author: BARNES, J.,

text:
    MANHATTAN NURSING & REHABILITATION CENTER, LLC, Appellant/Cross-Appellee v. Bridget PACE, Individually, and Lillie Davis McGee Butler, Individually, and as Co-Executrices for the Estate of Mable J. Allen and on behalf of the Wrongful Death Beneficiaries of Mable J. Allen, Deceased, Appellees/Cross-Appellants.
    No. 2012-CA-00025-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      W. Davis Frye, Barry W. Ford, Bradley C. Moody, Jackson, attorneys for appellant.
    James H. Thigpen, Omar L. Nelson, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. In this wrongful-death action, Plaintiffs claim that Manhattan Nursing & Rehabilitation Center (Manhattan) caused Mable Allen’s death by allowing Allen to become severely dehydrated at the nursing home. Plaintiffs’ theory at trial was that Allen was in such poor condition as a result of Manhattan’s negligence, nothing could be done to counteract her dehydration when she was transferred to the University of Mississippi Medical Center (UMC). After a four-day trial in the Hinds County Circuit Court, the jury returned a $1,213,300 verdict against Manhattan. The verdict was later reduced to $513,300.

¶ 2. Manhattan appeals the jury verdict, raising the following issues: (1) the trial court erred in excluding evidence about the decision made by Allen’s family to withhold medical treatment at the hospital, and this evidence was relevant to the proximate cause of Allen’s death, since it was an intervening, superseding cause, and it was relevant to the mitigation of damages; (2) Manhattan was denied a substantial right when the trial court prevented Manhattan from impeaching Plaintiffs about decisions they made to withhold medical treatment from Allen at the hospital after Plaintiffs testified on direct examination that “there were no decisions” to be made concerning Allen’s medical treatment; (3) the trial court erred in preventing Manhattan from questioning Allen’s physician expert about a medical record signed by Allen’s treating physician that directly related to the proximate cause of Allen’s death and the mitigation of damages, and another medical record signed by Allen’s treating physician that contradicted the opinions of Allen’s expert; (4) the trial court erred when ⅛ allowed Plaintiffs to testify about out-of-court hearsay statements allegedly made by Allen’s physicians; (5) the trial court erred by striking two jurors “for cause” who stated they would be impartial; (6) the trial court erred by overruling Manhattan’s Batson challenges; (7) the evidence was overwhelmingly in favor of Manhattan; and (8) the trial court erred in allowing the jury to consider damages for Allen’s pain and suffering when there was no evidence of such. Finding reversible error with the trial court’s exclusion of certain evidence relating to the Allen family’s decision to withhold medical treatment while at UMC and the admission of hearsay testimony, we reverse and remand for a new trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Allen was a resident of Manhattan, located in Jackson, Mississippi, for over seven years-from July 17, 2001, until November 16, 2008. When Allen was admitted to the nursing home, she was seventy-six years old, and when she passed away on November 18, 2008, she was eighty-four years old.

¶ 4. Her treating physician, Dr. Cassandra Thomas, had originally recommended Allen go to the nursing home for six months to get her diabetes under control and for post-spinal surgery strengthening. At the time of admission, Dr. Thomas had also diagnosed Allen with dementia.

¶ 5. In February 2006, Dr. Thomas diagnosed Allen with advanced dementia, and in July 2006, with end-stage dementia. In July 2007, Allen had an episode of hypoglycemia and dehydration related to her diabetes. She was admitted to a local hospital, where she received intravenous fluids. Allen was released two days later.

¶ 6. By 2008, Allen could no longer walk, communicate, feed herself, or control her bowels or bladder due to her progressive dementia. She was a “total care” resident of Manhattan. The events at issue in this case began on Saturday, November 15, 2008. Tori Hinton, a licensed practical nurse at Manhattan who cared for Allen on a regular basis, testified that Allen refused to eat breakfast and lunch. Allen also spit out her medications that day. The nursing staff attempted to notify Dr. Thomas several times by pager and telephone call. When they did not receive a response, they contacted the “on-call physician,” Dr. Sullivan. He instructed Manhattan to withhold Allen’s diabetic medication until she could be evaluated on Monday. Manhattan complied with the physician’s order. Allen’s vital signs were not taken on this day, as she was not showing any symptoms of low or high blood sugar, or breathing difficulty. Hinton also notified another of Allen’s daughters, Butler, who came to the facility and was also unable to get her mother to eat. Hinton stated that Allen did drink two four-ounce “Med Pass” nutritional supplements on November 15, with protein powder added to them. Hinton maintained that when Allen refused food and medication it was not an “emergency situation”; however, it was unusual, because Allen was normally a “good eater.”

¶ 7. The next day, Allen again spit out her breakfast and medications. She also refused lunch. Allen, however, did not appear to be in any distress. Again, the family was called, and Butler arrived at Manhattan. Butler testified she found her mother slumped in her geri-ehair, and it looked like someone had “cut mama” on the neck, because there was a “big gash” on her neck, and “her head [was] just wobbling.” Butler became “hysterical” and called her sister, Pace, and her niece. In response to Butler’s hysteria, Hinton paged Linda Owens, a registered nurse at Manhattan. When Owens arrived in Allen’s room, she found Allen had a rash of unbroken skin that had developed in a crease of Allen’s neck. An assistant nurse said she had noticed the rash that morning, after Allen had been bathed and put in the geri-chair. Even so, Pace demanded that 9-1-1 be called and Allen transferred to UMC. Manhattan complied, calling an ambulance. Hinton and Owens testified that Allen was not in any distress at the time, nor did she appear dehydrated.

¶ 8. When the emergency medical technicians arrived at the nursing home, they found Allen’s vital signs (blood pressure, pulse, and respiration) were within normal limits. Therefore, the EMTs did not administer IV fluids to Allen on the way to the hospital. The ambulance report indicated that Allen was in no acute distress while being transferred to UMC. Upon arrival at the UMC emergency room (ER), Allen’s chief complaints were the neck rash and “difficulty feeding.” Medical records show one of Allen’s daughters provided her history: Allen is normally not very responsive and has seemed “slightly less alert than usual.” It was noted Allen has dementia and “complete aphasia,” or cannot speak. Her vital signs were “baseline.” An ER physician found Allen was in “no acute distress” and responded only to deep pain. The ER made an initial assessment of “dehydration, hyperglycemia, and thrombocytopenia.” Thus, IV fluids were administered. An ER admission/transfer order stated Allen was diagnosed with “thrombocytopenia, sepsis, and a UTI.”

¶ 9. Allen’s blood pressure began to drop within an hour of arrival at the ER. Allen was admitted to the hospital in critical condition. Numerous medical records show Allen was designated a “Do Not Resuscitate” (DNR) patient, and this status was confirmed by the family; thus, “no invasive procedures or central lines and no ‘pressors’ ” were to be administered. On November 17, Allen’s respiratory status worsened, but the family also refused deep suctioning.

¶ 10. On November 18, 2008, two days after being admitted to UMC, Allen passed away. UMC medical records state her cause of death was “hypercapnic respiratory failure likely secondary to a urinary tract infection and acute renal failure.” There was no mention of dehydration.

¶ 11. In July 2009, Plaintiffs filed their complaint alleging that Allen experienced pain and suffering and ultimately died as a result of Manhattan’s negligence. During a hearing on pretrial motions, the trial court granted Plaintiffs’ motion in limine and prevented Manhattan from entering evidence that would show Plaintiffs were contributorily negligent. In arguing the motion, Manhattan informed the trial court that it did not seek to assign negligence to the family, but instead sought to show how the family’s decision to withhold medical treatment from Allen was an intervening cause that broke the causal chain of attributing harm by Manhattan. However, the trial court disagreed, ruling that any evidence concerning the decision by Allen’s family to withhold treatment from Allen was inadmissible, including her status as a DNR patient.

¶ 12. The four-day trial began in September 2011. Plaintiffs focused solely on the last three days of Allen’s stay at Manhattan and then at UMC. They claimed that Manhattan improperly failed to take Allen’s vital signs when she began spitting out her food and medications on November 15, and that if the vitals had been taken, the Manhattan nursing staff would have recognized that Allen was dehydrated; Allen would have been taken to the hospital sooner and, thus, been easier to treat. The defense argued that Allen’s death resulted not from dehydration but from end-stage dementia, which caused Allen’s organs to stop working;

¶ 13. During Plaintiffs’ case-in-chief, Pace testified that an ER physician told her Allen “would not last more than 24 hours,” so there were “no decisions” for the family to make. The defense sought to impeach her testimony by showing contradictory evidence of the DNR designation, and the family’s refusal of certain treatment for Allen at UMC, but the trial court vehemently denied the request.

¶ 14. Laura Clark, the director of nursing during the time Allen was at Manhattan, testified via deposition as an adverse witness for Plaintiffs. Clark stated that in 2008, Allan was a “swallowing risk,” could not make her needs known, and had severely impaired cognitive skills. She had also had a dehydration-risk assessment performed as late as October 2008, which found her at high risk. However, Clark maintained that Allen’s care plan complied with Manhattan’s policies and procedures.

¶ 15. Dr. Christopher Davey, Plaintiffs’ physician expert in geriatric and family medicine, testified that Manhattan failed to meet the standard of care for treatment of Allen. Dr. Davey opined that Manhattan’s breach caused Allen’s death by dehydration, and if Manhattan had properly monitored Allen and sent her to UMC on November 15, instead of November 16, she would have been easily treated with IV fluids. Additionally, Dr. Davey opined that while Allen “probably” had end-stage dementia, she was not actively dying from it, but instead suffered a drastic crash over the course of a few days before her death. He testified that Allen had no distress during her last days at Manhattan and at UMC because she had “reduced consciousness,” since she had not eaten or drunk anything in two days.

