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

text:
    Dori WORTHY, Appellant, v. Dr. Timothy TRAINOR, Appellee.
    No. 2008-CA-00507-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      Rayford G. Chambers, attorney for appellant.
    William E. Whitfield, Anna J. Hall, Biloxi, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Dori Worthy filed a complaint in the Pearl River County Circuit Court on February 7, 2007, against Dr. Timothy J. Trai-nor and Dr. Delora Denney alleging medical malpractice stemming from treatment she received from the doctors in 2002. This appeal solely concerns Dr. Trainor. Process for Dr. Trainor was issued on February 7, 2007, although the first attempt at service of process was on May 14, 2007. The process server returned the summons unserved to the clerk’s office because Dr. Trainor’s office had relocated to Slidell, Louisiana.

¶ 2. On or about June 4, 2007, Worthy attempted service upon Dr. Trainor at his office in Slidell via certified mail. The receptionist at Dr. Trainor’s office, Anna Russo, signed for the copy of the summons and complaint. The proof of service was filed in the clerk’s office on August 6, 2007. On August 28, 2007, Dr. Trainor filed an answer and a motion to dismiss, alleging that Worthy failed to comply with the dictates of Rule 4(c)(5) of the Mississippi Rules of Civil Procedure by failing to mark the envelope “restricted delivery.” On September 24, 2007, Worthy filed a response to Dr. Trainor’s motion to dismiss, asking the trial court for an extension of time to serve process upon Dr. Trainor. After a hearing on the matter, the trial court granted Dr. Trainor’s motion and dismissed the action without prejudice. The trial court also denied Worthy’s motion for an extension of time to serve process upon Dr. Trainor.

¶ 3. Worthy now appeals, asserting that the trial court erred in denying her motion for an extension of time to serve process upon Dr. Trainor.

DISCUSSION

¶ 4. In her only issue on appeal, Worthy argues that the trial court erred in denying her motion for an extension of time to serve process upon Dr. Trainor. Worthy contends that she acted diligently in attempting to serve process upon Dr. Trainor. If the trial court’s decision to grant or deny a motion for extension of time pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure is based upon fact and not law, we review the decision under the familiar abuse-of-discretion standard. Rains v. Gardner, 731 So.2d 1192, 1198(¶19) (Miss.1999). Rule 4(h) simply provides that a party shall be dismissed from an action if service is not had on that party within 120 days absent good cause shown. “It is the well[-]settled rule that service of process on a non-resident defendant is jurisdictional requiring strict compliance with statutory procedures.” Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981). “To establish ‘good cause’ the plaintiff must demonstrate ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ ” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (citing Sys. Signs Supplies v. U.S. Dep’t. of Justice, 903 F.2d 1011, 1013 (5th Cir.1990)).

¶ 5. Pursuant to Rule 4(c)(5) of the Mississippi Rules of Civil Procedure, service of process upon a person outside Mississippi may be accomplished “by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked ‘restricted delivery.’ ” The trial court determined that Worthy failed to strictly comply with Rule 4(c)(5) because the envelope was not marked “restricted delivery.”

¶ 6. We first note that the envelope was never presented to establish whether it was marked “restricted delivery.” Dr. Trainor included a copy of the proof of service “green card” for certified mailing. The green card indicated that Russo signed for the summons and complaint, and the “yes” box next to “restricted delivery” was not marked. Worthy did produce a receipt from the United States Postal Service indicating that she had paid, in addition to other postage fees, a restricted delivery fee for an item on June 1, 2007. After receiving the green card with Russo’s signature, Worthy did not attempt to serve Dr. Trainor again. Worthy only requested an extension of time to correct her mistake after Dr. Trainor filed his motion to dismiss for insufficient service of process. Our supreme court has held that although “a motion for additional time may be filed after the 120-day time period has expired, a diligent plaintiff should file such a motion within the 120-day time period” to support a claim that good cause existed for the failure to properly serve process. Webster v. Webster, 834 So.2d 26, 29(¶ 11) (Miss.2002). We cannot find that the trial court abused its discretion in denying Worthy’s motion for an extension of time. This issue is without merit.

¶ 7. We note that Dr. Trainor did not waive personal jurisdiction because he raised the defense of improper service of process in his answer and in his motion to dismiss, both of which were filed the same day. See Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (¶¶ 15-16) (Miss.Ct.App. 2003) (contest to court’s in personam jurisdiction must be asserted by motion or otherwise at first opportunity after the appearance in order to not be waived).

¶ 8. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, ISHEE, ROBERTS,

CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Monte R. GRAY, Appellant v. BELLSOUTH TELECOMMUNICATION, INC., Appellee.
    No. 2007-CA-02210-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Christopher G. Evans, Tupelo, attorney for appellant.
    David W. Upchurch, Robert K. Up-church, Tupelo, Joshua Shey Wise, attorneys for appellee.
    Before LEE, P.J, GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Monte R. Gray appeals the circuit court’s grant of a directed verdict in favor of BellSouth Telecommunications, Inc. (“BellSouth”) in a negligence action. Gray argues that the circuit court erred by granting the directed verdict based on Gray’s failure to make a prima facie showing of negligence via the doctrine of res ipsa loquitur. We find no error and affirm.

FACTS

¶ 2. On March 8, 2002, Gray was driving southbound on Gloster Street in Tupelo, Mississippi. James M. Young was driving his vehicle directly behind Gray. A telephone wire owned by BellSouth was sagging across the roadway at a height such that it made contact with the windshield or top of a passenger vehicle passing beneath. The wire caused many drivers to hurriedly apply their brakes to avoid hitting the hanging wire at full speed. Gray saw the wire as he approached and instinctively applied his brakes. Young did not slow his vehicle in time, and he struck the rear of Gray’s vehicle.

¶ 8. Gray’s vehicle was totally damaged in the collision. Gray immediately experienced pain in his back and neck, and he eventually underwent cervical-fusion surgery. He continues to suffer pain and physical limitations as a result of the accident.

¶ 4. Following the accident, a utility worker from another company cut the hanging wire and removed it from the street. BellSouth later received a customer complaint from Northeast Petroleum, a business located on Gloster Street near the place of the accident. Northeast Petroleum reported that its telephone line did not have a dial tone. Meletius Griffin, a BellSouth employee, was sent to investigate the problem. He found the cut wire and installed a new wire across the roadway.

¶ 5. Gray filed an action for negligence against BellSouth, as the owner of the sagging wire, and Young. Gray claimed that BellSouth negligently maintained the telephone wire and negligently caused or allowed the telephone wire to exist as an inherently dangerous condition on the roadway. Young filed a cross-claim against BellSouth based on the identical claims brought by Gray against BellSouth.

¶ 6. Gray presented his case to the jury. At the end of his evidence, defendants BellSouth and Young moved for a directed verdict pursuant to Rule 50 of the Mississippi Rules of Civil Procedure. Young’s motion was denied. However, the circuit judge found that there was insufficient evidence for the case against BellSouth to go to the jury. The circuit judge stated that Gray attempted to prove a breach of duty on the part of BellSouth through the doctrine of res ipsa loquitur, but Gray did not prove the necessary elements of that doctrine. Thus, BellSouth’s motion for a directed verdict was granted.

¶ 7. As a result, Young voluntarily dismissed his cross-claim against BellSouth. The trial resumed, and Young presented his defense to the jury. At the end of all the evidence, Gray and Young decided to waive their right to a jury decision and submitted the case to the circuit judge for a verdict. A verdict in favor of Gray and against Young was returned. The circuit court found Young to be 100% at fault for Gray’s injuries and awarded $185,000 in damages to Gray.

¶ 8. A final judgment was entered in the case, and Gray filed his appeal to this Court. His only claim on appeal is that the circuit court erred by ruling that Gray failed to meet the requirements of the doctrine of res ipsa loquitur regarding his claims of negligence against BellSouth.

STANDARD OF REVIEW

¶ 9. On appeal, we conduct a de novo standard of review of motions for a directed verdict. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992). When deciding whether the granting of a motion for a directed verdict was proper by the lower court, this Court considers the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial. Id. If the favorable inferences have been reasonably drawn in favor of the non-moving party so as to create a question of fact from which reasonable minds could differ, then the motion for a directed verdict should not be granted and the matter should be given to the jury. Id.

