author: WILSON, J.,

text:
    Darius Cornelius FORD a/k/a Darius Ford a/k/a Darius C. Ford a/k/a Cornelius Ford a/k/a Popcorn, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-01498-COA
    Court of Appeals of Mississippi.
    07/25/2017
    Rehearing Denied November 21, 2017

      RICHARD A. REHFELDT, JACKSON, Attorney for appellant
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. In February 2012, following a jury trial in the- Scott County Circuit Court, Darius Ford was convicted of aggravated assault and possession of a firearm by a convicted felon. The, court sentenced Ford, as a habitual offender, to concurrent sentences of twenty years for aggravated assault and ten years for possession of a firearm by a convicted felon in the custody of the Mississippi Department of Corrections, without eligibility for parole or probation. This Court affirmed Ford’s convictions and sentences on appeal. Ford v. State, 139 So.3d 730, 740 (¶ 33) (Miss. Ct. App. 2013), cert. denied, 140 So.3d 940 (Miss. 2014).

if 2. In October 2014, Ford filed a motion in the’Mississippi Supreme Court for leave to file a motion for post-conviction relief (PCR). The Supreme Court granted Ford leave to file a PCR motion in the circuit court, limited to the issue of “whether trial counsel was ineffective by failing to request an alibi jury instruction.” Ford v. State, 2014-M-01532 (Miss. Feb. 12, 2015). Ford filed his motion in the circuit court, and in October 2016, the court held a hearing and entered an order denying the motion. Ford filed a timely notice of appeal. We agree with the circuit, court that Ford’s ineffective-assistance claim is without merit. Accordingly, wé affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On January 11, 2010, Sanford Lackey, a real estate appraiser, was in rural Scott County, Mississippi, photographing several parcels of land along Highway 21. After taking photos of a vacant property, Lackey realized that he had photographed the wrong property, Lackey testified that he drove along the road looking for a place to turn around. He decided to turn around at an old convenience store on Highway 21. As he was turning around, he heard three gunshots. When he looked .in the direction where he thought the shots were coming from, he saw a man exit a nearby mobile home and walk toward a gold sport-utility vehicle (SUV). Lackey noted that the man looked in his direction as he descended the steps of the mobile home. The man was wearing a blue sweatshirt and a rolled-up toboggan. Lackey continued along the road, searching for the correct property to photograph.

Lackey testified that after taking the correct photos, he pulled to the side of the road to input another address into his GPS. After setting the GPS, Lackey pulled back onto the road. At that time, he noticed the gold SUV from the mobile home approach his vehicle from behind at a high rate of speed. Lackey sped up. When the vehicle was approximately a car length away, the driver leaned out of the driver’s side window, aimed a handgun, and shot through the rear windshield of Lackey’s vehicle. Then, the gold SUV turned around and sped away from Lackey. [Lackey] ... immediately called the Scott County Sheriffs Department and subsequently went to the sheriffs office. While at the sheriffs office, Lackey saw Ford as the law enforcement officers brought him into the station. Lackey later told the officers that Ford was the individual that shot at his vehicle.
Kevin Polk, an investigator with the Scott County Sheriffs Department, testified that he and several other officers' responded to the call from dispatch regarding Lackey’s incident. He and the other officers went to the vicinity of where the incident had occurred. At the first mobile home that the officers approached, they spoke with Jessica Adams, Ford’s girlfriend. Adams told Investigator Polk that Ford had gone to pick up his children from school. Upon hearing this, Investigator Polk and an additional Scott County deputy left the mobile home to intercept Ford on his way back from the school. When Investigator Polk saw Ford’s vehicle, he stopped Ford and told him that he needed him to come into the station for questioning. Investigator Polk also had Ford’s vehicle towed to the sheriffs department.
Deputy Marcus Lingle, with the Scott County Sheriffs Department, testified that he participated in the search of [the] mobile home once Adams gave the officers written consent to search. During the search, Deputy Lingle found a .40-caliber pistol on the bed and a box of ammunition. ... [He also found] “either a dark gray or blue sweatshirt” that “matched a description of the upper garment worn by the suspect that day.” ...
Adams testified that although the mobile home was in Ford’s mother’s name, Ford did not live there. She admitted that Ford was at the home on the day of the incident. According to Adams, she and Ford slept from approximately 9:00 a.m. until 2:40 p.m. on the day of the incident. Adams noted that the male clothing hanging in the closet did not belong to Ford. Also, Adams testified that the gun that Deputy Lingle found on. the bed belonged to her, and that Ford did not know that she owned the gun.
Ford testified that he'was just one of several men that Adams was seeing at that time. He insisted that he did not live with Adams in the mobile home; that he did not own a firearm because he knew that, as a convicted felon, he could not; and that he did not own a dark blue pullover or sweatshirt. Ford admitted that he was a convicted felon. He also stated that he did not know Lackey and had never seen him prior to the morning of trial.

Ford, 139 So.3d at 733-34 (¶¶ 3-8). The jury found Ford guilty of aggravated assault and possession of a firearm by a convicted felon, he was sentenced as described above, and this Court affirmed on direct appeal.

¶ 4. Our Supreme Court granted Ford leave to pursue post-conviction relief on one issue only: whether trial counsel provided ineffective assistance by not requesting an alibi instruction based on Adams’s testimony. In support of this claim, Ford submitted a written statement that Adams 'gave on January 11, 2010, and a copy of the transcript of her trial testimony. In both her statement and her testimony, Adams stated that Ford arrived at her mobile home around 7:30 or 8 a.m. on the day of the shooting; that she asked him to go to the store to buy bread; that she fried bacon while he was gone; that they ate sandwiches when he returned; that after they ate, they went back to bed; that she woke up around noon and went to the bathroom; that she then went back to sleep; and that Ford woke up and left around 2:40 p.m. to go pick up his kids. Ford contends that Adams’s testimony provided an alibi because the shooting occurred around 1 p.m. Although Lackey’s testimony is not included in the PCR record, the State’s brief on appeal confirms that “[a]ll parties agree the assault took place around 1:00 p.m.” This is also consistent with the brief filed by the State in Ford’s direct appeal.

¶ 5. In support of his PCR motion, Ford also submitted an affidavit from attorney Shawn Harris, who, along with Ross Barnett Jr., represented Ford at trial. The affidavit states that “during the course of the trial an alibi ... was never discussed between counsel or by ... Ford,” and because “no alibi discussions were ever held[,] no alibi instructions were ever submitted to the [c]ourt.”

¶ 6. After a hearing that consisted solely of oral arguments by counsel, the circuit court entered an order denying Ford’s PCR motion, The court observed that the jury was properly instructed on the elements of the charged offenses and found Ford guilty after hearing Adams’s testimony regarding Ford’s whereabouts. The court reasoned that “[i]n returning two guilty verdicts, the jury obviously chose to disregard [Ford’s and Adams’s] testimony,” and the court could not “see how an alibi jury instruction, in this instance, would have changed that.” Ford subsequently filed a timely notice of appeal.

DISCUSSION

¶ 7. “When reviewing a trial court’s denial of a motion for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are determined to be clearly erroneous. ... On the other hand, the determination of whether a defendant received effective assistance of counsel is a mixed question of law and fact to be reviewed de novo.” Kambule v. State, 19 So.3d 120, 122 (¶ 6) (Miss. Ct. App. 2009).

¶ 8. To prove his trial counsel was ineffective, Ford “must show both (1) ‘that counsel’s performance was deficient’—i.e., ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment’—and (2) that he was prejudiced as a result—i.e., ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Wilson v. State, 198 So.3d 408, 414 (¶ 22) (Miss. Ct. App. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[T]here is a strong, but rebut-table, presumption that [trial] counsel’s performance falls within the range of reasonable professional assistance. To overcome. this presumption, the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been 'different.” Wilkins v. State, 57 So.3d 19, 22 (¶ 5) (Miss. Ct. App. 2010) (internal citations omitted).

¶ 9. “Traditionally, trial counsel’s decision regarding, whether to request certain jury instructions is considered trial strategy.” Wallace v. State, 166 So.3d 520, 525 (¶ 17) (Miss. Ct. App. 2014) (quoting Taylor v. State, 109 So.3d 589, 596 (¶ 27) (Miss. Ct. App. 2013)). “Decisions that fall within the realm of trial strategy do not amount to ineffective assistance of counsel.” Pittman v. State, 121 So.3d 253, 258 (¶ 14) (Miss. Ct. App. 2013).

