author: PAYNE, J.,

text:
    Thomas Quitman BRAME, Jr., Appellant, v. Sherrye Polk BRAME, Appellee.
    No. 98-CA-00502-COA.
    Court of Appeals of Mississippi.
    March 28, 2000.
    Rehearing Denied July 25, 2000.
    Certiorari Granted Dec. 21, 2000.

      Attorneys for Appellant: Thomas Quit-man Brame, Jr., Thomas L. Tullos, John N. Satcher.
    Attorney for Appellee: L. Wesley Broadhead.
    BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.
   PAYNE, J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. This is an appeal from the Jasper County Chancery Court, Second District, wherein Thomas and Sherrye Brame were granted a divorce on December 10, 1997. Feeling aggrieved of the chancellor’s findings in the final judgment of divorce, Thomas Brame now appeals to this Court.

FACTS

¶ 2. Thomas Brame (Thomas) and Sher-rye Polk Brame (Sherrye) were married on May 20, 1979, and lived in the Bay Springs, Mississippi, area during their marriage. Three children were born to this marriage: Melissa in 1981, Laura in 1982, and Thomas III in 1985. Sherrye filed for divorce on grounds of adultery, and after a four day trial, the final judgment of divorce was granted December 10, 1997.

¶ 3. At the time of their marriage, Thomas held a law degree and had been practicing law for four months in Bay Springs. Sherrye held a bachelors degree in management and was a pharmaceutical drug representative for Lemman Pharmaceutical. Both worked until 1981 when Sherrye quit work to stay home and raise their children. Sherrye returned to the workforce in 1995 after the couple separated.

¶ 4. In 1991, Thomas was diagnosed as having a medical condition that requires medication to control the symptoms. Medication for treating this incurable disease costs Thomas $1,000 per month.

¶ 5. In the judgment for divorce, the chancellor awarded Thomas primary custody of Melissa and Thomas III, and granted primary custody of Laura to Sherrye. Thomas was granted visitation rights with Laura, and Sherrye was granted the same with Melissa and Thomas III. Thomas was also ordered to pay Sherrye $500 per month in child support and ordered to pay one-half of non-insured medical expenses for Laura. Thomas was ordered to pay periodic alimony to Sherrye in the amount of $700 per month and ordered to pay $10,000 for Sherrye’s attorney fees. Thomas was assigned $71,000 worth of debt.

¶ 6. Sherrye was also awarded title to the 1990 Mercury vehicle, one-half of Thomas’s investment and retirement accounts, and her non-marital assets, including jewelry valued at $11,200. Sherrye retained her stock in a family drug store business and retained her one-third remainder interest in a family trust. Sher-rye assumed $30,000 worth of debt.

¶ 7. Jointly, Thomas and Sherrye were ordered to sell different property they held together, namely the marital domicile, their motor home, and twenty acres of land. Thomas and Sherrye would split the net proceeds from each of these sales equally.

¶ 8. With this appeal, Thomas contests the chancellor’s determination concerning what was and was not marital property, the valuation of certain assets, the division of property, the award of alimony and child support, and the chancellor’s refusal to conduct post-trial hearings on his post-trial motions.

ARGUMENT AND DISCUSSION OF THE LAW

STANDARD OF REVIEW

¶ 9. In this petition, appellant Thomas Brame raises the following issues for our review:

I. THE CHANCELLOR ERRED IN HIS DESIGNATION OF CERTAIN ASSETS AS MARITAL PROPERTY AND CERTAIN OTHERS AS NON-MARITAL PROPERTY.
II. THE CHANCELLOR ERRED IN HIS VALUATION OF CERTAIN ASSETS.
III. THE CHANCELLOR ERRED IN HIS DISTRIBUTION OF ASSETS BETWEEN THE PARTIES.
IV. THE CHANCELLOR ERRED IN AWARDING PERIODIC ALIMONY TO SHERRYE.
V. THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES TO SHERRYE.
VI. THE CHANCELLOR ERRED IN AWARDING CHILD SUPPORT WELL IN EXCESS OF THE STATUTORY GUIDELINES.
VII. THE CHANCELLOR ERRED IN FAILING TO CONSIDER ALL FINANCIAL AND PROPERTY AWARDS TOGETHER FOR EQUITY.
VIII. THE CHANCELLOR ERRED IN SUMMARILY DISMISSING ALL OF THOMAS’S POST-TRIAL MOTIONS WITHOUT A HEARING AND WITHOUT AN OPPORTUNITY TO MAKE A RECORD.

