author: MYERS, P.J.,

text:
    John Patrick BENAL, Appellant v. Angela Jean BENAL, Appellee.
    No. 2008-CA-01181-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.

      Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellant.
    Ford Andrew Howell, attorney for ap-pellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. John and Angela Benal were granted a divorce based on irreconcilable differences by the Madison County Chancery Court. John and Angela submitted four issues for the trial court to resolve: (1) custody of their three children, (2) division of the marital assets, (3) liability for payment of the marital debts, and (4) use of the marital home and furnishings. Aggrieved by the chancellor’s ruling, John appeals and asserts three assignments of error: (1) the trial court committed error in evaluating the credibility of John and his witnesses; (2) the trial court erred in not granting John custody of his children; and (3) the trial court erred in finding that it lacked authority to order visitation. Finding error, we affirm in part and reverse and remand in part.

FACTS

¶2. John and Angela were married in 1991 in Cedar County, Nebraska. They had three children during their marriage: Sarah, Katherine, and Erin. In April 2007, John moved to Ridgeland, Mississippi after he obtained a position with Cellular South. Angela and the three children remained in Nebraska until the end of the school year; they then followed John to Mississippi. The Benals bought a house in Ridgeland, and stayed together until John filed a complaint for divorce in December 2007 in the Madison County Chancery Court based upon habitual cruel and inhuman treatment and irreconcilable differences.

¶ 3. After being served with process, Angela took the three children and returned to Nebraska. She then filed a divorce action against John in Nebraska. However, the Nebraska court refused to hear Angela’s action due to the pending action in Madison County, Mississippi. Thereafter, John withdrew his complaint for a fault-based divorce, and John and Angela entered a complaint for divorce based upon irreconcilable differences. They submitted four issues to the trial court to determine: (1) custody of their three children, (2) division of the marital assets, (3) liability for payment of marital debts, and (4) use of the marital home and furnishings. After conducting a hearing in which John, his mother, his brother, and Angela testified, the chancellor awarded Angela sole physical and legal custody of the three children.

STANDARD OF REVIEW

¶ 4. “[The appellate court] will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Chapel v. Chapel, 876 So.2d 290, 292(¶ 8) (Miss.2004) (citations omitted). Under this standard of review, our purpose is to determine whether the chancellor’s ruling was supported by credible evidence, not whether we agree with that ruling. Lee v. Lee, 798 So.2d 1284, 1290(¶ 22) (Miss.2001).

DISCUSSION

I. CUSTODY OF THE CHILDREN

¶ 5. “[T]he polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Albright, the Mississippi Supreme Court established a list of factors that a chancellor must consider when determining which parent should be awarded primary custody of a child. The factors used to determine the child’s best interests are: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; (4) the employment of the parent and the responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment; and (11) other factors relevant to the parent-child relationship. Id.

¶ 6. John argues the chancellor erred in finding that the following factors favor Angela: (1) age, health, and sex of the children; (2) continuity of care; (3) home, school, and community record of the children; and (4) stability of the home environment. John also argues on appeal the chancellor erred when she found his parenting skills were only slightly favorable to Angela’s. Finally, John claims the chancellor erred in finding that the will and capacity to provide primary childcare and the responsibility of employment factors favored neither party.

A. Age, Health, and Sex of the Children

¶ 7. The chancellor found that this factor favored Angela. John argues that the chancellor improperly applied the “tender years” doctrine, discriminated against him based upon his gender, and placed too much emphasis on the gender of the children. He argues that he is as equally qualified as Angela to raise their children.

¶ 8. “The tender years doctrine is a presumption that in all cases where any child is of such tender age as to require the mother’s care for [the child’s] physical welfare, [he or she] should be awarded to her custody, at least until [he or she] reaches that age and maturity where [the child] can be equally well cared for by other persons.” Gilliland v. Gilliland, 969 So.2d 56, 66(¶ 32) (Miss.Ct.App.2007) (citation and internal quotations omitted). “The ‘tender years’ doctrine has not been completely abandoned by our court, but age is merely one factor to be considered in a best-interest analysis.” Masino v. Masino, 829 So.2d 1267, 1271(¶ 15) (Miss.Ct.App.2002).

¶ 9. The supreme court has held that a child of seven years of age is long past the age prior to which he or she requires attention of such a character from the mother. Mayfield v. Mayfield, 956 So.2d 337, 342(¶ 11) (Miss.Ct.App.2007). At the time of the hearing, John and Angela’s children were fourteen, eleven, and eight years old, making the “tender years” doctrine inapplicable.

¶ 10. Upon our review of the record, the chancellor did not apply the tender years doctrine. The chancellor does not mention the tender years doctrine anywhere in her opinion and final judgment. Moreover, we do not find the chancellor discriminated against John based upon his gender or placed too much emphasis on the gender of the children.

¶ 11. On the contrary, the chancellor cited Parker v. South, 913 So.2d 339 (Miss.Ct.App.2005) as the basis for her decision. In Parker, a father was seeking custody of his nine-year-old son. Id. at 341(¶ 1). This Court found that a chancellor did not err in finding that the age, health, and sex factor in favor of the father based upon the implicit fact that “a young male will need the guidance and care of his father as he matures.” Id. at 348(¶ 29).

¶ 12. Similar to a son needing the guidance and care of his father as he matures, daughters will often need the guidance and care of their mothers as they mature. See id. Also, “there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750(¶ 9) (Miss.Ct.App.2002) (quoting Hollon v. Hollon, 784 So.2d 943, 947(¶ 14) (Miss.2001)).

¶ 13. Additionally, in the case at bar, although not entered into evidence, there was testimony that two of the children had expressed their desire to live with Angela. Given their desire, coupled with the instruction that Mississippi courts should attempt to keep children together, we do not find that the chancellor manifestly erred in weighing this factor in favor of Angela.

B. Continuity of Care

¶ 14. John argues the chancellor erred when she found that this factor strongly favored Angela. John claims he provided continuous care for his children while they were living with him in Nebraska and Mississippi. He supports his argument by pointing out that he stayed in contact with his children after they moved back to Nebraska through telephone calls, e-mails, and Internet-chat sessions.

¶ 15. The chancellor found that Angela had been a more constant factor in the girls’ lives. Angela was a stay-at-home mother while the family resided in Nebraska. She was employed on two separate occasions in Nebraska with part-time jobs, one lasting from the time John was let-go from one job until he found employment elsewhere. When John moved to Mississippi, Amgela stayed with the children until their school year was completed. Moreover, since John and Angela’s separation, the children have resided with Angela in Nebraska. Accordingly, we do not find that the chancellor erred in weighing this factor strongly in favor of Angela.

C. Parenting Skills

¶ 16. John argues the chancellor should have found that this factor strongly favored him, rather than only slightly favoring him. John claims he was more involved in his children’s sehoolwork and extracurricular activities than Angela. Additionally, he prepared most of the family’s dinners.

¶ 17. Angela admitted that John was very involved in the children’s lives. John testified that he helped and tutored his children regarding their sehoolwork, and he assisted them with their science projects. John also testified that he learned to play with Barbies and to have tea parties with his girls. John taught them how to play golf and referee football and basketball games. John claimed he was very involved in the parent-teacher association (PTA) and with his children’s teachers. Lastly, John testified that he did the majority of the disciplining in his house by denying and restricting the children’s access to television and the Internet.

¶ 18. Angela stated that John’s characterization, during his testimony, of his involvement was slightly exaggerated. While John may have attended a few PTA meetings, he was not an active member of the group. Additionally, Angela, and not John, prepared most of the family meals at night. Angela stated John’s involvement with the cooking was preparing breakfast on Saturday mornings and helping prepare meals and clean up on holidays and other family gatherings. Much like John, Angela ensured their children completed their homework, and she would quiz them periodically. While the family resided in Mississippi, Angela took two of the children to school each morning, and John took one.