¶ 10. In Owens v. State, 809 So.2d 744, 746-47 (¶¶ 7-8) (Miss. Ct. App. 2002), and again in Sims v. State, 213 So.3d 90, 101 (¶ 43) (Miss. Ct. App. 2016), this Court explained “[t]he law relating to an alibi defense involves something more than a simple denial by the defendant that he was present at the precise time, the crime was committed”:

[T]he defense requires evidence that the defendant’s location at the relevant time was so removed therefrom as to render it impossible for him to be the guilty party. Thus, a defendant in close enough physical proximity to have committed the crime may deny the criminal activity and may affirmatively, assert that he was elsewhere at the critical time. However, if the asserted alternate location is such that, based on the version of events contended for by the defense, it would remain within the realm of physical possibility for the defendant to have committed the crime, then the defense is nothing more than a denial and would not rise to the level of alibi. It is a fundamental concept of our system of criminal procedüre that an instruction may not be given, even if it correctly recites tile law, if there is no evidentiary basis for the instruction.

Sims, 213 So.3d at 101 (¶ 43) (internal citation and quotation marks omitted).

¶ 11. In the present casé, Adams’s mobile home was located on Highway 21 in the vicinity of the shooting. Thus, Ford was not “so removed -[from the scene of the crime] as to render it impossible for him to be the guilty party.”

¶ 12. More important, Adams testified that she was asleep when the crime occurred. In Bennett v. State, 18 So.3d 272, 275-76 (¶¶ 6-10) (Miss. Ct. App. 2009), we affirmed the trial court’s denial of an alibi instruction where the supposed alibi witness was admittedly asleep at the time the crime (arson), occurred. We reasoned that we could not “discount the fact that Wilson [(the defendant’s girlfriend and supposed alibi witness) ] admitted she .was sleeping during the hours that the arson supposedly occurred; therefore, she did not know [the defendant’s] whereabouts between the hours of 9 p.m. and approximately 1 a.m.” Id. at 276 (¶ 9). In Bennett, “[i]t would have been possible for [the defendant] to have left his home and committed the crime while Wilson was sleeping,” as the crime scene was only “about 10-15 minutes” away. Id. Thus, Wilson’s testimony did “not establish sufficieiit alibi evidence that [the defendant] was somewhere else when the arson occurred.” Id.

¶ 13. The Court’s reasoning in Bennett is apposite here. The shooting occurred near Adams’s mobile home, and she was admittedly asleep at the time it occurred. Therefore, her testimony did not provide Ford with an alibi. It necessarily follows that Ford’s trial counsel did not provide constitutionally ineffective assistance of counsel by not requésting an alibi instruction. We-also agree with the circuit court that Ford failed to show prejudice, i.e., “a reasonable probability” that an alibi instruction' would have changed the result of’his trial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The alleged alibi evidence was, presented to the jury, the jury obviously did not believe that Ford was asleep in Adams’s bed when the crime occurred, -and Ford provides no basis, for speculation that an alibi instruction would have changed that.

¶14. In summary, the evidence presented at trial did not -require an alibi instruction, and we concur in the circuit court’s determination that Ford failed to meet his burden of proving that his trial counsel provided ineffective assistance or that he was prejudiced as a result.

¶ 15. AFFIRMED.

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

      . "This requires showing that counsel made errors so, serious that counsel was not tac-tioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.


source: Caselaw Access Project

author: GRIFFIS, P. J.,

license: Public Domain

text:
    Linda Kaye SUMRALL and Jerry Ruben Sumrall, Appellants v. Tiffany Kay BROWN and Timothy Jerrels, Appellees
    NO. 2016-CA-00459-COA
    Court of Appeals of Mississippi.
    09/19/2017

      ATTORNEYS FOR APPELLANTS: RISHER GRANTHAM CAVES, TERRY L. CAVES, LAUREL
    ATTORNEY FOR APPELLEES: P. SHAWN HARRIS, FOREST

      BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P. J.,

FOR THE COURT:

¶ 1. The Jones County Chancery Court terminated the parental rights of the natural mother and adjudicated custody of the minor child between the natural father and the maternal grandparents. The natural father was awarded custody. The maternal grandparents appeal.

FACTS

¶ 2. At a young age, Tiffany Kay Brown was diagnosed with bipolar disorder and a learning disability. She was placed into the special-education program in elementary school. Tiffany was alleged to have behavioral problems and to be easily influenced by others. When she was fifteen years old her behavior became too rebellious for her mother and stepfather, Linda Kaye and Jerry Ruben Sumrall. In 2006, Tiffany was sent to live with a relative. She moved from her parents’ home in Sandersville to Carthage, where she resided with her paternal aunt and her aunt’s live-in boyfriend, Timothy Jerrels. The living arrangement only lasted a short time. Tiffany returned to her home in Sanders-ville after she alleged that Timothy had displayed sexually inappropriate behavior toward her.

¶ 3. Tiffany remained in Sandersville until 2008, when she returned to Carthage to live with her biological father. At the age of seventeen, she dropped out of high school. While living in her father’s home, Tiffany began a sexual relationship with Timothy. The relationship was kept secret. Notably, Timothy is twenty-one years older than Tiffany. Tiffany and Timothy maintained an on-and-off relationship for three years. In 2011, Tiffany became pregnant. While she was in the early stages of her pregnancy, Tiffany moved back to Sandersville to live with her parents.

¶ 4. She remained in the Sumralls’ home until after she gave birth to Trey Brown in August 2012. Throughout the pregnancy and after Trey’s birth, Tiffany refused to divulge the identity of the child’s father. No father was listed on Trey’s birth certificate. When Trey was just a few months old, Tiffany left him with the Sumralls and moved back to Carthage with her aunt and Timothy. Eventually, Tiffany and Timothy moved into a home of their own in Carthage. The Sumralls became the sole caretakers of Trey, and he remained exclusively in their home for the first year of his life.

PROCEDURAL HISTORY

¶ 5. In 2013, the Sumralls filed a petition to adopt Trey. Tiffany formally appeared for the hearing and joined in the action. She signed a waiver of process and consented to the adoption. A summons was issued for the unknown biological father of Trey. Process by publication ran in a Jones County newspaper. The adoption hearing was set for August 14,2013.

¶ 6. On the day of the adoption hearing, Tiffany and Timothy appeared in court together. Timothy declared himself the father of Trey and contested the adoption. DNA test results confirmed that Timothy was Trey’s natural father. The chancellor entered an order joining Timothy to the adoption action, and he appointed a guardian ad litem (GAL). Timothy was also granted supervised visitation with the child. Timothy then filed a petition for custody of Trey on March 17, 2015, and the Sumralls filed a counterclaim for custody on April 21,2015.

¶7. This case was initially pled as a petition for adoption. However, it was ultimately litigated as a custody action between the Sumralls and Timothy. During the trial, several witnesses and the GAL testified. In his final judgment, the chancellor ruled that Timothy and the Sumralls would share joint legal and physical custody of Trey, until the child reached school age. ,Timothy and the Sumralls,.each received weekly, visitation. .Once Trey reached compulsory school age, the joint-custody arrangement would cease. Timothy would then assume full physical and legal custody of Trey, and. the Sumralls would be awarded visitation every first and third weekend of each month. The Sum-rails appeal the chancellor’s judgment,

STANDARD OF REVIEW

US. “The standard of review in child[-]custody cases is limited.” Floyd v. Floyd, 949 So.2d 26, 28 (¶ 5) (Miss. 2007). “In child-custody cases,, this [C]ourt will only reverse the chancellor’s judgment in two circumstances—(1) [his] factual .'findings are manifestly wrong or clearly erroneous, or, (2) [he] applied an improper legal standard.” Wilson v. Davis, 111 So.3d 1280, 1282 (¶ 7) (Miss. Ct. App. 2013) (citation omitted) (reversed in part on other grounds). “We will examine the case de novo, however, when it is clear that the chancery court’s decision resulted from a misunderstanding of the controlling law or was'based on a'substantially erroneous view of the law.” R.L. v. G.F., 973 So.2d 322, 324 (¶ 5) (Miss. Ct. App. 2008).

ANALYSIS

I. Whether the chancellor erred by omitting a summary of the GAL’s recommendation and the reasons to reject the recommendation.