ANALYSIS

Whether Gray proved the necessary elements of the doctrine of res ipsa loqui-tur in his negligence claim against Bell-South.

¶ 10. Gray argues that he set forth a prima facie showing of negligence on the part of BellSouth through the doctrine of res ipsa loquitur; therefore, the circuit court improperly granted a directed verdict in favor of BellSouth. BellSouth contends that the directed verdict was proper because Gray offered no evidence, circumstantial or otherwise, as to the claims of negligent installation, negligent maintenance, and negligent inspection.

¶ 11. There is no dispute as to the circuit court’s finding that Gray failed to put forth any direct evidence of Bell-South’s negligence; thus, Gray’s claim now rests on the application of the doctrine of res ipsa loquitur. “Res ipsa loquitur, literally translated ‘the thing speaks for itself,’ is simply one form of circumstantial evidence.” Read v. S. Pine Elec. Power Ass’n, 515 So.2d 916, 919 (Miss.1987) (citing Dees v. Campbell, 183 So.2d 624, 626 (Miss.1966)). “Under the doctrine of res ipsa loquitur, negligence can be inferred in certain factual situations.” Powell v. Methodist Health Care-Jackson Hosps., 876 So.2d 347, 349(¶ 7) (Miss.2004) (citing Winters v. Wright, 869 So.2d 357, 363(¶ 12) (Miss.2003)). However, the doctrine should be applied cautiously by the Mississippi courts. Id.

¶ 12. To apply res ipsa loquitur, the plaintiff must prove three elements:

First, the defendant must have control and management of the instrumentality causing the plaintiffs injury. [Second], the injury must be such that in the ordinary course of things it would not occur if those in control of the instrumentality used proper care. Third and finally, res ipsa loquitur only applies where the injury is not a result of the plaintiffs voluntary act.

Id. (internal citations and quotation omitted).

¶ 13. The circuit judge found that Gray failed to prove prong two of the test-that in the ordinary course of things, the injury would not have happened if those in control had used proper care. In his brief on appeal, Gray addresses the second prong by quoting one question asked of Griffin, the BellSouth technician:

Q: Would you agree with me based on the strength of these wires that you describe and the strength of these J hooks ... [i]f you properly install one of those, in the normal course of things it should not fall.
A: Yes.

Gray cites no legal authority or any other factual evidence, and this statement alone does not satisfy the second prong of the doctrine of res ipsa loquitur. Griffin’s statement merely indicates that a properly installed line should not fall in the normal course of things. It does not in any way show a failure of BellSouth to use proper care. In fact, the proof offered by Gray at trial shows that there was no improper installation of the wire or any type of damage to the poles or installation equipment. Griffin testified that he had never seen a wire fall without “something running into it and hitting it or something falling on it.” Griffin further stated that he was told by a woman working at Northeast Petroleum that a garbage truck hit the wire.

¶ 14. As BellSouth argues, this testimony by Griffin established a reasonable explanation for the sagging line. Moreover, res ipsa loquitur does not apply when “there has been specific proof which discloses some reasonable explanation for the happening other than the negligence charged against the defendant.” Winters, 869 So.2d at 364(¶ 15) (quoting Yazoo & M.V.R. Co. v. Skaggs, 181 Miss. 150, 158, 179 So. 274, 277 (1938)).

¶ 15. The supreme court has held:
Although negligence, like any other fact, may be proved by circumstantial evidence, there must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not. The inference must cover all of the necessary elements of negligence and must point to a breach of defendant’s duties.

Dees, 183 So.2d at 626. Here, Gray essentially argues that BellSouth is negligent because it owned the sagging wire. Gray pleaded negligent installation, negligent maintenance, and negligent inspection, but he failed to offer any proof that would point to a breach of these duties. As the circuit judge held:

In the end, the inference must be a legitimate inference. It must cover all the necessary elements of negligence, and it must point to a breach of duty. There has been no evidence of any damage to any poles or hardware. There has been no evidence of any breach of maintenance. There has been no evidence of any breach of installation. In fact, the only proof that we really have on installation is that the J hooks were set at a sufficient height.... There’s been no evidence of any breach of inspection, especially in light of [the fact that] there was no actual notice [of] the downed line and the fact that at best the proof shows that the line was down only some 30 to 45 minutes prior to the accident.

¶ 16. Gray failed to prove that the sagging wire was more likely than not caused by a negligent act of BellSouth. We agree with the circuit court that there was insufficient evidence for this case to go to the jury. Gray failed to meet the second element of res ipsa loquitur. Without the application of that doctrine, there is no evidence of BellSouth’s negligence for a jury to consider. Accordingly, the directed verdict in favor of BellSouth is affirmed.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: ISHEE, J, for the Court.

text:
    Sandra Melissa HULTS, Appellant v. James Alan HULTS, Appellee.
    No. 2007-CA-02186-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Gary L. Roberts, attorney for appellant.
    Mark H. Watts, Pascagoula, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J, for the Court.

¶ 1. On June 19, 2007, Sandra Melissa Hults (Melissa) and James Alan Hults (Alan) were granted a divorce on the ground of irreconcilable differences in the Chancery Court of Jackson County. In its judgment, the chancery court divided the parties’ marital property and granted Alan standard visitation to see his two minor children. The chancery court also ordered Alan to pay alimony in the amount of $900 per month and child support in the amount of $1,000 per month. The chancery court refused to award attorney’s fees to either party.

¶ 2. Aggrieved by the chancellor’s judgment, Melissa now appeals. She argues that: (1) the chancery court erred in deviating from the statutory child support guidelines; (2) the alimony award was insufficient; (3) the division of the marital assets was not equitable; and (4) it was error to refuse to award her attorney’s fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Melissa and Alan were married on July 26, 1986, and they remained together until Alan left the marital home on July 3, 2006. The couple had two minor children, both boys, who were seventeen and eleven at the time of trial. Alan worked as a fireman for Chevron, and on the side, he operated a commercial fishing business.

¶4. After moving out of the marital home, Alan filed for divorce citing adultery, cruel and inhuman treatment, or, in the alternative, irreconcilable differences as grounds. Melissa filed a counterclaim citing the same grounds for divorce. On September 29, 2006, the chancery court entered a temporary order in the case. The order awarded temporary physical custody of the children to Melissa, and it ordered Alan to pay $900 per month in temporary child support. The order also required Alan to pay $1,000 per month in temporary alimony and to pay the house note on the marital home, which was $1,013.29 per month. Under the temporary order, Alan had to pay insurance on all of the automobiles and maintain health insurance for the children.

¶ 5. Ultimately, the parties withdrew their fault-based grounds for divorce, and they agreed to a divorce on the ground of irreconcilable differences. The parties asked the chancellor to resolve the following issues: custody, child support, health care, life insurance, visitation, division of the marital assets, alimony, and attorney's fees.

¶ 6. At the trial on the remaining issues, both parties testified about then* valuation of the various marital property and about their respective incomes. Finding that it was not reasonable to apply the child support guidelines, the chancellor ordered Alan to pay $1,000 per month in child support, to maintain health insurance on the children, to pay one-half of the children’s medical costs not covered by insurance, and to maintain life insurance of $150,000 for the benefit of the children.

¶ 7. Next, the chancellor divided the marital property. Four boats were included in the marital property: an eighteen-foot white Ranger boat valued at $35,000 by Melissa and $10,000 by Alan, a seventeen-foot red Ranger boat valued at $23,000 by Melissa and $5,000 by Alan, and two fifteen-foot aluminum skiffs valued at $3,500 each. The chancellor found that one skiff was for the use and benefit of the oldest son, and the other three boats were awarded to Alan. Alan had also won a boat at a fishing tournament after the separation, but the chancellor did not include it in the marital property.