¶ 19. Given that John was somewhat more involved in the children’s sehoolwork and their extracurricular activities, we find the chancellor did not err in weighing this factor slightly in favor of John.

D. Willingness and Capacity to Provide Primary Care

¶ 20. John argues the chancellor erred in not weighing this factor in his favor. John had previously taught gifted children in the Nebraska public school system, which he argues, gives him the ability to help with his children’s sehoolwork better than Angela could. His house in Mississippi was much larger and more suitable for the children than Angela’s apartment in Nebraska. Lastly, John argues that he could better support his children financially than Angela.

¶ 21. We do not find the chancellor was erroneous in her finding that this factor favored neither parent. Both parents were employed at the time of the hearing. Both parents were petitioning the court for custody, which evidences a willingness to provide primary care. Moreover, both John’s and Angela’s extended families resided close to Angela’s apartment in Nebraska; neither parent’s family lived in Mississippi. Accordingly, we find that the chancellor did not err.

E. Employment Responsibilities and Stability of Employment

¶22. John argues that the chancellor should have found that this factor weighed in his favor. John is currently employed as a project manager at Cellular South. He works from 8:00 a.m. to 5:00 p.m. each day, Monday through Friday, with weekends and all major holidays off from work. He testified that he thoroughly enjoys his job. To the contrary, Angela was only employed in temporary positions while the family resided in Nebraska. She did not work while the family was in Mississippi, and at the time of the hearing, she had been employed as a customer service representative for only a few months. This evidence, John argues, shows the chancellor was in error by finding this factor favored neither parent.

¶ 23. Angela testified that, while the family lived in Nebraska, John had several jobs. She also stated that she once worked in a temporary position when John was fired from a job, and she stayed in that temporary position until John was hired at another company. Angela also worked at another temporary job in Nebraska up until the time she moved to Mississippi. She testified that when she moved to Mississippi that John discouraged her from accepting a job offer with Comcast. Since Angela has returned to Nebraska, she has been working as a customer service representative.

¶ 24. Upon our review of the record, we find that the chancellor was correct in holding that this factor favored neither party. The evidence showed that both parents have held a variety of jobs, some longer than others. While John’s current job is a higher paying and more stable position, Angela stated that her job allows her to be home shortly after the children arrive home from school. Therefore, we find the chancellor did not err in weighing this in favor of neither parent.

F. Home, School, Community Record of the Children

¶ 25. John argues the chancellor erred in weighing this factor strongly in favor of Angela. He argues this factor should have been weighed in his favor; the children were making excellent grades in Mississippi, involved in extracurricular activities, and making new friends. Moreover, John claims that his house in Mississippi is more conducive to the children because it has a swimming pool, and each child had her own room, while Angela is living in an apartment in Nebraska. John also points out that Angela’s two brothers, who visited their home in Nebraska for special occasions, were both charged with sex-related crimes, which led to one conviction. Lastly, John argues he ensured that his children attended church and encouraged them to become involved in church youth groups.

¶ 26. Prior to the family moving to Mississippi, the family had lived in Nebraska for ten years. The children made excellent grades in school while in Nebraska, and they were involved in extracurricular activities. There was testimony that Sarah, the oldest child, was having trouble adjusting to her new school and community in Mississippi. Additionally, John’s and Angela’s parents and relatives live in or near Nebraska, which could provide a support group if needed. There was no evidence presented that John or Angela had any relatives near Mississippi. There was also evidence that the children were involved in a church in Nebraska, with Erin, the youngest child, having her first communion in Nebraska after John and Angela’s separation.

¶ 27. Because the children had lived in Nebraska for ten years prior to them moving to Mississippi, where they had stayed for approximately six months, and John and Angela both had parents and relatives in or near their home in Nebraska, we find the chancellor did not err in finding this factor strongly favored Angela.

G. Stability of the Home Environment

¶ 28. The chancellor found that this factor weighed in favor of Angela based on the fact that John’s ties to the community in Mississippi are minimal, while Angela had her relatives as well as the connections she had made in the ten years she had lived in Nebraska. John argues that his home is more stable than Angela’s, and the chancellor should have awarded him this factor.

¶ 29. John claims the chancellor was in error in finding that his ties to the community were minimal. He testified that he loved his community, his job, and was very active in his church. John again points to Angela brothers’ criminal problems to support his argument, claiming that her brothers pose a threat to the children.

¶ 30. Contrary to John’s assertions, Angela testified that John only occasionally attended church with the family while they lived in Mississippi. Angela also testified about two troubling episodes. In November 2006, John threatened to kill himself with a knife in front of the children. After a neighbor called 911, John was taken to the mental ward at a local hospital for treatment. Angela also testified that, after the couple had an argument, John went to their basement and placed a gun to his head. John stopped when Sarah came down to the basement. Angela was not sure if Sarah had seen John with the gun to his head.

¶ 31. There was no evidence presented that called into question the stability of Angela’s home. Accordingly, we find that the chancellor did not err in finding this factor favored Angela. This issue is without merit.

II. CREDIBILITY OF JOHN AND HIS WITNESSES

¶ 32. John argues the trial court erred in discounting his testimony and the testimonies of his mother and brother that John was the primary caretaker of the children. The chancellor found that John’s statements, along with his mother’s and brother’s statements that John “did absolutely everything for the family while Angela made no contributions, raised suspicions as to their credibility.” John claims this finding is not supported by substantial evidence.

¶ 33. “As the sole trier of fact, the chancellor determines the credibility of the witnesses and what weight to give to the evidence.” Griffith v. Griffith, 997 So.2d 218, 223(¶ 17) (Miss.Ct.App.2008). Given our deferential standard of review provided to a chancellor’s determination of the credibility of the witnesses, and based on our review of the facts in this case, we find that this issue lacks merit.

III. AUTHORITY TO ORDER VISITATION

¶ 34. The chancellor found that she lacked the authority to order specific visitation because it was not an issue that was submitted to the court by the parties for determination. The trial court stated that it could “only decide issues jointly submitted unto it.”

¶ 35. John argues the trial court erred in not ordering a specific visitation schedule. As stated above, John and Angela submitted the issue of custody to the court for it to decide. John argues that in requesting the trial court to determine custody, he and Angela were implicitly requesting the trial court to order specific visitation.

¶ 36. Pursuant to Mississippi Code Annotated section 93-5-2(3) (Supp.2008), the trial court must review a separation agreement and find it to be “adequate and sufficient” with regard to the custody and maintenance of any child and the property rights between the parties.

¶ 37. In Lowrey v. Lowrey, 919 So.2d 1112 (Miss.Ct.App.2005), this Court addressed whether a separation agreement was adequate and sufficient under the statute. Relevant to the issue at hand, the separation agreement in Lowrey provided that, the husband would be awarded legal and physical custody of the children, his wife would receive “reasonable visitation rights with the minor children conditioned on reasonable time line notice of 48 hours” to the husband, and the wife would receive “further visitation rights with the minor children as may be reasonable under all relevant circumstances, and which may be agreed upon” by the parents. Id. at 1115(¶ 6) (internal quotation omitted). Upon reviewing the separation agreement, this Court found that the separation agreement was not adequate and sufficient under Mississippi Code Annotated section 93-5-2 because it provided the children no specific visitation period with their mother, formerly the primary caregiver of the children, and thus “was not in the best interest of the children.” Id. at 1120(¶ 32).