¶9. The Sumralls first argue that the chancellor abused his discretion by omitting a summary of the GAL’s recommendation and his reasons for rejecting the recommendation. They assert that because this case initially began as a termination-of-parental-rights and adoption case,- and because they raised allegations of abuse or neglect against the natural father, the' appointment of a GAL was mandatory. As such, the Sumralls argue that the chancellor was required to include the summary and give reasons to reject the GAL’s recommendation, because the ruling was allegedly contrary to the recommendation. They assert that the chancellor’s deviation from the GAL’s recommendation that they receive custody of Trey was error. ■

¶10. Timothy contends that the GAL’s initial recommendation, in favor of the Sumralls, was later eliminated at trial. He asserts that the chancellor heard testimony from the GAL and cross-examined her regarding her recommendation. Timothy further contends that the Sumralls’ argument is not factually based on the record. He argues that the GAL’s recommendation changed when she and the chancellor agreed that the parties could share custody of Trey.

¶ 11. Timothy contends that the Sum-rails’ argument is without merit because the GAL’s recommendation and the chancellor’s ruling were ultimately the same. Therefore, he argues there was no requirement that the chancellor explain his reasons for rejecting the recommendation. He further contends that any allegations of abuse or neglect by the Sumralls were unfounded and without merit. He asserts that there was no testimony , of 'improper behavior. Further, he claims that the GAL did not address any allegations related to abuse or neglect when she made her. recommendations. The Sumralls argue that the agreement between the chancellor and the GAL did not relieve the chancellor from his duty to provide the summary and reasons for rejecting the recommendation.

¶ 12. This Court has previously held that “Mississippi law mandates a [GAL] be appointed to protect the interest of -children in termination-of-parental-rights cases.” Farthing v. McGee, 158 So.3d 1223, 1224 (¶ 1) (Miss. Ct. App. 2015) (citing Miss. Code Ann. § 93—16—107) (Rev. 2013)). “[W]hen deciding if termination is proper, chancellors, in their findings of fact, must include' at least, a summary of the GAL’s recommendations.” Id. (citation and internal quotation marks omitted). “Though chancellors are not bound, by a GAL’s recommendations, they must give their reasons when they reject them.” Id. (citation omitted).

¶ 13. The court was initially faced with a termination-of-parental-rights case. However, after Timothy was adjudicated the natural father, the case proceeded as a custody matter between the Sumralls and Timothy. The chancellor appointed a GAL to determine the best interests of the child. Also, the GAL was necessary here because the Sumralls alleged that Trey had been neglected.

¶14. In her report dated January,. 16, 2016, the GAL recommended that Trey remain in the' care and custody of his maternal grandparents. She found that the child was “happy and well-kept” in their home. However, she also determined that Trey seemed “content” in Timothy’s home. Despite finding that Timothy had failed to provide financial support for Trey, the GAL did not recommend that his parental rights be terminated. Instead, she recommended that he receive standard visitation with the child.

¶ 15. On January 20, 2016, just -four days after signing her report, the GAL deviated from her initial recommendation during the following exchange with the chancellor;

[GAL]: [I]n my- opinion it would be in [Trey’s] best interest at this time if [he] remained with-his ■ ' • grandparents because they are who he knows as mom and dad.
THE COURT: He also knows his father, doesn’t he now?
[GAL]:. 'Yes,. judge. .But [Trey] knows the Sumralls, and he knows that is home. So that’s where, he feels safe, Judge. .
THE COURT: ;A11 right.- Let' me ask you another question.
[GAL]: Yes, sir? • -
THE COURT; What if in order to effectuate what the law.presumes to be in the child’s best interest, that to begin with the'Sumhalls and [Timothy] will share custody of [Trey]? So that he would be able to spend more time with his father; yet not ' lose the bond' that he has'with this grandmother and step-grandfa- - ther.
IGÁL]: '. Judge, I don’t have'a problem with that at all. We had suggested it prior, to thé beginning of the trial.

¶ 16. From this exchange, it is'apparent that the GAL agreed, that the. child had come to know his father. Despite the fact that Trey had lived, with his grandparents since birth, neither the.chancellor nor the GAL felt it necessary to continue this arrangement. The chancellor and the GAL agreed, that if would be in Trey’s best interest to have Timofhy and the Sumralls share custody-for a period of time, The GAL and the chancellor agreed on this issue. Therefore, the GAL’s .subsequent recommendation was incorporated into the chancellor’s final judgment.

¶ 17. Since the final judgment reflected both the chancellor’s and the GAL’s recommendations, it cannot be said that the chancellor rejected the recommendation. Nor can we find that the chancellor erred by omitting a summary of the GAL’s initial recommendation. Timothy argues that the GAL’s subsequent recommendation invalidated her previous one. We agree; thus, it was unnecessary for the chancellor to summarize the initial recommendation and provide an explanation for rejecting it in his final judgment.

¶ 18. With regard to the allegations of neglect, the GAL presented no evidence that Timothy had neglected Trey. From the record it is clear that paternity of Trey was not established until after the adoption proceeding began. Both Timothy and Tiffany testified that Timothy only learned that he may be Trey’s father shortly before the adoption hearing.

¶ 19. While Timothy knew that Tiffany had a baby after she left Carthage, there is no evidence that he suspected that he was the child’s father. Tiffany testified that she had engaged in sexual relations with someone other than Timothy around the time that she conceived Trey. Therefore, she was not certain that Timothy was the father, and she chose not to tell him of the possibility. Thus, Timothy’s lack of support was not the result of his neglect.

¶ 20. The Sumralls argue that even after paternity was established, Timothy provided minimal financial support. Indeed, Timothy was employed and could have provided more financial assistance to help with Trey’s care. However, Timothy’s failure to provide child support is not considered to be neglect. After Timothy was adjudicated Trey’s father, Timothy provided for Trey’s needs while Trey was in his home during court-ordered visitation. Also, a petition for child support was pending before the court, but the chancellor had not yet ordered Timothy to pay child support to the Sumralls. Therefore, we find the allegations of neglect due to the failure to provide financial support to be without merit.

II. Whether the chancellor erred by applying a more stringent standard than the legal standard for rebutting the natural-parent presumption.

¶ 21. The Sumralls next argue that the chancellor applied an erroneous legal standard for rebutting the natural-parent presumption. They claim that they alleged abandonment, desertion, and unfitness with specificity in their counterclaim for custody, as grounds for rebutting the natural-parent presumption. They further contend that substantial evidence was offered at trial to support these allegations. But they allege the chancellor, in questioning the GAL, misapprehended the appropriate legal standard when he recited the following:

Would you agree with me that in order to overcome the natural[-]parent presumption under the Mississippi law, the Coux-t m[u]st hear clear and convincing evidence that actual or probable serious, physical or psychological, harm or detriment will occur to the child if [he is] placed with the natural parent?

¶22. The Sumralls contend that this standard was more stringent than the legal standard inquired. They argue that the chancellor made no findings of fact or conclusions of law to negate the application of the erroneous legal standard. Therefore, they argue that the chancellor’s misapprehension of the standard warrants a reversal by this Court.

¶ 23. Timothy argues that the chancellor did not apply an erroneous legal standard. He asserts that the natural-parent presumption had not been rebutted, and, therefore, the chancellor was not required to make specific findings of fact. He argues that a discussion on the four standards used to rebut the natural-parent presumption was unnecessary because the chancellor had no proof of the existence of any of the requirements, as set forth in Wilson v. Davis, 181 So.3d 991, 996 (¶ 8) (Miss. 2016).

¶24. The Mississippi Supreme Court has found that “[t]he law recognizes that parents are the natural guardians of their children, and, it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” Davis v. Vaughn, 126 So.3d 33, 37 (¶ 10) (Miss. 2013) (citation and internal quotation marks omitted). “The presumption in all case's is that the child’s [natural] parents will love [him] most and care for [him] better than anyone else ....” Wilson, 181 So.3d at 995 (¶ 7).

However, the presumption in favor of the [natural] parent may be rebutted by clear and convincing evidence that:
(1) the parent has abandoned the child;
(2) the parent has deserted the child;
(3) the parent’s conduct is so immoral as to be detrimental to the child; or
(4) the parent is unfit, mentally or otherwise, to have custody.

Davis, 126 So.3d at 37 (¶ 10) (citation and internal quotation marks omitted). “If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. (citation omitted).