¶ 8. There were five vehicles at issue: a 2006 Toyota Sequoia valued at $35,500 by Melissa and $44,000 by Alan, a 2005 Toyota Tundra valued at $12,000 by Melissa and $26,000 by Alan, a 1995 Toyota Avalon valued at $4,000 by Melissa and $1,000 by Alan, a 1995 Ford F-150 valued at $1,000 by Alan, and a 2002 Toyota Echo valued at $6,000 by Melissa. There was no outstanding loan balance on any of the vehicles.

¶ 9. The chancellor found the Toyota Echo to be a gift by the parties to Alan’s mother and was not considered as part of the marital estate. The chancellor then valued the Toyota Sequoia at $35,500 and awarded it to Melissa. The Toyota Tundra was valued at $12,000 and awarded it to Alan along with the Ford F-150 valued at $1,000. The chancellor found the Toyota Avalon to be for the use and benefit of the oldest son.

¶ 10. As for the marital home, the parties agreed to its appraised value of $184,000, with outstanding debt of $32,851.40. The chancellor awarded the home to Melissa and ordered Alan to be responsible for the outstanding debt.

¶ 11. The vested balance of Alan’s Chevron Employee Savings Investment Plan was $517,404.84. The chancellor divided the retirement plan, awarding $115,000 to Melissa and $402,404.84 to Alan.

¶ 12. The chancellor valued various furniture in the marital home at $45,000 and awarded it to Melissa. The chancellor also accepted Melissa’s valuation of $12,700 for various electronics items and jewelry and awarded those items to Melissa. Melissa also received the lawn mower and weed eater, which the chancellor valued at $675.

¶ 13. Next, the chancellor divided the parties’ marital accounts. Melissa received the $2,552.70 in her savings account and the $18,985.34 in the parties’ mutual fund. The chancellor awarded Alan the $744 in his checking account and the $4,597 in his savings account. The chancellor found two mutual funds to be for the use and benefit of the children: a science and technology fund valued at $13,416.60 for the use and benefit of the oldest child, and a media and telecommunications fund valued at $21,081.78 for the use and benefit of the youngest child.

¶ 14. Besides the debt on the marital home, the only debts that the parties had at the time of trial were a $10,000 balance on Melissa’s VISA and a $100 balance at Kirkland’s. The chancellor found that Melissa incurred these debts after the separation and ordered her to pay them.

¶ 15. The last item of marital property that the chancellor divided was Alan’s interest in the Chevron Retirement Defined Benefit Plan (RDBP). The chancellor awarded Melissa one-half of a fractional interest in the plan, which was essentially the value of the plan accumulated during the marriage.

¶ 16. After dividing the marital property, the chancellor noted that the parties were each awarded property of approximately equal value: $414,413.04 to Melissa and $408,894.44 to Alan. Further, the chancellor found that Alan’s earning capacity was substantially higher and awarded Melissa rehabilitative alimony of $750 per month for five years. In response to Melissa’s motion for reconsideration, the chancellor later increased the rehabilitative alimony to $900 per month. Last, the chancellor found that both parties were awarded sufficient assets and, therefore, refused both parties’ motions for attorney’s fees. Melissa timely filed the present appeal from the chancellor’s final judgment.

STANDARD OF REVIEW

¶ 17. This Court’s standard of review in a domestic relations case is limited by the substantial evidence/manifest error rule. R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59(¶12) (Miss.1998)). We will not reverse a chancellor’s judgment “unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (citing Mizell, 708 So.2d at 59(¶ 13)). “Particularly in the areas of divorce and child support, this Court must respect a chancellor’s findings of fact which are supported by credible evidence and not manifestly wrong.” Id.

DISCUSSION

I. Whether the chancellor’s child custody award was insufficient based on the statutory child support guidelines and, therefore, requires reversal.

¶ 18. Melissa first takes issue with the chancellor’s ruling that required Alan to pay her $1,000 per month in child support for the parties’ two minor children.

¶ 19. Mississippi Code Annotated section 43-19-101(1) (Rev.2004) sets forth guidelines that serve as a rebuttable presumption of the proper amount of child support that should be awarded. According to the guidelines, in cases involving two children, twenty percent of the parent’s adjusted gross income should be awarded. Id. Section 43-19-101(4) further provides, in part, that if the parent’s adjusted gross income is more than $50,000, the chancellor must make a written finding in the record as to whether the application of the guideline amount of child support is reasonable. Miss.Code Ann. § 43-19-101(4) (Rev.2004).

¶ 20. In making the child support award, the chancellor noted that Alan’s adjusted gross income was more than $50,000. After considering Alan’s income and the relevant facts of the case, the chancellor determined that, the application of the guidelines was not appropriate and reasonable. The chancellor reviewed Alan’s income for the years prior to 2007 and his reported income for 2007 and found his reported gross monthly income of $5,284.22 to be understated. Extrapolated, this figure would give Alan a yearly gross income of $63,410.64 for 2007 — without including overtime.

¶ 21. According to Alan’s income statement, which he filled out in September 2006, his adjusted gross income, with the statutory deductions for state and federal taxes and Social Security was $4,555.01 per month or 54,660.12 per year. We see no evidence that the chancellor subtracted a figure for mandatory retirement, which Alan calculated to be $1,317.60 per month. Alan did not report any overtime income on his income statement, this despite the fact that his 2006 taxes reflected that his gross income was actually $113,066.

¶ 22. In addition to regular bi-weekly pay of $2,532, the three pay stubs in the record reflect bi-weekly overtime payments from mid-April through the end of June in the amounts of $1,092.04; $2,231.56; and $1,305.70. At the end of June, Alan had a taxable base income of $54,189.60 for federal and state withholding purposes and a taxable base income of $56,106.76 for Social Security and Medicare purposes. The pay stubs reflect federal taxes of $9,409.79 and state taxes of $2,285. Social Security contributions totaled $3,478.62. Deducting these amounts from Alan’s taxable base would yield gross income of $40,933.35 for the first twenty-one weeks of 2007 — $1,949.21 per week. Multiplying this figure by fifty-two weeks gives a projected statutory adjusted gross income of $101,358.92. This figure assumes Alan continued to receive overtime pay at the same rate, and it does not take into account any mandatory retirement, which section 43 — 19—101(3)(b)(iii) requires to be deducted from the gross income.

¶ 23. Alan testified that his overtime pay was mostly the result of work following Hurricane Katrina and that he would not be receiving as much extra pay as that work ended. This is supported by his tax records for the years preceding trial. From 2002 through 2006, Alan reported the following gross income on his tax records: $113,066 in 2006, with losses of $14,997; $123,538 in 2005, with losses of $12,678; $98,365 in 2004, with losses of $9,389; and $98,367 in 2003, with losses of $10,761. As Alan testified, his increase in income coincided with Hurricane Katrina, and his income fell the following year.

¶ 24. Finding that it was difficult to predict the amount of Alan’s adjusted gross income for 2007, the chancellor ordered Alan to pay $1,000 per month in child support. Under section 43-19-101(1), it is a rebuttable presumption that twenty percent of the non-custodial’s income is the proper amount of child support. Payments of $1,000 per month in child support would translate to $12,000 per year, which is twenty percent of $60,000. Therefore, $1,000 per month is presumed to be the appropriate statutory amount of support to award for two children when the non-custodial parent has an adjusted gross income of $60,000 per year.

¶ 25. In addition to the monthly child support award, the chancellor ordered Alan to maintain health insurance for the children. Health expenses are not considered in an award of child support, and it may be proper to consider it as a factor in awarding less than the guidelines suggest. Barnett v. Barnett, 908 So.2d 833, 846(¶ 32) (Miss.Ct.App.2005) (quoting Kilgore v. Fuller, 741 So.2d 351, 356(¶ 16) (Miss.Ct.App.1999)). Also, the chancellor found that two mutual funds were for the children’s use and benefit — the $13,416.60 fund to the oldest and the $21,081.78 fund to the youngest. Additionally, Alan had to maintain a life insurance policy in the amount of $150,000 for the benefit of the children, which he could reduce to $75,000 at the time the oldest child reached the age of twenty-one.