¶ 16. Lou Ann Alexander, a registered nurse, testified as Manhattan’s expert in geriatric nursing. It was her opinion Manhattan complied with the standard of care for treating and hydrating Allen. From a nursing standpoint, Alexander testified, Allen’s nursing-home records, vital signs, and condition at UMC would not indicate dehydration.

¶ 17. Dr. Sharon Brangman, Manhattan’s physician expert witness, testified that dementia always results in death, and it was her opinion Allen’s cause of death was end-stage dementia. She also opined that Manhattan satisfied the appropriate standard of care. She stated that while initially Allen’s vital signs were stable at UMC, it was only after Allen was given IV fluids that her blood pressure began to drop drastically, and she experienced acute distress. Dr. Brangman opined that Allen was actually not dehydrated, but because her kidneys were not working well, her body quickly became overloaded with fluid from the IVs, and she “took a turn for the worse.” Medical records show fluid accumulated in her lungs, which caused Allen to produce “pink, frothy sputum” on November 17.

¶ 18. However, due to the trial court’s grant of Plaintiffs’ motion in limine, prohibiting Manhattan from admitting or referencing any evidence showing the family withheld medical treatment, or that Allen was designated a DNR patient, the trial court deemed the following evidence Manhattan sought to introduce inadmissible. In August 2008, Pace, Allen’s daughter, who served as Allen’s “responsible party” at the nursing home, signed a document entitled “Do Not Resuscitate,” designating Allen as a “DNR” patient. Dr. Thomas signed the document, which stated Allen was a “resident [with] a terminal condition” (end-stage dementia). Several medical records from UMC also showed Allen was a DNR patient. On November 16, 2008, when Allen’s vital signs weakened following the administration of IV fluids, the UMC medical staff charted a conversation with Allen’s family that specified they did not want any invasive procedures, such as central venous lines or “pressors” for Allen. Similarly, on November 17, the family informed Allen’s physician that their mother would not want any “code drugs, pressors, chest compressions, defl-. brillation or mechanical ventriculation.” Also on November 17, while at UMC, a UMC “on-call” physician’s note stated that Allen was producing pink, frothy sputum; therefore, fluids were withheld until the physician could examine her. The physician noted: “After discussion with family, agreed to hold [patient’s] fluids, preventing ... worsening respiratory status and keeping [patient] comfortable. Family REFUSED for [patient] to have any more deep suction. Wishes honored.” Instead, the family asked for Allen to be made as comfortable as possible. Due to the trial court’s ruling, Manhattan could not show these records to the expert or publish them to the jury because the records discussed the family’s decision to withhold treatment from Allen.

¶ 19. Other UMC ER records showed Allen was a DNR patient, and “no invasive procedures or central lines, and no pres-sors” were to be used. In a proffer outside of the jury’s presence, Dr. Davey agreed that the family “basically let her die.” In his opinion, Allen’s dehydration caused her to suffer hypovolemic shock at UMC. However, Dr. Davey agreed that IV fluids and vasopressors were the “mainstay treatments of hypovolemic shock,” and will bring a person’s blood pressure back up to normal. Manhattan argues this medical evidence was highly relevant to counter Plaintiffs’ theory of liability against Manhattan at trial.

¶ 20. After the jury returned a $1,213,300 verdict in favor of Plaintiffs, with noneconomic damages of $1,200,000 and economic damages of $13,300, Manhattan moved to reduce the verdict under section 11-1-60. The trial court granted the motion, and the verdict was reduced to $513,300. The trial court denied Manhattan’s motion for a new trial or, alternatively, a judgment notwithstanding the verdict (JNOV). Manhattan appealed. Plaintiffs cross-appealed, arguing that the trial court erred in granting Manhattan’s motion to reduce the jury verdict under section 11-1-60 because the statute is unconstitutional.

STANDARD OF REVIEW

¶ 21. Manhattan appeals the trial court’s denial of its motion for a new trial or, alternatively, for a JNOV. An appellate court reviews a trial court’s grant or denial of a motion for a new trial for abuse of discretion. Ballard Realty Co. v. Ohazurike, 97 So.3d 52, 58 (¶ 13) (Miss.2012) (citing United Servs. Auto. Ass’n v. Lisanby, 47 So.3d 1172, 1176 (¶9) (Miss.2010)). Likewise, the admission or exclusion of evidence is reviewed under an abuse-of-discretion standard of review. Id. (citing Rebelwood Apartments RP v. English, 48 So.3d 483, 490 (¶ 33) (Miss.2010)). “Where error involves the admission or exclusion of evidence, [the appellate court] will not reverse unless the error adversely affects a substantial right of a party.” Lisanby, 47 So.3d at 1179 (¶ 25) (quoting Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)). A trial court’s denial of a motion for a JNOV is reviewed de novo. Id. at 1176 (¶ 8). A motion for a JNOV “tests the legal sufficiency of the evidence supporting the verdict [and] asks the [reviewing court] to hold, as a matter of law, that the verdict may not stand.” Watts v. Radiator Specialty Co., 990 So.2d 143, 150-51 (¶ 21) (Miss.2008).

ANALYSIS OF THE ISSUES

¶ 22. Manhattan argues, on appeal that the trial court made a “litany of errors” that highly prejudiced the defense at trial. Manhattan explains that its theory of the case at trial centered on the fact that Allen had a debilitating disease — dementia— which had progressed to a terminal condition by 2008. Plaintiffs, in contrast, claimed Allen’s condition was not worsening and that she died as a result of dehydration caused by Manhattan, and, by the time Allen arrived at UMC, nothing could be done.

¶ 28. We find reversible error with the trial court’s exclusion of evidence about the family’s withholding certain medical treatment from Allen while at UMC, which impacted substantial rights of Manhattan to present its version of the case. Additionally, we find the trial court improperly allowed Plaintiffs to present hearsay testimony about Allen’s condition during her admission at UMC. Because the Court reverses on these grounds, there is no need for us to discuss Manhattan’s remaining issues. Further, we will not address the constitutionality of section 11-1-60(2), which was raised in Plaintiffs’ cross-appeal. See State v. Watkins, 676 So.2d 247, 249 (Miss.1996) (quoting Jones ex rel. Jones v. Harris, 460 So.2d 120, 122 (Miss.1984)) (“Courts have a solemn duty to avoid passing upon the constitutionality of any law unless compelled to do so by an issue squarely presented to and confronting a court in a particular case.”); see also Barr v. Matteo, 355 U.S. 171, 206, 78 S.Ct. 204, 2 L.Ed.2d 179 (1957) (quoting Eccles v. Peoples Bank of Lakewood Vill., Cal, 333 U.S. 426, 432, 68 S.Ct. 641, 92 L.Ed. 784 (1948)) (“Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing.”).

I. Exclusion of Evidence

¶24. Manhattan argues it was “hamstrung” at trial in presenting its theory of the case to the jury due to the trial court’s excluding evidence of the family’s decision to refuse certain treatment for Allen at UMC, which would contradict Plaintiffs’ case.

¶ 25. Plaintiffs’ motion in limine asked the court to prevent “[a]ny attempt by Defendants to demonstrate and/or insinuate that ... any of the Plaintiffs ... are somehow contributorily negligent for the damages suffered by Mable Allen.” At the hearing on the motion, counsel for Manhattan represented that “it is not our position to say that the family was contribu-torily negligent because frankly we don’t believe anyone was negligent when it came to her death. But certainly we do want to argue that that is a breach of the causal chain insofar as Plaintiffs’ allegations that Manhattan caused some harm.” Manhattan explained that it. was important to introduce, not necessarily the DNR order, but the withholding of treatment, especially vasopressors, to reverse hypovolemic shock, as a contributory cause of Allen’s death. The trial court ruled that unless Manhattan had caselaw that said a. DNR designation could be a superseding cause to absolve a party from liability, the evidence, including that of vasopressors, would be inadmissible.

¶ 26. Defense counsel cited to the trial judge Munn v. Algee, 924 F.2d 568 (5th Cir.1991), in support of Manhattan’s argument to show the relevance of the decisions made by Allen’s, family about her treatment. In Munn, the plaintiff sued for injuries his wife sustained in an automobile accident. Id. at 571. The plaintiff also asserted a wrongful-death claim because his wife died while receiving treatment for her injuries. The evidence at trial showed the wife declined a blood transfusion due to religious beliefs; the blood was needed during surgery. She died during the operation. At trial, the defendant presented medical evidence that the proposed blood transfusion would have prevented the decedent’s death. Id. at 573. Therefore, the trial court allowed the jury to consider this evidence as a factor contributing to her death. The jury awarded damages to the plaintiff for the injuries the wife sustained during the accident, but did not award damages for the wrongful-death claim. On appeal, the verdict was affirmed for both determinations. The appellate court determined that “the jury most likely refused to compensate the wrongful-death beneficiaries because it believed that [the wife] would have lived had she taken blood transfusions.” The United States Court of Appeals for the Fifth Circuit found the jury determination reflected “the entirely plausible view that although both the injury and the refusal were causal factors in [the wife’s] death, she would have survived had she taken the blood.” Id. at 577.

