author: IRVING, P.J.,

text:
    Charles H. GRINER, Jr., Appellant v. Melanie GRINER, Appellee
    NO. 2015-CA-01903-COA
    Court of Appeals of Mississippi.
    06/27/2017
    Rehearing Denied October 24, 2017
    Certiorari Denied January 25, 2018

      ATTORNEY FOR APPELLANT: S. CHRISTOPHER FARRIS
    ATTORNEYS FOR APPELLEE: RICHARD ANTHONY FILCE, ERIK M. LOWREY
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. The Marion County Chancery Court granted Charles Griner (Chip) and Melanie Griner an irreconcilable-differences divorce and, pursuant to the parties’ agreement, resolved the issues that they were not able to resolve. Chip, being dissatisfied with the chancellor’s resolution of those issues, appeals and specifically asserts that the chancellor erred with respect to the following issues: (1) the division of the marital estate, (2) the assignment of responsibility for the marital debts, (3) the award of lump-sum alimony to Melanie, (4) and (5) other awards which exceed the scope of the issues that he and Melanie requested the court to address. Finding error in the chancellor’s evaluation of the marital estate, we reverse and remand for further proceedings.

FACTS

¶2. Melanie and Chip married on August 11, 1990, and later had two children, Natalie and Charlie. During the'course of the marriage, Chip obtained a business degree from the University of Mississippi, while Melanie, with Chip’s consent, chose to stay home and care for the couple’s two children. Melanie never worked outside of the home, apart from briefly helping her mother with a drapery business. Chip provided the family’s primary source of income through his position as a bank director and his participation in the “family business.” As part of his involvement in one of the family-owned companies, Griner Energy, Chip came to own a twenty-five-percent interest in a condominium in Destín, Florida, and the remaining seventy-five-percent interest was owned by Chip’s mother and two siblings. Additionally, Chip held a sizeable estate in the form of stocks. He contends that many were gifted to him by his grandparents prior to the marriage, while others were purchased in both Melanie and his names during the marriage.

¶3. Melanie and Chip separated on or about September 30, 2010. On September 22, 2011, the chancery court entered a temporary order, requiring Chip to pay $7,000 per month as support and private-school tuition for Charlie. Shortly thereafter, Chip filed a motion for relief from the temporary order, claiming that the $7,000-per-month figure had been erroneously calculated to include “ ‘phantom income’ in the form of dividends from bank stocks, capital gain year[-]end [income] and rental income,” which resulted in “a skewed monthly income” for him. The chancellor denied Chip’s motion.

¶ 4. On February 3,2012, Melanie filed a motion for appointment of a financial expert due to Chip’s “substantial [and] extremely complex” assets. Melanie asserted in the motion that she had no assets in her own name, as they were all titled in Chip’s name. The court granted Melanie’s motion and appointed Jim Koerber of The Koer-ber Company, P.A., “to determine valuation of assets of the parties, specifically the corporations of [Chip] and the cash flow derived therefrom,” and “to prepare a report for the [c]ourt.”

¶ 5. On April 14, 2015, the parties filed a written consent, wherein they agreed to a divorce on the ground of irreconcilable differences, but asked the chancellor to decide the following issues: (1) child support and related school issues and costs; (2) alimony; (3) equitable distribution of the marital assets; and (4) equitable distribution of the parties’ debts and liabilities. The court conducted, a one-day, .trial on November 13, 2014, during which Koerber testified as to Chip’s finances. During his testimony, Koerber classified stocks as either marital or nonmarital; Koerber also calculated Chip’s gross income to be $354,044 annually. At the end of the trial, the- chancellor entered a final judgment, the contents of which we summarize as follows:

1. Child support and related school issues and costs: The court held that, based on the past twelve years, Chip earned an average adjusted gross ■income of somewhere between $275,000 and $325,000, ■ annually. Based on this amount of income, the .■court instructed Chip to pay Melanie $1,500 per month in child support for Cliarlie. The court also required Chip to continue to provide health insurance for Charlie until he. is emancipated. The court held that Chip and Melanie would divide equally all of Charlie’s non-covered medical expenses.
2. 'Alimony: The court applied the Armstrong factors and required' Chip to pay Melanie periodic alimony in the amouht of $3,000 per month until her death or remarriage. The court also ordered Chip to pay Melanie an additional $4,000 per month for ten years, or a lump sum in the amount of $480,000. The court further required Chip to provide Melanie with health, insurance-benefits for the next eighteen years.-
3. Equitable distribution of the marital assets: The court conducted a Ferguson analysis of the marital assets and, based on the stipulations, of the parties and 'Koerber’s testimo-' ny, determined that the following property was marital and. awarded Melanie seventy percent of it: the home and the.land;surrounding it; the Florida condo, described as Unit 1401 at Emerald Towers; “any business holdings;” Citizens Bank stock; First Federal Bank stock; Griner Drilling 401(k); and the AG Edwards IRA. The court also awarded Melanie a 2007 Chevrolet Tahoe and all the household furnishings, and personal property, but awarded Chip the exclusive use and possession of the' marital home until he purchased Melanie’s interest in-it. The court held that Melanie and Chip would keep their own checking accounts, including the balances therein. The court concluded by asserting-that,’in rendering its decision, it took into account Chip’s non-marital assets, which totaled over $7,000,000 and left Chip in a “far superb” position than Melanie.

The final judgment did not specifically address equitable distribution of the parties’ debts and liabilities.

¶ 6. Both Chip and Melanie filed motions, for a new trial or for reconsideration of the court’s final judgment. In response, the court entered a modified order, which we summarize as follows:

1. Child support and related school issues and costs: The court denied Chip’s request to reduce the amount of child support he was required to pay for Charlie. The court additionally required Chip to pay for the “maintenance, upkeep, tags, and insurance” costs for Charlie’s vehicle until Charlie reached twenty-one years of age. -
2. Alimony: The court denied Chip’s request to reduce the lump-sum alimony-award he was ordered to pay to Melanie, as well as his request to modify the provision of the' final-judgment requirement that he provide Melanie with health insurance for the next eighteen years. Additionally, the court required Chip to make Melanie the beneficiary of a $1 million life-insurance policy.
3. Equitable, distribution of the mari- ■ tal assets: The court clarified that Melanie would receive seventy percent of the following marital assets: the house and surrounding land (except for somé acreage nearby which the court found to be nonmarital and belonging to Chip), with a combined total value of $762,500; Chip’s twenty-five-percent interest in' the Florida condominium, valued at $231,250; and the retirement accounts—being the AG Edwards IRA, valued at $48,517.96; Griner Drilling Services 401(k), valued at $215,068; and the AG Edwards investment account, valued at $978. The court clarified that Chip’s interest in the corporations and business holdings, listed on the Hemsley report were nonmari-tal; as such, that interest and the tax benefits would belong to ''Chip. The court, relying on Koerber’s report, also held that the following shares of stock in each corporation would be considered marital property and therefore subject to distribution: forty-four shares of Citizens Bank Corporation at $65 per share, with a value of $2,860; and 6505 shares of First Federal Bancorp at $35 per share, with a value of $227,675. The court found that Melanie was entitled to seventy percent of those shares of stock. The court found that the following shares of stock were nonmarital and would, therefore, belong to Chip: 11,496 shares of Citizens Bank Corporation at $65 per share, with a value of $747,240; and 31,401 shares of First Federal Bancorp at $35 per share, with a value of $1,099,035.