¶ 10. The general rule regarding our standard of reviewing a chancellor is well-established: “We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Traxler v. Traxler, 730 So.2d 1098 (¶ 13) (Miss.1998) (citations omitted). “Thus, on appeal, the chancellor’s findings of fact, supported by credible evidence and not manifestly wrong, must be respected.” Black v. Black, 741 So.2d 299 (¶ 5) (Miss. Ct.App.1999) (citing Newsom v. Newsom, 557 So.2d 511 (Miss.1990)).

¶ 11. With regard to alimony, the standard similarly requires we find manifest error to disturb the chancellor’s decision.

The chancellor’s decision on alimony will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error. Under the standard of review utilized to review a chancery court’s findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not overturn the court on appeal unless its findings were manifestly wrong.

Tilley v. Tilley, 610 So.2d 348, 351 (Miss. 1992) (citations omitted).

¶ 12. When reviewing a chancellor’s award of attorney fees in a domestic case, once again we respect the chancellor’s use of discretion and only will disturb if we find manifest error or an abuse of such discretion.

The issue of whether an attorney’s fee should be awarded to one party in a divorce action is a question within the discretion of the chancellor. If based upon the appropriate standard, this decision will not be reversed upon appeal unless it is found to be manifestly erroneous. However, the chancellor’s discretion is not without limits. “Attorneys’ fees should not be awarded unless the chancellor finds that the party requesting attorney fees can establish an inability to pay.”

Magee v. Magee, 724 So.2d 1034 (¶ 30) (Miss.Ct.App.1998) (citations omitted).

¶ 13. As noted further in this opinion, we find the chancellor was mistaken on a few minor issues in this case. However, applying the aforementioned standards of review to the issues Thomas raises with this appeal, we find no error in the chancellor’s decision as would warrant our reversal. Accordingly, we affirm the chancellor.

DISCUSSION OF THE ISSUES

I. THE CHANCELLOR ERRED IN HIS DESIGNATION OF CERTAIN ASSETS AS MARITAL PROPERTY AND CERTAIN OTHERS AS NON-MARITAL PROPERTY.

¶ 14. Thomas argues the chancellor erred in classifying his law practice as a marital asset and also in designating a grandfather clock, a dining room table, and a baby grand piano as marital assets, as well.

¶ 15. First, regarding classification of the law practice as a marital asset, Thomas argues he owned his practice free and clear of indebtedness, and that the practice was established at the time of his marriage in 1979, thus exempting it from classification as a marital asset.

¶ 16. “The Mississippi Supreme Court has never held that a professional practice is an asset subject to the equitable distribution of marital assets dictated by Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994).” Neville v. Neville, 734 So.2d 352 (¶¶ 13, 16) (Miss.Ct.App.1999). In Neville, this Court found the chancellor was correct in not including the value of the husband’s medical practice or license as a marital asset, for purposes of arriving at an equitable distribution of marital assets required under the Ferguson decision. Id. at (¶ 16). As well, in Guy v. Guy, 736 So.2d 1042 (Miss.1999), the Mississippi Supreme Court affirmed the majority view held in several other states in agreeing that a professional license is not a marital asset.

¶ 17. In the case sub judice, Thomas argues the chancellor erred in placing a value on his law practice, then in awarding the practice to Thomas as part of his “marital asset.” As stated above, a professional license or practice cannot be part of an equitable distribution of marital assets. Thus, the chancellor erred in this regard. However, we find such error to be inconsequential to our ultimate ruling in this case, as described further in our analysis.

¶ 18. In addition to his law practice, Thomas also argues various household goods were erroneously classified as marital assets, namely gifts from his parents, including a grandfather clock, a dining room table, and a baby grand piano.

Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage ... We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.

Hemsley v. Hemsley, 639 So.2d 909, 914-15 (Miss.1994).

¶ 19. “[T]he supreme court has held ‘[w]hen an individual commingles non-marital assets with joint marital assets, the non-marital assets are converted into marital assets, subject to an equitable distribution unless subject to an agreement to the contrary.’ ’’Parsons v. Parsons, 741 So.2d 302 (¶ 28) (Miss.Ct.App.1999) (citing Johnson v. Johnson, 650 So.2d 1281 (Miss. 1994)).

¶ 20. As stated, once a property becomes “commingled” in the marriage, it takes on the description of marital property. We certainly cannot presume the rest of Thomas’s family did not make use of the piano, the clock, or the dining set. Thus, though such property may have originated as a gift to Thomas from his parents, once these items took on the new persona of full family use, they became marital property for the purposes of classification. The chancellor did not err in this regard.