¶ 25. We find that the chancellor applied an improper legal standard. In his exchange with the GAL, the chancellor recited the “exceptional circumstances” standard as set forth in Wilson, 181 So.3d at 995 (¶ 8), rather than the natural-parent presumption. While this standard might apply in custody disputes between a parent and a third party, it is inapplicable to the present matter. In order to overcome the natural-parent presumption, our courts conduct an analysis under the four standards listed above. The “exceptional circumstances” standard is a secondary standard applied only after a court has found that custody should be granted to the third party.

¶ 26. The supreme court in Wilson emphasized that this is high-threshold standard. Id. at 997 (¶ 9). The “exceptional circumstances” standard requires proof that “demonstrable, clear and convincing evidence exists that [a] child will suffer probable harm and detriment in the custody of the natural parent,” in order to “find that, the natural[-]parent presumption is rebutted.” Id. at 996 (¶ 8). This standard clearly requires more proof than the natural-parent-presumption standard.

¶27. Notably, the application of this principle is specific to the facts in Wilson, where the supreme court found exceptional circumstances. The supreme court was inclined to revive this principle after it found “that the rigid adherence to proving one of the four precise factors to rebut the natural[-]parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests.” Id. at 995 (¶ 8).

¶ 28. Because we find that the chancellor applied an improper legal standard, we apply a de novo standard of review to this issue. The Sumralls argue that the natural-parent presumption was overcome because they alleged abandonment, desertion, and unfitness. After an investigation into the allegations, the GAL made the following findings:

It cannot be stated that [Timothy] has abandoned the minor child due to his court[-]ordered visitation. Nor' can it be claimed that [Timothy] relinquished his rights or is unfit. However, I am of the opinion that the Sumralls and the minor child have become emotionally attached and that it would be quite detrimental to the child if he were removed from their home.

¶29. The GAL’s findings did not overcome the natural-parent presumption. She did not find that Timothy had abandonéd the child. Rather, she noted the continued visitation between Timothy and Trey. There were no findings that Timothy had deserted the child. While the Sumralls contend that Timothy’s character was immoral because he began a relationship with Tiffany when she was a, teenager, the GAL made no findings on this issue. Moreover, both Tiffany and Timothy testified that Tiffany was eighteen years old when they began a sexual ■ relationship. Tiffany further testified that she was twenty-one years -old when she conceived the child. The record contains no evidence to contradict this testimony. Finally, the GAL did not find that Timothy was unfit to receive custody.

¶ 30. Of the four standards required to rebut the natural-parent presumption, none were satisfied. The Sum-rails failed to present clear and convincing evidence that awarding them custody was in Trey’s best interest. “[T]he chancellor must [only] examine, the Albright[] factors and determine that third-party custody serves the best interest of the child” if the presumption is rebutted. Randallson v. Green, 203 So.3d 1190, 1196 (¶ 25) (Miss. Ct. App. 2016) (citation omitted). Since the presumption was not rebutted, the chancellor was not required to determine whether an award of custody to the Sum-rails was in the child’s best interest.

¶ 31. While we find that the chancellor applied an improper legal standard, we hold. that the error was harmless. The chancellor’s mistake does not warrant reversal. This issue is without merit.

Ill, Whether the chmcellor erred by failing to address evidence of Timothy’s desertion and the Sumralls’ in loco parentis stains.

A. Desertion

¶ 32. In them final assertion of error, the Sumralls contend .that the chancellor overlooked substantial evidence that Timothy deserted Trey. They argue that while Timothy may not have initially confirmed that Trey was his biological child, specific knowledge is not necessary for desertion. They contend that Timothy knew that Tiffany had given birth to a child, and, therefore, he either knew or should have known that he had a child. Thus, they assert he was obligated to support Trey, but he neglected his duty and failed to assert his parental rights.

¶ 33. The Sumralls further contend that Timothy should have been precluded from objecting to Trey’s adoption because Trey was bom out of wedlock. They argue that Timothy had not demonstrated, within a period of thirty days after Trey’s birth, a commitment to the responsibilities of parenthood. See Miss. Code Ann, § 93-17-5(3)' (Rev. 2013).

¶34. Timothy notes that the Sumralls now argue that he deserted Trey, yet in their original petition for adoption they alleged that the identity and whereabouts of the natural father were unknown. This, Timothy contends, is contradictory. He argues that because he was unaware of the child, he could not have deserted him.

, ¶35. This issue was decided above in issue I.- We see no reason to consider it once again here.

B. In Loco Parentis

¶ 36. The Sumralls also argue that the chancellor disregarded that they stood in loco parentis for the first three and a half years of Trey’s life. They argue that the in loco parentis status, combined with Timothy’s desertion, should have rebutted the natural-parent presumption.

¶ 37. We find that the chancellor did not disregard the care provided by the Sumralís. The chancellor stated, and then confirmed with the GAL, that Timothy had developed a relationship with Trey. The chancellor sought to ensure that both the maternal grandparents and the natural father remain a part of Trey’s life. With regard to the present issue, our supreme court has held that “[although [the] doctrine [of in loco parentis] grants third parties certain parental rights, such rights are inferior to those of a natural parent.” Davis, 126 So.3d at 37 (¶ 12). “Thus, in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted.” Id. (citation omitted). Therefore, the chancellor was not required to make a ruling in favor of the Sumralls and ignore Timothy’s status as the natural parent.

¶ 38. We find that the chancellor’s grant of temporary joint custody was based on the best interest of the child. By alternating between the Sumralls’ and Timothy’s homes, Trey would get to know his father and maintain a bond with his grandparents. Although it was ordered that Timothy would retain" full custody of Trey once he reached school age, the Sumralls were awarded visitation on the first and third weekends of each month. We find that the chancellor based his final judgment on Trey’s best interest. This argument is without merit.

¶39. We find no grounds for reversal and affirm the chancery court’s decision.

¶ 40. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. . WILSON, J„ CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . In the interest of privacy, this Court substitutes a fictitious name for the child.

      . The Sumralls' notice of appeal is against Tiffany and "the unknown father,” No issues are raised against Tiffany, and she has not filed a brief or otherwise appeared in this appeal. We know “the unknown father”-to be Timothy, • .

      . The supreme court noted that this principle had been followed in the past. It referenced the case of Moody v. Moody, 211 So.2d 842 (Miss. 1968), which held that "in order to overcome this presumption, there must be á clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Wilson, 181 So.3d at 995 (¶ 8) (emphasis added) (quoting Moody, 211 So.2d at 844). The supreme court noted that exceptional circumstances often involve children with special medical and/or developmental needs. Id. at 996 n.2.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . The version of section 93-17-5(3) that was in effect at the time of these proceedings was amended in 2016, and the referenced provision was deleted. 2016 Miss. Laws ch, 431, § 21 (H.B. 1240),


author: WESTBROOKS, J.,

text:
    In the MATTER OF the DISSOLUTION OF the MARRIAGE OF James Catlin TULLOS and Jessica Lynn Tucker Tullos: Jessica Lynn Tucker Tullos, Appellant v. James Catlin Tullos, Appellee
    NO. 2016-CA-01117-COA
    Court of Appeals of Mississippi.
    11/07/2017

      ATTORNEYS FOR APPELLANT: W. TERRELL STUBBS, LAUREN ELIZABETH CAVALIER
    ATTORNEY FOR APPELLEE: RAYMOND PATRICK TULLOS
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Jessica Tullos appeals the order modifying child custody and support of her minor children. The order awarded her former husband, James Tullos, physical custody of both minor children and required Jessica to pay child support. It is from that order that this appeal is taken.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jessica and James were married on September 4, 2004. Two children were born of that union. A joint complaint for divorce was filed by James and Jessica on December 17, 2013. On March 14, 2014, a judgment of divorce was entered for the parties. Jessica was given physical custody of the minor children, and James was given visitation and required to pay $1,000 per month in child support.

¶ 3. On August 28, 2015, James filed a petition to modify the judgment, requesting that the chancery court award him physical custody of the minor children and require Jessica to pay child support. James alleged that Jessica was using illegal drugs in the presence of their children. Jessica was served with the petition and a summons on September 4, 2015, requiring that she appear at the Covington County Courthouse in Collins, Mississippi. The original hearing date was set for September 29, 2015.