¶26. In addressing a chancellor’s deviation from the child support guidelines, this Court stated that the guidelines serve as guidance and are not to be followed “mechanically.” Kilgore, 741 So.2d at 354(¶ 10). Nevertheless, this Court recognized that “it is important for the guidelines to shape a decision, as they allow the needs of a child and the financial ability of a parent to be blended.” Id. Ultimately, “the support that is required is to be determined by a chancellor ‘at a time real, on a scene certain, and with a knowledge special to the actual circumstances and to the individual child or children.’ ” Id. at (¶ 11) (quoting Smith v. Smith, 614 So.2d 394, 397 (Miss.1993)).

¶ 27. In the case at bar, the chancellor considered the guidelines and rejected them as being unreasonable. Furthermore, the chancellor concluded that Alan’s income was difficult to predict in light of his uncertain overtime pay. We cannot disagree with the chancellor’s conclusion. In addition to the monthly child support payment, Alan was responsible for the children’s health insurance, and he maintained life insurance for their benefit. The children each received sums in the form of mutual funds, which were not factored into either party’s marital award. While the child support payments were somewhat less than the amount provided for in the guidelines, the chancellor stated that his award would deviate from the guidelines. When taken with the other support awarded to the children, we find that the children were adequately provided for and that the chancellor was within his discretion in finding that the guidelines did not apply and ordering child support payments of $1,000 per month. This issue is without merit.

II. Whether the chancellor erred in denying periodic alimony.

¶ 28. Next, Melissa argues that the chancellor was in error in denying her periodic alimony and awarding her only five years of rehabilitative alimony. To support an award of periodic alimony, Melissa points to the disparity in the parties’ incomes, the length of the marriage, her prior standard of living, and the fact that it was Alan who ended the marriage.

¶ 29. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court set forth factors that a chancellor is to consider when awarding alimony. Those factors are as follows:

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.

Id.

¶ 30. The supreme court has noted that rehabilitative alimony is not meant to equalize a difference in income between parties, “but instead, is to [allow] the party with lesser financial ability to start anew without being destitute in the interim.” Holley v. Holley, 892 So.2d 183, 186(¶ 11) (Miss.2004). “Rehabilitative alimony is awarded to parties who have put their career on hold while taking care of the marital home. Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient.” Id. (quoting Lauro v. Lauro, 847 So.2d 843, 849(¶ 15) (Miss.2003)).

¶ 31. In the case at bar, Melissa was awarded approximately fifty percent of the marital assets and was entirely debt free except for a $10,000 VISA credit card bill and a $100 Kirkland’s account that she accumulated following the parties’ separation. She did not have a car note, and Alan was responsible for paying the remaining debt on the marital home. Melissa was not working at the time of trial, but she listed monthly disability and unemployment insurance payments of $744. Melissa had high blood pressure, but she was only forty years old and was otherwise in good health and capable of working. She had an associate’s degree in marketing management, and she had prior work experience.

¶ 32. In light of the Armstrong factors, the chancellor awarded Melissa $900 per month in rehabilitative alimony for five years. The chancellor noted that Melissa planned to return to school to finish a bachelor’s degree, and she expected to earn the degree in two or three years.

¶ 33. With regard to alimony, the supreme court has said that “[i]f there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmarital assets, will adequately provide for both parties, no more need be done.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). In the present ease, the chancellor awarded each of the parties more than $400,000 in marital assets and found that the parties were adequately provided for. The chancellor’s award of rehabilitative alimony was not to lessen a deficit in the division of marital property- — the awards were roughly equal, with Melissa receiving slightly more. The rehabilitative alimony award was to provide for Melissa while she made the transition back to working outside the home.

¶ 34. When the alimony is combined with the payments on the marital home and the child support, the chancellor ordered Alan to pay Melissa almost $3,000 per month. Melissa was not working at the time of trial, but she was healthy and had the capacity to earn income. Ultimately, we find that it was within the chancellor’s discretion to award rehabilitative alimony. We also find no abuse of discretion or manifest error with the chancellor’s finding that the division of marital assets adequately provided for both parties and that there was no need to grant periodic alimony. This issue is without merit.

III. Whether the chancellor’s division of marital property was inequitable.

¶ 35. Melissa next takes issue with the chancellor’s division of the marital assets. Specifically, she finds error with the following: (1) the valuation and award of the boats and vehicles, (2) the finding that Melissa’s VISA and Kirkland’s credit card debt was non-marital, and (3) the fact that the chancellor ignored Alan’s expenditures on his girlfriend, Sandy Vecchio.

¶ 36. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the supreme court set out factors that a chancellor should consider when attempting to equitably divide marital property. Paraphrased, those factors are: (1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered. Id.

¶ 37. Based upon the chancellor’s valuation of the marital assets, Melissa was awarded $414,413.04. Alan was awarded $441,745.84, but the chancellor ordered him to pay the entire $32,851.40 debt on the marital home, which left him with marital assets of $408,894.44. The chancellor also found that Melissa was responsible for the $10,000 credit card debt that she had incurred since entry of the temporary order, after finding the debt to be non-marital.

¶ 38. Any property acquired or debt incurred after the entry of a temporary support order may be classified as separate property. Barnett, 908 So.2d at 841(¶ 17) (citing Pittman v. Pittman, 791 So.2d 857, 864 (¶¶ 17-18) (Miss.Ct.App.2001)). The chancellor found that Melissa’s debts were incurred after the entry of the temporary support order, and this finding is supported by the evidence. All testimony indicated that the credit cards were entirely paid off when the parties separated, and the only marital debt that existed was the debt on the marital home. The nineteen-foot Ranger boat that Melissa mentions was also won by Alan after entry of the temporary support order, and Alan had yet to claim the prize at the time of trial. Accordingly, we do not find any error or abuse of discretion in the chancellor’s classification of the credit card debt or the recently-won boat.

¶ 39. We similarly find no error or abuse of discretion with respect to the chancellor’s valuation of the vehicles and the remaining boats. Melissa takes issue with the chancellor’s valuation of the Toyota Tundra at $12,000, this despite the fact that $12,000 was the value that Melissa attributed to the vehicle in her financial declaration. Despite Melissa’s complaints about the chancellor’s valuations, she presents no evidence that the values placed on the vehicles or the boats were erroneous. The chancellor appears to have considered both parties’ valuations and accepted some of both. For example, the chancellor accepted Alan’s valuation of the eighteen-foot Ranger boat; however, the chancellor accepted Melissa’s valuations of the Toyota Tundra and Sequoia. In some cases, the chancellor split the difference in the parties’ valuations. Regarding the chancellor’s valuation of the marital property, we find no evidence indicating that the assigned values were the result of error or abuse of discretion on the chancellor’s part.

¶ 40. The last issue that Melissa specifically mentions with regard to the division of marital assets is the failure of the chancellor to offset Alan’s award by the alleged dissipation of assets on his girlfriend, Vecchio. We can find no evidence, as Melissa states, of the “many thousands of dollars spent by Alan on his ghdfriendAover.” Alan testified that he would sometimes take Vecchio along on out-of-town fishing tournament trips, but they were trips he would have taken whether or not she had accompanied him. Alan admitted that he bought Vecchio jewelry, but there was neither any testimony as to its worth nor any testimony that it was worth “many thousands of dollars.” Last, Alan spent $10,000 on a down payment on a lot and on construction of a bulkhead on that lot. Vecchio paid half, and they planned to build a house in which they would live once they were married. Melissa was awarded the marital home, and since moving out, Alan had been living with his parents. At some point Alan would have had to buy or build a new home. Accordingly, we do not agree with Melissa that the chancellor should have considered these expenditures to be a dissipation of marital assets. Furthermore, Alan testified that the funds he used to pay for the lot and the bulkhead came from funds he acquired after entry of the temporary support order, and Melissa offered no evidence to the contrary.

¶ 41. Ultimately, we do not find that the chancellor was in error or abused his discretion in equitably dividing the parties’ marital property. The awards were almost equal, and Melissa was well provided for in her award. We find that the decisions the chancellor made were within his discretion and were supported by the evidence. Therefore, this issue is without merit.