II. THE CHANCELLOR ERRED IN HIS VALUATION OF CERTAIN ASSETS.

¶ 21. Thomas argues the chancellor erred in his valuation of certain assets, including Sherrye’s interest in the Polk testamentary trust, Sherrye’s interest in the drug store corporation, and Thomas’s law practice.

¶ 22. We first examine the trust. Sher-rye’s father set up the Polk testamentary trust, which contained $600,000. The trust provided that Edith Polk (Sherrye’s mother) would have a life estate in the trust, including a power to invade the corpus. A trustee was set up to provide the wife with such support as the trustee deemed necessary to care for her.

¶ 23. Thomas’s expert estimated Sher-rye’s worth in the trust to be $200,000, reasoning that Sherrye and her two siblings would each get one third of the trust at their mother’s death. The expert also evaluated Mrs. Polk’s financial circumstances, which, the expert intimated, were quite substantial, particularly since she was receiving medicare. He reasoned that barring unforeseen circumstances, Mrs. Polk would not need to deplete the entire trust to care for her needs during the remainder of her life.

¶ 24. Sherrye’s expert refused to place a value on Sherrye’s share of the trust as it was highly speculative what amount, if any, she would receive at her mother’s death. The expert said at present, Sher-rye’s value in the trust was zero.

¶ 25. We concur with Sherrye’s expert in finding the value of Sherrye’s share of the trust to be too speculative to calculate. We add, also, that Sherrye’s remainder interest in this trust is not vested until her mother’s death. Therefore, to place a dollar figure on this contingent interest at this point would be much too speculative. The chancellor, who stated no reason for his evaluation, may have erred in placing the value of Sherrye’s share of the trust at $40,000, but we will not reverse.

As to issues of fact where no specific findings have been articulated by the chancellor, this Court proceeds upon the ‘assumption that the chancellor resolved all such fact issues in favor of appellee,’ or as a minimum in a manner which would be in line with the decree. ‘[I]f there be substantial evidence undergird-ing such a ‘presumed finding’, we will not disturb it.’

Love v. Barnett, 611 So.2d 205, 207 (Miss. 1992) (citations omitted).

¶ 26. Next, regarding Sherrye’s interest in the drug store, Sherrye’s expert financial witness valued her twelve percent interest in the store to be $34,000 while Thomas’s expert found Sherrye’s interest to be worth $100,600. The chancellor set Sherrye’s twelve percent interest at $60,000. Though, once again, the chancellor stated no reason for selecting this figure, it was approximately the midpoint between the two estimations; therefore, we do not find abuse of discretion here. Furthermore, the chancellor found that “Sherrye is not getting any income from Gene Polk, Inc. except a dividend of $1,000 some years. She obtains no income from the family trust.”

¶ 27. The third area Thomas argues the chancellor erred is in the chancellor’s valuation of Thomas’s law practice. The chancellor ultimately ruled that Thomas’s law practice was valued at $65,000 (Sherrye’s expert has estimated $65,000 and Thomas’s expert had estimated $50,000). At the trial, however, the parties stipulated that the value of the law practice was $33,000.

Factual stipulations set boundaries beyond which this Court cannot stray. As stated in Corpus Juris Secundum: In the absence of grounds which will authorize a party to a stipulation to rescind or withdraw from it, ... the courts, both trial and appellate, ... are bound by stipulations in respect of matters which may validly be made the subject matter of stipulations. Courts are bound to enforce stipulations which parties may validly make, where they are not unreasonable or against good morals or sound public policy. Ordinarily they have no power to ... go beyond the terms [of such stipulations] ... or to make findings contrary to the terms of a stipulation, or render a judgment not authorized by its terms.

Wilboum v. Hobson, 608 So.2d 1187, 1189 (Miss.1992) (citations omitted). As stated in Wilboum, the chancellor’s setting the value of the law practice at $65,000 was beyond his authority, since the parties stipulated the value was $33,000. In light of previous finding in this opinion that the law practice was not a marital asset, however, we find this error in valuation essentially has no bearing on the result since the law practice should not have been considered when making equitable distribution of the marital property. Also, the chancellor subtracted the liabilities from the gross marital assets to arrive at a net worth of marital assets of $304,248. He further stated, “It is apparent that Sher-rye did not get 50 percent of the marital assets. However, $65,000 of the difference is Thomas’ law practice which is allotted to him.” Sherrye’s share of the marital assets totals $111,145, so that even without any consideration given to Thomas’s law practice, she still does not receive fifty percent, so there is no need to consider whether the law practice was worth $65,000 or $33,000 as stipulated.