¶4. On September 29, 2015, the court entered an order continuing the case and resetting it for trial, and the hearing was continued to October 15, 2015, at 9:30 a.m. in the Smith County Courthouse in Raleigh, Mississippi. Raymond Tullos, James’s attorney, and Jessica, who was pro se, signed the first order continuing the matter. On October 15, 2015, the trial was continued by order of the court to December 10, 2015, at 9:30 a.m. in the Smith County Courthouse in Raleigh. Jessica did not sign that order, and the record is unclear whether Jessica was present.

¶ 5. On December 10, 2015, the chancery court entered another order continuing the case to February 1, 2016, at 9:30 a.m. in the Smith County Courthouse in Raleigh, Jessica did not sign the order, and the record does not reflect whether she was present at the hearing. Moreover, only the chancellor signed the order continuing the matter. An order appointing April Taylor Bryant as guardian ad litem (GAL) for the minor children was also entered on February 1, 2016. On that same day, the chancellor signed an order continuing the case to March 30, 2016. On March 30, 2016, the fifth and final order of continuance was signed by the chancellor, continuing the hearing to May 19, 2016. While the order was signed, it was not filed until March 31, 2016. The final order of continuance was signed by James’s attorney and the chancellor but not Jessica, and the record is unclear if Jessica was present at the hearing.

¶ 6. On May 19, 2016, a hearing on the petition to modify custody was held. James, his attorney, and the GAL were present during the hearing, but Jessica was not. James testified that Jessica had moved to North Dakota with their son. James stated that when he exercised his visitation rights and picked up the children, sometimes Jessica was not at home and the children had a dirty physical appearance. According to James, Jessica was using illegal drugs and had used drugs in front of their children. James stated that though Jessica had not used drugs in his presence, he observed Jessica inebriated in the presence of their children ¡ when he picked them up for visitation. James also stated that Jessica’s mother, father,-.and stepmother called .him and asked that he not return .the children to Jessica- until they got Jessica help for her drug use.

¶ 7. The GAL testified that she believed that it was in the best interest'of both minor children to reside with James. According to the GAL, after she requested the younger child B.J.’s school records, his school counselor informed her that he-had missed a number days. The GAL also testified that the school counselor stated that BJ.’s education had been impacted by Jessica’s constant relocation. The GAL stated that when she- spoke with Jessica regarding B.J.’s welfare, Jessica made false statements about James’s visitation and also gave the GAL an incorrect physical address. When the GAL- attempted to call Jessica back, she could.not reach her. The GAL left a voicemail message -informing Jessica that she would be visiting both James’s and Jessica’s homes. According to the GAL, she informed Jessica about the final hearing as well-, The GAL testified that after she could not reach Jessica, she contacted B.J.’s school counselor and was informed .that Jessica had moved. -

¶8. After the testimony concluded, the chancellor ruled from the bench that he found a substantial material change that adversely impacted the minor • children. Following an Albright analysis, the court found that it was -in the best interests of the minor children to reside with James. However, the chancellor did not sign an order reflecting his ruling on that day. On July 1, 2016, ~ another chancellor in the same judicial district signed an order, nunc pro tunc as of May 19, 2016, altering the final judgment and awarding James physical custody of both minor children. It.is from that order that Jessica appeals. On appeal, Jessiea argues that the chancellor erred in entering a final judgment against her because she was not properly noticed pursuant to Rule 81(d) of the Mississippi Rules of Civil Procedure. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. This ’Court will not “interfere with the chancellor’s findings of fact unless they were manifestly wrong [or] clearly erroneous, or an erroneous legal standard was applied.” Caplinger v. Caplinger, 108 So.3d 992, 995 (¶ 6) (Miss. Ct. App. 2013). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss. 2001).

DISCUSSION

II10. Mississippi Rule of Civil Procedure 81(d) provides special procedures for hearings on modification or enforcement of custody. M.R.C.P. 81(d)(2). When a modification action is filed, notice of the action and the procedures for continuances are governed as follows:

[S]ummons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the [action dr matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the- same for hearing on a, later date.

M.R.C.P. 81(d)(5).

¶ 11. “[T]he Mississippi Supreme Court has held that a central consideration under Rule 81 is the adequacy of the notice of the date, time, and place of the hearing.” Brown v. Tate, 95 So.3d 745, 749 (¶ 13) (Miss. Ct. App. 2012) (citing Vincent v. Griffin, 872 So.2d 676, 678 (¶ 5) (Miss. 2004)). However, if a proper summons is given that notifies the other party of a new controversy that has arisen and of the date, time, and place for a hearing, the rule itself provides that an order entered on the day of the initially scheduled hearing-obviates the need for any new summons for a hearing actually held on the later date. Bailey v. Fischer, 946 So.2d 404, 407 (¶ 11) (Miss. Ct. App. 2006) (citing M.R.C.P. 81(d)(5)). If no such order is entered, there should be a new Rule 81 summons. Id.

¶ 12. Though there were five continuances, all orders were signed by the chancellor on each respective hearing date. Therefore, the initial summons was' preserved. Jessica argues that because she was not provided a copy of the four subsequent orders continuing the case' and resetting the trial, a new Rule 81 summohs should have been issued. Caselaw does not support this contention. The rule states that if the matter is not heard on the day it is set, then an order entered on that day may continue the cause to a later date without a new summons being issued. Sanghi v. Sanghi, 759 So.2d 1250, 1259 (¶ 32) (Miss. Ct. App. 2000) (citing M.R.C.P. 81(d)(5)).

¶ 13. Jessica had notice, of the first continuance, and the record does not reflect that she attended that hearing. Jessica also admits that she may have had actual notice of the final hearing through the GAL’s statement regarding the hearing, but she contends that actual notice is insufficient to cure defective process. We agree. “Actual notice does not cure defective process.” Pearson v. Browning, 106 So.3d 845, 852 (¶ 39) (Miss. Ct. App. 2012). “[J]urisdiction is not obtained by a defendant’s informally becoming aware that a suit has been filed against him.” Id. Nevertheless, Jessica was .aware of a pending custody matter, evidenced by her initial appearance at the first hearing and her signature on the first order of continuance. A central tenet of Rule 81 is adequate notice of a pending legal matter, and Jessica was given notice at the inception of the custody matter.

¶ 14. Therefore, we do not agree with Jessica’s argument that a Rule 81 summons should have been reissued because she was not notified of subsequent court-ordered continuances. The summons was preserved with each sighed order of continuance. Moreover, each order provided a day certain for the next hearing. Though the final order of continuance was not filed until the day after the hearing, the'sum-mons was still preserved because >the trial judge signed the order on the day of the hearing. Rule 81 states “if such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). Accordingly, we fin'd that an additional summons was not required, and Jessica was adequately notified of the custody matter. Finding no error, we affirm.

¶ 15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      . \Ve use Ae minor's initials in place of his name.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).


author: LEE, C.J.,

text:
    Benjamin MCCADNEY a/k/a Benjamin Deshun McCadney, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01101-COA
    Court of Appeals of Mississippi.
    10/07/2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE
    DISTRICT ATTORNEY: BRENDA FAY MITCHELL
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Benjamin McCadney was convicted by a jury in the Bolivar County Circuit Court of aggravated assault with a firearm enhancement. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with an additional five-year sentence for the firearm enhancement, to run consecutively. Finding no arguable issue for appeal, McCadney’s appellate counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005). McCadney was given additional time to file a supplemental brief, which he has not done.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 27, 2014, Moses Kizart Jr. left Rainey’s club in Bolivar County, Mississippi, around 12:30 a.m. and . stopped behind the liquor store to use the bathroom. When Kizart turned around, a man with a bandana mask and a gun confronted him and shot him in the stomach. Kizart charged at the man and pulled down the mask so that he was able to see the assailant’s face. Although he did not know the assailant’s name, Kizart recognized him because he had often seen him driving and riding around the area in a white station wagon. Kizart tried to run, but the assailant pursued him and shot him again. Ki-zart, having been shot in the stomach and chest, reached a house, and the police and an ambulance were dispatched. Several police officers responded, and Kizart told them he was shot by a man wearing a black top. Kizart was taken to a hospital in Memphis, Tennessee.