IV. Whether it was error for the chancellor to refuse to award Melissa attorney’s fees.

¶ 42. The decision of whether to award attorney’s fees is generally left to the discretion of the chancellor. Lauro v. Lauro, 924 So.2d 584, 591 (¶ 29) (Miss.Ct.App.2006) (citing Poole v. Poole, 701 So.2d 813, 819 (¶ 26) (Miss.1997)).

¶ 43. The chancellor determined that the parties were awarded sufficient marital assets with which they could pay their own attorney’s fees; therefore, he refused to award attorney’s fees to either party. We see no error or abuse of discretion with this ruling. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The minor children initially took the stand and testified that they wished to live with their mother. The parties then withdrew their request to have the chancellor resolve the issue of child custody, and they agreed that Melissa would have primary physical custody of both children.

      . The chancellor defined the fraction as "the numerator being the number of months from the date Mr. Hults began participating in the RDBP to the date of the Temporary Order ..and the denominator being Mr. Hults'[s] months of service upon his retirement or separation from employment.”

      . Mississippi Code Annotated section 43-19-101 (3)(b) (Rev.2004) provides that the following must be deducted from a party's gross income: (1) federal, state, and local taxes, (2) Social Security contributions, and (3) mandatory retirement and disability contributions.

      . This would extrapolate to a gross income of $65,832 per year or $5,486 per month for 2007 — a slight increase from Alan's reported gross income for 2006.

      . The chancellor initially awarded Melissa $750 per month, but he increased the award to $900 per month after considering her motion for reconsideration.


author: CARLTON, J„ for the Court.

text:
    Marla Veronica Davis MERCIER, Appellant v. Douglas Christopher MERCIER, Appellee.
    No. 2008-CA-00596-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Lisa Scruggs Rohman, Tupelo, attorney for appellant.
    H.R. Garner, Hernando, attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J„ for the Court.

¶ 1. Marla and Douglas Mercier divorced. The chancellor awarded Marla and Douglas joint legal custody of their three children and awarded Douglas physical custody of the children. Douglas later filed a petition to find Marla in contempt for violating terms of the divorce decree and sought a change in the visitation schedule, among other requests. Marla filed an answer and counterclaim alleging that there had been a material change in circumstances and requested that she now be granted physical custody of the couple’s two youngest children. At the hearing, the chancellor refused Marla’s request to change physical custody, found Marla in contempt and required that she pay the full amount due on a leased Mercedes, changed the visitation schedule, and required that she begin paying child support.

¶ 2. Marla appeals and alleges that the chancellor erred in (1) refusing to modify physical custody, (2) modifying the visitation schedule, (3) requiring her to pay child support, and (4) finding her in contempt for failing to pay her portion of the Mercedes lease. Finding no error, we affirm.

FACTS

¶ 3. Marla and Douglas divorced on December 20, 2006, in Tate County Chancery Court. Later, Douglas married Linda Biel, and Marla married Matt Stewart. During Marla and Douglas’s marriage, they had three children: Davis, Jackson, and Lily. In the original divorce decree, the chancellor granted Marla and Douglas joint legal custody of the three children and granted Douglas physical custody. The chancellor set a visitation schedule and did not require that either party pay child support. The chancellor did require that the couple pay equal shares of all penalties owed on their Mercedes.

¶ 4. On May 4, 2007, Douglas filed a petition to cite Marla for contempt. In his petition, Douglas also asked the chancellor to modify the current visitation schedule. Marla responded with her answer and a counterclaim. A hearing was held on November 30, 2007. After the hearing, the chancellor found that:

1. Marla failed to prove by a preponderance of the evidence that a substantial change in circumstances in Douglas’s home environment had occurred and warranted, a change in physical custody. Therefore, the chancellor ruled that Douglas should retain physical custody of all three children.
2. The children’s visitation schedule was not conducive to the children’s best interests and was modified to better suit their routine.
3. The chancellor ordered Marla to pay child support because she planned to remarry, gain employment, and would soon be able to pay child support for her three children, pursuant to the guidelines provided in Mississippi Code Annotated section 43-19-101 (Rev.2004).
4.Marla violated the court’s original order requiring her to pay a certain amount on the couple’s leased Mercedes. The chancellor found that Marla’s contempt was not willful, but he ordered her to pay all remaining amounts owed on the vehicle.

Marla now appeals.

STANDARD OF REVIEW

¶ 5. We grant the chancellor wide discretion in our review of a domestic relations case. Steiner v. Steiner, 788 So.2d 771, 777(¶ 18) (Miss.2001). Generally, a chancellor’s decision in a domestic case will not be reversed unless it is manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Smith v. Smith, 994 So.2d 882, 885(¶ 7) (Miss.Ct.App.2008).

DISCUSSION

I. CUSTODY MODIFICATION

¶ 6. The chancellor awarded Marla and Douglas joint legal custody of their three children and awarded Douglas physical custody of the children. See Miss.Code Ann. § 93-5-24(1)(c) (Rev.2004) (stating that one of the types of joint custody awarded can be “[l]egal custody to both parents ... and physical custody to either parent”). In this case, only Marla seeks a change in physical custody of the couple’s two youngest children.

¶ 7. Pursuant to Mississippi Code Annotated section 93-5-24(6) (Rev.2004), “[a]ny order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one ... parent showing that a material change in circumstances has occurred.” The party who petitions for modification of child custody bears the burden of proof by a preponderance of the evidence. Jones v. Jones, 878 So.2d 1061, 1065(¶ 10) (Miss.Ct.App.2004) (citation omitted). Again, here, only Marla petitioned for a change in physical custody.

¶ 8. Therefore, this case does not present a situation where both parents are petitioning the court to modify joint physical custody. Consequentially, as the sole parent petitioning for a change in physical custody, Marla bore the burden set forth in section 93-5-24(6) to show that a material change in circumstances occurred in the custodial home.

¶ 9. Precedent establishes a three-part test to guide courts in determining whether a sole parent petitioning for a change in physical custody has met the burden in proving that a material change of cii'cumstances occurred. Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992). The three-step test states that in order to prevail on a motion for child custody modification, the non-custodial parent must prove that: (1) a material change in circumstances has occurred; (2) the change adversely affects the child; and (3) the child’s best interest mandates a change in custody. Id. (citations omitted); see also Mabus v. Mabus, 847 So.2d 815, 818(8) (Miss.2003) (applying the Bubac three-step test).

¶ 10. In an effort to prove that a material change in circumstances had occurred, Marla testified that her personal situation had changed for the better to the extent that the best interests of her children would be served by placing them with her rather than allowing them to stay in their father’s physical custody. The Mississippi Supreme Court has stated that a change in circumstances in the home of the parent who does not have physical custody is not sufficient to authorize modification. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996). Therefore, pursuant to Riley, we find that Marla’s argument that her situation had improved such that she should be awarded physical custody is irrelevant to the issue at hand. See id.

¶ 11. Additionally, Marla alleged at the hearing that the children’s current home environment with Douglas had materially changed and had adversely affected the children. Specifically, Marla attempted to prove this through assertions that Douglas and Linda regularly consumed alcohol and used profanity in front of the children. While not condoning this behavior, the chancellor found Marla’s evidence fell short of meeting the burden required by law to modify Douglas’s physical custody of the children. In sum, the chancellor found the children’s home environment with Douglas reflected a positive environment-as shown by the children’s exceptional grades and active involvement in school, church, and sports activities.

¶ 12. Accordingly, the chancellor found that Marla failed to show by a preponderance of the evidence that a material change in circumstances had occurred in Douglas’s home environment which warranted a change in physical custody. See Miss.Code Ann. § 93-5-24(6). From the record before us, we find no error in the chancellor’s decision to deny Marla’s request for a change in physical custody.

II. MODIFICATION OF THE CHILD VISITATION SCHEDULE

¶ 13. Douglas requested that the chancellor modify the original visitation schedule because of the disruptive impact upon the children’s normal routine when the children traveled from their primary home with Douglas in Senatobia, Mississippi to their mother’s new home in New Albany, Mississippi. The party seeking to modify a visitation order must show that the existing arrangement is not working and that a modification of the decree serves the children’s best interests. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986).