¶ 27. The trial court rejected Manhattan’s argument and denied the admission of any documents related to the decision by Allen’s family to withhold medical treatment. We find that Munn is predicated on the “avoidable-consequences doctrine,” under which an injured plaintiff is not allowed to recover for damages that he did not take reasonable efforts to avoid. Id. at 571, 573 n. 9. As the Munn court explained, the phrases “avoidable consequences” and “mitigation of damages” are frequently interchanged. Id. at 573 n. 9.

¶ 28. Here, one of Manhattan’s primary contentions is that the Allen family’s decision to refuse certain medical care was also relevant to mitigation of damages. A plaintiff “is required to take reasonable steps to mitigate his damages.” Id. at 578-79 (quoting Bums v. Shell Oil Co., 666 F.Supp. 919, 924 (S.D.Miss.1987)). This legal principle “deals not with the conduct of a plaintiff contributing to his injury, but with his failure to avoid the consequences of his injury after it has been inflicted, to avoid or diminish the damages resulting from his injury.” Yazoo & M.V.R. Co. v. Fields, 188 Miss. 725, 732, 195 So. 489, 490 (1940). The Allen family’s refusal of treatment was relevant to the issue of whether Plaintiffs failed to mitigate their damages. The trial court abused its discretion in prohibiting the evidence for this purpose.

¶ 29. Caselaw from other jurisdictions does acknowledge that a DNR designation may be considered by the jury in determining proximate or superseding cause. In State v. Smith, 835 N.W.2d 1,'8 (Minn. 2013), the Minnesota Supreme Court affirmed the conviction of the defendant for criminal vehicular homicide. However, the jury was allowed to consider evidence on whether the victim’s DNR order was a superseding cause of her death. Id. at 7-8. In the weeks following the accident, the elderly victim’s health and mental functioning deteriorated while in the hospital and a nursing home, and she began to suffer from acute respiratory failure. Id. at 3-4. Because of the victim’s DNR designation, however, the physicians refused to place her on respiratory support, and she passed away. Id. at 4. Testimony from the victim’s physician stated that had she been intubated, she would have continued to live, but a treating physician also testified there was no guarantee anyone would live with the procedure. The jury found the DNR designation was not the “sole” cause of the victim’s death, as required by law in Minnesota, and thus the DNR was not a superseding cause of her death. Id. at 8. The Minnesota Supreme Court “decline[d] to adopt the State’s argument that a victim’s refusal of medical care may never, as a matter of law, be a superseding cause of death.” Id. at 7. Instead, the court found “the existence of a superseding cause may be a question of fact for the jury if the evidence is such that reasonable minds could differ on the question.” Id.

¶ 30. Similarly, in Hicks v. LeClair, No. 9:07-CV-0613, 2008 WL 5432217 (N.D.N.Y. Dec. 30, 2008), the district court dismissed the petitioner’s request for a writ of habeas corpus. Id. at *4. The underlying facts are that the defendant shot the victim in the face at point-blank range with a sawed-off shotgun. Id. at *1. At the hospital, the victim’s family asked for a DNR order and forewent the use of antibiotics. Id. The victim died thirteen days later from pneumonia. Id. At trial, the medical examiner testified for the state that the victim’s wounds would have never healed, infection was inevitable, and thus the shotgun blast to her face caused her death. Id. The defendant’s expert pathologist countered that had the victim received antibiotic therapy, she might have lived, and that “the action of the victim’s family in ordering a DNR was a supervening cause which broke the chain of causation between the shotgun blast and the victim’s death.” Id. On appeal, the defendant’s conviction for murder was affirmed because the court could not conclude the victim’s death was solely attributable to the victim’s decision to forego medical treatment for infection, as is required by law. Id. at *2.

¶ 31. Manhattan argues that the jury should have been allowed to determine whether the decision by Allen’s family to refuse certain treatments proximately caused her death. We agree. “The proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury, and without which the result would not have occurred.” Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 417 (Miss.1988) (citation omitted). If “another acting independently and of his own volition puts in motion another intervening cause which efficiently leads in unbroken sequence to the injuries,” then the intervening cause “is the proximate cause.” Hoke v. W.L. Holcomb & Assocs., 186 So.2d 474, 477 (Miss.1966).

¶32. At trial, Plaintiffs claimed that Manhattan’s alleged medical negligence was the sole proximate cause of Allen’s death. Thus, the family’s refusal of certain medical care was relevant to the issue of causation. It was error for the trial court to prohibit the jury from hearing that the family withheld vasopressors and fluids from Allen, especially since Dr. Da-vey, Plaintiffs’ physician expert, would have testified that these treatments usually resolve hypovolemic shock caused by dehydration, which is the diagnosis he gave Allen. Since the jury was charged with determining the cause of Allen’s death, it should have been allowed to consider whether the refusal of these treatments contributed to her death.

¶ 33. Further, we find that Manhattan’s right of cross-examination was severely impacted by the trial court’s ruling. The right to cross-examine a witness is the “ultimate safeguard” to prevent the jury from relying solely on a “distorted or prejudicial impression” of the case. Rebelwood Apartments, 48 So.3d at 491 (¶¶ 36-37). At trial, Plaintiffs told the jury that UMC physicians stated Allen “would not last more than 24 hours” when she arrived at UMC on November 16, 2008, due to severe dehydration. On direct examination, Pace testified that there were “no decisions to make” that would impact Allen’s outcome, due to her dehydrated state upon arrival at UMC. Manhattan notes that while Pace’s testimony “opened the door” for Manhattan to cross-examine Pace with the pertinent UMC medical records that would show the family’s decision to refuse certain treatment, because of the trial court’s ruling on the motion in limine, the defense could not do so. Additionally, the evidence, if admitted, would have possibly drawn into question Pace’s credibility, to the extent the medical records were contrary to her testimony. Based upon the unchallenged testimony, the jury was left with the impression that Allen’s condition was so severe upon arrival at UMC that she would die within twenty-four hours, regardless of any medical care she received.

¶ 34. Also, the trial court prevented Manhattan from using certain medical records during the cross-examination of Dr. Davey about Allen’s dementia and her condition. During Dr. Davey’s direct examination, he stated:

[Allen] was not dying of dementia. She wasn’t dying at all actually. She was thriving. She was doing great. So, far from declining. She was at least holding her own, maybe actually improving .... She wasn’t Sven close to dying of [dementia].

In Dr. Davey’s opinion, Allen’s dementia was not terminal, but was improving. Manhattan argues that this testimony was in direct contrast to the medical records signed by Dr. Thomas, Allen’s treating physician at the nursing home. Dr. Thomas had determined that Allen had a “terminal condition” and suffered from end-stage dementia.

¶ 35. At trial, Manhattan attempted to use Dr. Thomas’s record dated August 2008 to contradict Dr. Davey’s testimony about Allen “thriving” despite her diagnosis of end-stage dementia. However, the trial court accused Manhattan’s counsel of purposely violating the in limine ruling because the document also contained the words “Do Not Resuscitate.”

¶ 36. We conclude the trial court erred in preventing Manhattan’s cross-examination of Pace about documents showing the family’s decision to withhold allegedly lifesaving treatments of vasopressors and fluids from Allen. Additionally, the trial court improperly precluded Manhattan from displaying the medical record to the jury or using it to contradict Dr. Davey’s testimony. We find the trial court abused its discretion in these matters.

¶ 37. Plaintiffs contend because all of the UMC medical records were entered into evidence, there was no prejudice from preventing defense counsel from showing the records to the jury or referencing the medical treatments. We cannot find that the jury’s possible ability to sift through nearly 150 pages of medical records, find the correct ones, and interpret them, would correct this error.

II. Hearsay Testimony

¶ 38. Manhattan argues that the trial court erred in allowing, over its objection, hearsay testimony from Plaintiffs that Allen’s condition upon arrival at UMC was hopeless. Manhattan cites to the following instances, which have been mentioned in previous issues, in support of its argument.

¶ 39. During Plaintiffs’ counsel’s opening statement, he told the jury that Allen had “24 hours or less to live.” Instead of providing the physician testimony to prove this claim, however, Pace testified that unidentified UMC ER physicians told her “mama got 24 hours to live,” so there were no decisions to make. Pace made this statement approximately four times in her direct testimony, and defense counsel properly objected each time. Likewise, Butler (Pace’s sister) testified that a UMC ER physician told her “to call your family members because your mother don’t have but 24 to 48 hours to live.” Again, defense counsel objected.

¶ 40. Mississippi Rule of Evidence 803 provides exceptions to the inadmissability of hearsay testimony. None of the exceptions provided under this rule are applicable to these statements. Rule 803(4) concerns a hearsay exception for statements made for the purpose of medical treatment or diagnosis, because those statements are more likely to be truthful. See Valmain v. State, 5 So.3d 1079,1084 (¶ 16) (Miss.2009). However, here the exception is not applicable because the rule relates only to statements made to health-care providers by individuals seeking medical treatment. The statements made by Plaintiffs were hearsay statements alleging what Allen’s physicians allegedly said about Allen’s condition. This hearsay testimony was the only evidence supporting Plaintiffs’ claim that Allen’s condition was so severe that UMC physicians thought she would not survive more than twenty-four hours, and could have been interpreted by the jury as an expert opinion to that effect. This improper testimony also contradicts the medical evidence that the Allen family had no decisions to make regarding Allen. We find the trial court abused its discretion in allowing these statements to be heard by the jury.

¶41. Plaintiffs contend the statements at issue were not to prove the truth of the matter asserted, but were simple asides, and were only relevant to show the effect these statements had on Plaintiffs, and that they did not think they had any medical decisions. We reject this contention; it is obvious from our review of the record that Plaintiffs were using the testimony to prove the truth of the matter asserted, that Allen would not survive more than twenty-four hours.