Additionally, the court held that Chip would be liable for all of the debts of the marriage as set out in the Hemsley report, pursuant to Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss. 1994), and the 8.05 financial statements of the parties. The court noted that a large amount of the debt reflected .by Chip had to do with his corporate debt and was outside the scope of the court’s jurisdiction, as Chip was awarded one hundred percent of the interest, in his business; thus, the debts, of those- corporations were nonmarital and not subject to the court’s division. The court did, however, order Melanie to pay the interest on a family Citibank credit card with a balance of $23,000; the court ordered Chip to pay Melanie $18,000 for the purpose of alleviating that debt (as the card had a balance of $18,000 at the time of the temporary order). The court also assessed the deht.of the home and surrounding acreage to Chip, and extended the period of time, that Melanie had to secure a new home. Chip appeals.

DISCUSSION

¶7. “Our scope of review in domestic relations -matters is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless [they are] manifestly wrong [or] clearly erroneous, or ,.. the chancellor applied an erroneous legal standard.” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss. 1994). The chancellor’s division and distribution of property “will be upheld if it is supported by substantial credible evidence;” Carrow v. Carrow, 642 So.2d 901, 904 (Miss. 1994). This Court has previously reiterated the well-settled premise that

[a]ll property division, lump[-]sum or periodic alimony payment, and mutual obligations for child support should be considered together. Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.

Clark v. Clark, 43 So.3d 496, 502 (¶25) (Miss. Ct. App. 2010) (citation omitted).

(1) Property Distribution

¶ 8. Chip argues that the chancellor erred in his distribution of the couple’s property in several ways. First, Chip asserts that the chancellor’s distribution of seventy percent of the marital assets—in the form of the marital home and marital stock—was erroneous because the chancellor failed to discount the assets for outstanding loan balances. Next, Chip argues that the chancellor erred in failing to equitably divide the substantial marital debts of the parties. Finally, Chip argues that the chancellor erred in awarding Melanie seventy percent of Chip’s twenty-five-percent interest in the Florida condominium, because the condominium was not marital property.

¶ 9. Mississippi law requires equitable distribution of the marital estate during divorce proceedings. Owen v. Owen, 798 So.2d 394, 399 (¶ 14) (Miss. 2001). “In determining equitable distribution of marital assets and debts, the chancellor must first classify each asset as marital or non-marital.” Walker v. Walker, 36 So.3d 483, 487 (¶ 12) (Miss. Ct. App. 2010) (citing Hemsley, 639 So.2d at 915). In Hemsley, 639 So.2d at 914, the court defined “marital property” as “[a]ssets acquired or accumulated during the course of a marriage.” Such marital property is subject to equitable division “unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. “Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Ferguson, 639 So.2d at 929. “[I]n defining and distributing marital assets, the couple’s net assets should be considered; that is, the indebtedness owed against such asset should ordinarily be deducted from its fair market value.” Hemsley, 639 So.2d at 920 (citation and internal quotation marks omitted).

¶ 10. “Whether a debt is classified as marital or separate depends on who benefitted from the debt.” Walker, 36 So.3d at 487 (¶ 12) (citing Fitzgerald v. Fitzgerald, 914 So.2d 193,197 (¶ 21) (Miss. Ct. App. 2005)). “The courts in this state have consistently held that expenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such upon dissolution of the marriage.” Shoffner v. Shoffner, 909 So.2d 1245, 1251 (¶ 17) (Miss. Ct. App. 2005) (citation omitted).

¶ 11. Once property is classified as marital or nonmarital, “the chancellor must evaluate the equitable division of all marital property pursuant to the guidelines listed in Ferguson,” which are:

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 assetsf;]
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[;j
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.

Walker, 36 So.3d at 487 (¶ 12); Ferguson, 639 So.2d at 928. “Marital debt lies within the factors set forth in Ferguson, as it may be defined as an ‘economic consequence’ or as ‘any other factor which in equity should be considered.’” Cuccia v. Cuceia, 90 So.3d 1228, 1233 (¶ 12) (Miss. 2012) (citation omitted).