III. THE CHANCELLOR ERRED IN HIS DISTRIBUTION OF ASSETS BETWEEN THE PARTIES.

¶ 28. Thomas argues the chancellor erred in awarding a grandfather clock and dining room table to Sherrye, both of which he claims his parents gave him as gifts. As well, Thomas argues the chancellor erred in distributing one-half of his retirement assets to Sherrye.

¶ 29. We first review the clock and table. As stated above, these items were rightly classified as marital property, and the chancellor is vested with the duty to equitably distribute the marital estate. “[A]ll awards should be considered together to determine that they are equitable and fair.” Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). The chancellor analyzed Thomas and Sherrye’s marital assets using the Ferguson test and very specifically listed his property divisions for both Thomas and Sherrye. We cannot reason as to why the chancellor chose to award Sherrye the dining room table and the clock, but absent a showing this somehow was not fair and equitable, we will not disturb the chancellor’s decision.

¶ 30. The second argument Thomas makes regards his retirement accounts. The chancellor awarded half of Thomas’s IRA accounts and half of his deferred compensation to Sherrye. As stated before, this income was acquired during the marriage, so it can be considered marital property.

¶ 31. “This Court has stated that in determining what is an equitable division, the chancellor is not limited to a consideration of the earning and cash contributions of each party to the accumulation of the property. It is sufficient contribution if one party renders services generally regarded as domestic in nature.” Draper v. Draper, 627 So.2d 302, 306 (Miss.1993) (citations omitted). The domestic services rendered by Sherrye, foregoing any career advancement on her part, were of value to Thomas whether or not he acknowledges it. As Thomas’s income earned during the marriage contributed to his own well-being, as well as to support his wife and children, the chancellor’s division of Thomas’s IRA and investment accounts was proper. See Prescott v. Prescott, 736 So.2d 409 (Miss.Ct.App. 1999); Traxler v. Traxler, 730 So.2d 1098 (Miss.1998); Magee v. Magee, 661 So.2d 1117 (Miss.1995).

IV. THE CHANCELLOR ERRED IN AWARDING PERIODIC ALIMONY TO SHERRYE.

¶ 32. Thomas argues the chancellor erred in awarding periodic alimony to Sherrye. The chancellor reviewed the Hemsley factors in arriving at his conclusion to award periodic alimony.

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

Hemsley v. Hemsley, 689 So.2d 909, 912-13 (Miss.1994) (citing Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955)).

¶ 33. The chancellor applied the Hemsley factors to the Brames’s case and found, most specifically, that Thomas’s income and earning capacity greatly exceed Sherrye’s and that her assets were non-liquid. Taking the chancellor’s analysis into consideration and noting the equitable distribution of assets, we review the chancellor’s weighing of the Hemsley factors and find his decision to be without manifest error. We find the chancellor’s award of periodic alimony was proper.

V. THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES TO SHERRYE.

¶ 34. Thomas argues the chancellor erred in awarding attorney fees to Sherrye when he stated in his judgment that she had sufficient funds to pay. Thomas errs in interpreting the chancellor’s statement. The chancellor awarded $10,000 for Sher-rye to use toward the payment of her attorney fees, but this amount was her share of the airplane Thomas had sold. The airplane was sold for $20,000 and Sherrye was entitled to one half the proceeds from the sale, since the plane was marital property. Thomas misconstrues the chancellor’s order to pay $10,000, but this is not an attorney fee award and need not be disturbed.

VI. THE CHANCELLOR ERRED IN AWARDING CHILD SUPPORT WELL IN EXCESS OF THE STATUTORY GUIDELINES.

¶ 35. Thomas claims the chancellor’s award of child support was errantly calculated. The chancellor awarded Sher-rye $500 per month for Laura and refused to award child support to Thomas, saying the discrepancy in Thomas’s income versus Sherrye’s would not permit him such an award for the care of the other two children. Thomas also claims the chancellor failed to take into consideration Thomas’s having a medical condition that requires medication to control its symptoms, referring to his expert’s testimony that Thomas’s earning capacity would certainly suffer due to this disease.

¶ 36. In his opinion, the chancellor recorded a detailed description as to his reasonings in arriving at the child support amount, pursuant to the guidelines stated in Miss.Code Ann. § 43-19-101 (Supp. 1999). Thomas, in his argument, essentially asks us to reweigh the facts and circumstances surrounding his and Sherrye’s lifestyles since the divorce; however, it is not our prerogative to do so. “Where evidence conflicts, the Mississippi Supreme Court typically defers to the chancellor as fact finder.” Ligon v. Ligon, 743 So.2d 404 (¶ 5) (Miss.Ct.App.1999) (citations omitted). Thus, we hold the finding of the chancellor is correct on this matter.