CONCLUSION

¶ 42. Because the trial court erred in excluding evidence about Allen’s family refusing vasopressors and IV fluid, as well as allowing Plaintiffs’ hearsay testimony about Allen’s condition, Manhattan was prejudiced in presenting its defense. Accordingly, we find it necessary to reverse and remand for a new trial.

¶ 43. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES/CROSS-APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WHITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . Plaintiffs included two of Allen's daughters, Bridget Pace and Lillie Butler, individually and as co-executrices for Allen's estate and on behalf of the wrongful-death beneficiaries of Allen.

      . This reduction was made in accordance with Mississippi Code Annotated section 11-l-60(2)(a) (Supp.2013), after Manhattan filed a motion to reduce the verdict.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . This hospital visit was the only time in seven years at the nursing home that Allen was transferred to a hospital, until her transportation to UMC in November 2008.

      .Interestingly, at trial, some of Allen's family members seemed to discount that Allen’s health had deteriorated during her residency at Manhattan, or even that she had dementia, although the medical records and testimony from physician experts for both Manhattan and UMC show otherwise.

      . Another ER preliminary assessment, approximately fifteen minutes later, noted dehydration, as well as hyperglycemia, thrombocy-topenia, hypernatremia, hyperkalemia, renal insufficiency, and a suspicion of urinary tract infection (UTI).

      . At trial, during proffered testimony, Plaintiffs' expert confirmed that "pressors” (short for "vasopressors”) are adrenalin-like drugs that are used to increase a person’s blood pressure when it drops, like Allen’s did. However, this information was deemed inadmissible by the trial judge, as will be explained later, because it dealt with the family's decision to withhold certain medical treatment.

      . This information, too, was not presented to the jury due to the trial court’s ruling. Manhattan does not argue that the family was negligent in making these decisions to withhold possible "life-saving” medical treatment, but contends Manhattan was prejudiced because the jury did not hear about these decisions, which related to proximate cause of death.

      . The complaint alleged Manhattan failed to provide proper nutrition, hygiene, care, attention, safety, supervision, and treatment to Allen, as well as failed to meet the appropriate standard of care, and these failures caused skin tears, pressure sores, dehydration, UTIs, pneumonia, and infections. Before trial, however, the parties entered an agreed order dismissing Plaintiffs' claims of skin tears, pressure sores, malnutrition, and infection.

      . Section 11 — 1—60(2)(a) provides a limit of $500,000 for noneconomic damages awarded to the plaintiff in certain health-care actions:
      In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.

      . Manhattan filed a response to Plaintiffs’ supplemental brief on cross-appeal, and the Mississippi State Medical Association, the Mississippi Hospital Association, the Mississippi Nurses Association, and the Mississippi Health Care Association joined in filing an amicus curiae brief in support of Manhattan’s position, as did Governor Phil Bryant.

      . We note that the trial judge focused too narrowly on the DNR designation, as Manhattan claims the DNR designation is less relevant than the withholding of vasopressors.

      . Additional issues regarding Dr. Davey’s testimony will be discussed in more detail below.

      . Plaintiffs introduced the theme that Allen had less than twenty-four hours to live when she arrived at UMC in their opening statement, and supported this contention with Pace’s testimony of what an unidentified physician at UMC told her. Defense counsel's objection based on inadmissible hearsay was overruled. This issue will be discussed below.

      . The UMC medical records, which defense counsel was not allowed to display to the jury, state "there was some disagreement from the family about the extent of the interventions that they wanted done” during Allen's final hospitalization. On the day of Allen’s admission to UMC, her physicians were informed by the family that they did not want any invasive procedures or "pressors.” On November 17, the family again instructed UMC to withhold code drugs and "pressors.” They also asked to withhold deep suctioning and IV fluids from Allen, and instead asked that Allen be made as comfortable as possible.

      .Dr. Thomas did not testify at trial; this information was from nursing-home medical records.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Dana Gail HALL, Appellant v. James K. HALL III, Appellee.
    No. 2012-CA-02008-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Joseph A. Fernald Jr., Brookhaven, attorney for appellant.
    Jason Todd Barrett, attorney for appel-lee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This appeal arises from a chancellor’s grant of a petition to modify custody. On August 27, 2012, the chancellor modified the judgment of divorce between James Hall and Dana Hall to reflect that James would be granted custody of their two minor children. Aggrieved, Dana raises the following issues on appeal: (1) James failed to present sufficient evidence to sustain the “material-change-of-eircum-stances” test as provided in McDonald -v. McDonald, 39 So.3d 868 (Miss.2010), and (2) the chancellor erred in his analysis by placing “undue weight” on Dana’s moral fitness. Finding that the chancery court committed no manifest error, we affirm.

FACTS

¶ 2. James and Dana Hall married on November 7, 1998, in Lincoln County. During their marriage, they had two ehil-dren — John, born in 2000, and Sarah, born in 2004. They divorced on March 23, 2006, citing irreconcilable differences. As part of the divorce and property settlement, they agreed to share joint legal custody of the children, with Dana having primary physical custody subject to reasonable visitation for James. James also was required to pay child support each month and maintain a major medical health and hospitalization insurance policy on both children.

¶ 3. On May 14, 2010, James filed a petition for modification in Lincoln County Chancery Court, claiming that one or more substantial changes had occurred since the entry of the prior judgments. On March 18, 2011, an agreed temporary order was entered, granting both parties unrestricted access to the educational and medical records of both children. Thereafter, the parties entered an agreed order setting a trial date for August 8, 2012, for the petition.

¶ 4. In his petition, James listed eight material changes that, he claimed, adversely affected the children: poor dental care rising to the level of neglect, improper care related to a dog bite received by John, Dana’s cohabitation with a romantic partner, Dana’s abuse of alcohol, educational neglect, the children’s tattered clothes and poor hygiene, Dana’s use of tobacco, and Dana’s failure to meet the children’s spiritual needs.

¶ 5. At trial, the chancellor heard testimony from James; James’s wife, Keesha Hall; Dana; Dana’s mother, Brenda; and Dana’s sister, Deanna. Ultimately, the chancellor found that there had been a material change in circumstances adverse to both children’s best interests. The chancellor went through each of the factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). After weighing the Albright factors to determine which parent was more suitable to maintain primary custody of both children, the chancellor awarded James primary custody. Dana was given visitation rights and ordered to pay a monthly child support sum of $500. Additional facts pertaining to the trial will be discussed in the analysis, as necessary.

¶ 6. Dana now appeals, arguing that the chancellor erred when he found that there had been a material change in circumstances adverse to the children’s best interests. Dana also claims the chancellor placed “undue weight” on her moral fitness during his analysis under the Albright factors.

STANDARD OF REVIEW

¶ 7. The standard of review in domestic-relations cases is limited. Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss.Ct.App.2012) (citing In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010)). This Court will not reverse a chancellor’s findings concerning modification of custody unless the chancellor was manifestly wrong or clearly erroneous, or applied an improper legal standard. In re E.C.P., 918 So.2d 809, 822 (¶ 58) (Miss.Ct.App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)).

¶ 8. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App. 2009) (quoting Hensarling, 824 So.2d at 587 (¶ 8)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)).

DISCUSSION

¶ 9. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doemer, 677 So.2d 740, 743 (Miss.1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald, 39 So.3d at 880 (¶ 37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So.2d 1006,1013 (¶ 33) (Miss.2003) (citing Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001)).

1. Material-Change Analysis

¶ 10. “The chancellor must consider the totality of the circumstances to determine ‘whether there was a material change in circumstances.’ ” Cantin v. Cantin, 78 So.3d 943, 948 (¶ 15) (Miss.Ct. App.2012) (citation and quotation omitted). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997) (citation omitted).

¶ 11. Dana first argues that the chancellor erred in finding a material change in circumstances adversely affecting the children based on “uncorroborated testimony, supposition^] and lack of credible evidence .... ” Our supreme court has held that the chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). We therefore give due deference to the chancellor’s credibility determinations. Ivy v. Ivy, 863 So.2d 1010, 1013 (¶ 10) (Miss.Ct.App.2004).

¶ 12. Before determining whether to modify custody, the chancellor discussed all seven material changes listed in James’s petition. In his discussion he determined that two of the changes constituted a material change in circumstances adversely affecting the children: (1) poor dental care for Sarah, and (2) John’s dog bite. In his analysis, the chancellor relied on photographs admitted into evidence that showed Sarah’s teeth were black and decayed as early as December 2011. Kee-sha also testified that Sarah’s teeth were rotten and black. James testified that he provided dental insurance for the children, but they were not receiving adequate dental care. Dana testified that the teeth shown in the photographs appeared neglected. Regarding the dog bite, there was undisputed testimony that John was bitten by a Great Dane on or around September 11, 2011. Dana testified to the following: the dog belonged to her friend, she immediately put hydrogen peroxide on the wound, she did not treat the wound with an antibiotic, she did not take John to the doctor, and she did not tell James about the incident. In his judgment, the chancellor stated that, “[w]ithout a doubt, accidents happen, but failure to notify the other parent of a significant dog bite, and failure to have the bite evaluated by a medical professional are material changes in circumstances that adversely affect the child.”

¶ 13. Viewing the totality of the circumstances, and giving the findings of the chancellor due deference, we cannot say that he erred by finding that a substantial and material change in circumstances had occurred since the time of the original custody decree. Therefore, we will not disturb this decision on appeal. See Wilson v. Wilson, 79 So.3d 551, 560 (¶37) (Miss.Ct.App.2012).