¶ 3. At trial, Officer Michael Pointer testified that he was patrolling in the early morning hours of the attack and, following a call, was dispatched to the area. He stated he saw a young man running near the scene of the attack, and he shined his spotlight on him and recognized that it was McCadney. Officer Pointer stated he did not stop McCadney because he was wearing a white shirt, and the dispatch call described the assailant as wearing a black shirt. Officer Pointer then witnessed McCadney get into a white station wagon. Officer Pointer proceeded to the scene. While searching the perimeter, Officer Pointer noticed the white station wagon drive by the scene, at which point he stopped the car and searched it. McCad-ney was no longer in the vehicle. Investí-' gator Melvin Sparks also responded to the scene. He collected evidence found in the area by Officer Stanley Perry, which included a black sweatshirt and a black bandana. The gun was not recovered. Several weeks later, Investigator Sparks visited Kizart in the hospital, where he was able to identify McCadney out of a photo lineup as the man who had shot him.

¶4. .At trial, Officer Pointer identified McCadney as the man he saw running near the scene and who got into the white station wagon, Kizart also testified at trial and identified McCadney in the courtroom as the man who had shot him. Kizart indicated that he was supposed to testify against McCadney’s friend, Thaxter Townsend, in a separate matter. McCadney, testifying on his own behalf, stated that he had never seen Kizart before and denied having any motive against him. McCadney denied getting into the station wagon, although he acknowledged that the vehicle was owned by Townsend’s mother. He also testified that he was leaving work at the time Officer Pointer saw him. Following the trial, a unanimous jury found McCad-ney guilty of aggravated assault with a firearm.

DISCUSSION

¶ 5. On appeal, where the appellant’s counsel does not find any arguable issues for review, the Mississippi Supreme Court has instructed:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)—[ (5), (8)].
(2) As part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client’s right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and-
(h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find •no arguable-issues in the record,'and advise the client of his or her right to file a pro se brief,
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue; regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Windless v. State, 167 So.3d 277, 278 (¶ 5) (Miss. Ct. App. 2015) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 6. Here, McCadney’s appellate counsel complied with the -requirements set forth 'in Lindsey, After examining the record, he found no 'arguable issues for appeal. McCadney’s counsel sent a copy of the Lindsey brief to McCadney, advising him that he-found no arguable issues in the record and also informing McCadney that he had the right to file a pro se .supplemental brief. This Court granted McCad-ney an additional forty-five days to file a pro se brief, which he has failed to dp. Our independent review of the record has not revealed any arguable issues that would require supplemental briefing. Accordingly, we affirm McCadney’s conviction and sentence.

¶ 7. AFFIRMED.

IRVING AND GRIFFIS, P. JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


author: CARLTON, J.,

text:
    Anthony LITTLE, Appellant v. Donald RICHEY and Nancy L. Richey, Appellees
    NO. 2016-CA-01423-COA
    Court of Appeals of Mississippi.
    11/07/2017

      ATTORNEY FOR APPELLANT: SARAH CLINE STEVENS
    ATTORNEYS FOR APPELLEES: L. BRADLEY DILLARD, JOHN M. CREEKMORE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. After a trial held on June 30, 2016, the Monroe County Chancery Court granted Donald and Nancy Richey’s complaint seeking to quiet and confirm title and asserting a claim of adverse possession against Anthony Little.

¶2. Anthony now appeals, asserting the following assignments of error: (1) the trial court abused its discretion in denying his motion for additional time to conduct discovery; (2) the Richeys failed to prove each element of their adverse-possession claim by clear and convincing evidence; and (3) the trial court abused its discretion in admitting the deposition of witness Sherry Bortz into evidence.

¶3. Finding no error, we affirm the trial court’s judgment.

FACTS

¶4. On January 26, 2011, Donald and Nancy filed a complaint in the Monroe County Chancery Court asserting a claim of adverse possession and seeking to quiet and confirm title to real property. The Richeys initially filed the complaint against Tim Little and any unknown persons having any legal or equitable interest in the real property located in Monroe County, Mississippi. The chancellor later granted the Richeys’ motion to join Tim’s son, Anthony Little, as a defendant. The agreed order granting the Richeys’ motion to join Anthony as a defendant was executed by Bradley Dillard, counsel for the Richeys, and Timothy Ervin, counsel for Tim. The record shows that Timothy Ervin also signed the order as counsel for Anthony.

¶5. The chancellor held a trial on the matter on April 21, 2016. The chancellor dismissed Tim as a defendant due to the fact that he no longer owned the property in question. At that time, Anthony informed the chancellor that Ervin did not, and never had, represented him in the matter at issue. Anthony requested a continuance in order to retain additional counsel.

¶6. The chancellor granted the request and continued the case until June 30, 2016, so that Anthony could retain additional counsel. After moving the trial date to June 30, 2016, the chancellor cautioned Anthony:

[Ujnless there is an emergency of some kind, there will not be a continuance, so you need to advise your attorney, if you hire one, of the court date so they will be available because we are going to get this case finalized within the next hopefully few weeks as soon as I check my schedule.

¶7. On June 16, 2016, two weeks before trial, Sarah Cline Stevens entered an appearance in the matter on behalf of Anthony and filed a motion for additional time to conduct discovery. The chancellor denied the motion.

¶8. After the trial, the chancellor entered her opinion and judgment on September 1, 2016, finding in favor of the Richeys as to their claim of adverse possession. Anthony now appeals.

STANDARD OF REVIEW

¶9. “This Court employs a limited standard of review when reviewing the decisions of a chancellor.” Powell v. Meyer, 203 So.3d 648, 652 (¶ 16) (Miss. Ct. App. 2016). We will only reverse a chancellor’s determinations if “they were manifestly wrong, clearly erroneous, or ... the chancellor applied an incorrect legal standard.” Id.

DISCUSSION

I. Denial of Discovery

¶10. Anthony argues that the Rich-eys failed to properly and timely join him as a defendant in the present case. Anthony asserts that, as a result, the chancellor, abused her discretion by allowing the case to proceed to trial without adequate time for him to conduct discovery. Anthony also alleges that the chancellor and counsel for the Richeys “coerced” Anthony into waiving his rights to- discovery and time to prepare for a trial by soliciting a verbal waiver stipulating his submission to the jurisdiction of the court and waiving all rights to a continuance. Anthony argues that the inability to conduct discovery left him unable to defend .himself against the Richeys’ claim of adverse possession.

¶11. The Mississippi Supreme Court has held that “[t]he trial court has considerable discretion in matters relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion.” Strickland v. Estate of Broome, 179 So.3d 1088, 1094 (¶ 19) (Miss. 2015); see also Blossom v. Blossom, 66 So.3d 124, 126 (¶ 9) (Miss. 2011).

1112. The record reflects that during Tim and Anthony’s depositions, the Richeys discovered that Anthony, and not Tim, now constituted the record owner of the property at issue. As a result, the Richeys filed a motion to join Anthony in the action “so that a full adjudication in this cause would be binding on him as well as the other parties.” On January 18, 2013, the chancellor granted the Richeys’ motion to join Anthony as a defendant. The order granting the motion reflects that Anthony had no objection to the motion. The order also states that Anthony waived service of a summons and complaint on him in the matter. The order provides, in full:

Before the court is a Motion for Join-der of Party filed by [the Richeys], and after having duly considered said Motion and having been advised that attorney Tim Ervin has no objection, nor does proposed Defendant Anthony ■ Little have any objection to same, the court hereby finds that said Motion for Join-der of Party is hereby well taken and should be granted. It is, therefore,
ORDERED AND ADJUDGED that Anthony Little is hereby joined as a party Defendant in this cause, waiving service of a Summons and Complaint on him in this matter.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Anthony Little may simply adopt the answer of Co-Defendant Tim Little, or- may file his own answer as he deems appropriate,
SO ORDERED this the 18th day of January, 2013.

¶13. The record shows that the order was executed by counsel for the Richeys, and by Ervin as counsel for Tim and as “attorney for Defendant Anthony Little.” Anthony acknowledged that Ervin signed the order as counsel for him and his father, Tim, but Anthony now maintains that Ervin never actually represented him. Anthony also claims that he never received notice of the January 18, 2013 order. Anthony’s argument fails to address the notice given to him in court on April 21, 2016.

¶14. The record reflects that at the initial April 21, 2016 trial date, counsel for the Richeys did not dispute that Ervin never represented Anthony. However, counsel for the Richeys argued:

[Anthony] was joined as a party in January of 2013. This case was filed in January of 2011, so it’s been pending for over five yéars; over three years since [Anthony] has been a party. Apparently, at no point during the course of this case has [Anthony] made any effort to get his own independent counsel.