¶ 14. Douglas bore the burden to show that the visitation schedule so disrupted the children’s routine that their best interests would be served by its modification. See id. Douglas testified that his children’s lives had always been centered in their hometown of Senatobia and that spending three weekends a month away from their hometown disrupted their normal schedule. The chancellor agreed and modified the visitation schedule. We find no error in the chancellor’s decision on this issue.

III. CHILD SUPPORT MODIFICATION

¶ 15. There is a statutory rebut-table presumption that a non-custodial parent will pay child support to his or her children. Lacey v. Lacey, 822 So.2d 1132, 1140(¶ 36) (Miss.Ct.App.2002) (finding that child support award was properly modified by the chancellor when the non-custodial parent became employed and could provide her children with financial support). According to the guidelines in Mississippi Code Annotated section 43-19-101(1) (Rev.2004), a rebuttable presumption exists that a non-custodial parent of three children, like Marla, should pay twenty-two percent of her adjusted gross income in child support.

¶ 16. Prior to the divorce, Marla contributed to the household as a homemaker for fifteen years. Thus, at the time of the divorce decree, the chancellor found that Marla could not pay child support; accordingly, the chancellor required neither Marla nor Douglas to pay child support. However, in later proceedings, testimony revealed that Marla had gained employment. Therefore, when Marla’s employment stabilized, the chancellor required Marla, in accordance with section 43-19-101(1), to pay twenty-two percent of her adjusted gross income in child support for her three children. We find no merit to this issue.

IV. LEASE PAYMENTS ON THE COUPLE’S MERCEDES

¶ 17. In the divorce decree, both parties acknowledged that they would return the leased Mercedes to the dealership with both parties equally responsible for any payments due and owing. However, Marla failed to pay her portion of the payments owed. State courts are empowered to punish any person guilty of civil contempt by fine and imprisonment pursuant to Mississippi Code Annotated section 9-1-17 (Rev.2002). Marla’s failure to pay her portion of the penalties constituted a direct violation of the court’s order, and although the chancellor found no willful violation, he did find her in contempt of court. As a result, he ordered Marla to pay immediately her portion of the payment owed on the Mercedes. See McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 725(¶11) (Miss.2004). This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ, CONCUR.

      . See Miss.Code Ann. § 93-5-24(5)(e) (Rev. 2004) (stating that "[a]n award of joint legal custody obligates the parties ... to confer with one another in the exercise of decision-making rights, responsibilities and authority”); Miss.Code Ann. § 93-5-24(5)(b) (Rev. 2004) (stating that " ‘physical custody’ means those periods of time in which a child resides with or is under the care and supervision of one ... of the parents”).


text:
    Terry STEIN, Appellant v. Karen STEIN, Appellee.
    No. 2008-CA-00820-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      J. Peyton Randolph II, Jackson, attorney for appellant.
    Debra L. Allen, Jackson, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Karen Stein was granted a divorce from Terry Stein based upon habitual cruel and inhuman treatment. On appeal, Terry argues that: (1) the chancellor applied an erroneous legal standard when he granted Karen a divorce based upon habitual cruel and inhuman treatment; (2) the chancellor’s inferences are not supported by substantial, credible evidence; (3) it was error to disregard his claim of recrimination; and (4) the division of marital assets should be revised to account for Karen’s dissipation of marital assets.

FACTS

¶ 2. Terry and Karen were married on May 30, 1981, and separated in September 2006. The couple had two children, Nicholas and Lindsey, who were twenty-three years old and nineteen years old, respectively, at the time of the divorce hearing. During their marriage, Terry worked continuously for one company as an electrician, and Karen stayed home for several years after the birth of their children. Later she returned to work part time as a nurse. She returned to work part time to allow her to spend time with the children. She currently works full time.

¶ 3. Both parties testified that they fought continuously about money. Karen alleged that, during these arguments, Terry verbally and physically abused her. Terry claimed that Karen relied on incidents that were too remote and sporadic to be considered habitual cruel and inhuman treatment, and he alleged that Karen had affairs during their marriage. Terry also claimed that Karen wasted the family’s money on clothes for herself, alcohol, and alcohol rehabilitation.

¶ 4. The chancellor found sufficient evidence to constitute habitual cruel and inhuman treatment and found no evidence that Karen had dissipated the parties’ marital assets. Terry did not seek a divorce from Karen and asks this Court to find that Karen is not entitled to a divorce based on habitual cruel and inhuman treatment.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the findings of fact of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002). Specifically, the supreme court has stated that:

While the chancellor’s determinations of the events that preceded the divorce are findings of fact, his finding that [a spouse’s] conduct rose to the level of habitual cruel and inhuman treatment as defined as a ground for divorce in Miss. Code Ann. § 93-5-1 is a determination of law, and is reversible where the chancellor has employed an erroneous legal standard.

Potts v. Potts, 700 So.2d 321, 322 (Miss.1997) (citing Bland v. Bland, 629 So.2d 582, 586 (Miss.1993)).

ANALYSIS

1. Did the chancellor apply an erroneous legal standard token he granted Karen a divorce based upon habitual cruel and inhuman treatment?
a. Conduct Too Remote and Not Sufficiently Cruel or Habitual

¶ 6. Terry argues that the chancellor granted this divorce for habitual cruel and inhuman treatment based upon several incidents that happened during the 1980s and that the acts are too remote and insufficient to constitute grounds for habitual cruel and inhuman treatment. Karen claims that the chancellor was within his discretion when he granted her request for a divorce on habitual cruel and inhuman treatment because, in addition to the physical violence, Terry’s verbally abusive conduct was continuous throughout the marriage and grew worse with time.

¶ 7. The supreme court has stated that habitual cruel and inhuman treatment is: established only by a continuing course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition.

Robison v. Robison, 722 So.2d 601, 603(¶ 5) (Miss.1998) (internal citations omitted). The supreme court explained that more is required “than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of cruel and inhuman treatment.” Id. (internal quotations omitted). However, “habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy [the] health and endanger the life of an innocent spouse.” Id. “There must be corroboration of the complaining party’s testimony” for a divorce based upon habitual cruel and inhuman treatment. Chapel v. Chapel, 700 So.2d 593, 597(¶ 19) (Miss.1997).

¶ 8. As Terry points out, the supreme court has held that a single act of violence that occurred ten years prior to the separation, “does not constitute habitual cruel and inhuman treatment as it was too remote in time and did not lead to the separation.” Bland v. Bland, 620 So.2d 543, 545 (Miss.1993). With these requirements in mind, we exam Terry’s treatment of Karen.

¶ 9. Karen testified to multiple incidents of physical and verbal abuse. In 1987, the couple went camping with friends at the Reservoir. Karen disobeyed Terry’s order to get out of the water. When she and the other women did get out of the water, Terry whipped the back of her legs with a wet towel. Terry left welts on the back of her legs, and Karen was so embarrassed that she call her sister, Peggy Murphy, to come and pick her up. Peggy testified that when she went to pick Karen up she had red, raised welts on the back of her legs. Terry could not recall this incident.

¶ 10. Karen testified that Terry gave her a black eye in 1991 and that he had thrown plates of food at her when he was unhappy with what she had cooked. Terry did not recall giving Karen a black eye or throwing plates at her. Karen claimed that she was excited when she became pregnant with their third child, but Terry forced her to abort the baby because of the expense of another child. Terry denied this allegation and said the decision was left up to Karen. We find this hard to believe due to both parties’ testimony that Karen chose the couple’s anniversary dinner — them once a year dinner out — to share this news with Terry and their children.

¶ 11. Karen also testified that Terry would suddenly become angry at her without provocation. The arguments typically started with Terry saying, “Karen, come here. I want to show you something.” Karen claimed that Terry would get a few inches from her face, yell and scream, and push her during these arguments. Terry and Karen both testified that Karen would often go hide in the bedroom or bathroom and lock the door once the argument started. She also said that Terry threatened to kill her two or three times a week. Although Terry denied these allegations and claimed that Karen was the aggressor, Peggy corroborated Karen’s testimony. Peggy testified that she often heard Terry screaming at Karen when she was talking on the phone to Karen. Peggy said that Terry would scream so loud that she could not understand what he was saying. She testified that she heard this type of behavior as late as one week before Karen left Terry. Karen testified that Terry would call her demeaning names. Terry admitted that in the heat of an argument he may have called Karen names, but he could not recall doing so. The children denied ever hearing their father talk to their mother this way. However, both children testified that their parents fought frequently. Lindsey and Nicholas testified that then-parents did not get along. Lindsey said she understood why her mother would be afraid of Terry, and Nicholas testified that his father had a temper.