VTI. THE CHANCELLOR ERRED IN FAILING TO CONSIDER ALL FINANCIAL AND PROPERTY AWARDS TOGETHER FOR EQUITY.

¶ 37. Thomas argues with this issue that the chancellor erred in failing to consider all aspects of the financial settlement together (property settlement, alimony, child support, and attorney fees). Specifically, Thomas states that considered together, the burdens on him “do not do equity.” For the reasons stated above in various issues, the chancellor did not err.

VIII. THE CHANCELLOR ERRED IN SUMMARILY DISMISSING ALL OF THOMAS’S POST-TRIAL MOTIONS WITHOUT A HEARING AND WITHOUT AN OPPORTUNITY TO MAKE A RECORD.

¶ 38. Thomas filed several post-trial motions, most importantly a motion to re-consider, which was denied on February 13, 1998. The motion to reconsider refers to the chancellor’s need to reconsider his decision in light of twelve year old Laura’s decision to live permanently with Thomas rather than with Sher-rye. Such being the case, Thomas would have custody of all three children, effectively terminating his need to pay child support to Sherrye. However, facts subsequent to the trial could not cause errors in the trial which could be corrected on a reconsideration of a judge’s decision from that trial. However, the proper approach would be to file a petition for modification of child support, citing a material change in circumstances. Since Thomas did not file the proper petition, we find the chancellor was correct in denying the requested relief.

CONCLUSION

¶ 39. For the reasons stated in this opinion, we affirm the chancellor’s decision on all issues.

140. THE JUDGMENT OF THE JASPER COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MOORE, AND THOMAS, JJ., CONCUR. IRVING, J„ DISSENTS WITHOUT WRITTEN OPINION.

      . Thomas had deferred the income he received from Jasper County and Bay Springs to save up for future income deficiencies due to his medical condition.

      . For clarification purposes on the facts in this case, the Court acknowledges that no future modifications are allowable where material changes in circumstances are predictable at the time of the initial decree. Morris v. Morris, 541 So.2d 1040, 1042 (Miss. 1989). However, because no one can now predict how or when Thomas's medical condition might alter his ability to produce income in the future, we hold that any such deterioration would not prohibit consideration of modification because of a material change in his career circumstances.

      . The proper style of a motion for relief from judgment is a Motion for New Trial, not a Motion to Reconsider. See M.R.C.P. 59; Barber v. Balboa Life Ins. Co., 747 So.2d 863, 870 n. 3 (Miss.Ct.App.1999).


source: Caselaw Access Project

author: IRVING, P.J., for the Court:

license: Public Domain

text:
    MISSISSIPPI BAPTIST MEDICAL CENTER and Reciprocal of America (Mississippi Insurance Guaranty Association a/k/a “Miga”), Appellants v. Billy MURPHY, Appellee.
    No. 2010-WC-02019-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Douglas R. Duke, Jackson, attorney for appellants.
    Bill Waller Sr., attorney for appellee.
   IRVING, P.J., for the Court:

¶ 1. This appeal arises out of a workers’ compensation claim filed by Billy Murphy against Mississippi Baptist Medical Center (Baptist). The Rankin County Circuit Court affirmed the judgment of the Mississippi Workers’ Compensation Commission, which ordered Baptist to pay one-half of the costs of gastrointestinal treatment that Murphy received and one-half of the cost of a diseogram procedure that Murphy had undergone. Feeling aggrieved, Baptist appeals and contends that the Commission improperly focused on the testimony of Murphy’s treating physician and that the Commission erred in ordering Baptist to pay one-half of Murphy’s medical bills under Mississippi Code Annotated section 71-3-37 (Rev.2011).

¶ 2. We conclude that Baptist has not appealed from a final judgment, as the Commission merely ordered Baptist to pay certain expenses. The Commission did not make any final adjudication as to the merits of Murphy’s claim. Accordingly, the circuit court lacked jurisdiction to hear the appeal. Therefore, we vacate the circuit court’s judgment and remand this case to the Commission for further proceedings consistent with its order.

FACTS

¶ 3. Murphy was working for Baptist in January 2000 when he injured his back while lifting a machine over his head. Approximately one year later, while working for River Oaks Hospital, Murphy fell on the floor and sustained further injuries. As a result of his injuries, Murphy took a variety of painkillers in the years following the injuries. In 2005 and 2006, Murphy was treated for severe gastrointestinal issues. Dr. Ron Williams, who had been treating Murphy for his pain, testified by deposition that the painkillers had substantially contributed to Murphy’s need for gastrointestinal treatment.