¶ 12. In addition to, applying the Ferguson factors, “[contributions and fault should be considered by the chancellor in determining equitable distribution of a marital estate.” Singley v. Singley, 846 So.2d 1004, 1008 (¶10) (Miss. 2002). “[A]n equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss. 1994). “When the facts and circumstances warrant an equitable division of the marital estate of one-half or greater and such a division complies with the Ferguson principles, then we are duty bound to let such a distribution stand.” Phillips v. Phillips, 904 So.2d 999, 1003 (¶ 13) (Miss. 2004).

a. Marital Assets

¶ 13. Chip first argues that the chancellor erred in failing to make specific findings as to the marital estate and which assets were marital or nonmarital. We find this argument without merit. As noted above, the chancellor provided in his final judgment and further clarified in the modified order which assets were marital and which would go to Chip or Melanie as separate property.

¶ 14. Next, Chip argues that the chancellor’s award of seventy percent of the marital assets to Melanie was erroneous because the chancellor failed to discount those marital assets for outstanding personal-loan balances prior to making the award. In other words, the chancellor erroneously awarded Melanie seventy percent of the gross value of the marital assets rather than seventy percent of the net value. Melanie, in response, argues that the chancellor’s award was justifiable, given the fact that Chip possessed a sizeable nonmarital estate and ultimately caused the dissolution of the marriage because of his alcohol addiction.

¶ 15. In the final judgment, the chancellor properly discussed each Ferguson factor and methodically explained why he decided to award Melanie seventy percent of the marital assets. The chancellor further reiterated his reasoning for his decision in the modified order. Unfortunately, however,-the chancellor included incorrect figures in his calculations. While the Hemsley report, included in the record as exhibit 8, • assesses the value of the marital home and fifteen acres, plus the adjacent twenty-five acres, at $762,500, it also shows that the marital home is encumbered by a $828,000 mortgage, leaving only $372,000 in equity. This figure, combined with the $62,500 value of the adjacent twenty-five acres, results in a figure of $434,500 for purposes of marital division. ■

¶ 16. The chancellor, in the final judgment and again in the modified order, valued the marital home at $700,000. In the modified order, the chancellor remarked additionally that the adjacent twenty-five acres were valued at $62,500, and valued the combined properties at $762,500. However, these figures were erroneous; the chancellor should have awarded Melanie seventy percent of $434,500, which was the amount of equity in the properties, rather than seventy percent of $762,500. Thus, we reverse and remand on this. issue, so the chancery court may reconsider the division of the marital estate based on a proper evaluation of it.

¶17. Chip also argues that'chancellor erred in awarding Melanie seventy percent of the value of the shares of First Federal Bancorp stock, because he failed to consider the outstanding loan of $87,600 used to purchase the' stock. Thus,' Chip asserts that -the net value of the stock is $140,075, and Melanie- should have been awarded only seventy percent of that figure, rather than seventy percent of $227;675;

¶ 18. At trial, Koerber, while testifying about the marital stock, physically wrote on the Hemsley report that the marital shares of First Federal Bancorp stock totaled $227,675. He did not mention, nor was he questioned about, this purported purchase-money loan of $87,600. Interestingly, Chip’s 8.05 financial statement does not show, such a loan. The only evidence in the record indicating that Chip took out any sort of loan for purchasing marital stocks is found in his 8.05 financial statement, wherein he listed a liability to First Southern Bank for “personal reasons” in the amount of $187,790, and another liability to First Southern Bank for Citizens Bank stock in the amount of $84,224. There is insufficient evidence in the record to show that the distribution of marital stock was in error; thus, we find this issue without merit.

b. Marital Debts

¶ 19. Next, Chip argues that the chancellor erred in failing to equitably divide the substantial marital debts of the parties. Specifically, Chip asserts that the chancellor erred in requiring him to pay one-hundred percent , of the marital debts, in addition to paying Melanie seventy percent of the gross value of the marital home and the marital stocks without deducting the outstanding'indebtedness as to each. Chip also argues that the chancellor failed to make specific findings about the marital debts, other than simply requiring him to pay all of them.

