health; <N
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties; l>
8. The standard of living of the parties, both during the marriage and at the time of the support determination; OO
9. The tax consequences of the spousal order; CO
10. Fault or misconduct; O T — 1
11. Wasteful dissipation of het assets by either party; and 1-H T — \
12. Any other factor deemed by the court to be just and equitable in connection with the spousal support. to

¶ 20. The purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Elliott v. Elliott, 11 So.3d 784, 786 (¶ 8) (Miss.Ct.App.2009). Thus, “permanent alimony should be considered if one spouse is left with a deficit after the division of marital assets.” Id.

¶ 21. Christopher argues that the chancellor erred in awarding Yolanda periodic alimony of $500 per month. Christopher asserts that the chancellor failed to consider Christopher’s ability to pay in light of the fact that Christopher lost his employment position with Phoenix International. Christopher further asserts that the award was unjust considering the division of marital property, in that Yolanda received a greater portion of the marital estate. In sum, Christopher argues that the chancellor was required to consider Christopher’s ability to pay alimony as well as the totality of the circumstances as to the property-division award, and failed to do so. We disagree.

¶ 22. In turning to the chancellor’s decision, we note that the chancellor made extensive findings regarding periodic alimony in applying the factors set forth in Armstrong. The chancellor found that, prior to losing his employment position with Phoenix International, Christopher earned approximately $11,335 per month and listed his monthly living expenses as $2,177.57. The chancellor noted that, although Christopher lost his position with Phoenix International, his skill as an underwater diver “is a valuable and marketable asset which he has not pursued as he could have to obtain employment.” The chancellor found that Yolanda worked as a part-time PRN nurse and, at the time of the trial, had experienced a drop in income from $2,177.57 to $962.02 per month. Yolanda listed her monthly expenses as $2,267.70. The chancellor noted that Yolanda attributed this drop in income to the hospital no longer utilizing as many PRNs and her obligations as caregiver to her elderly father. In addressing the parties’ standard of living, both during the marriage and at the time of the support determination, the chancellor found that the during the marriage, Christopher’s monthly income was approximately $11,000 and Yolanda earned money from part-time work. The chancellor found that the parties “enjoyed an upper middle class standard of living during the marriage.” At the time of the determination, Christopher was drawing an unknown amount of unemployment benefits in addition to receiving income from his business with Drake, and Yolanda was working less than previously due to obligations to her elderly father. The chancellor found that an award of periodic alimony would be considered taxable income for Yolanda and a tax deduction for Christopher. As to fault, the chancellor found that the cause of the separation and ultimate divorce was Christopher’s admitted adultery with Melissa Ortega. Christopher further testified that his extramarital affair with Ortega was not his first. Finally, the chancellor found wasteful dissipation of assets by Christopher in the amount of $12,000, which he spent on trips with, and gifts for, Ortega.

¶ 23. We find that the chancellor’s Armstrong analysis was properly conducted. The chancellor considered each factor in detail and awarded Yolanda $500 per month in alimony. Accordingly, we find that the chancellor acted within his discretion. This issue is without merit.

III. Whether the chancellor erred in finding Christopher in contempt.

¶ 24. Finally, Christopher asserts that the chancellor erred in finding him in contempt and ordering him to pay Yolanda $1,852.85, representing one-half of Price’s living expenses for the months of March, April, and May 2009. In support of his assertion, Christopher alleges that during the months in question, he paid $650 per month directly to Price, and that Yolanda could not refute that these payments were made.

¶ 25. In March 2009, Price moved from an apartment where the monthly rent was $500 to an apartment with a monthly rent of $900. Yolanda testified and presented evidence that she paid all of Price’s living expenses during the three-month period, for a total of $4,905.70. Christopher testified that during that period, he gave $650 a month directly to Price. However, Christopher offered no documentation demonstrating these payments. The chancellor found Christopher in contempt for his failure to pay his portion of Price’s room and board. However, citing a lack of justification for Price’s move to a more expensive apartment, the chancellor found that Christopher should not have to pay the difference in the increased rent. Thus, Christopher was ordered to pay $1,852.85, rather than $2,452.85.

¶ 26. “Whether to hold a party in contempt is subject to the discretion of the chancellor.” Janssen v. Janssen, 96 So.3d 23, 27 (¶ 11) (Miss.Ct.App.2012). Furthermore, “contempt is an issue of fact to be decided on a case-by-case basis.” Id. And “failure to comply with a court order is prima facie evidence of contempt.” Id.