¶ 38. Turning to the case at hand, we find the chancellor erred in not ordering a specific visitation schedule. Although Mississippi Code Annotated section 93-5-2 does not explicitly state that visitation must be agreed upon by the parties or adjudicated by the court before an irreconcilable differences divorce is granted, we find that it is implicit in the statute’s language that visitation must be addressed if the issue of custody is submitted to the trial court for resolution.

¶ 39. Additionally, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) defines “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” Miss.Code Ann. § 93-27-102(c)(Rev.2004). While Mississippi has not expounded on this definition, other states have interrupted this language. The Texas Court of Appeals has stated that, under the UCCJEA, “child custody determination” means “custody of a child, including visitation rights.” Coots v. Leonard, 959 S.W.2d 299, 302 (Tex.Ct.App.1997).

¶ 40. It only seems logical that when a court grants custody to one parent, they must address whether the non-custodial parent gets visitation and to what extent. Accordingly, we reverse the chancellor’s judgment and remand this case with instructions that the trial court order a specific visitation schedule.

¶ 41. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . See Owens v. Owens, 950 So.2d 202, 207(¶ 15) (Miss.Ct.App.2006).

      . John does not challenge the chancellor’s finding on the remaining Albright factors.


source: Caselaw Access Project

author: GRIFFIS, J,

license: Public Domain

text:
    William Henry WHITE a/k/a William White, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01885-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.

      William Henry White, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J, IRVING and GRIFFIS, JJ.
   GRIFFIS, J,

for the Court.

¶ 1. William Henry White appeals the circuit court’s denial of his motion for post-conviction collateral relief. He claims that: (1) the circuit court improperly re-sentenced him after his initial sentence had been imposed, thus, violating the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution; (2) the circuit court failed to conduct a hearing before re-sentencing; and (3) he received ineffective assistance of counsel. We find that White’s first two issues are procedurally barred because they are raised for the first time on appeal. We find no merit in White’s third issue. Accordingly, the judgment of the circuit court is affirmed.

FACTS

¶ 2. On October 19, 2004, White entered a guilty plea to burglary of a dwelling. He appeared before the circuit judge who conducted White’s plea colloquy. White was aided by his attorney throughout the proceeding. White was informed of the various constitutional rights that he was waiving by entering a guilty plea. White affirmatively answered that he understood his waiver of these rights. He admitted that he was guilty of the crime charged. The circuit judge accepted White’s guilty plea after finding that White’s plea was knowingly and voluntarily made and that there was a factual basis to support the charge. White was sentenced to ten years in the custody of the Mississippi Department of Corrections.

¶ 3. After his sentencing was completed, White took a seat in the courtroom while the circuit judge heard a subsequent plea by another defendant. White began to make comments in the background during the proceedings. The circuit judge cautioned White that he should keep quiet during the remainder of the proceedings. After White’s third outburst, the circuit judge gave White the following admonishment:

THE COURT: Excuse me. Mr. White, if you open your mouth one more time, I’m going to resentence you. You can have the rest of your years.
(Comments still being made by Defendant William Henry White).
THE COURT: Do you understand me? [Did] you hear what I said? If you open up your mouth one more time, [if] you say anything else before we finish with these proceedings — now we’re going to send you back to the jail. But, I’m going to take you back in here, and since you don’t appreciate me giving you ten years, I’ll give you the twenty-five. And then I’ll have them to take you immediately out of here. Just let your mouth fly open.
(Comments by Defendant William Henry White still being made).

¶ 4. White continued to make repeated comments about how he wanted to return to the jail. When the circuit judge again ordered White to be quiet, White responded: “It don’t matter, ten or twenty-five. It don’t matter, [sic]” White was later called back to the bench, and in the presence of his attorney, he was resentenced to the maximum sentence of twenty-five years.

¶ 5. On October 22, 2007, White filed his motion for post-conviction collateral relief. Such motion was summarily denied by the circuit court.

STANDARD OF REVIEW

¶ 6. A trial court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 7. Before we reach the issues in this case, we must discuss two procedural bars raised by the State that we find inapplicable here. First, the State argues that White’s claims must fail because the record is incomplete. While it is true that White failed to include a copy of his motion for post-conviction collateral relief in the official record, he did attach a copy of that motion to his brief on appeal.

¶ 8. The State cites numerous cases for the proposition that this Court cannot venture outside of the record and base our decision on mere assertions made in the briefs. However, our review of the procedural history in this case is not based on White’s assertions in his brief. We review the copy of the motion, which is stamped filed in the circuit court, just as we would if it had been included in the official record. Further, the issues contained in the motion are fully supported by the official record in the form of the circuit court’s detailed order denying the motion. Keeping in mind that “pro se litigants are afforded some leniency,” see Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss.2008), we find that this error does not bar White’s appeal.

¶ 9. Second, the State claims that White’s motion for post-conviction collateral relief is time-barred under Mississippi Code Annotated section 99-39-5(2) (Rev. 2007) because it was filed three days after the three-year statute of limitations expired. However, the prison-mailbox rule states that “a pro se prisoner’s motion for post-conviction relief is delivered for filing under the [Mississippi Uniform Post-Conviction Collateral Relief Act] and the Mississippi Rules of Civil Procedure when the prisoner delivers the papers to prison authorities for mailing.” Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). White’s motion was signed and notarized on October 18, 2007—one day prior to the expiration of the statute of limitations.

¶ 10. While the notary stamp alone is insufficient proof of when the motion was presented for mailing, we have previously held that it is the State’s burden to prove that the prisoner’s motion was not filed timely under the prison-mailbox rule. Gaston v. State, 817 So.2d 613, 616 (¶ 6) (Miss.Ct.App.2002); see also Melton v. State, 930 So.2d 452, 455 (¶ 8) (Miss.Ct.App.2006). Here, just as in Gaston, the State has provided no evidence of the date of mailing. Gaston, 817 So.2d at 616 (¶ 6). Because the State has failed to prove that White did not present his motion to the prison for mailing on the same day that it was signed and notarized, we find that White’s motion was filed timely. Thus, we now address the merits of White’s claims on appeal.

1. Whether the circuit court improperly resentenced him after his initial sentence had been imposed in violation of the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution.

¶ 11. White claims that the circuit court’s re-sentencing amounted to double jeopardy because he was sentenced twice for the same crime. As the State argues, this issue is procedurally barred because it was not raised in White’s motion for post-conviction collateral relief, which was filed with the circuit court. White’s sole claims in that motion were: (1) his plea was involuntary because his counsel lied and told him he would receive only an eight-year sentence and (2) his counsel was ineffective. Accordingly, White is procedurally barred from raising this new issue for the first time on appeal. Bates v. State, 914 So.2d 297, 299 (¶ 6) (Miss.Ct.App.2005) (citing Miss.Code Ann. § 99—39—21(1)(2) (Rev.2000)).

¶ 12. Notwithstanding the procedural bar, White’s claim is without merit. The circuit judge did not sentence White a second time for the same crime; instead, the circuit judge exercised her “ ‘inherent authority’ to alter a sentence until [the] regular term of court expires.” Leverette v. State, 812 So.2d 241, 244 (¶ 11) (Miss.Ct.App.2002) (citing Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997)). See also Ales v. State, 921 So.2d 1284, 1286 (¶ 9) (Miss.Ct.App.2006) (holding that the amendment of a defendant’s sentence is within the circuit court’s jurisdiction if done before the expiration of the same term of court); Pegues v. State, 840 So.2d 721, 726 (¶ 19) (Miss.Ct.App.2002) (defendant’s sentence altered after defendant’s skirmish with courtroom deputies). Accordingly, this issue is without merit.