¶ 12. The supreme court “has held that impact of the conduct on the plaintiff is crucial[;] thus[,] we employ a subjective standard.” Faries v. Faries, 607 So.2d 1204, 1209 (Miss.1992). Therefore, we look to the specific effects that Terry’s actions had on Karen. Karen claims that she suffered from depression throughout their marriage and from high blood pressure due to stress induced hypertension. Terry argues that Karen did not support her claims with expert testimony. It is true that Karen did not call a doctor to testify about her depression or high blood pressure; however, Karen testified that since leaving Terry, her doctor was able to significantly cut her medication for high blood pressure and depression. The chancellor was within his discretion when he determined that Karen’s health improved because she was no long subject to the stress of her marriage.

¶ 13. We find that Terry’s argument that his actions were not sufficiently cruel or habitual to constitute a ground for divorce is without merit.

b. No Causal Connection Between Alleged Conduct and the Divorce

¶ 14. Terry argues that there is no causal connection between his actions and the divorce. Karen claims that she finally got the strength to leave Terry after going to counseling.

¶ 15. “[T]here must be some causal connection between habitual cruel and inhuman treatment and the parties’ separation to sustain the charge.” Sproles v. Sproles, 782 So.2d 742, 747(¶16) (Miss.2001) (citations omitted).

¶ 16. Karen testified that after the death of her father, a year and a half before trial, she began seeing a therapist. She began therapy for help coping with her father’s death, but the sessions evolved, and she began focusing more on her marriage. She had heard about women who had to be committed to mental institutions for life and did not want that to happen to her. She decided that she had wasted enough of her life being unhappy. Through therapy she gained the strength to leave Terry even though she was afraid of him and thought he would hurt her. The only reasonable conclusion is that Karen left her marriage because she had enough of Terry’s verbal and physical abuse and their constant fights over financial matters. Accordingly, this issue is without merit.

2. Were the chancellor’s inferences supported, by substantial, credible evidence?

¶ 17. Terry argues that the chancellor’s inference that he had given his wife a black eye was not supported by substantial, credible evidence.

¶ 18. At trial, Terry claimed that his memory had been failing, but he did not remember his wife having a black eye. He stated that he thought he would remember if she had one. The chancellor stated that “one would believe that if you didn’t hit, belittle, or harm your wife over these 26 years of marriage that you would remember and could affirmatively deny the same.” We do not find that the chancellor’s inference was based upon mere speculation or conjecture as Terry alleges. The chancellor heard detailed testimony from Karen about how Terry gave her a black eye shortly before a camping trip with his family. The chancellor listened to Terry’s claim that he could not remember whether Karen had ever had a black eye.

¶ 19. “Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimonies, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation.” Bowen v. Bowen, 982 So.2d 385, 395(¶ 42) (Miss.2008) (citations and internal quotations omitted). The chancellor also noted that Karen cried as she described her relationship with Terry. However, Terry laughed while Peggy described Karen and Terry’s marriage. Thus, the chancellor acted well within his discretion, based on the evidence presented, in determining Terry’s credibility. This issue is without merit.

3. Was it error to disregard Terry’s claim of recrimination?

¶ 20. Terry claims that the chancellor ignored the fact that Karen was motivated to end their marriage because she was dating a man named “Dennis.” Karen denied that she ever had a sexual relationship with another man while married to Terry.

¶ 21. “The doctrine of recrimination is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.” Parker v. Parker, 519 So.2d 1232, 1235 (Miss.1988). In Parker, the supreme court found that, among other reasons, the chancellor erred in denying the wife a divorce based on recrimination when her adultery “occurred after the destruction of the marriage.” Id. at 1236.

¶ 22. Terry accused Karen of adulterous relationships throughout their marriage and now claims that she was once fired for having an affair. However, Karen denied that she ever had an affair or was fired for having an affair. She did testify that she once left a job because of unfounded rumors that she was involved with a doctor at the hospital where she worked.

¶ 23. At trial, Karen admitted that she was seeing a man named Dennis. However, Karen did not even meet Dennis until she had been separated from Terry for four months. Karen had already consulted an attorney prior to meeting Dennis. Furthermore, during the four months of their separation, before she met Dennis, Terry did not try to reconcile with Karen. Karen’s relationship with Dennis — -whatever the nature of it may be — did not begin until after the destruction of her marriage. The chancellor did not err by denying Terry’s claim of recrimination. This issue is without merit.

i. Should the division of marital assets be revised to account for Karen’s dissipation of marital assets?

¶ 24. Terry claims that Karen could not keep a job and was wasteful with money. Karen responds that she only worked part time for the majority of the marriage, and she provided most of the financial support for their children.

¶ 25. Under the Ferguson factors, the chancellor is to look at “[t]he degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.” Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 26. Terry places much emphasis on the fact that Karen held numerous jobs during the marriage, while he worked continuously for the one company and accumulated his pension. He claims that she was unable to acquire her own retirement funds because she could not keep a job. Karen testified that she went back to work part time once Lindsey started school so she could still pick her up in the afternoon and spend time raising the children. Because she only worked part time, she was not eligible for full benefits, including retirement benefits.

¶ 27. Terry also alleges that Karen was fired from one job because she engaged in an affair with a co-worker and another because medications were unaccounted for. Both of these accusations are unsupported by the record. Karen testified that she resigned due to false rumors that she was having an affair, but she was adamant that she was not fired. Karen also explained that the notation in her file meant that she had not properly documented instructions in a file, not that she was accused of any wrongdoing associated with missing medication.

¶ 28. The parties shared a checking account for much of their marriage, but they had separate accounts six years before their separation. While they split the household expenses, the record reflects that Karen paid for the majority of the children’s expenses.

¶ 29. One of Terry’s examples of Karen’s frivolous spending was that an unworn dress hung in Karen’s closet in a bag for two years and that he had received calls about bounced checks to a liquor store and a nail salon. These three examples of everyday expenses — over twenty-six years — do not constitute grounds to overturn the chancellor’s distribution of assets.

¶ 30. Terry also claims that Karen dissipated their marital assets by spending thousands of dollars on a drug and alcohol rehabilitation program. Karen and Peggy both testified that Karen entered a program — at the insistence of her sister and father — for several weeks because she was drinking to excess to escape the reality of her marriage. Karen denied that she entered the program because she was addicted to drugs, but she admitted that she would occasionally take unused medications — in keeping with company policies — that were made available to employees at her work.

¶ 31. Karen stated that she was not an alcoholic, but she was abusing alcohol prior to entering rehabilitation. She testified that since completing rehabilitation, she does not drink to excess. Terry admitted that Karen needed help at the time she entered rehabilitation. We find that the fact that Terry would now claim that Karen was wasting the family’s money when she sought help for alcohol abuse supports Karen’s claims: that Terry denied her and her children necessary medical treatment, that Terry was controlling with their money, and that she is healthier since their separation.

¶ 32. The chancellor’s decision was supported by substantial evidence when he made his detailed and thorough findings of fact and conclusions of law in this case. Therefore, we affirm his decision to grant Karen a divorce based upon habitual cruel and inhuman treatment and his division of the marital assets.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ, CONCUR.


author: ALTENBERND, Judge.

text:
    Roderick WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D09-3647, 2D09-3648.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2012.
    Rehearing Denied March 28, 2012.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Roderick Washington appeals his convictions and sentences for two counts of aggravated battery with a deadly weapon, two counts of first-degree felony murder, and two counts of kidnapping — all offenses having occurred when he was a juvenile. We affirm the convictions without discussion. We also affirm the sentences imposed for the two counts of aggravated battery with a deadly weapon without discussion. For the reasons explained below, we reverse the sentences for the two felony murders and kidnappings and remand for a new sentencing hearing.