¶27. Upon reviewing the record and testimony of the proceedings below, we find that the chancellor acted within his discretion in finding Christopher in contempt. Yolanda made a prima facie showing that Christopher failed to comply with the agreed order, and Christopher failed to satisfactorily rebut that showing. Accordingly, this issue is without merit.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON 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, MAXWELL AND FAIR, JJ„ CONCUR.

      . In her motion for contempt, Yolanda alleged that Christopher did not comply with the agreed temporary judgment because he failed to pay the following: temporary support of $1,500; increased rent on Price’s apartment in the sum of $2,452.85 during the months of March, April, and May 2009; $500 in food costs incurred by Lauren during college and Lauren’s $75 honor-roll fee; and one-half of the medical expenses incurred by the children not covered by insurance. However, it is only the chancellor's ruling as to Christopher’s failure to pay his portion of Price’s living expenses that is before us on appeal.

      . Eight additional properties were at issue; however, the chancellor found these properties to be exclusively partnership properties.

      . The chancellor also identified a fourth property, located on Mill Road in Gulfport, as marital property. According to Christopher's testimony, the Mill Road property was purchased after the former marital home was damaged following Hurricane Georges in 1998. The property was used as the marital home for approximately six years and was sold in March 2007 for $500,000. The chancellor found that testimony regarding the sale of the property indicated a discrepancy regarding the sale price and the distribution of the proceeds between the parties. The chancellor noted that "the sum of the discrepancy is $100,000 .... Testimony clearly indicates that the sum of $100,000 was ‘kicked back’ but the record is not clear to whom the money was given.” However, apart from identifying the property as marital property and noting the discrepancy, the chancellor made no awards regarding this property.


author: MAXWELL, J.,

text:
    Kathleen OWENS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00809-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.

      Kathleen Owens, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mississippi’s employment-insurance program serves a specific purpose — “to assist those individuals who involuntarily lose employment through no fault of their own, and who are ready, willing and available to return to work.” Because Kathleen Owens admitted to the Mississippi Department of Employment Security (MDES) that she was unavailable to return to work for the first four weeks she had received unemployment benefits, MDES determined she was ineligible to receive benefits during that time period. So the $620 in benefits she received for those four weeks was an overpayment she had to return. After review, we find substantial evidence supports MDES’s decision that Owens had been ineligible and thus had been overpaid unemployment benefits. We affirm.

Discussion

¶ 2. This court will not disturb a decision by MDES, unless the decision “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates [the claimantj’s constitutional rights.” On appeal, Owens does not argue MDES’s decision falls into any of these categories. Nor does she contest the finding by the administrative law judge (ALJ) that she was unavailable to work. Instead, her argument is that she had a good reason for being unavailable — caring for her critically ill husband.

¶ 3. On October 14, 2012, Owens’s husband had a stroke. And Owens admitted she quit going to work to stay at the hospital and care for her husband. Because of Owens’s absence from work, her employer let her go. In November, she applied for unemployment benefits with MDES. Starting the week ending on November 10, 2012, she received $155 per week for nine weeks — $1,395 total. Only after paying these benefits did MDES learn that Owens had given a false reason why she had been terminated and had concealed that she had no intention to rejoin the workforce while her husband’s condition was critical. MDES initially responded by declaring her ineligible for the entire nine weeks and requiring her to repay the full $1,395. But at a February 2013 hearing with the ALJ, Owens testified that, while she was unavailable to work in November, she was available to work starting December 1, 2012 — the date her husband’s health improved. So in a modified decision, the ALJ declared Owens ineligible for only the first four weeks she received benefits—the time period during which Owens admitted she would not have worked because she was caring for her husband. Thus, Owens was only required to repay MDES $620 as an overpayment of benefits.

¶ 4. While we are certainly sympathetic to Owens’s situation, there is nothing legally incorrect with the ALJ’s modified decision. Under the unemployment-insurance statute, “[a]n overpayment of benefits occurs when a person receives benefits ... [but] is later found to be disqualified or ineligible for any reason[.]” Owens was declared ineligible because of her admitted unavailability to work during November 2012. The statute is clear that only employees available to work in a given week are entitled to unemployment benefits.