2. Whether the circuit court failed to conduct a hearing before re-sentencing White.

¶ 13. White next argues that the circuit court should have conducted another hearing under Rule 8.04 of the Uniform Rules of Circuit and County Court to determine the voluntariness of his guilty plea before changing his sentence. Again, this issue is procedurally barred as it was not raised in White’s motion for post-conviction collateral relief. Bates, 914 So.2d at 299 (¶ 6).

¶ 14. Procedural bar aside, there is no merit to White’s argument. White did not enter a separate guilty plea for which another hearing under Rule 8.04 was necessary. The circuit court had already accepted White’s guilty plea as voluntarily and knowingly entered. White was specifically informed that the circuit judge had the authority to sentence him to the maximum sentence of twenty-five years. He acknowledged this and affirmatively entered his plea. The circuit court’s amendment of his sentence did nothing to change White’s testimony or the circuit court’s finding that his plea was knowingly and voluntarily entered. Thus, this issue has no merit.

3. Whether White received ineffective assistance of counsel.

¶ 15. Finally, White claims that his counsel was ineffective because counsel did nothing to assist him when he was called back to the bench for the amendment of his sentence. To prove ineffective assistance of counsel, White must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with White to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, White 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.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 16. White has failed to prove any deficiency on the part of his counsel. His only claim is that his counsel did nothing while the circuit court changed his sentence. However, as discussed above, this alteration of his sentence was within the inherent power of the circuit court. Because White fails to prove the first prong of the Strickland test, his claim for ineffective assistance must fail. Therefore, this issue has no merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.


author: IRVING, J.,

text:
    Roderick HOOKS a/k/a Roderick D. Hooks, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01448-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.

      Roderick Hooks, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, Attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Four months after pleading guilty in the Lincoln County Circuit Court to the crime of statutory rape, Roderick D. Hooks filed a motion for a reduction of sentence, which was treated by the circuit court as a motion for post-conviction relief (PCR) and summarily denied. Approximately two years later, Hooks filed a PCR motion, which also was summarily denied by the circuit court. Feeling aggrieved, Hooks appeals and asserts that the court erred in denying his latter motion because he possessed newly-discovered evidence of his innocence.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On September 16, 2005, Hooks pleaded guilty in the Lincoln County Circuit Court to the crime of statutory rape. The circuit court sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, with eight years to serve and seven years of post-release supervision. On January 10, 2006, Hooks filed a motion, requesting a reduction of his sentence. The motion stated, inter alia, that the victim had told Hooks that she was nineteen years of age. In support of the motion, Hooks attached an affidavit of a Phyllis Henderson. The affidavit stated, without elaborating, that the affiant believed that Hooks should not have to serve any time. As stated, the circuit court treated the motion as a motion for post-conviction relief and denied it on January 18, 2006.

¶ 4. On June 29, 2006, the circuit court issued a three-page order denying Hooks’s PCR motion. This order specifically found that Hooks’s plea was entered voluntarily and that he was not rendered ineffective assistance of counsel.

¶ 5. On January 22, 2008, Hooks filed a PCR motion in which he alleged that his victim, via an affidavit, had recanted. This motion was based on alleged newly-discovered evidence in the form of two affidavits. The first affidavit was from his victim, and the second was from his victim’s mother. The victim’s affidavit stated that the victim misrepresented herself to Hooks as older than she actually was, while the mother’s affidavit stated that the victim had a habit of misrepresenting her age and that this could be misleading if the person did not personally know the victim. However, neither affidavit stated that the sexual encounter between Hook and the victim did not take place.

¶ 6. On August 19, 2008, the circuit court denied the relief requested by Hooks on the basis that Hooks’s 2008 PCR motion was barred as a successive writ. The court found that all of Hooks’s contentions had been addressed in his previous PCR motion.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. When reviewing a trial court’s denial of a PCR motion, we “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised!,] the applicable standard of review is de novo.” Moore v. State, 986 So.2d 928, 932(13) (Miss.2008) (quoting Callins v. State, 975 So.2d 219, 222(8) (Miss.2008)).

¶ 9. We find that Hooks’s motion was properly denied by the circuit court as a successive writ. In his appeal, Hooks essentially raises two arguments: first, that his motion was dismissed even though he had newly-discovered evidence, and second, that his plea was involuntary and that he received ineffective assistance of counsel. Hooks requests that his conviction be vacated or, in the alternative, that he be granted an evidentiary hearing.

¶ 10. We find that the court was correct in finding that the two affidavits presented by Hooks do not constitute newly-discovered evidence. The law is clear in this state that “neither consent nor ‘mistake of age’ is a defense to capital or statutory rape.” Daniels v. State, 742 So.2d 1140, 1144(12) (Miss.1999) (quoting Collins v. State, 691 So.2d 918, 920 (Miss.1997)). In order to support the overturning of a conviction, newly-discovered evidence must be “of such nature that [it] would be practically conclusive that it would cause a different result.” In re Hill, 460 So.2d 792, 796 (Miss.1984) (quoting Lang v. State, 230 Miss. 147, 171-72, 92 So.2d 670, 675-76 (1957)). Therefore, even if the affidavits were new evidence, they would not constitute newly-discovered evidence sufficient to cause a different result in Hooks’s conviction. Hooks’s contentions that the affidavits constitute newly-discovered evidence are wholly without merit.

¶ 11. Mississippi Code Annotated section 99-39-23(6) (Supp.2009) bars successive PCR motions:

The order ... dismissing the prisoner’s motion or otherwise denying relief under [the Mississippi Uniform Post-Conviction Collateral Relief Act] is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under the [the Mississippi Uniform Post-Conviction Collateral Relief Act]. Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the offender’s supervening mental illness.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Although Hooks’s motion for reduction of sentence, which was filed on January 10, 2006, was not styled as a PCR motion, it was treated as such, as the matter raised in it could only be addressed at that time via a motion for post-conviction relief. Therefore, the PCR motion filed by Hooks on January 22, 2008, was a second or successive motion that is barred by section 99 — 39—28(6). Nothing else raised in Hooks’s January 22 PCR motion would overcome the successive-writ bar in section 99-39-23(6). Even if we did not consider Hooks’s motion for reduction of sentence as a PCR motion, thereby allowing the January 22, 2008, PCR motion to be treated as the first PCR motion, we still would find that the circuit court properly denied the motion. That would still be the end result, because the two additional claims raised by Hooks — his plea was involuntary, and his counsel was ineffective — are based on Hooks’s mistaken notion that having sexual intercourse with a child beneath the age of consent is not statutory rape if the child misled him regarding her age. Therefore, Hooks’s issues, even if considered on the merits, do not require that any relief be granted. We can discern no basis for reversing the circuit court’s denial of relief to Hooks. Therefore, we affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . The victim’s mother’s name is Phyllis Harris. However, it is not clear from the record whether Phyllis Henderson and Phyllis Harris are one and the same person.

      . The record does not reflect that Hooks filed any additional pleading between January 18, 2006, and June 29, 2006, to necessitate the issuance of this order.

      . There is an order in the record dated June 29, 2006, denying a PCR motion allegedly filed by Hooks. The order does not make reference to any specific PCR motion. After scouring the record, we are unable to find any PCR motion filed between the date of the filing of the motion for reduction of sentence on January 6, 2006, and June 29, 2006, the date of the second order denying post-conviction relief. The January 6 motion was denied on January 18, just twelve days after its filing.


author: LEE, P.J., CARLTON, J.,

text:
    Cynthia G. OWEN, Appellant, v. William Shurden OWEN, Appellee.
    No. 2008-CA-00734-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      David M. Sessums, Vicksburg, attorney for appellant.
    Steven Todd Jeffreys, attorney for ap-pellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Cynthia G. Owen (Cindy) and William Shurden Owen (Shurden) were married on August 5, 1989, and were granted a divorce in the Sunflower County Chancery Court on May 23, 2007. One child, Meredith, was born of the marriage on March 16, 1995. The divorce was granted on the ground of irreconcilable differences, and the parties agreed that Cindy would be given primary custody of Meredith with reasonable visitation rights given to Shur-den. Alimony, child support, and the distribution of the marital assets were left for the chancellor to decide.