¶ 14. Dana also argues that the judge erred in considering her cohabitation with a same-sex partner to be a material change in circumstances. Dana bases her argument on the claim that James was allegedly aware of her sexual preference prior to the divorce.

II15. Contrary to Dana’s claim, the chancellor did not include her sexual preference in his recitation of the reasons for a change in custody. The chancellor did, however, recognize that Dana cohabited with others beginning at some point after the divorce and was, in fact, in such a relationship at the time of trial. Dana testified that she lived with her current romantic partner in the presence of her children. She also testified that she has had three romantic relationships since the divorce and that the last two partners had authorization to pick up the children from school. In his judgment, the chancellor stated that there are no facts in the record to support that Dana’s cohabitation with a romantic partner had an adverse effect on the children. The chancellor also stated that the existence of an extramarital relationship, by itself, fails to provide a sufficient basis for a finding of an adverse material change. See Sullivan v. Stringer, 736 So.2d 514, 517 (¶ 16) (Miss.Ct.App.1999) (finding that cohabitation alone fails to give rise to a material change in circumstances). However, the existence of the relationship coupled with another adverse impact on the child provides a sufficient basis to warrant a custody modification. Id. at 518 (¶ 20). The chancellor did not err in considering this issue in his material-change analysis.

¶ 16. Dana next argues that the chancellor erroneously applied the test used in Riley to find a material change in circumstances. Riley, 677 So.2d at 744 (holding that “where a child living in a custodial environment clearly adverse to the child’s best interest ] somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment”). The chancellor found that, based on the totality of circumstances, there had been a material change in circumstances adversely affecting the children. The chancellor did state that, while the children had not yet experienced “intense” adverse effects, their living conditions created a strong likelihood they would be damaged. See id. However, the chancellor’s reference to Riley did not serve as a substitute for his analysis under McDonald to determine a material change in circumstances. Dana’s argument that the chancellor incorrectly assessed the circumstances under Riley is of no merit.

2. Albright Analysis

¶ 17. “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So.3d 342, 351 (¶ 28) (Miss.2010) (citing Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 18) (Miss.Ct.App.2001)). The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the 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) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So.2d at 1005.

¶ 18. Dana now argues that the chancellor placed “undue weight” on her moral fitness in his Albright analysis. During his discussion, the chancellor found that the factor favored James:

Dana has had three relationships since the divorce from James, and currently is living with a romantic partner, in the presence of the children. Dana has also admitted her failure to meet the spiritual development needs of the children. Dana has had two DUI’s .... There is no evidence of moral issues that relate to James.

¶ 19. An Albright analysis is not a mathematical equation. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Further, the “factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So.2d 370, 376 (¶ 27) (Miss.Ct.App.2003)). Our supreme court has held that “[a]ll the [Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson, 859 So.2d at 1013-14 (¶ 36).

¶ 20. According to the chancellor, the following factors favored awarding custody of John and Sarah to James: the health and sex of the children; and moral fitness: The continuity of care and employment responsibilities weighed in favor of Dana. The chancellor found that the following factors favored neither party: age of the children, parenting skills, willingness and capacity to provide primary care, physical and mental health and age of the parents, the children’s preference, and stability of the home environment and employment. The chancellor ultimately found that the best interest of the children would be served by granting physical custody to James. Therefore, he granted the modification in James’s favor.

¶ 21. “In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by the record.” Hollon v. Hollon, 784 So.2d 943, 947 (¶ 13) (Miss.2001). Further, this Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence. Carter v. Carter, 735 So.2d 1109, 1114 (¶ 18) (Miss.Ct.App.1999). After careful review of the record, we cannot say the chancellor’s decision to award custody to James was manifestly wrong or clearly erroneous. Accordingly, this argument is without merit.

CONCLUSION

¶ 22. The chancellor’s decision to modify custody from Dana to James is based upon substantial evidence. Therefore, the judgment of the chancery court is affirmed.

¶ 23. THE JUDGMENT OF THE LINCOLN COUNTY CHANCERY COURT 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 JAMES, JJ., CONCUR.

      . The names of the children have been changed in the opinion for confidentiality reasons.


author: IRVING, P.J.,

text:
    Tim HOOVER, Appellant v. George Wayne CALLEN and Nelta Jean Callen, Appellees.
    No. 2012-CA-01602-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Mel J. Breeden Jr., Jackson, attorney for appellant.
    Frank G. Vollor, Vicksburg, attorney for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Tim Hoover filed a complaint against George Wayne Callen (George) and Nelta Jean Callen (Nelta Jean) in the Warren County Chancery Court, claiming that he acquired a portion of the Callens’ property through adverse possession or, alternatively, that he is entitled to an easement by necessity on their property. The chancery court denied both of Hoover’s claims. Feeling aggrieved, Hoover appeals and argues that the chancellor erred in determining that he did not adversely possess the disputed property and in not granting him an easement by necessity.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Callens are the owners of a parcel of land that adjoins the eastern and southern borders of Hoover’s land. Hoover claims that he has lived on his property with his family since the 1970s. He testified that he and his brother Mayo built a fence in 1973 or 1974, which they considered the boundary line between their property and the Callens’ property. He further testified that, twelve to fifteen years prior to the trial of this matter, he was present when Mayo installed a field line for a waste disposal septic system. The field line extended from the southern portion of the Hoovers’ land onto the Cal-lens’ land, allowing sewage from the Hoovers’ property to run underground onto the Callens’ property. Hoover claims that he never discussed the field line with George, and George never made a complaint to him regarding the field line. However, without consulting Hoover, George dug up the portion of the field line that was on the Callens’ property. According to George, who testified after Hoover, Hoover sought to purchase that portion of the Callens’ property that contained the field line, but George refused to sell it. Hoover admits that around the time George dug up the field line, George also constructed a fence that “cut through [Hoover’s] yard” and “tore out” the fence that Hoover and Mayo had constructed, excluding Hoover from the pasture in question where the field line ran.

¶ 4. Hoover claims that before George built the fence, Hoover cut the grass and kept trailers and a “four-wheel drive” in the pasture in question. He further claims that he has had continuous use of the pasture since 1973 and has never asked the Callens for permission to use the pasture because it was his property.

¶ 5. George testified that he and his wife, Nelta Jean, moved onto their property in 1974. At that time, Mayo lived on the property that Hoover lives on currently. George testified that after Mayo moved onto that property, there was trouble with Mayo’s septic system, and Mayo asked George if Mayo could install a field line that would extend onto the Callens’ property. George claimed that he gave Mayo permission to lay the field line, and that he and Mayo verbally agreed in the early 1980s that if there were any problems with the field line being on the Cal-lens’ property, Mayo would fix or remove it. George also claimed that problems arose with the field line when Hoover moved onto Mayo’s property after Mayo died. George stated that he went to Hoover and asked him what he was going to do to remedy the problem with the system. Hoover got angry and told George to get off of his property. After Hoover did not do anything to fix the field line, George dug up the field line and placed it on Hoover’s property. Also, around 2008, George erected a fence on the property line separating Hoover’s property and the Callens’ property. He denied that Mayo constructed a fence on the Callens’ property in the 1970s or any other time.

¶ 6. George testified that he constructed a fence for his horses in 2002, but the fence was not constructed on the property line separating the Callens’ property from Hoover’s property. Rather, the fence was constructed within the boundaries of the Callens’ property, and George would mow the grass from the outside of the fence up to the property line. George stated that Hoover asked for permission to put several items in the pasture, including horse trailers and cattle panels. George granted him permission to put those items there. George further stated that Hoover had a truck in the pasture at one point, but did not have permission to put the truck on the property. At George’s request, Hoover removed the horse trailer and cattle panels from the pasture, but refused to. move his truck, even after the police asked him to do so. George stated that he had Hoover’s truck towed and placed on Hoover’s property.

¶ 7. Bobby Carpenter, a civil and environmental engineer expert, testified that he visited Hoover’s property at least five times. He testified that the underground field line that was running on the Callens’ property appeared to be “backed up” and “ponding” because “it wasn’t enough field line to — and soil area to allow [the sewage] to soak in the soil the way it should.” Carpenter opined that there was not enough room in the backyard area of Hoover’s property alone for an underground system. He recommended a chamber system that costs approximately $5,000, which could be put solely on Hoover’s property. He also recommended a drip system, even though it was more expensive at $15,000 and was high maintenance.

¶ 8. Ann Hogue, a district supervising environmentalist for Mississippi, testified that, based on the soil samples that were collected on the Callens’ property, the pasture in question is not suitable for a field line for a septic system, and that the health department would not approve of an underground septic line in that area. She stated that a drip-irrigation system, which starts at about $8,000, would most likely fit on Hoover’s lot.

¶ 9. John Callen (John), George’s brother, testified that he had lived adjacent to George since 1978. He stated that there had never been a fence between Hoover’s and the Callens’ properties until the Callens built a horse fence. To John’s knowledge and observation, Hoover never exercised control and dominion over the pasture in question. David Wrigley testified that he baled hay for the Callens from approximately 1979 to 1990. He stated that there was never a fence on the Hoovers’ property.