¶ 5. Our hands are largely tied here because discretion whether to require repayment belongs to MDES, not this court. And because there is substantial evidence to support MDES’s decision that Owens was ineligible for the first four of the nine weeks she received benefits, we affirm its decision that she must repay the $620 in benefits she received during that time.

¶ 6. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . Henry v. Miss. Emp’t Sec. Comm’n, 905 So.2d 738, 740 (¶ 6) (Miss.Ct.App.2004) (emphasis added).

      . See Miss. Code Ann. § 71-5-511(c) (Supp. 2013).

      . See Miss.Code Ann. § 71-5-19(4)(a)(iii), (b) (Supp.2013).

      . Henry, 905 So.2d at 740-41 (¶ 7).

      . Owens first appealed to the MDES Board of Review, which affirmed the administrative law judge’s modified decision. She then appealed to the Washington County Circuit Court, which affirmed the Board of Review’s decision. Owens then appealed to this court.

      . Miss.Code Ann. § 71 —5— 19(4)(a)(xii).

      . "An unemployed individual shall be eligible to receive benefits with respect to any week only if the department finds that," among other things, the individual "is able to work, available for work[,] and actively seeking work.” Miss.Code Ann. § 71-5-511(c); see also Miss. State Emp’t Sec. Comm'n v. Jackson, 237 Miss. 897, 899-900, 116 So.2d 830, 832 (1960) ("In order to be entitled to unemployment compensation benefits under the statutes, an employee must be involuntarily unemployed and must be available for work [.]" (Emphasis added)).

        .See Miss.Code Ann. § 71—5—19(4)(b) ("Any person receiving an overpayment shall, in the discretion of the department, ... be liable to repay to the department ... a sum equal to the overpayment amount so received by him[.]”).


author: BARNES, J.,

text:
    Laura K. Strickland ROSSER, Appellant v. Abraham J. MORRIS, Appellee.
    No. 2012-CA-00585-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.

      David M. Sessums, Penny B. Lawson, Vicksburg, attorneys for appellant.
    Marc Darren Amos, Columbus, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. The County Court of Warren County awarded permanent custody of Kathryn Morris, a minor child, to her natural father, Abraham Morris (Abe). The trial court granted the child’s mother, Laura Strickland Rosser, visitation and ordered her to pay child support. Laura appeals the trial court’s order, and finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Laura and Abe are the natural parents of Kathryn, who was born out of wedlock on March 3, 2007. The couple ended their relationship a few months after Kathryn’s birth, and on December 5, 2007, Laura filed a complaint for paternity and other relief against Abe in the County Court of Warren County. Laura asserted that Abe was Kathryn’s biological father and requested child support. Abe did not contest paternity and filed a counter-petition for custody and support.

¶ 3. On February 14, 2008, the county court adjudicated Abe as Kathryn’s natural father and awarded Laura “permanent care, custody and control” of the minor child and child support of $600 per month. The court withheld ruling on visitation, however, due to several issues concerning Laura’s and Abe’s ability and willingness to care for the child. The couple held extreme animosity toward one another, as did the minor child’s grandmothers. Therefore, a guardian ad litem was appointed, and the parties eventually agreed on visitation on April 17, 2008. The county court also reserved the right to enter additional orders or modify the current order.

¶ 4. On April 2, 2009, the county court held a hearing regarding multiple motions for contempt that had been filed. Still concerned about Laura’s and Abe’s ability to take care of the child, due to Laura’s alcohol abuse and Abe’s issues with anger, the trial judge issued a temporary order, requiring psychological evaluations of Abe and Laura, and awarding temporary joint custody to Kathryn’s maternal and paternal grandmothers. The order stated that Kathryn was to spend alternating two-week periods at each grandmother’s home. Abe’s parents lived in Columbus, Mississippi; Laura’s parents lived in Vicksburg, Mississippi. The court’s order further dictated that neither Abe nor Laura be left alone with the child. As a result of the court’s order, Laura entered rehabilitative treatment for drug and alcohol abuse, and Abe began psychological treatment for his issues with anger and anxiety.

¶ 5. Shortly following the entry of the court’s temporary order, Abe moved into his parents’ home in Columbus and helped take care of Kathryn during her two-week visits. Abe has worked since that time as a salesman at various car dealerships in Columbus. He has also been receiving regular psychological treatment for his anger issues.