¶ 2. Aggrieved with the chancellor’s decision, Cindy now appeals, asserting the following issues: (1) the chancellor erred in the distribution of the marital assets; (2) the chancellor erred in not awarding her alimony; (3) the chancellor set the child support too low; and (4) the chancellor erred in failing to award her reasonable attorney’s fees and costs. Finding no reversible error, we affirm the chancellor’s judgment.

FACTS

¶ 3. After Shurden and Cindy were married in 1989, they moved to Drew, Mississippi where Shurden began a farming operation. Cindy assisted with the bookkeeping for the farming business and worked various jobs at healthcare facilities after Meredith was born. The couple divorced in 2007, but there is conflicting testimony as to when the parties separated. Shurden testified that the separation occurred in October 2005. Cindy testified that the separation occurred in July 2006, but she acknowledged that Shurden was away from home from October 2005 through May 2006. Thus, the chancellor concluded that the separation occurred in October 2005. At the time of trial, Cindy lived in an apartment in Ridgeland, Mississippi, and Shurden lived in the marital home, which is owned by the Shurden Land Partnership. Other relevant facts concerning the marriage will be discussed in our analysis below.

STANDARD OF REVIEW

¶ 4. Our standard of review in chancery matters is well settled. This Court will not reverse a decision of a chancellor unless the chancellor’s findings were clearly erroneous, manifestly wrong, or the chancellor applied an erroneous legal standard. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000). “A chancellor’s decision will be upheld if it is supported by substantial credible evidence.” Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994).

DISCUSSION

I.DISTRIBUTION OF MARITAL ASSETS

¶ 5. In making an equitable distribution of marital assets, chancellors are directed to consider the following factors as set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994):

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as.follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The 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.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Assets acquired or accumulated during the marriage are subject to equitable division unless they are characterized as separate property. Johnson v. Johnson, 823 So.2d 1156, 1161(¶ 11) (Miss.2002). The chancellor is not required to consider all eight Ferguson factors but “may consider only those factors he [or she] finds ‘applicable’ to the property in question.” Owen v. Owen, 798 So.2d 394, 399(¶ 13) (Miss.2001) (quoting Carrow v. Carrow, 741 So.2d 200, 202(¶ 10) (Miss.1999)).

¶ 6. The chancellor identified the following items as marital property: certain items of personal property and household items identified by the parties; eighty acres of farmland, which is encumbered by long-term debt in connection with Shur-den’s farming operation; two shares of stock in a hunting-conservation league valued at approximately $90,000; a 2005 Ford F-250 vehicle worth approximately $20,000; a 2005 Ford Excursion vehicle worth $27,500 with an outstanding balance of $12,500; Cindy’s retirement account with an approximate balance of $15,000; a whole life insurance policy with a face value of $150,000 and a cash value between $6,000 and $7,000; a $1,000,000 term life insurance policy in which Cindy is the beneficiary; and $93,000 in debt. The chancellor found that the following items were non-marital property: Shurden’s interest in the Shurden Land Partnership, including the land and structures owned by the partnership; and Cindy’s collection of jewelry valued at approximately $50,000 that was given as gifts to her by Shurden.

¶7. In the division of the property, Shurden was awarded all of the assets of the Shurden Land Partnership; his individual ownership of the eighty acres of land; and the parties’ interest in several shell entities set up during the marriage for the purpose of obtaining tax subsidies: W & C Owen Partnership; Owen Planting Company Partnership; S & T Farms, Inc.; and S & H Farms, Inc. Shurden also retained ownership of the former marital home, land, and all the farming equipment. Cindy was awarded her jewelry, some furniture, $7,000 in the cash value of a life insurance policy on Shurden, and $90,000 in the form of Shurden’s liquidation of his shares of the hunting-camp stock.

¶ 8. The chancellor found that both parties contributed to the accumulation of the marital property and debt. Cindy was primarily responsible for the household and childcare duties. During the marriage, the couple accumulated $93,000 in credit card debt. Although Cindy admitted making these charges, the chancellor noted that the burden of this debt did not fall completely on Cindy because Shurden did not step in to cancel the credit cards or otherwise take control of Cindy’s spending.

¶ 9. Shurden inherited a 19.12% undivided interest in the Shurden Land Partnership when his mother passed away in 1998. The land partnership owned the marital home; a cabin in Gore Springs, Mississippi; and a house on Highway 49 in Drew, Mississippi. Both parties made improvements to the marital home. Cindy testified that her parents spent approximately $75,000 making improvements to the house on Highway 49 in anticipation of one day living in the home, but those plans dissolved when Cindy and Shurden separated. Cindy’s parents also gave Cindy approximately $36,000 for a swimming pool that was installed at the marital home.

¶ 10. The chancellor found that Shur-den’s interest in the Shurden Land Partnership was an asset that was not ordinarily subject to equitable division. However, the chancellor recognized that the land partnership, although totally encumbered by debt, had intrinsic value to Shurden because it gives him the use and benefit of the land and structures owned by it. The eighty acres awarded to Shurden are also entirely encumbered by debt and cannot be liquidated for the purposes of equitable distribution.

¶ 11. The chancellor ordered Shurden to take the proper action to sell or transfer the shares of hunting-camp stock valued at approximately $90,000 with the proceeds to be given to Cindy. If unable to liquidate the stock within six months, Shurden must make payments of $15,000 every six months for three years. Shurden is also responsible for the $93,000 in credit card debt. Shurden must also complete the payments for the vehicle that Cindy drives and pay for the insurance on the vehicle until the vehicle is paid off. Cindy must transfer her interest in the farming operations to Shurden.

¶ 12. The chancellor found that this division of marital property eliminated the need for periodic alimony and thus would reduce a source of future friction between the parties. After reviewing the facts, we agree that the chancellor’s division of the property was equitable. The division leaves Cindy with approximately $100,000 in cash or cash equivalents and no debt. While Shurden assumes all the marital debt, Shurden continues to receive his trust income and has the continued use and benefit of the assets of the Shurden Land Partnership. Having found that the chancellor’s division of property was equitable, we find that this issue is without merit.

II. ALIMONY

¶ 13. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court outlined the factors a court should consider when making a general award of 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.

“Whether to award alimony, and the amount to be awarded, are largely within the discretion of the chancellor.” Cherry v. Cherry, 593 So.2d 13, 19 (Miss.1991). “If 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.” Tynes v. Tynes, 860 So.2d 325, 328(¶ 6) (Miss.Ct.App.2003) (quoting Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)).

¶ 14. At the time of trial, Cindy was forty-two years old, and Shurden was forty years old. Both parties are in relatively good health. The couple was married for approximately eighteen years. Cindy has a nursing degree and a radiology associates degree. At the time of trial, Cindy made $28,639 a year, or $2,386 a month. She lives in an apartment, and she anticipates that her monthly expenses when she buys a house will be $6,894. This figure includes expenses that she thinks are necessary to maintain her previous standard of living. Cindy testified that she works for the State of Mississippi as a utility investigator, and she has no plans to seek other employment or to retire.