¶ 10. Nelta Jean testified that the horse fence was built in 2002 to restrain their horses and was not intended to serve as a property line between their property and Hoover’s property. She stated that she wanted the fence far enough away from the property line so that her husband would have enough room to cut and bush hog outside of the fence without getting on Hoover’s property. She further testified that there were property markers along the property line that George had placed there when the Callens first moved on the property. Nelta Jean showed the “property markers” to the person who erected the horse fence so that they could measure how much room to leave between the property line and the horse fence. She stated that after the conflict arising from the septic system, someone removed the property markers, but the Callens had a survey done to re-establish the property boundaries. Once the property line was reestablished, George removed the horse fence and constructed a new fence along the property line. Nelta Jean testified that prior to the construction of the fences, Mayo had asked if he could put a line from his septic tank on their property because the one he had was not sufficient and was “bubbling up.” The Callens granted him permission.

¶ 11. Nelta Jean stated that Hoover would always ask George if he could put equipment or other items in the pasture in question. She stated that she also spoke with Hoover on the phone, and he asked permission to enter the pasture and “do so and so with some of my stuff.” After the Callens granted Hoover permission to utilize the pasture, he put horse trailers, a large culvert, cattle panels, hay rings, and horses in the pasture. The problems did not start until Hoover parked his truck on the Callens’ property in 2008 without permission.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 13. Hoover claims that as a result of his actions and his brother Mayo’s actions, he adversely possessed the pasture in question. He also claims that the prohibitive costs of constructing a waste-water system that will fit solely on his property, “coupled with Callen’s destruction of the existing drainage pipe on the property[,] meet[ ] the standard of reasonable necessity required for granting an easement by necessity.”

¶ 14. As stated, the chancellor denied Hoover’s claims that he had adversely possessed the portion of the Callens’ property upon which the field line was installed or, in the alternative, that he was entitled to an easement by necessity. We will not disturb the chancery court’s factual findings unless they are manifestly wrong or clearly erroneous. Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So.2d 826, 829 (¶ 13) (Miss.2008).

I. Adverse Possession

¶ 15. “To acquire property by adverse possession, a claimant must show that [his] possession of the property was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for a period of ten years.” Id. at (¶ 14) (citing Biddix v. McConnell, 911 So.2d 468, 475 (¶18) (Miss.2005)). “The chancellor must find that the plaintiff[ ] proved each element of [his] claim by clear and convincing evidence.” Roberts v. Young’s Creek Inv., Inc., 118 So.3d 665, 669 (¶ 7) (Miss.Ct.App.2013) (citing Blackburn v. Wong, 904 So.2d 134, 136 (¶ 16) (Miss.2004)). “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.” Id. at 670 (¶ 10) (citing Apperson v. White, 950 So.2d 1113, 1118 (¶ 12) (Miss.Ct.App.2007)).

¶ 16. Hoover claims that he has met each element of adverse possession and that the adverse possession began when Mayo “started using the [pasture]” after Mayo and Hoover constructed the fence in the 1970s and installed the field line that “allow[ed] waste water from his sewer system to flow across the [pasture] and beyond.” The chancellor found that although Hoover had placed personal property on the pasture in question and Mayo had installed the field line running through the pasture, Hoover had permissive use of the pasture and failed to prove by clear and convincing evidence that he had adversely possessed the pasture. We agree.

¶ 17. Both George and Nelta Jean testified that Hoover sought permission to place personal property in the pasture, and that they granted him permission to do so. Additionally, George testified that Mayo sought permission to place the field line on the Callens’ property. Not only did George grant Mayo permission to do so, George testified that the two of them had an agreement that if anything were to go wrong with the field line, Mayo would remove it or have it repaired. When problems arose and Hoover refused to remedy the problem, George dug up the line. There is ample evidence supporting the chancellor’s findings. Therefore, the chancellor’s findings are not manifestly wrong or clearly erroneous. Because permissive use invalidates any claim of adverse possession, we need not examine the other elements of adverse possession. Thus, this issue is without merit.

II. Easement by Necessity

¶ 18. Hoover claims that a reasonable necessity exists for his sewage system to extend beyond the borders of his property onto the Callens’ adjoining property and that “[t]he cost to value ratio for the installation of [an alternative] system is prohibitive.” “An easement by necessity requires proof that (1) the easement is necessary; (2) the dominant and servient estates were once part of a commonly owned parcel; [and] (3) the implicit right-of-way arose at the time of severance from the common owner.” Borne v. Estate of Carraway, 118 So.3d 571, 584 (¶ 34) (Miss.2013) (citing Leaf River Forest Prods., Inc. v. Rowell, 819 So.2d 1281, 1284 (¶ 10) (Miss.Ct.App.2002)). “An easement by necessity arises by implied grant when a part of a commonly-owned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing on the lands of another.” Id. (quoting Taylor v. Hays, 551 So.2d 906, 908 (Miss.1989)). “In determining what is reasonably necessary, the court looks to whether an alternative would involve disproportionate expense and inconvenience.” Burns v. Haynes, 913 So.2d 424, 430-31 (¶ 28) (Miss.Ct.App.2005) (quoting Fourth Davis Island Land Co. v. Parker, 469 So.2d 516, 521 (Miss.1985)). If the land would be valueless without the easement, then the easement is necessary. Id.

¶ 19. The chancellor determined that a “wastewater treatment system of some sort could be placed [solely] on Hoover’s lot.” The chancellor also found that because there was no evidence as to the value of Hoover’s property, there was no indication that the expense of installation would exceed the entire value of either property in question. The chancellor concluded that the evidence was “insufficient to prove that an easement by necessity was reasonably necessary in order to control the untreated wastewater.” However, land-roll receipts for the Hoover property were entered into evidence and indicated that the value of the property ranged from $7,560 to $9,440 between the years 2000 and 2008.

¶20. Nevertheless, the chancellor did not err in denying Hoover an easement by necessity, as the field line does not meet all three requirements for an easement by necessity. Although the parties agree that Hoover’s land and the Callens’ land was once one common parcel, the field line was not installed until the 1990s, long after the parcel had been severed, as the record indicates that the parcels were separate as early as 1973. The “implicit right-of-way” for the septic-system field line did not arise at the time of severance from the common owner. Thus, the chancellor did not err in denying Hoover an easement by necessity.

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

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

      . Hoover’s sister Neda Gretzinger testified that Mayo Hoover (Mayo), their brother, bought the property in 1973 and lived there until he passed away in 2001. Mayo’s will left the property to their mother Josephine Hoover (Josephine), who had lived on the property with Mayo until he died and continued to live there until she died in 2002. Josephine's will left the property to Hoover.

      . John Barnes conducted the survey on the Callens’ property in 2009 and testified that the horse fence George had built was not constructed on the existing property lines.


text:
    Sam West LEE a/k/a Sam Lee, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01540-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. An Oktibbeha County jury found Sam West Lee guilty of Count I, shooting into a dwelling; Count II, shooting into a dwelling; and Count III, burglary of a dwelling with the intent to commit an assault. The circuit court sentenced Lee to eight and ten years, respectively, for the two counts of shooting into an occupied dwelling, and to fifteen years for the burglary count, with the sentence in Count III to run consecutively to the sentence in Count II, and the sentence in Count II to run consecutively to the sentence in Count I. All sentences were ordered to be served in the custody of the Mississippi Department of Corrections. Lee filed a motion to dismiss for lack of a speedy trial, which the circuit court denied. Feeling aggrieved, Lee appeals and argues that his constitutional right to a speedy trial was violated.

¶2. We agree with the circuit court that Lee’s constitutional right to a speedy trial was not violated; therefore, we affirm the judgment of the circuit court.

FACTS

¶ 3. On August 31, 2010, Lee was arrested and charged with burglary. He was released on bond, but was charged with another crime and went back to jail on November 3, 2010. Lee was initially indicted for burglary on January 14, 2011. He was reindicted on July 20, 2011, and was served with the new indictment on July 26, 2011. Under the new indictment, Lee was charged with two counts of shooting into an occupied dwelling and one count of burglary with the intent to commit an assault. Lee waived arraignment on July 27, 2011. The trial was set for October 31, 2011. However, the trial was continued to January 25, 2012, at the request of the State due to its failure to subpoena a necessary witness, an alleged victim of the crime. On November 8, 2011, Lee wrote a letter to the circuit clerk requesting a speedy trial.

¶ 4. On January 25, 2012, the case was continued to April 18, 2012, because the court was conducting a civil trial on January 25. On April 18, 2012, the court entered an order for a continuance at the behest of the State because the prosecutor who was originally assigned to the case was involved in another trial. This continuance was unopposed by the defense. The case was reset for April 30, 2012. On April 23, 2012, Lee filed a motion to dismiss, alleging that his right to a speedy trial was violated. The circuit court denied his motion to dismiss, finding that Lee’s right to a speedy trial had not been violated. Lee went to trial on April 30, 2012.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Lee argues that his “constitutional ] right to a speedy trial [was] violated by a 608-day delay[,] and [that] the court incorrectly found that the Barker [] factors weighed in favor of the prosecution.” We review a defendant’s motion to dismiss de novo. McLendon v. State, 945 So.2d 372, 382 (¶ 26) (Miss.2006).

¶ 7. Article 3, Section 23 of the Mississippi Constitution of 1890 provides an accused with the right to a “speedy and public” trial. “A formal indictment or information or an arrest — whichever first occurs — triggers the constitutional right to a speedy trial.” McBride v. State, 61 So.3d 138, 142 (¶ 8) (Miss.2011) (citations omitted). “In Mississippi, a delay of more than eight months is presumptively prejudicial.” Id. at (¶ 7). When a delay is presumptively prejudicial, a full Barker analysis is warranted. Id. The Barker analysis consists of four factors: “(1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted his right; and (4) prejudice to the defendant.” Id. at (¶ 5) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). After “considering all of the [Barker] factors under the totality of the circumstances and the evidence against [the defendant],” we may find that “the initial presumption of prejudice has been overcome and [that] no violation of [the defendant’s] right to a speedy trial has resulted.” Bryant v. State, 746 So.2d 853, 866 (¶ 54) (Miss.Ct.App.1998).