¶ 6. Seeking employment opportunities, Laura moved to Dallas, Texas, in December 2009. She initially lived with her aunt, but she moved into an apartment in March 2010. She subsequently met Brad Rosser through her church and married him. Since her move to Dallas, Laura has been employed full-time as a outside sales representative for a radio station.

¶ 7. A hearing on permanent custody was held on June 6-7, 2011. The trial court entered a memorandum opinion on October 25, 2011, awarding permanent custody to Abe based on its analysis of the factors set forth by Albright v. Albright, 437 So.2d 1003 (Miss.1983). The opinion stated the parties had thirty days to reach an agreement on visitation, child support, health insurance, and “any other matters that need to be addressed.” Laura filed a motion for reconsideration on January 4, 2012; Abe filed a reply on January 13, 2012. On March 12, 2012, the trial court denied both motions and entered an agreed order, granting “reasonable visitation” to Laura and ordering her to pay child support in the amount of fourteen percent of her adjusted gross income. Laura has filed a timely notice of appeal, challenging the trial court’s findings regarding certain Albright factors and claiming that a material change in circumstances has occurred that warrants a change in custody. Finding no error, we affirm the judgment.

DISCUSSION

I. Whether the trial court’s application of the Albright factors was in error.

¶ 8. In appeals concerning child custody, the “polestar consideration” is the best interest of the child. O’Briant v. O’Briant, 99 So.3d 802, 805 (¶ 12) (Miss.Ct.App.2012) (citation omitted). “We may only reverse a child-custody determination if the [trial judge] is manifestly wrong, clearly erred, or applied an erroneous legal standard.” Id. at (¶ 13). If the trial court “properly applies and considers the child-custody factors from Albright, there is no manifest error.” Id. (citing Smith v. Smith, 614 So.2d 394, 397 (Miss.1993)).

¶ 9. In Albright, the Mississippi Supreme Court set forth several factors to consider in determining child custody:

(1) age, health, and sex of the child;
(2) a determination of the parent that has had the continuity of care prior to the separation;
(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;
(4) the employment of the parent and responsibilities of that employment;
(5) physical and mental health and age of the parents;
(6) emotional ties of parent and child;
(7) moral fitness of the parents;
(8) the home, school and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law;
(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Jordan v. Jordan, 105 So.3d 1130, 1133 (¶ 12) (Miss.Ct.App.2012) (citing Albright, 437 So.2d at 1005). After addressing the Albright factors, the trial judge concluded that awarding permanent custody to Abe was in Kathryn’s best interest. However, Laura claims that the trial court made erroneous findings in its application of certain Albright factors contained in the October 25, 2011 memorandum opinion. We-will address these specific factors in turn.

i. Age, Health and Sex of the Child

¶ 10. The trial judge found that this factor favored neither parent. Laura asserts that since Kathryn was a young girl, approximately four years old at the time of trial, this factor should have favored her, and she should have been granted custody. As this Court recently noted in Crabb v. Bowden, 110 So.3d 346, 350 (¶ 12) (Miss.Ct.App.2013):

Under Mississippi Code Annotated section 93-5-24(7) (Rev.2004), awarding either legal or physical custody to the mother is no longer presumed to be in the child’s best interest. Although the tender-years doctrine was “significantly weakened” by section 93-5-24(7), “there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss.Ct.App.2002).

¶ 11. During the testimony of Abe’s mother, Judy Morris, the trial judge did express concern regarding Abe’s ability to take care of a young girl. To address the court’s concern, Abe and Judy testified that Abe had been very involved in Kathryn’s daily care. Judy stated: “And like I say, [Abe’s] done this since Kathryn’s been in the world. He’s changed her diaper, and given her baths[.]” Abe also testified that he helps his daughter get ready for bed a couple of times a week and that he plays games and reads to her regularly. He told the trial judge, “I would have a more hard understanding to take care of a boy because for [four] years[,] I’ve learned how to take care of a girl.” While Laura, as the mother, is presumed better suited to care for a young child, the record reflects that she had a lot less contact with Kathryn than Abe. This was due to her lack of physical proximity to Kathryn, since Laura lived in Dallas, six hours from her mother’s home in Vicksburg.

¶ 12. In regard to the child’s health, testimony showed that Kathryn was healthy and “age-appropriate.” She had a designated pediatrician in Columbus, and Abe occasionally attended those doctor’s appointments. Laura’s mother stated there had been no need for Kathryn to have a doctor when she stayed with her in Vicksburg. In its opinion, the trial court noted that Laura “does not know who her daughter’s doctors are and has not inquired.”