¶ 15. Shurden completed some college, but he does not have a college degree. Shurden receives $50,000 annually from a trust. Conflicting testimony was presented regarding Shurden’s farming income. Testimony was presented on behalf of Cindy by E.A. Buckner III, a certified public accountant, that Shurden’s average adjusted gross income was $102,854. However, Buckner admitted that this figure was based on Cindy and Shurden’s joint tax returns and that Cindy’s income would need to be subtracted to calculate Shur-den’s income. Buckner also admitted that losses from the farming operations were not taken into account. He also admitted that other amounts of which he was unaware when he made his calculations should have been subtracted before determining Shurden’s income, such as two erroneous trust distributions in 2001 and 2002. Louis Jackson, a certified public accountant, prepared a financial statement for Shurden for the divorce proceedings. Jackson testified that once he subtracted Cindy’s income, Shurden’s losses in the farming operation, and the two trust distributions that should not have occurred, Shurden’s average income was approximately $9,000 a year.

¶ 16. As to fault or misconduct, the chancellor found that both parties contributed to the dissolution of the marriage. Cindy admitted that she had a nine-month affair in 1997, which resulted in a fourteen-day separation. Shurden admitted that after Cindy’s affair, he also had a brief affair. Both parties testified that they reconciled after the affairs. Cindy testified that the marriage ended because of Shurden’s drinking and because he left to work on the Mississippi Gulf Coast in the fall of 2005. Shurden testified that he believed Cindy was having an affair in the summer of 2005. He testified that Cindy left the marital home and stayed elsewhere for extended periods of time. He testified that Cindy sometimes drank alcohol to excess and smoked marijuana.

¶ 17. Shurden testified that he thought that he and Cindy were living beyond their means at times during their marriage. Cindy testified that she knew Shurden was concerned with her spending habits. At the time of trial, the couple’s credit card debt totaled $93,000. Cindy testified that she made all the charges, but she did so for the family’s benefit. Cindy had several cosmetic procedures during the marriage. Cindy leased a car for personal use for $1,200 a month through the couple’s farming company, W & C Owen Partnership. Shurden spent money on hunting equipment and hunting trips out West and to South Africa.

¶ 18. The Owens kept up a fairly high standard of living during the marriage and took several vacations a year. Cindy argues that her current standard of living is much lower than Shurden’s current standard of living because she lives in an apartment without cable television, and Shurden still lives in the marital home. However, we note that while Shurden has the benefit of living in the marital home, he retains the debt associated with the residence as well as any other debt owed by the couple at the time of their divorce. Also, as to Cindy’s argument regarding her standard of living, the chancellor noted that certain expenses, such as Cindy’s $1,200 monthly car payment that she requests in the form of alimony, are “totally disproportionate to the parties’ income and that it is time for a dramatic departure from those spending habits.”

¶ 19. We find that the chancellor thoroughly considered the facts, and that her decision was supported by substantial credible evidence. Therefore, we agree that alimony is not necessary as the chancellor’s division of assets adequately provides for both parties. This issue is without merit.

III. CHILD SUPPORT

¶ 20. The chancellor awarded Cindy child support in the amount of $583.33 a month. The chancellor based this calculation on Shurden’s trust fund income of $50,000 a year. Using this amount, Shur-den’s adjusted gross monthly income is $4,166.67, and the chancellor used the statutory guideline of 14% in determining the award of $583.33. Miss.Code Ann. § 43-19-101(1) (Rev.2009). The chancellor also ordered Shurden to pay for the following: a $1,000,000 life insurance policy with Cindy as the primary beneficiary; health insurance for Meredith; half of Meredith’s medical expenses; and reasonable and necessary college tuition and related expenses for Meredith.

¶ 21. Cindy argues that the chancellor’s child support award ignored any income Shurden received from his farming operation. Mississippi Code Annotated section 43 — 19—101(3)(a) (Rev.2009) states that gross income includes “all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, ... income from self[-]employment....” However, we recognize that “[i]t is within the chancellor’s discretion to award child support, and this Court will not reverse that award unless the chancellor was manifestly wrong in the findings of fact or manifestly abused his discretion.” Suber v. Suber, 936 So.2d 945, 948(¶ 6) (Miss.Ct.App.2006) (citing Chesney v. Chesney, 910 So.2d 1057, 1060(¶ 5) (Miss.2005)).

¶ 22. Witnesses presented contradictory testimony regarding Shurden’s income. The chancellor determined Jackson’s method of accounting to be more credible. According to Jackson, Shurden’s trust income minus the losses from the farming operation totaled approximately $9,000. Therefore, the chancellor determined that the best way to calculate Shurden’s income was to not include the farming operation. The chancellor stated that “while Shur-den’s adjusted gross income on average can be characterized as less than $9,000.00 per year, if Shurden quit farming today, he would be able to earn approximately $50,000.00 in trust income.” If Shurden ceased his farming operation and was not able to report a loss, he would still receive the $50,000 annually.

¶ 23. We find that the chancellor’s decision to set child support at $583.33 a month was supported by substantial credible evidence. Basing child support on Shurden’s trust income alone may not seem fair given the standard of living kept during the marriage. It is clear from the record that the family paid for personal expenses out of the farming accounts. However, regardless of whether or not we agree with the chancellor’s assessment of Shurden’s income, we find that the chancellor thoroughly reviewed the conflicting evidence and ruled accordingly. Therefore, we can find no abuse of discretion. Further, the chancellor was correct in her assessment that Shurden and Cindy were living well beyond their means and will have to make adjustments to their lifestyles. Therefore, we find that this issue is without merit.

IV. ATTORNEY’S FEES

¶ 24. At trial, Cindy offered into evidence certain attorney’s fees and other expert witness fees. Cindy’s attorney’s fees totaled $9,704 at the time of trial. Shurden did not object on the basis of authenticity, but he reserved argument on the issue of whether the fees and costs were recoverable by Cindy. The chancellor reviewed the incomes of the parties, the division of assets, and the distribution of debt to the parties and determined that an award of attorney’s fees and costs was not appropriate.

¶ 25. Regarding the award of attorney’s fees, this Court has stated as follows:

The award of attorney’s fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards. The award of court costs is likewise entrusted to the sound discretion of the chancellor. The Mississippi Supreme Court has held that when a party is able to pay attorney’s fees, an award of attorney’s fees is not appropriate. However, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees. The supreme court has also held that consideration of the relative worth of the parties, standing alone, is insufficient. The record must reflect the requesting spouse’s inability to pay his or her own attorney’s fees.

Bates v. Bates, 755 So.2d 478, 482(¶ 11) (Miss.Ct.App.1999) (internal citations and quotation omitted).

¶ 26. Cindy argues that her monthly expenses exceed her income plus child support; thus, she asserts that she has shown an inability to pay her attorney’s fees. She also argues that there is a disparity in the relative financial positions of the parties because Shurden still owns his farming business and land and has guaranteed income from the trust. However, we note that even though Shurden’s income is higher than Cindy’s, Shurden was ordered by the chancellor to pay the marital debt of $98,000. Also, Shurden has yet to pay Cindy the $90,000 from the sale of his hunting-camp stock. Having found that the distribution of marital assets was equitable and that Cindy has not shown an inability to pay her attorney’s fees, we find that this issue is without merit.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH A SEPARATE WRITTEN OPINION.

CARLTON, J.,

Dissenting.

¶ 28. I respectfully dissent with respect to the chancellor’s determination of the award of child support. The record in this case does not substantially support the amount of child support awarded when viewed in light of Mississippi Code Annotated section 48 — 19—101(3) (a) — (b) (Rev. 2009).