I. Length of Delay

¶8. Lee was arrested on August 31, 2010. He was not tried until April 23, 2012, a year and nearly seven months after his arrest, which makes the delay between his arrest and his trial presumptively prejudicial. Consequently, we examine the remaining Barker factors to determine whether Lee suffered actual prejudice.

II. Reason for the Delay

¶ 9. Lee argues that because he was not the cause of any of the continuances, the circuit court erred in finding that he had not been denied his constitutional right to a speedy trial. The burden is on the prosecution “to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” McBride, 61 So.3d at 142 (¶ 9) (citation omitted). “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government, whereas a more neutral reason such as negligence or overcrowded courts should be weighted less heavily[.]” Id. (citations and internal quotation marks omitted). “As a general rule, delays resulting from docket congestion are to be weighed against the State, but not heavily.” Stevens v. State, 808 So.2d 908, 916 (¶ 20) (Miss.2002) (citations omitted).

¶ 10. The circuit court determined that none of the continuances were attributable to the State, other than the motion for a continuance for an absent witness, which the court found was “good cause” because the witness was not subpoenaed. However, we find that out of the five continuances, three of them are undeniably attributable to the State, as they occurred as a direct result of the State’s requests. Two of the continuances resulted from the court’s overcrowded dockets and must also be attributed to the State, but not heavily. See id. Although the circuit court erred in declaring that none of the continuances were attributable to the State, there is no evidence of a deliberate attempt on behalf of the State to hinder the defense. Thus, this factor weighs slightly against the State.

III. Assertion of Bight

¶ 11. The circuit court correctly found that on April 23, 2012, Lee had asserted his right to a speedy trial, as he had filed a motion to dismiss the case, arguing that he had been denied his right to a speedy trial. We agree with the circuit court that this factor weighs in Lee’s favor.

TV. Prejudice

¶ 12. Lee argues that the delay impaired his ability to defend himself. More specifically, he argues that he was prejudiced because he and his wife took pictures of his car on the night that the offense occurred to show that his car had several bullet holes, proving that he was not the shooter and was instead being shot at by one of the alleged victims. He claims that the pictures were lost when his wife had to move from their home as a result of his incarceration.

¶ 13. The Mississippi Supreme Court has held that “[p]rejudice is assessed in the light of the interests that the speedy-trial right is trying to protect. Those interests are: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” McBride, 61 So.3d at 145 (¶ 24) (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182) (internal citation and quotation marks omitted). “If the defendant fails to show actual prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in his favor.” Ginn v. State, 860 So.2d 675, 684 (¶ 26) (Miss.2003) (quoting De La Beckwith v. State, 707 So.2d 547, 567 (¶65) (Miss.1997)).

¶ 14. During the hearing on Lee’s motion to dismiss, Lee argued that although the investigating officer took pictures of his car on the night that the offense occurred, those pictures only showed one bullet hole in his car, while the pictures that he took—and lost due to his incarceration—showed two bullet holes in the car. Because the State possessed photos of Lee’s car that showed a bullet hole, the court found that there was not “much prejudice.” The court also noted during the hearing that the defense would be allowed to question the law enforcement officer who took the photos of Lee’s car that night.

¶ 15. During the trial, Lee’s counsel did not question the law enforcement officer who took those photos. The officer testified on direct examination that he found one live round of ammunition on the back floorboard of the car and another live round of ammunition near one of the car’s tires. There is no evidence that there was an additional bullet hole from the incident, as Lee alleges. Even if there were an additional bullet hole in Lee’s vehicle, this evidence alone is not sufficient to prove that Lee was not shooting at anyone on the night of the incident. Consequently, we cannot find that Lee suffered actual prejudice.

¶ 16. “[I]t is well-established that the speedy-trial right is an important safeguard to prevent prejudice to the defendant and his defense[.]” Johnson v. State, 68 So.3d 1239, 1246 (¶20) (Miss.2011). “[W]here the delay is neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy[-]trial claim.” Stevens, 808 So.2d at 918 (¶ 29). After examining the Barker factors, we find that the presumption of prejudice has been overcome, as Lee suffered no actual prejudice; therefore, Lee’s one year and nearly seven-month delay did not violate his constitutional right to a speedy trial.

¶ 17. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SHOOTING INTO A DWELLING, AND SENTENCE OF EIGHT YEARS; COUNT II, SHOOTING INTO A DWELLING, AND SENTENCE OF TEN YEARS; AND COUNT III, BURGLARY WITH INTENT TO COMMIT AN ASSAULT, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, AND THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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

      . The first indictment is not in the record; however, the parties agree that the trial was originally set for April 21, 2011, but was reset for August 2, 2011, because the State needed additional time to correct a factual error in the indictment. .

      . The transcript indicates that the trial was reset again from August 2, 2011, to October 18, 2011, because the court was hearing a murder trial on August 2. Although the parties state that the trial was set for October 18, 2011, the order in the record indicates that the trial was set for October 31, 2011.

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


author: CARLTON, J.,

text:
    Jay Alan COOK, Appellant/Cross-Appellee v. Mercedes Josephine Peralta COOK, Appellee/Cross-Appellant.
    No. 2012-CA-01186-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.
    G. Gerald Cruthird, Picayune, Peggy Hirschey Williams, attorneys for appellant.
    Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A final judgment entered by the Pearl River County Chancery Court granted Jay and Mercedes Cook an irreconcilable-differences divorce and ordered Jay to pay Mercedes a monthly sum of $800 as periodic alimony. Following a hearing on Jay’s second request to terminate or, in the alternative, to reduce or suspend his periodic-alimony payments due to a material change in circumstances and Mercedes’s second request to increase the payments, the chancellor reduced the payments to $600 a month. Jay appeals and asserts that the chancellor erred by failing to apply the proper legal standard to the modification of Jay’s alimony obligation. Mercedes cross-appeals and argues that the chancellor erred in finding Jay was entitled to a reduction in alimony when Jay was in contempt of court and did not come before the chancellor with clean hands. Finding no abuse of discretion and that the chancellor’s findings are supported by substantial evidence in the record, we affirm.

FACTS

¶ 2. Jay and Mercedes Cook married in March 1985 and separated in December 2000. They had no children from their marriage. The couple divorced pursuant to a final divorce decree rendered in Pearl River County Chancery Court on June 30, 2003. Jay was ordered to pay Mercedes $800 each month as periodic alimony for the period of time that Mercedes was determined to be eligible to receive Social Security disability benefits.

¶ 3. Jay remarried in November 2003 and began living with his current wife, Cynthia, and her two sons. Jay claims that after the national and local economy began to significantly decline in 2008, he fell behind in his alimony payments. The arrearages in these payments led Mercedes to file contempt proceedings against Jay in March 2009. Jay claims that he borrowed money from his family to make payments for the arrearages in the following amounts: $3,000 on September 24, 2009; $11,900 on October 22, 2009; and $4,000 on April 9, 2010. After the October 22, 2009 payment, Jay filed a complaint for modification of the divorce decree.

¶ 4. On March 25, 2010, the chancellor held proceedings on Jay’s first request to terminate, reduce, or suspend the alimony payments and on Mercedes’s request to increase the payments. Jay submitted his annual gross income since 2003: $50,290 for 2003; $58,686 for 2004; $67,274 for 2005; $58,010 for 2006; $49,112 for 2007; $44,800 for 2008; and $56,000 for 2009. After a hearing on the matter, the chancellor entered a judgment on April 21, 2010. Finding that no material change in circumstances had occurred to warrant a reduction, suspension, or termination of Jay’s periodic-alimony payments and that no circumstances existed to justify an increase in the payments, the chancellor dismissed the parties’ requests.

¶ 5. In his brief, Jay asserts that at the time of the chancellor’s first ruling on his request, he made an approximate annual salary of $40,000 working for his family’s business, Curtis Cook Enterprises Inc. (Curtis Cook). He states that at that time he also worked for Hollywood Casino, owned a commercial car-wash business, and had an approximate net monthly income of $3,600. Jay further asserts that during 2011 he lost his income from the family business and his commercial business and that he took a position with Dollar General as a manager at one of the company’s stores, where he made approximately $40,000 a year.

¶ 6. On May 16, 2012, a hearing began on Jay’s second request for termination, or in the alternative, suspension or reduction of his monthly alimony obligation. Jay testified at the modification hearing that he lost his employment with Curtis Cook in July 2011, at which point he had earned $24,616 for 2011; that he left his employment with Dollar General in August 2011, at which point he had earned $18,249.66 for 2011; and that he took a position with Blakeney Construction LLC (Blakeney Construction), which required him to travel to construction sites in Minnesota and North Dakota and paid an average of $1,638.69 per week.

¶ 7. The chancellor also stated that further testimony by Jay “revealed that [Jay] had regular employment from January 1, 2012[,] until becoming employed ... in early May 2012” as a manager in training with Quality Restaurant Concepts, doing business as Applebee’s. According to Jay’s financial declaration, his monthly net income amounted to $1,785.88; his total assets were valued at $16,200; and his liabilities were valued at $61,225.25. In addition, Jay testified that he lost his car-wash business and his home to foreclosure.