¶ 4. Murphy filed claims against both Baptist and River Oaks. The administrative judge (AJ) found that Murphy’s gastrointestinal issues were not related to the injuries he suffered while working for Baptist and River Oaks. Murphy appealed to the Commission, which issued an order in 2010, amending the findings of the AJ and requiring Baptist and River Oaks to share the costs of Murphy’s gastrointestinal treatments and a diseogram procedure. However, the Commission’s order did not make any finding as to who would ultimately be liable for the costs of any treatments. In fact, the Commission explicitly ordered both Baptist and River Oaks to “share equally in the payment of the medical benefits awarded herein until it is determined which party is solely liable, at which time the liable Employer/Carrier must reimburse the other non-liable Employer/Carrier. ...” The Commission then remanded the case to the AJ for additional proceedings. However, Baptist filed the present appeal, and there is no indication of any further proceedings before the AJ.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. It is clear that the Commission has not issued a final judgment or order in this case. In Superior Manufacturing Group, Inc. v. Crabtree, 62 So.3d 992 (Miss.Ct. App.2011), this Court addressed another case where the Commission did not enter a final judgment. In Crabtree, the Commission entered an order allowing Bill Crab-tree to reopen his claim and remanding the matter to the AJ. Id. at 992 (¶ 1). Superi- or Manufacturing Group, Inc. then filed an appeal of the Commission’s order. Id. We dismissed for lack of jurisdiction, noting that “interlocutory orders by the ... Commission are not appealable.” Id. at 995 (¶ 11) (quoting Cunningham Enters., Inc. v. Vowell, 937 So.2d 32, 34 (¶ 3) (Miss.Ct. App.2006)); see also Kukor v. Ne. Tree Serv., Inc., 992 So.2d 1242, 1244 (¶8) (Miss.Ct.App.2008) (holding that the circuit court lacked jurisdiction over an appeal from a Commission order remanding the case to the AJ for a determination of the claimant’s average weekly wage).

¶ 7. Likewise, the order entered in this case was not a final judgment of the Commission; therefore, Baptist’s appeal is interlocutory. Accordingly, we hold that the circuit court lacked jurisdiction; therefore, we vacate the circuit court’s judgment and remand this case to the Commission for further proceedings consistent with its order.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS VACATED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COMMISSION’S ORDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: BARNES, J., for the Court:

text:
    Patrick COLEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01350-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.
    Rehearing denied Oct. 9, 2012.

      Eric John Hessler, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J., for the Court:

¶ 1. Patrick Coleman was convicted of murder and sentenced to life in prison. Coleman raises two issues on appeal: (1) whether the trial court erred by failing to hold a hearing to determine if he was competent to stand trial and (2) whether his trial counsel was ineffective. Because under Uniform Rule of Circuit and County Court 9.06 Coleman was entitled to a hearing to determine his competency to stand trial, we ordered the trial court perform a nunc pro tunc, or retrospective, competency hearing. After the hearing, the trial court found Coleman was competent to stand trial. Finding no reversible error, we affirm Coleman’s conviction and sentence.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of November 28, 2007, Kimberly Watts, Caarda Turner, Trevoris Griffin, and the victim, Frederick Pruitt, were socializing at Watts’s apartment in Meridian, Mississippi, when Pruitt suddenly got up, opened the door to Watts’s apartment, looked out, and then ran into Watts’s bedroom. Watts opened her apartment door and saw two armed men coming toward her apartment. One of the men was Coleman, who lived with his family across the street. Believing that Pruitt had been disrespectful to his wife earlier that morning, Coleman demanded Pruitt to exit the apartment. Watts testified that after repeating the demand, Coleman entered her apartment against her wishes and shot twice at Pruitt. The second shot hit Pruitt in the forehead, killing him. Coleman then told Watts to call the police, while he waited outside.

¶ 3. Coleman was taken into custody, waived his rights, and gave a voluntary statement admitting that he had shot at Pruitt twice. In the statement, Coleman also stated he would have shot himself as well had his nephew not taken the firearm away from him. Coleman was indicted for deliberate-design murder or the lesser crime of manslaughter.

¶ 4. On November 24, 2008, defense counsel filed a “Motion for Psychiatric Examination and/or Treatment” for Coleman, which the trial court granted. The order stated the purpose of the mental evaluation was (1) to determine whether or not Coleman had “a factual as well as rational understanding of the nature and object of the legal proceedings against him, and has the ability reasonably to assist his attorney in the preparation of his defense,” and (2) “to describe Coleman’s mental state at the time of the alleged offense(s) with respect to his ability to know the difference between right and wrong ... at that time.” Defense counsel requested and was granted several continuances of Coleman’s trial, in part because Coleman had not been psychologically evaluated. In the trial court’s March 2009 order, a final continuance was granted, but the court added a handwritten note at the end of the order stating: “This case is set for trial June 1, 2009. Failure of defense counsel to appear at 9:00 a.m. on trial date will be considered by the court as direct criminal contempt.”