¶ 29. I note that the majority affirms the chancellor’s child support award, finding that the chancellor possesses the discretion to award child support, and that award should not be reversed unless the chancellor’s findings of fact were manifestly wrong, or the chancellor manifestly abused her discretion. Suber v. Suber, 936 So.2d 945, 948(¶ 6) (Miss.Ct.App.2006) (citing Chesney v. Chesney, 910 So.2d 1057, 1060(¶ 5) (Miss.2005)). However, I find that the chancellor abused her discretion in failing to comply with section 43-19-101 with respect to determining William Shur-den Owen’s adjusted gross income for child support purposes. Here, the chancellor did not consider the self-employment income Shurden received from his farming operation, and she calculated the amount of child support to be awarded based upon Shurden’s trust income alone.

¶ 30. The record reflects that the family paid personal expenses out of the farming account; therefore, this case reflects a potential co-mingling of business assets and expenses with personal assets and expenses. This Court recognizes that “[generally, self-employment income amounts to gross income less ordinary and reasonable expenses incurred in producing the income.” Faerber v. Faerber, 13 So.3d 853, 864-65(¶ 43) (Miss.Ct.App.2009). In this case, the chancellor failed to conduct such an analysis with respect to Shurden’s self-employment farming income. I would, therefore, reverse the child support award and remand the case to the chancellor for a determination of Shurden’s adjusted gross income in accordance with section 43-19-101(3).

¶ 31. Family household or living expenses are not authorized deductions in calculating net earnings or gross income for self-employment income. Laird v. Blackburn, 788 So.2d 844, 850(¶ 13) (Miss.Ct.App.2001). Additionally, Professor Deborah H. Bell notes that “the court may look to business income and expenses reported on the payor’s tax return as probative, but is not bound by the tax return designations.” Encyclopedia of Mississippi Law § 28:19 (Jeffery Jackson and Mary Miller ed.2001), See Nix v. Nix, 790 So.2d 198, 200(¶ 5) (Miss.2001).

¶ 32. I concur with the majority that the chancellor is granted discretion in determining the award of child support, but I assert that the chancellor must apply the analysis this Court followed in Laird. I, therefore, respectfully dissent. I would reverse the chancellor’s judgment due to the degree that error occurred in the calculation of Shurden’s adjusted gross income, and remand this case to give the chancellor the opportunity to calculate the adjusted gross income in accordance with section 43-19-101(3) in order to determine the proper child support award.


text:
    FOUR THOUSAND EIGHT HUNDRED ONE DOLLARS, Appellant, v. LAFAYETTE COUNTY METRO NARCOTICS UNIT, Appellee.
    No. 2008-CA-02126-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      Kevin W. Frye, Alan T. Alexander, James B. Justice, Oxford, attorneys for appellant.
    Office of the District Attorney by Leilani L. Hill, attorney for appellee.
    BEFORE MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises from the Lafayette County Circuit Court’s order of forfeiture of $4,801 from Derek Nations. Aggrieved by the judgment, Nations appeals and asserts: (1) that a “close proximity” presumption does not apply in this case; (2) that if such a presumption exists, it was rebutted; and (3) that the State did not prove that the seized money was possessed “for the purposes of facilitating an illegal narcotics scheme.”

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Nations was under indictment for selling marijuana on December 2, 2008, when he sold marijuana to a confidential informant working with the Lafayette County Metro Narcotics Unit (LCMNU). Two days later, on December 4, 2008, LCMNU agents went to Nations’s apartment to serve an arrest warrant on him. In the process of arresting Nations, the officers requested and obtained his permission to search his room. The search of the room revealed scales, marijuana, pipes, bongs, pieces of bongs, sandwich bags, and $4,801 in cash. The money was found in five separate locations throughout Nations’s room, including two desk drawers, two jars, and a folder found under Nations’s mattress. The marijuana and paraphernalia were found scattered throughout the bedroom. After locating all of the cash, the LCMNU agents consolidated it into one pile, the total value of which they then ascertained. No effort was made to keep the money in separate piles based on its origin, but the money from each area was counted separately before adding it to the pile. One hundred and forty dollars in recorded bills that had been used by the confidential informant was found, although the LCMNU agents did not ascertain where those bills were found in the room.

¶ 4. Thereafter, on December 8, 2008, Nations filed a petition contesting the forfeiture of the $4,801. Two days later, the State of Mississippi filed a forfeiture action against Nations. After a December 10, 2008, hearing at which multiple witnesses testified, the circuit court ruled in favor of the State. The court found that the money had been “commingled,” such that its origin could not be discerned. It is from that decision that Nations appeals.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. “The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So.2d 407, 410(15) (Miss.1999) (citing Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So.2d 44, 46 (Miss.1991); McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989); Leatherwood v. State, 539 So.2d 1378, 1387 (Miss.1989)). Essentially, we “will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Id. (citing Hickman, 592 So.2d at 46). We remain mindful of the fact that “[forfeiture statutes are penal in nature and must be strictly construed.” Evans v. City of Aberdeen, 926 So.2d 181, 183(5) (Miss.2006) (quoting Evans v. City of Aberdeen, 925 So.2d 850, 853(11) (Miss.Ct.App.2005)).

1. Application of Presumption

¶ 7. Mississippi Code Annotated section 41-29-153(a)(7) (Rev.2009) states, in pertinent part: “All monies, coin and currency found in close proximity to forfei-table controlled substances, [or] to forfeita-ble drug manufacturing or distributing paraphernalia ... are presumed to be for-feitable under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption.” Nations argues that this presumption should not apply in his case because:

the forfeiture statute places the burden on the State to prove the “close proximity” presumption’s applicability ... [and] the State’s failure to properly record these facts in the course of the search makes it impossible for a reasonable fact-finder to say with any degree of certainty that any of the money ... was “in close proximity” to drugs or drug paraphernalia.

¶ 8. There are very few Mississippi cases examining what constitutes “close proximity” in the context of section 41-29-153. However, we find our supreme court’s holding in City of Meridian v. Hodge, 632 So.2d 1309, 1312-13 (Miss.1994) to be instructive:

Although this Court has never interpreted “close proximity” in a forfeiture context, courts in other jurisdictions have done so. In Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985), the court upheld the forfeiture of $8,000 found in a kitchen drawer with boxes of plastic bags and aluminum foil. Other drug paraphernalia was on the table and a vial of cocaine was nearby. Seventeen hundred seventy dollars was also found on a bathroom shelf next to a bag of marijuana. The Arkansas Supreme Court defined “close proximity” as follows:
“In close proximity” simply means “very near.” For that reason it has been said that the meaning of the term in such a statute is to be determined on a case-by-case basis. Bozman v. Office of Finance of Baltimore County, 52 Md.App. 1, 445 A.2d 1073 (Md.App.1982), aff'd 296 Md. 492, 463 A.2d 832 (1983). We agree with that approach and do not mean by this opinion to suggest rigid rules for fixing “close proximity” by a particular number of feet, by reference to particular rooms, or by any rule of thumb. Here the two plastic bags containing $1,770 were next to a bag of marihuana. The $3,000 was in two plastic bags in a kitchen drawer along with boxes of plastic bags and aluminum foil. Other drug paraphernalia were on the kitchen table; the cocaine vial was nearby. We think the preponderance of the evidence places all the money, not merely the $1,770, in close proximity to controlled substances or drug paraphernalia. That being true, all the money is presumed under the statute to be forfeitable. There is no burden on the State to show separately a specific intent that the money is to be used in exchange for drugs, because the statute provides that money found in close proximity to for-feitable articles is “presumed to be forfeitable.”
Limon, 685 S.W.2d at 516-17.
The record in the present case is silent as to the exact location of where the jar was found and its proximity to the marijuana and other drug paraphernalia. Furthermore, the specific dimensions of the trailer were not stated. What is known is that marijuana was maintained and sold in the kitchen and living room. The search warrant authorized a search of the entire trailer, not just the living room and kitchen. Like the Arkansas court, we are not prepared, to define “close proximity” in terms of a measured distance. Neither are we prepared to say that controlled substances anywhere in a residence are considered as a matter of law in “close proximity” to any currency also found in that residence. Thus, we cannot say that the trial court erred in failing to find that the drugs in question were in such close proximity to the cash as to invoke the statutory presumption.
The inference by the trial judge that the overall sum of money comprised of several small bills and change did not constitute drug sale receipts is also a permissible inference. That a different fact-finder might give less weight to this inference because the Hodges were not high-volume drug dealers is of no moment. We do not sit to substitute our judgment for that of the trial court. Clearly, the trial court could have, on this evidence, concluded that all of the cash in question was the product of or used in the trafficking of marijuana. Unaided by the statutory presumption, however, the only evidence in support of this conclusion is the fact that the “buy money” was found with the other cash. Arrayed against this is the Hodges’ denial that the money was derived from the sale of drug[s], the fact that one of the occupants of the trailer was otherwise gainfully employed and the denominations in which the money was found. The weight to be given these evidentiary facts is for the trial court to determine. Its determination, either way, would be affirmed by this Court.