¶ 8. Jay also testified at the hearing that he rents a home near his parents, who suffer from physical and mental infirmities, and acts as their primary caregiver. Jay further stated that since the previous modification hearing on March 25, 2010, he had not had any disposable or available income with which to satisfy his alimony payments and did not presently have the financial resources to pay his family’s necessary monthly expenses.

¶ 9. Mercedes also provided testimony to show the following: she receives $1,127 each month in Social Security benefits due to disabilities existing at the time of the parties’ divorce; she babysits her grandchildren and, in return, her son helps purchase tires and pay other expenses for her vehicle; she lives in subsidized housing because of her disability and barely has sufficient funds for herself; and she cannot work as a dental hygienist due to Hepatitis C even though Social Security regulations would allow her to earn up to $1,009 a month and retain her disability eligibility.

¶ 10. Relevant to Mercedes’s cross-appeal, on June 18, 2012, the chancellor entered a judgment stating that Jay came before the chancellor with clean hands, and therefore his motion to modify his alimony payments could be considered. The chancellor further found that a modification of Jay’s alimony payments was warranted due to a change in his circumstances and an application of the factors found in Armstrong v. Armstrong, 618 So.2d 1278, 1280-81 (Miss.1993). Accordingly, the chancellor reduced Jay’s monthly payments from $800 to $600. Finally, the chancellor found that Jay had fallen behind in paying Mercedes both alimony and previously ordered attorney’s fees, and the chancellor entered a money judgment in favor of Mercedes for the amount owed.

¶ 11. Aggrieved by the chancellor’s ruling, the parties appeal to this Court. Jay argues that the chancellor erred in denying his motion to terminate his alimony obligation or, in the alternative, erred by not sufficiently reducing his obligation so that he can maintain a decent standard of living. For her part, Mercedes argues that the chancellor erred in allowing a modification of the alimony payment from $800 to $600.

STANDARD OF REVIEW

¶ 12. Unless a chancellor was manifestly wrong or clearly erroneous, this Court will not disturb the chancellor’s findings of fact when they are supported by substantial credible evidence. Sturda-vant, 53 So.Bd at 841 (¶ 8) (citation omitted). Concerning matters of law, however, this Court applies a de novo standard of review, and we will reverse upon a determination that a chancellor applied an incorrect legal standard. Id. We also acknowledge that in such matters we are to review the evidence in a light most favorable to the appellee. Id.

DISCUSSION

¶ 13. Jay argues that the chancellor correctly determined the factual circumstances of the case and applied the appropriate legal standard to find that a material change in circumstances had occurred, warranting a modification of alimony payments. However, Jay asserts that the chancellor committed manifest error by failing to apply the appropriate legal standard to determine the amount by which the alimony payments should be modified.

¶ 14. Specifically, Jay argues that the chancellor failed to consider the standards set forth in Nichols v. Nichols, 254 So.2d 726 (Miss.1971). To support his argument, Jay points to the following language in Nichols:

In determining the amount of alimony to be awarded, consideration must be given to the rights of the husband to lead as normal a life as reasonably possible with a decent standard of living. The general rule is that the wife is entitled to a reasonable allowance of alimony, commensurate with her accustomed standard of living and the ability of the husband to pay. In Aldridge v. Aldridge, 200 Miss. 874, 27 So.2d 884 (1946), this Court said:
Any test of the justice of such award must include not only the benefit to the wife but the resultant burden to the husband. Once it is determined, as by our acceptance of the chancellor’s finding we have done, that the amount awarded is a sufficient benefit to the wife, there remains the duty of testing the extent of the correlative burden upon the husband.

Nichols, 254 So.2d at 727 (internal citations and quotation marks omitted).

¶ 15. Jay contends that had the chancellor properly applied Nichols and its progeny, then she would have found that the evidence he submitted supported either a more significant decrease in his monthly alimony payments or an indefinite suspension of the payments. Jay argues that, when combined with the benefits Mercedes receives from subsidized housing and Medicare, the modified alimony payments result in a significant disparity in the parties’ incomes in favor of Mercedes because Jay receives no such additional benefits.

¶ 16. In response Mercedes argues that the chancellor erred by allowing a reduction in the alimony payments. She asserts that Jay was in contempt of court due to his failure to fulfill his alimony obligation to her, and under the doctrine of unclean hands, he was not entitled to relief. She further contends that Jay’s financial situation is no worse than hers and that a material change in his circumstances has not occurred to warrant a modification of the periodic-alimony payments.

¶ 17. Regarding modification of periodic-alimony payments, this Court has stated the following:

The supreme court has established that alimony awards for divorces granted on the ground of irreconcilable differences are subject to modification. Periodic alimony can be modified by increasing, decreasing, or terminating the award; and such modification can occur only if there has been a material change in the circumstances of one or more of the parties. The material change must also be one that could not have been anticipated by the parties at the time of the original decree.

Sturdavant, 58 So.3d at 841^42 (¶ 10) (internal citations and quotation marks omitted).

¶ 18. We further acknowledge:

The chancellor must consider ... the Armstrong factors in initially determining whether to award alimony, the amount of the award, and ... whether to modify periodic alimony, comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.

Steiner v. Steiner, 788 So.2d 771, 776 (¶ 16) (Miss.2001) (citing Tilley v. Tilley, 610 So.2d 848, 353-54 (Miss.1992)).

¶ 19. In Armstrong the Mississippi Supreme Court articulated the following factors for a chancellor to consider in determining the proper amount of an alimony award:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
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;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong, 618 So.2d at 1280-81 (citations omitted).

¶ 20. In her analysis of the Armstrong factors, the chancellor stated that “since the grant of the original alimony award unto Mercedes, and further in the years since that award was upheld in the trial in this action held in 2010, Jay has suffered a series of debilitating financial setbacks, which have left him nearly depleted of disposable income.” The record reflects that the chancellor considered Jay’s financial setbacks unforeseeable at the time of the parties’ divorce. In contrast to Jay’s situation, the chancellor noted that Mercedes provided “no concrete evidence that her expenses have increased within the past years, and further, has made no effort whatsoever to obtain any form of employment (even sedentary employment) to make any contribution toward her own support.” The chancellor further noted that, while Mercedes claimed her disability left her unable to work, she still cared for her young grandchildren and drove herself various places.

¶ 21. Regarding the parties’ needs, obligations, and assets, the chancellor noted Jay’s testimony that he had been unable to provide health insurance for his family for the past year and that he not only supported his wife and stepson but also served as primary caregiver for his elderly parents. The chancellor found that Mercedes, however, received Social Security and Medicare benefits, was eligible for federally subsidized housing, and supported only herself.

¶ 22. Jay and Mercedes were married for about eighteen years, were separated for the last three years of their marriage, and had been divorced for almost nine years. At the time of the modification hearing, Jay was fifty and Mercedes was fifty-seven, and neither had any minor children in their home. The chancellor further observed that since their divorce the parties had both experienced a “significant decline in their standard of living.”

¶ 23. Concerning any other “just and equitable” factors related to the decision, the chancellor found that Jay made several good-faith attempts to sufficiently increase his income to meet his periodic-alimony payments. However, those attempts had proven unsuccessful. In comparison, the chancellor found that Mercedes, due to her continued disability, had made no such attempts to improve her financial situation.

¶ 24. In reaching her determination to modify the alimony payments, the chancellor stated that Jay’s standard of living was not higher than Mercedes’s and that he had not willfully refused to support her. Instead, the chancellor found that Jay’s financial situation resulted from circumstances beyond his control. After her analysis of the Armstrong factors, the chancellor concluded that the alimony payments should be modified and should be reduced from $800 to $600 a month. Based on the record, we find no abuse of discretion in the chancellor’s consideration of the Armstrong factors or in her comparison of the relative positions of the parties at the time of their divorce with their relative positions at the time of the modification hearing. See Steiner, 788 So.2d at 776 (¶ 16).

¶ 25. Regarding Mercedes’s argument that Jay lacked clean hands, the record reflects that the chancellor entered a judgment in favor of Mercedes for past-due alimony and attorney’s fees and that the chancellor found that Jay possessed clean hands sufficient to request modification of alimony. We find that the evidence in the record supports the chancellor’s decision to modify the amount of Jay’s periodic-alimony payments to Mercedes each month. Accordingly, we affirm the chancellor’s judgment.

¶ 26. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

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

      . See Sturdavant v. Sturdavant, 53 So.3d 838, 841 (¶ 8) (Miss.Ct.App.2011).

      . Jay asserts in his brief that this fact was incorrectly reported in the chancellor’s findings of fact. Jay states that Blakeney Construction actually laid him off and that he remained unemployed from January to May 2012, during which time he was only able to work odd jobs as a day laborer. Jay's attorney stated during oral argument that he did not find this misstatement of fact critical other than as it reflected Jay’s earnings in 2012. For her part, Mercedes does not challenge the chancellor's findings of fact.

      . See Roberts v. Roberts, 110 So.3d 820, 829 (¶ 26) (Miss.Ct.App.2013) ("[A] judgment for the amount of an arrearage operates to ‘clean’ the hands [of] a party who would have otherwise had unclean hands for failure to pay that arrearage.” (citing Andres v. Andres, 22 So.3d 314, 320 (¶¶ 27-28) (Miss.Ct.App.2009))); see also Broome v. Broome, 75 So.3d 1132, 1140— 41 (¶ 26) (Miss.Ct.App.2011) (chancellor found that the husband's "financial situation did not relieve [him] of his obligation to pay the court-ordered alimony, [but] it did prevent a finding of unclean hands”).