¶ 5. On April 1, 2009, Coleman’s psychological evaluation was performed at Whitfield. A summary report on Coleman’s evaluation, dated May 12, 2009, was filed with the trial court on May 18, 2009. The report was signed by two psychologists and a psychiatrist. The evaluators reviewed Coleman’s police record, past psychiatric records at various hospitals, school records, and information from the jail staff where he was incarcerated. Coleman’s attorney was also interviewed. Coleman himself was interviewed for two hours by the evaluators and went through two hours of psychological testing. The report noted Coleman’s extensive history of serious psychiatric illness, including schizophrenia, depression, and intermittent explosive disorder. Also noted were his previous diagnoses for personality disorder, as well as alcohol and cannabis abuse disorders. However, the report concluded that Coleman was competent to stand trial, finding he “had the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he had a rational as well as factual understanding of the nature and object of the legal proceedings against him.” The report also stated that, while Coleman “may have been experiencing symptoms of his mental illness on the day of the alleged offense, there was no information to suggest that the symptoms of his illness impaired his ability to know the nature, quality, or wrongfulness of his alleged acts at that time.” It was noted that during the evaluation, Coleman did not exhibit any active symptoms of psychosis or “genuine memory impairment.”

¶ 6. On the morning of June 1, 2009, Coleman’s counsel appeared in court late, approximately thirty minutes after Coleman’s trial was scheduled to begin. She requested a continuance, asserting that Coleman was entitled to a full competency hearing and that she needed time to subpoena witnesses who would testify as to Coleman’s competency. She also wanted to cross-examine the physician who made the mental-evaluation report on Coleman. In response, the trial judge questioned why defense counsel had waited until the morning of trial after the jury had been qualified to request a competency hearing, when the defense had received the mental-evaluation report approximately ten days prior to trial. The trial judge concluded that the issue was waived. Further, the judge noted that the summary report indicated Coleman was competent to stand trial. The trial court denied the motion for a continuance, and Coleman’s two-day trial commenced.

¶ 7. On the second morning of trial, defense counsel again raised the issue of competency. She filed a motion for a mistrial and a reinstatement of the request for a competency hearing pursuant to Uniform Rule of Circuit and County Court 9.06, but the motion was denied. Attached to the motion was an affidavit from Coleman’s wife stating that her husband “suffers from many mental problems,” and before the incident, he “had been seeing invisible people and talking to himself for over a week”; he “was out of his medication and was becoming more and more uncontrollable.” Also attached was an affidavit by defense counsel insisting that Coleman was incompetent to stand trial. In the sworn statement, defense counsel stated that she had assumed the first day of trial would be a “general setting” and not a “specific setting,” and “the June 2, 2009 hearing would be for a setting of the competency hearing.”

¶ 8. Defense counsel also filed a notice of insanity defense, which the trial court properly denied as untimely. During Coleman’s case-in-chief, he initially decided not to testify. When examined by the court about his decision, Coleman indicated that he understood its implications, but defense counsel added that she still did not believé Coleman was competent to stand trial. Later, Coleman changed his mind and testified on his own behalf.

¶ 9. Coleman testified that on November 28, 2007, Pruitt had initiated the argument. Coleman maintained that he had not meant to shoot Pruitt with the first shot, but merely scare him. Also, Coleman thought Pruitt was reaching for a firearm; however, no firearm was found on Pruitt. Coleman maintained that he “blanked out and the gun went off [a second time], and that’s all I remember.” Pruitt was killed by this second shot.

¶ 10. The jury was instructed on deliberate-design murder. The circuit judge refused instructions on manslaughter and self-defense. The jury returned a verdict of guilty on the charge of murder, and the trial court sentenced Coleman to life in prison. In a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), defense counsel reiterated the issue of Coleman’s competence. Defense counsel argued that the trial court violated Rule 9.06 by failing to hold an on-the-record competency hearing and make findings on the record. Further, defense counsel argued that the summary report provided to her and the court in May 2009 was inadequate for determining competency,'and the supporting clinical data, results, and reasoning were needed.

¶ 11. At the hearing on the post-trial motion, defense counsel stated that she did not have any new testimony to present to the court, but she introduced into evidence Coleman’s full mental evaluation from ■Whitfield, which Coleman’s attorney had only obtained the day before. Defense counsel explained that she had not requested a competency hearing before trial because it was her understanding that once the court orders the defendant to submit to a psychiatric examination under Rule 9.06, the court must conduct a hearing. The trial court did not accept defense counsel’s reasoning and maintained that all of the information that was presented indicated Coleman was competent to stand trial. The trial court denied the motion for a new trial or JNOV. Coleman timely appealed. He is represented by a different attorney on appeal than in the trial court proceedings.