¶ 13. We find no error in the trial court’s finding that this factor favored neither parent.

ii. Determination of the Parent Who Has Had the Continuity of Care Prior to the Separation

¶ 14. Although the trial court stated that this factor favored Abe, Laura argues that this factor should not have favored either party, since it was evident that the Kathryn’s grandmothers had provided the majority of the child’s care for the previous two years.

¶ 15. There is little evidence regarding the child’s care prior to the trial court’s April 2009 temporary order. Abe went to live with his parents after entry of the temporary order and had daily contact with his daughter during the two weeks per month that she lived with his mother. He saw Kathryn every morning and helped put her to bed at night. At the June 2011 hearing, Abe expressed knowledge of Kathryn’s school curriculum and her educational milestones, such as letters and numbers. When asked at the hearing how he would “deal with” obtaining custody, Abe stated:

No different than right now. The only difference is I would have to do it more often. I already dress Kathryn. I already bathe Kathryn. I already brush her teeth. I already brush her hair. I can braid her hair. I mean, you know these things I can already do.

The trial judge concluded: “It is clear that the primary caregiver for Kathryn while she has been in Columbus has been Abe, with significant help from his mother.”

¶ 16. Laura, on the other hand, only saw Kathryn approximately five times in the two-year period prior to the hearing, since she had to drive from Dallas to Vicksburg to see her daughter. She stated that it was difficult to take the necessary time off to make the trip on a regular basis. The trial judge observed in his findings: “Since April 2, 2009, this child has spent virtually no significant time with her mother.”

¶ 17. Accordingly, we find no manifest error in the court’s finding that this factor favored Abe.

Hi Physical and Mental Health and Age of the Parents

¶ 18. Both parents were in their mid-thirties and in good physical health, although both parties admitted to smoking cigarettes. It is evident there were psychological issues with both parties that precipitated the court’s April 2009 order, providing that the child be placed in the temporary custody of Laura’s and Abe’s mothers.

¶ 19. The trial judge found that Laura had done “the bare minimum to convince [the] Court that she has complied with the April 2, 2009 order.” He observed that she had lied under oath regarding her drug and alcohol use. In May 2009, Laura tested positive for marijuana, but denied using the substance to her rehabilitation counselor. She had another positive test for marijuana a month later. She lied about this drug use in her deposition. She did complete an intensive outpatient program through Region 8 Mental Health Services on July 30, 2009, but she eventually left rehabilitation outpatient counseling in December 2009. She continued to attend Alcoholics Anonymous meetings when she first moved to Texas, but she has since quit attending those meetings. The trial court noted various credit/debit charges to local taverns, pubs, and bars, but Laura claimed that she was not purchasing alcoholic drinks at those locations, unless it was for a friend or client. She also contended that a credit-card charge from a package store was for a bottle of wine given to a friend as a present. Laura did confess that she does have an occasional “sip” of a friend’s drink.

¶ 20. Regarding Abe’s progress, however, the trial judge remarked that while Abe was still battling issues with anger and anxiety, he had complied with the court’s temporary order and had sought professional help for his problems. It was noted at the hearing that Abe’s parents had him involuntarily committed in June 2009 in order to wean Abe off of his prescribed Adderall. Abe explained that he had tried to wean himself off the drug without any help, but he experienced terrible side effects. After ten days of treatment, he returned to his parents’ home and began to seek regular treatment for his issues with anger and anxiety. Abe has been prescribed a non-narcotic medication for depression, and he admitted to drinking alcohol “occasionally.”

¶ 21. Abe told his therapist, Dr. Frances Baird, about various arguments/conflicts he had with coworkers. This evidence was admitted and discussed at the hearing. Laura argues that Abe’s history of altercations with his fellow employees at the car dealerships where he had worked “demonstrated that Abe still had a serious issue of controlling his rage and anger such to the extent that it was not appropriate for the [e]ourt to find this factor in favor of Abe.”