(Emphasis added). Unlike in Hodge, the cash, drugs, and paraphernalia here were found in one room. Agent Keith Davis, an LCMNU agent, testified that the majority of the money, $3,428, was found in two drawers in the same desk in which was also found “a bag of marijuana.” Agent Davis’s testimony was unclear as to whether any of the money in the desk was in the same drawer as the marijuana. Furthermore, Agent Davis testified that a small amount of the recovered money was found on top of the desk, which also had “real small pieces of marijuana” on it. Agent Davis also testified that multiple items of drug paraphernalia were scattered throughout the bedroom.

¶ 9. Given the facts of this case, we find that there was credible evidence establishing the proximity presumption. This contention of error is without merit.

2. Rebuttal of the Proximity Presumption

¶ 10. Nations contends that the testimonies of two witnesses, John Glass and Sara Roberts, were sufficient to rebut the proximity presumption. Glass, a Honda dealership employee, testified that on December 1, 2008, Nations traded a 2008 Honda Accord for an older vehicle, and that Nations received a check from the dealership for just under ten thousand dollars as a result of the transaction. Roberts, Nations’s ex-girlfriend, testified that Nations used the money from the sale of the car to buy a large flat-screen television in Jackson, Mississippi. She did not know how much the television cost, but she believed that there was some money left over from the sale of the car after the television was purchased. She admitted that she had no idea how much money was left over or where Nations kept the leftover money after the television was purchased. As support for his contention that the testimonies of these two witnesses were sufficient to rebut the proximity presumption, Nations directs this Court’s attention to Neely v. State ex rel. Tate County, 628 So.2d 1376, 1381-82 (Miss.1993).

¶ 11. In Neely, the Mississippi Supreme Court found that any proximity presumption in that case was rebutted by Edward Neely’s explanation of the source of the money that was seized from him and by the lack of evidence that Neely was a drug dealer. Id. at 1381. The Neely court noted Neely’s explanation for the money that was found:

Neely testified that he had the large sum of money on his person because he had just cashed a pay check, he had to retire child support debt, he had to pay for a blood test ($380) and he had to pay for a motorcycle repair bill ($600). In partial support of this, Neely provided two exhibits: (1) an unpaid bill of $601.48 to the motorcycle shop and (2) a cashed paycheck, dated June 10, 1990, for $313.44. Neely also testified on redirect that he had yet to pay for the blood test.

Id. at 1378-79.

¶ 12. In the present case, Nations has provided no such explanation as the appellant in Neely. Although evidence was introduced to the effect that Nations had just cashed a check for $9,990 from the sale of his vehicle, Roberts indicated that Nations used that money to purchase a large flat-screen television. Roberts could not remember how much the television cost and had no idea how much money Nations had after the purchase of the television. Furthermore, unlike in Neely, there was uncontradicted evidence in this case that Nations was dealing drugs around the time of the seizure. The appellant in Neely provided documentary support for his explanations, whereas Nations has provided no such support. There was simply no way for the circuit court or this Court to ascertain how much money Nations had left over from the sale of his vehicle or what he may have done with any that may have been left over after the purchase of the television.

¶ 13. We also note that, although Nations did not testify, Agent Davis testified that Nations was less than candid about how much of the money was from the sale of drugs:

On the 8th of December!,] Mr. Nations stopped me while I was in the Detention Center and asked me if I had a moment!,] and I advised him that I did. Mr. Nations advised me at that point that only $70 of the funds that was seized would be official [M]etro funds!,] and I advised Mr. Nations was he sure about that!,] and he said, yes, he was[,] and I advised Mr. Nations that I did not believe him because at that time I already checked the serial numbers and knew there was $140 in there.

Therefore, there was testimony questioning the veracity of any of Nations’s assertions as to how much of the money was from illicit sources. The testimony was uncontradicted that the drug sale on December 2 was for $140; however, none of the five locations in Nations’s bedroom contained only $140. Therefore, even though LCMNU agents failed to note where the recorded bills were found, it is clear that the money used in the drug sale was mixed with some of the money that was found in Nations’s room.

¶ 14. During arguments at the forfeiture hearing, Nations’s attorney stated that he could “personally testify, not on the stand, but he paid me part of that money [from the sale of his ear].” There are two logical conclusions that can be drawn from this statement: (1) that Nations still had the money from the sale of his car, after the money had been seized from his apartment; or (2) that he used the money on December 2 or 3 to pay his attorney. If the former is true, then it appears that the money from the sale of the vehicle was not seized as part of the $4,801. If the latter is true, then that payment would have further reduced the amount of money that Nations had left over from the sale.

¶ 15. Based on all of the foregoing, we find that Nations failed to rebut the proximity presumption. This issue is without merit.

3. Further Proof of Validity of Forfeiture

¶ 16. Finally, Nations claims that “[i]f the ‘close proximity’ presumption does not apply or has been rebutted,” then the State did not adequately prove a reason for the forfeiture. Because we have found that the presumption applies and was not rebutted, we find no merit to this issue. However, we note that even if the presumption did not apply, we would still affirm the circuit court’s judgment.

¶ 17. In a forfeiture case involving drugs, the burden is on the State to prove, by a preponderance of the evidence, “that it is more likely than not that the currency was possessed by the claimant with the intent to be used in connection with an illegal narcotics trafficking scheme.” Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So.2d 23, 29 (Miss.1991).

¶ 18. Several thousands of dollars were found in Nations’s bedroom, along with and in close proximity to marijuana and multiple items of drug paraphernalia. Nations provided no explanation for the money other than the money from the sale of the car three days before the seizure of the money from his apartment. However, Roberts testified that Nations spent the money from the sale of the car on a large flat-screen television, and no further evidence was provided to indicate how much of the money from the sale of the car was left over. Furthermore, Searn Lynch, the commander of the LCMNU, testified that it is not unusual for drug dealers to store cash in multiple locations; he testified that it was his experience that the “normal activity of drug dealers [is] to keep their funds in different locations.” Finally, the $140 that was used by the confidential informant was not found separate from the other money in Nations’s room. Given these facts, we cannot find that the State failed to prove that the money was most likely used in connection with illegal drug trafficking, which Nations irrefutably participated in on multiple occasions.

¶ 19. This contention of error is also without merit.

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

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

      . These bills were not marked, but their serial numbers were recorded prior to their use in the drug sale on December 2. Testimony at trial indicated that the LCMNU agents did not have the serial numbers with them on December 4, so they were unable to record where the bills used in the buy were in the bedroom.