ANALYSIS

I. Competency to Stand Trial

¶ 12. Before and throughout the trial proceedings, Coleman’s counsel requested a full competency hearing several times so she could subpoena witnesses and cross-examine the physicians who made Coleman’s mental report. On appeal, Coleman argued that it was error for the trial court to fail to hold a hearing to determine whether Coleman was competent to stand trial under Rule 9.06. Coleman cited

Sanders v. State, 9 So.3d 1132 (Miss.2009) regarding the mandatory nature of competency hearings under Rule 9.06. Sanders held that once the trial court orders a psychological evaluation and it is completed, it is mandatory that the trial court have an on-the-record hearing on competency and make findings on the record. Id. at 1136 (¶ 16) (citing URCCC 9.06). The State responded that Sanders is distinguishable from Coleman’s case because here the trial court made a determination based on the results of a mental examination that Coleman was competent to stand trial, unlike in Sanders, where there was no such on-the-record finding of competency. See id. at 1136-37 (¶ 17). In the alternative, the State suggested that if this Court found error in the trial court’s failure to conduct a competency hearing, we could remand the case for a nunc pro tunc, or retrospective competency hearing, as sanctioned in Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir.1986) (citing United States v. Malcris, 535 F.2d 899, 904 (5th Cir.1976)), rather than reverse and remand for a new trial when Coleman is found currently competent. We found the State’s suggestion appropriate under the unique circumstances of the case, as there appeared to be sufficient evidence from which to make a meaningful retrospective competency determination. Therefore, we ordered the trial court to perform a retrospective competency hearing, where the parties could call witnesses and present relevant evidence as to the issue of Coleman’s competency to stand trial in June 2009.

¶ 13. At the hearing in September 2011, Coleman did not present any evidence to support his assertion that he was incompetent to stand trial. Nor did he call any lay or expert witnesses who could testify to his behavior around the time of his trial in June 2009. In September 2011, the trial court issued an order finding Coleman was competent to stand trial in June 2009. We cannot find the trial court erred in this regard. In making this determination, the trial judge considered Coleman’s demean- or during the trial, Coleman’s decision to testify on his own behalf, his testimony, the record, and the arguments by counsel at the hearing. Because the trial court found Coleman competent to stand trial, the only issue remaining on appeal is Coleman’s ineffective assistance of counsel claim.

II. Ineffective Assistance of Counsel

¶ 14. Coleman argues that his trial counsel was ineffective. He claims she lacked preparation, a trial strategy, and a theory of defense, which was especially apparent during the issuance of jury instructions. Coleman notes the trial court refused a jury instruction on manslaughter and found one on self-defense unjustified. Further, Coleman criticizes his trial counsel for not filing a motion in limine regarding his confession to law enforcement. Coleman claims these deficiencies in performance prejudiced him, resulting in a conviction of murder.

¶ 15. “[W]hen a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding.” Trotter v. State, 9 So.Sd 402, 411 (¶ 23) (Miss.Ct. App.2008) (quoting Graves v. State, 914 So.2d 788, 798 (¶ 35) (Miss.Ct.App.2005)). “This Court will reach the merits on an ineffective assistance claim only in instances where ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Id. (quoting Wileher v. State, 863 So.2d 776, 825 (¶ 171) (Miss. 2003)). We find neither of these instances present here. Further, most of Coleman’s claims of ineffective assistance involve alleged inaction by trial counsel, which requires information outside of the record. Coleman’s conviction is affirmed without prejudice to his ability to raise an ineffective assistance of counsel claim in a proceeding for post-conviction relief.

¶ 16. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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

      . This detailed thirty-page report should have been in the record on appeal, but it was not. This Court subsequently obtained the report from the Lauderdale County Circuit Court. There is no indication in the record that this report was reviewed by the trial court in denying Coleman’s request for a rehearing. Coleman’s psychiatric history confirmed the claim in the affidavit of Coleman's wife that Coleman had struggled with serious mental illness for several years.

      . In Mississippi state courts, Rule 9.06 governs the competency to stand trial and states, in pertinent part:
      If before or during trial the court,’of its own motion or upon motion of an attorney, has reasonable ground to believe that the defen-

        dant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination....

        After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.
      If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.
      (Emphasis added).

      . We note Coleman did not file a reply brief and therefore did not respond to this suggestion.