¶ 22. However, Dr. Baird observed that since he had been treating Abe, the altercations with his coworkers — only one of which lead to a physical altercation — had resulted in Abe withdrawing from the conflict, rather than letting the situation escalate. Dr. Baird further testified:

Frequently people that are sent in for anger management so-to-speak are sometimes under duress from other quarters and they don’t necessarily also want to be there, but I never got that feeling from Abe.... I think, he, you know, was again motivated, wanting to change. I think[ ] he wanted to be, and I still believe that he wants to be[,] a better human being. And the good news is that will make, you know, his relationship with his child certainly much better.
He appears to be motivated to really want to change his history and his pattern of acting out.

The trial judge noted: “There is no evidence that Abe has ever directed any anger or aggression toward Kathryn.” Thus, we find no error in the trial court’s finding for Abe on this factor.

iv. Emotional Ties of Parent and Child

¶23. The trial judge concluded that this factor favored Abe. To refute the court’s finding, Laura cites testimony that Kathryn was very attached to her and that the child clings to her when she sees her and is “extremely affectionate.” As already noted, however, it was shown at the hearing that Kathryn had little “significant” contact with her mother since April 2009.

¶24. Conversely, there was testimony that Abe had attended Kathryn’s preschool programs, knew her clothes and shoe sizes, and would regularly play games with Kathryn and read books to her. Judy stated:

I think[ ] she loves him a whole lot just by the fact that, you know, when he comes home he’s the go to person, you know. Whatever she’s wanting to do or whatever, she goes to daddy, you know, and asks him to take care of it. So, I think, that — I feel and think that they have a very close relationship.

Reviewing the record, we find no error in the court’s finding that Abe was favored as to this factor.

¶ 25. Laura does not challenge the court’s findings regarding the remaining Albright factors. Upon review, we find that the trial court’s analysis of the Al-bright factors in determining the best interest of the child did not constitute manifest error. Accordingly, we affirm the judgment.

II. Whether Abe’s change of residence constituted a material change in circumstances.

¶26. Shortly after the June 2011 hearing, Abe moved from his parents’ home and moved in with his girlfriend, who is now his wife. Laura argues that this constitutes a material change in circumstances that warrants a modification of custody, as it adversely impacts the child. We note that Abe’s mother, Judy, clearly informed the trial court that Abe had been looking for “an appropriate place for h[im] and Kathryn to move into.” Abe told the trial court that the only reason he stayed with his parents was so he could spend time with his daughter. Abe also testified that he was in a “very committed relationship” with his girlfriend, Michelle, at that time, and she was present at the hearing, although she did not testify. Therefore, the trial judge was aware that Abe was considering a move from his parents’ home in the immediate future and that his relationship with Michelle could lead to marriage and was able to take these factors into account in awarding permanent custody to Abe.

¶ 27. Furthermore, Laura has not brought this issue of a “material change in circumstances” before the trial court by way of a motion for modification of custody. Therefore, her claim is premature, and this issue is not ripe for consideration by this Court.

¶ 28. THE JUDGMENT OF THE COUNTY COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Although neither party resides in Warren County, Laura was living with her parents in Warren County when she filed her initial complaint.

      . The trial judge actually failed to sign the temporary order, but he subsequently did so on October 19, 2011, nunc pro tunc to April 2, 2009.

      . Neither party has challenged the trial court's use of the Albright factors in the memorandum opinion, even though a prior order awarding permanent custody to Laura was entered on February 14, 2008. Once a prior custody determination has been made, the trial court must first find that an adverse material change in circumstances has occurred before employing the Albright factors to determine whether modification of custody would be in the child’s best interest. Reed v. Fair, 56 So.3d 577, 581 (¶¶ 10-11) (Miss.Ct.App.2010) (citations omitted). However, the court did not making any specific Albright findings in the February 14, 2008 order and, as already noted, the remaining issue of visitation had yet to be addressed. Although not stated in the April 2009 order, the trial court clearly found that a material change in circumstances had occurred that adversely affected the child—hence, the award of temporary joint custody to Kathryn’s grandparents.

      . Although the trial court’s memorandum opinion issued on October 25, 2011, granted permanent custody to Abe, it was not a final judgment under Mississippi Rules of Civil Procedure 59 and 60. As noted, the opinion left open several questions, including visitation and child support; therefore, it was not an appealable order. Although Laura's motion for reconsideration was untimely, as it related to the memorandum opinion, it does not affect our jurisdiction to consider her appeal of the court’s subsequent March 12, 2012 order.

      . Laura does not dispute the court's findings on some of the Albright factors. As such, we will not address those factors unchallenged on appeal.