I. The Facts and Procedural History

The record in this case reflects that forty to fifty teenagers and young adults attended a party in Lee County on October 6, 2006. Many of the attendees openly used alcohol and illegal drugs at this party. At one point in the evening, some of the partygoers decided to physically attack Jeffrey and Alex Sosa, who were also in attendance at the party. Mr. Washington was involved in the attack. He participated in beating the victims and watched as others hogtied them. He then stood guard over the victims, pointing guns at them and poking them with his weapons while others carved gang initials in their backs with a knife and poured bleach on the wounds. Mr. Washington and others held the two victims captive and tortured them at the house for two and one-half hours before he and another perpetrator carried the victims out of the house, placed them in the trunk of a car, and rode along as they were transported to an industrial park. There, the victims were shot and killed. Although Mr. Washington did have a weapon during these events, the evidence indicated that other perpetrators actually committed the murders.

At an initial trial, the jury found Mr. Washington guilty of the aggravated batteries, but reached no verdict on the other charges. At a second trial, the jury found that he was guilty of both kidnappings and both felony murders, but they specifically found that he did not actually commit the murders. The trial judge sentenced Mr. Washington to fifteen years on each of the aggravated batteries and life without possibility of parole on the kidnappings and first-degree felony murders, with all sentences to be served consecutively.

II. The Felony Murder Sentences

This case stands in stark contrast to the facts discussed in Arrington v. State, — So.3d-(Fla. 2d DCA 2012), which we are releasing simultaneously with this opinion. Mr. Washington was nearly eighteen at the time of these offenses. The criminal acts involved exceptional cruelty, and Mr. Washington’s participation was extensive. The trial court’s decision to impose these sentences consecutively, as compared to concurrently, reflects the trial court’s assessment of Mr. Washington’s culpability.

In Arrington, we have reversed a similar felony murder sentence and remanded for a case-specific consideration of whether the juvenile defendant may qualify for relief from a cruel and unusual sentence. We have considered whether this court could rule that Mr. Washington’s life-without-parole sentences for the felony murder convictions are constitutional on the face of this record and have concluded that due process would be better served if the trial court is allowed to exercise its own judgment on the proportionality of these consecutive sentences. Accordingly, we reverse these sentences. As explained in Arrington, on remand, the court is required to resentence Mr. Washington to life without possibility of parole for these homicides unless it determines under the facts of this case that such a penalty is disproportionate. In so ruling, we do not hold that life without possibility of parole would be disproportionate in this case.

III. The Kidnapping Sentences

Whether the sentences of life without possibility of parole for the two kidnappings are authorized depends on the sentences ultimately imposed for the two felony murders. We are not required to reverse these sentences under the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Employing a categorical approach, the Supreme Court in Graham held that life without possibility of parole was a cruel and unusual punishment for all juvenile offenders who commit nonhomicide offenses. Graham, 130 S.Ct. at 2030. In so holding, it noted an exception for juveniles who commit nonhomicide offenses in conjunction with homicide offenses. See id. at 2023. Because the homicide offense can be an aggravating factor in the sentencing of the nonhomi-cide offense, the Supreme Court indicated that a life sentence without possibility of parole for a nonhomicide offense could be constitutional if it accompanied an authorized sentence of life without possibility of parole for a homicide offense. See id.

Thus, the constitutionality of Mr. Washington’s two life sentences without parole for the kidnappings probably hinges on whether the trial court, on remand, imposes life without parole for felony murders. Accordingly, we reverse these sentences and remand with instructions for the trial court to resentence for these offenses after it determines the appropriate sentences for the felony murders.

Affirmed in part, reversed in part, and remanded with instructions.

KELLY and CRENSHAW, JJ., Concur.

      . In dicta, the Supreme Court noted:
      Oluvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a non-homicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination.

        Graham, 130 S.Ct. at 2023.


author: NORTHCUTT, Judge.

text:
    André PAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3804.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2012.

      André Pagan, pro se.
   NORTHCUTT, Judge.

In this appeal, André Pagan challenges the circuit court’s summary denial of his numerous motions for postconviction relief. Pagan alleged claims in three broad categories: trial court error, ineffective assistance of counsel, and a Brady violation. We reverse the denial of his ineffective assistance claims and remand for an evi-dentiary hearing. His other claims have no merit, and we affirm them without further discussion.

A young boy who lived with Pagan and his companion, Isabel Feliciano, died while in their care. Pagan entered an open plea to a charge of aggravated child abuse with torture. See § 827.03(2) Fla. Stat. (2002). He apparently cooperated with law enforcement and testified against Feliciano, who actively caused the child’s death. Fel-iciano was eventually convicted of aggravated child abuse, and she was sentenced to ten years’ imprisonment followed by five years’ probation. At a sentencing hearing held after Feliciano’s trial, Pagan was sentenced to thirty years’ imprisonment. He filed a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(7), alleging that his lawyers gave him misleading advice concerning his decision to enter the plea.

The circuit court appointed conflict-free counsel to assist Pagan with his rule 3.170(7) motion. An evidentiary hearing was scheduled, but just before the hearing was to begin the State offered Pagan an agreement to resolve the motion. The State would ask the court to reduce Pagan’s sentence to fifteen years’ imprisonment followed by ten years’ probation if Pagan would relinquish any rights he might have to seek collateral relief. The offer required Pagan’s immediate acceptance; if he did not agree, the offer would be rescinded and the evidentiary hearing would go forward. The court gave Pagan time to consult with his counsel, after which Pagan accepted the State’s offer. The court resentenced him to the lesser term and remarked to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.” Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions. This — this is it. You filed it. It worked for you.”

After the resentencing, Pagan appealed his conviction and sentence, and this court affirmed. Since that time, Pagan has filed numerous motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 based on his counsel’s alleged ineffective assistance in connection with the State’s offer to resolve his rule 3.170(0 motion. The postconviction court summarily denied these motions, citing Kokal v. State, 901 So.2d 766, 777 (Fla.2005), for its holding that a prisoner’s claim that he received ineffective assistance in a post-conviction proceeding is not cognizable.

But a rule 3.170(Z) motion is not a postconviction matter; it is a motion to withdraw the defendant’s plea filed before his conviction becomes final, and it is a critical stage of the proceedings. That being the case, a defendant moving to withdraw his plea under that rule is entitled to representation by counsel, and he is entitled to effective assistance from that counsel. See Krautheim v. State, 38 So.3d 802, 803-04 (Fla. 2d DCA 2010) (citing Daniel v. State, 865 So.2d 661, 661 (Fla. 2d DCA 2004)); see also Williams v. State, 959 So.2d 830, 832 (Fla. 4th DCA 2007) (Warner, J., concurring) (quoting Judge Altenbernd’s comment in a workgroup report on rule 3.170(i) that “[a]lthough a movant cannot allege ineffective assistance of counsel concerning representation on a motion under rule 3.850, since rule 3.170(1) is a critical stage of proceedings prior to direct appeal, presumably it can support a claim of ineffective assistance of counsel.” (citation omitted)). In the instant matter, the postconviction court seemed to misunderstand that Pagan’s claims of ineffectiveness concerned his representation on a rule 3.170(1) motion, not on a rule 3.850 motion. Thus its ruling that Pagan could not state a claim for relief based on the reasoning in Kokal was incorrect.

Before remanding this case to the circuit court, we must determine whether Pagan waived his right to assert this post-conviction claim when he accepted the State’s offer to resolve his rule 3.170(1) motion. We have held that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.” Stahl v. State, 972 So.2d 1013, 1015 (Fla. 2d DCA 2008) (citing Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.2005)). But we specifically noted that “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.” Id. Accordingly, Pagan did not waive the claims he now asserts against his counsel in the rule 3.170(() proceeding.

We remand to the circuit court to conduct an evidentiary hearing on Pagan’s allegations of ineffective assistance in connection with the agreement to resolve his rule 3.170(() motion. We caution that Pagan may subject himself to a worse result if he goes forward with this process, but that is his decision to make.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and KHOUZAM, JJ„ Concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).