¶15. Counsel for the Richeys also asserted that Anthony provided a deposition in the matter and argued that “[t]his case has been pending, he’s here today, so there was no reason for us to serve him with anything else onee that order was entered.” Ervin also testified that he “never represented [Anthony] in the litigation at all.-... He’s.not retained me, he’s not paid me at all in this litigation.”

¶16. At the April 21, 2016 trial, the chancellor ' questioned' both Ervin and counsel for the Richeys about whether Er-vin’s signature executing the January 18, 2013 order therefore bound Anthony to the order. The chancellor ultimately opined “that‘there is no alternative but to continue the case.” The chancellor continued the case to June 30, 2016,- and informed Anthony that he is “now aware of the fact that [he is] a party in the suit,” and instructed him to retain an attorney. The chancellor also advised Anthony that she was going to set the case for hearing, and stated that “[u]nless there is an emergency of some kind, there will not bp a t continuance, so you need to advise your, attorney,, if you hire one, of the .court date so that they will be available[.]”

¶17. Ervin also informed the chancellor that once Anthony obtained counsel, Ervin intended to furnish the attorney with “everything [Ervin possessed] up until this date .., because ... [Anthony has] given a.deposition in.the past.” Significant to the resolution of this instant case,, Anthony also executed a waiver ,of service of process on April 26, 2016, which stated that Anthony'had “voluntarily. ,enter[ed]. his appearance in this matter and acknowledge[d] his status as a defendant pursuant to a January 18, 2013 order joining him as a party, waiving service of process in this cause.” Accordingly, we, find that the record reveals that Anthony indeed entered a personal appearance, waived service of process, , and acknowledged his status as a defendant. Notably, Anthony raised no objection to the January 18, 2013 order joining him as a defendant.

¶18, On June 16, 2016, two weeks before trial, Stevens entered an appearance in the' matter as counsel for Anthony and filed a motion for additional time to conduct discovery. After considering the motion and after a telephone conference, the chancellor entered an order on June 23, 2016, denying the motion. The record shows that Stevens again renewed her motion for additional time at the start of the June 30, 2016 hearing, which the chancellor 'again denied, explaining that she had “denied that [motion] during our phone conference and that remains the decision of the court, and [she] gave the reasons at that time,.,Those reasons continue to exist.”

¶19. In Robinson v. Brown, 58 So.3d 38, 42 (¶ 10) (Miss. Ct. App. 2011), this Court held that “the decision to grant or deny a continuance is -within the sound discretion of the trial court and will not be reversed absent an abuse of discretion that resulted in a -manifest injustice.” On appeal, “[t]his Court will not reverse the denial of a continuance absent a finding of prejudice.” Id, Furthermore, as previously stated, the supreme court -has - held- that “[t]he trial court has considerable discretion' in matters-relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion.” Strickland, 179 So.3d at 1094 (¶ 19).

¶20. The record before us reveals that counsel for the Richeys déposed Anthony and his father, Tim, on August 30, 2012, a little less than four years before the initial date set for trial. Additionally, the record reflects that on April 21, 2016, the initial date set for the trial, the chancellor granted a continuance at Anthony’s request after he argued that Ervin had never represented him. As stated, at .the April 21, 2016 trial, Anthony entered a personal appearance and agreed to the terms of the continuance on the record, acknowledging that he understood that any attorney he hired would represent him subject to. the June 30, 2016 trial setting, and that the chancellor would not grant a continuance based on any conflict that Anthony or his attorney might have with that date. Moreover, as discussed, on April 21, 2016, Anthony executed a written waiver of service of process and entered a voluntary' appearance and acknowledged the. trial court’s prior order joining him as a defendant without objection. As a result, we cannot say that the chancellor’s decision to deny Anthony’s second request for a continuance caused Anthony to suffer manifest injustice in the matter. We accordingly And no abuse of discretion by the chancellor. See Robinson, 58 So.3d at 42 (¶ 10).

II. Clear and Convincing Evidence

¶21. Anthony next asserts that the Richeys failed to prove each element of their adverse-possession claim by clear and convincing evidence and, as a result, the chancellor erred in granting the Rich-eys’ motion to quiet and confirm title.

' ¶22. This Court has held that “[t]he chancellor’s findings of fact will be accepted as long as the record reasonably supports those findings.” Rester v. Greenleaf Res. Inc., 198 So.3d 472, 474 (¶ 5) (Miss. Ct. App. 2016) (internal quotation marks omitted). We will only reverse where the chancellor “abused her discretion, was manifestly wrong or clearly erroneous, or applied the wrong legal standard.” Id. (citing Biddix v. McConnell, 911 So.2d 468, 474-75 (¶ 17) (Miss. 2005)). We further recognize that “[a]s the trier of fact, the chancellor evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Id. “Questions of law are reviewed de novo.” Id.

¶23. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) sets forth the following elements of-adverse possession:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in- every actual occupant or possessor of such land a full complete title

¶24. In Powell v. Meyer, 203 So.3d 648, 652 (¶ 18) (Miss. Ct. App. 2016), this Court explained the six-part test that is applied when determining whether adverse possession has occurred: “for possession to be adverse it must be (1) under claim of ownership; (2) actual or -hostile; ■ (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful:” The- “adverse possessor” bears the burden of proving each element by clear, and convincing evidence. Ellison v. Meek, 820 So.2d 730, 734 (¶ 13) (Miss. Ct. App. 2002).

¶25. Anthony argues that the Richeys failed to show that they possessed the land to the exclusion of others. Anthony explains that “by not prohibiting the thinning of trees in 2004 and 2007, the Richeys did not exclude the true owners from continuing to improve and cultivate their tree farm[.]” Anthony also argues that the Richeys’ peaceful use and possession of the land was disrupted by Tim Little in 2010, when.he hired an attorney to send.the Richeys a cease and desist letter after the Richeys cut timber from the property at issue.

¶26. The record reflects that at trial, Nancy Richey testified that she and her husband began constructing a fence on the property at issue, which was completed in 1994. Anthony asserts that the Richeys failed to provide clear and convincing evidence to prove that they built an encroaching fence on the property in 1994. The record shows that Anthony presented testimony from a registered forester who opined that the encroaching fence was built in 2004, rather than 1994. Anthony also asserts that his father, Tim, removed the encroaching fence in 2010 and erected another fence along the surveyed boundary line. As a result, Anthony claims that the Richeys use of the property was not continuous and uninterrupted for ten years.

¶27. In Ellison, 820 So.2d at 734-35 (¶ 14), this Court explained that “mere possession is not sufficient to satisfy the requirements of open and notorious possession.” Rather, the “adverse possessor must fly the flag over the land and put the true owner upon notice that his land is held under an adverse claim of ownership. Id. at 735 (¶ 14).

¶28. The Ellison court further held that “[i]f a fence encloses the property for a period of at least ten years, under a claim of adverse possession, title vests in the claimant and possessor, even though the fence was subsequently removed or fell into disrepair.” Id. at (¶ 15). However, the Court cautioned that “[t]he existence of an old barbed wire fence, as sole evidenced] does not constitute adverse possession.” Id. Instead, “[t]he actual activity within the fenced area shows open and hostile possession.” Id. The Ellison court also held that “the acts of cutting of timber and occasional pasturing of the land are insufficient to constitute open and hostile possession.” Id.

¶29. The record reflects that at trial, the chancellor heard testimony from the Rich-eys; Robert Tomey, county supervisor for Monroe County; Tim Little; Anthony Little; Bobby Edwards, Tim Little’s brother-in-law; Bruce Pennington, who farmed the land adjacent to the property at issue; and Steven Gruchy, a registered forester. The chancellor also heard deposition testimony from Sherry Bortz. Additionally, prior to entering her judgment on the matter, the chancellor viewed the disputed property, where she “observed no evidence of cutting trees and observed the fence that was torn down, and all materials looked old.” She opined that “[t]he evidence on the ground matched the credible proof of the Richeys.” The chancellor ultimately held that “the Richeys have established their claim by adverse possession to the area included within the fence erected by them in 1993 and 1994, and title thereto is quiet and confirmed in them.”

¶30. In her judgment, which we quote in length, the chancellor “assesse[d] the credible proof in light of the foregoing elements” and found the following:

(1) Under claim of ownership
In this instance, the court finds the placement of the fence by the Richeys was the result of their belief, though perhaps mistaken, that the property was included in the tract which they had purchased. It was also unrebutted that the Richeys paid taxes on the parcel in question. Accordingly, the credible proof is sufficient to meet this element. Nevertheless,
The mere presence of a fence, without more, has never been sufficient to sustain a claim of adverse possession. As this Court has clearly stated:
When a fence or hedge row is relied upon to delineate the boundary of an adverse claim, the applicable rule is whether the enclosure!,] like other acts of possession, is sufficient to fly the flag over the land and put the true owners on notice that his land is held by an adverse claim of ownership.
Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, [687,] 16 So.2d 24, 25 (1943)[.] In other words, the adverse possessor (in this case, Double J) must present some proof that its occupation of the record owner’s property was hostile, and that the record owner—aware of the adverse possessor’s hostile occupation—took no action to prevent adverse possession ....
Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So.2d 826, 829 [ (]¶ 15) (Miss. 2008).
(2) Actual or hostile
The requisite proof to satisfy this element has been summarized as follows:
To, prove actual possession, the adverse possessor must show that he exercised, control over the disputed property, “evidenced by things visible to the eye or perceptible to the senses.” [Wicker v. Harvey, 937 So.2d 983, 993-94 (¶ 34) (Miss. Ct. App. 2006)] (quoting Blankinship v. Payton, 605 So.2d 817, 819-20 (Miss. 1992)). That possession is considered hostile when the adverse possessor ⅛ tends to claim ownership of the land of another although the adverse possessor is under a mistaken belief that the land lies within the description contained in his own deed. Id. at 994 (¶ 34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So.2d 826, 829 (1952)).
Webb v. Drewrey, 4 So.3d 1078, 1083 (¶ 16) (Miss. Ct. App. 2009). Additionally, “an important question to ask is whether the person adversely claiming the property exercises the same character of control over the land as he would toward property actually his and which he would not have exercised over property which did not belong to him. Jackson v. Peoples Bank, 869 So.2d 422, 424 (¶ 8) (Miss. Ct. App. 2004) ....
In this case, the credible proof was clear and convincing that the Richeys erected a fence then placed horses within the enclosure and maintained control of the fenced area throughout the time it was occupied by those animals. The credible proof also established that the smaller barn identified as “B2” was constructed’by the Richeys along the property in dispute. In the court’s view, this element has been satisfied;
(3) Open, notorious, and visible
The character of proof needed to support this element was described by our appellate court:
The meré possession of land is not sufficient to satisfy’the requirement that the adverse possessor’s usé'be open, notorious," and visible. Wicker, 937 So.2d at 994 (¶ 35) (citing Craft v. Thompson, 405 So.2d 128, 130 (Miss. 1981))." A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So.2d 1057, 1059 (¶ 6) (Miss. Ct. App. 2003) (citing People's Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304, 1305 (Miss. 1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it-flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the -standard of conquest.’ ” ....
Webb, 4 So. 3d at 1083 [ (¶ 19) ].
In this case, the credible proof established in a clear and convincing manner that the Richeys erected a fence in 1993 and 1994, placed livestock therein, constructed a small barn along the property line, and maintained a level of usage of the disputed property that would have placed the record owner on notice of the occupation. The horses treaded paths along the fence area, and likely contributed to some of the clearing.of the occupied area. The Richeys also cleared some of the small trees from the disputed area during their occupation thereof. Tim Little’s allegation that there was no fence in 2006 was unsupported. The alie-' .gation that the fence was constructed in 2007. was not supported by credible proof or. the court’s viewing of the property. This element is satisfied.
(4) Continuous and uninterrupted for a period of ten years
Pursuant to section 15—1—13, the Rich-eys maintained adverse occupation of the disputed area beginning in 1994 and continued uninterrupted thereafter until 2010, after which their fencing was removed and this action ensued. The court finds this element has been satisfied.
(5) Exclusive
In the context of a .claim for adverse possession:
“Exclusive use” does not mean that no one else may use the property. Moran v. Sims, 873 So.2d 1067, 1069 (¶ 10) (Miss. Ct. App. 2004). Exclusivity, within the meaning of the statute, .means that the adverse possessor’s use of the property was consistent with an exclusive claim-to the right to use the property. Id. Exclusive use is at the most basic level the intent of actual and hostile possession.
Apperson v. White, 950 So.2d 1113, 1119 [ (]¶ 15) (Miss. Ct. App. 2007). The court finds the credible proof was. clear and convincing that the Richeys exercised exclusive use of the.area within the fenced enclosure. While it was alleged that the trees had been thinned, this was not inconsistent with the facts established by the Richeys concerning their removal of small trees and the occupancy of the property by their horses.
(6)Peaceful
The credible proof was clear and convincing that the Richeys occupation of the area within the fence was undisputed from 1994 until the incident in 2011 that prompted this litigation.

¶31. After our review of the record and the chancellor’s thorough findings set forth in her judgment, we find'substantial evidence in the record to support the chancellor’s determination that the Richeys proved adverse possession by clear and convincing evidence. Therefore, ■ we' find the chancellor did not abuse her discretion.

III. Deposition Testimony

¶32. Anthony asserts that the trial court-abused its discretion in allowing the deposition of witness Sherry Bortz, the Richeys’ daughter, to be read into evidence. Anthony maintains that he failed to receive notice of the deposition, ilor was he present or represented by counsel. Anthony claims that'had he been represented by counsel during - the deposition, additional cross-examination may have been conducted, and testimony favorable to him could have been elicited.

¶33. The record reflects that Bortz resides in Murfreesboro, Tennessee. The record also reflects that during Bortz’s March 25, 2016 deposition, Ervin appeared at the deposition on behalf of Tim and Anthony.

¶34. At trial, Anthony’s counsel objected to the admission of Bortz’s deposition testimony into evidence, stating

it’s in violation of Mississippi Rule[ ] of Civil Procedure 32, which states that a deposition is only admissible and may be used in advance of party who is present or represented at the taking of the deposition, or had reasonable notice thereof. When this deposition was taken ... on March 22nd, [Anthony] had not yet properly been joined as a party. The notice of deposition was only sent to his father’s attorney, Mr. Ervin, and [Anthony] was not present at the deposition.

The chancellor overruled the objection and allowed Bortz’s deposition testimony to be read into evidence.

¶35. In her judgment, the chancellor referred to Bortz’s deposition testimony, stating that Bortz’s testimony “indicated she rode horses on the disputed property from 1996 to 2010 or 2011, at least twice a year,” During that time, Bortz “never observed anyone else using the property. In her view, the Richeys claimed to be owners of the area, and made open and visible use of it, and the fence never moved until it was taken down.”

¶36. We recognize that “[t]he admission of deposition testimony is within the sound discretion of the trial court.” Williams v. Homecomings Fin. Network Inc., 134 So.3d 779, 781 (¶ 10) (Miss. Ct. App. 2013). Regarding the admission of evidence, “reversal is not warranted unless judicial discretion is abused.” McCullough v. McCullough, 52 So.3d 373, 377-78 (¶ 17) (Miss. Ct. App. 2009).

¶37. The record reflects that at the time of the deposition, Anthony had been joined as a party pursuant to the January 18, 2013 agreed order. Our review of the chancellor’s judgment reveals that in making her decision to quiet and confirm title in favor of the Richeys, she relied upon testimony from all of the witnesses, as well as various items admitted into evidence, such as photographs, a survey of the property, Conservation Reserve Program records, as well as the chancellor’s own observations made when visiting the disputed property. The record reflects that regarding the fence and the. Richey’s open and visible use of the property, Bortz’s deposition testimony was consistent with that of other witnesses. Hence, Bortz’s testimony, was cumulative with the testimony of other witnesses. The chancellor only specifically mentioned Bortz’s deposition testimony when summarizing the testimony presented at trial by each of the witnesses. As a result, we find no abusé of discretion in the chancellor’s admission of Bortz’s deposition testimony into evidence.' Williams, 134 So.3d at 781 (¶ 10).

¶38. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN .OPINION. BARNES AND TINDELL, JJ., NOT; PARTICIPATING.

      . The transcript from’the phone.conference does not appear in the record before us.