¶20. As stated, the chancellor in the modified order provided that Chip was liable for all marital debts set forth in 'the Hemsley report and 8.05 financial statements, in addition to the corporate debts on his personal, nonmarital assets. As the modified order specifically referenced the marital debts listed in those documents and commented on the status of those debts as either marital or.corporate and thus belonging to Chip, we do not find that the chancellor failed to make specific findings about the debts. Therefore, we also find no error in the chancellor’s assigning responsibility for payment of the debts to Chip in light of Chip’s substantial separate income and earning potential. This issue is without merit. . .

„ c. • Condominium

¶21. Chip argues that the chancellor erred in awarding Melanie seventy percent of his twenty-five-p'ercent interest in the Florida condominium because, in his view, this asset was clearly nonmarital property. However, Chip received the deed to the condominium during his marriage to Melanie. Both he and Melanie assert that it was used by their family at least once a year. Based upon thesé facts, we find no error with the chancellor’s finding that the condominium was marital property.

(¾) Alimony

¶22. Chip asserts that the chancellor abused his discretion in awarding Melanie lump-sum alimony, because Melanie did not suffer a deficit after distribution of the marital estate. Additionally, Chip asserts that the court erroneously found that his nonmarital assets totaled over $7,000,000.

¶ 23. “Alimony awards are within the discretion of the chancellor ... and his discretion will, not be reversed on appeal unless the chancellor was manifestly .in error in his finding of fact and abused his discretion.” Armstrong, 618 So.2d at 1280. “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss. 2003).

¶ 24. Since we are reversing because of the chancellor’s error in valuing the marital home, the chancellor will have to take a new look at the alimony award because alimony cannot be considered until after the marital estate has been properly valued and equitably divided. However, we note that the error in valuing the marital home results in a reduction in the value of the marital estate, and we already have found no issue with the chancellor awarding Melanie seventy percent of the marital estate based on an erroneous, but higher, valuation figure for the marital estate.

(3) Health Insurance, Life Insurance, and■ Automobile Tag, Insurance, and Maintenance

¶ 25. Finally, Chip asserts that the chancellor erred in addressing issues which were not authorized by both parties’ consent. Specifically, Chip argues that the chancellor had no authority to award Melanie health-insurance coverage for eighteen years; to require him to obtain life-insurance coverage; and to, require him to pay for the insurance, tag, and maintenance on his son’s vehicle. In response, Melanie argues that these issues were subsets of those presented for decision by the chancellor.

¶ 26. As noted in the facts portion of the opinion, Melanie and Chip submitted, among other issues, the issues of child support and related school ■ issues/costs, and the equitable distribution of the parties’ debts/liabilities.'

a. Health Insurance

¶27. The chancellor did not exceed the authority granted by Chip and Melanie when he addressed Melanie’s health insurance. “Medical insurance is an award in the nature of alimony.” Moore v. Moore, 803 So.2d 1214, 1220 (¶ 23) (Miss. Ct. App. 2001). The parties submitted the issue of alimony to the chancellor for resolution. However, we note that the chancellor’s final judgment and the modified order clarifying the final judgment contain conflicting provisions with respect to the period of time that Chip would be required to maintain health insurance for Melanie. First, in the final judgment in section III, the chancellor ordered Chip to provide Melanie with health-insurance benefits for the next eighteen years, but in the conclusion portion of the judgment, the chancellor stated that Chip was required to provide Melanie with health-insurance benefits for the next eighteen months. Later, in the modified order, the chancellor stated that Chip was required to provide Melanie with health-insurance benefits for the next eighteen years. It is obvious that the chancellor made a scrivener’s error somewhere, but we cannot be certain where, although it appears likely that the scrivener’s error lies in the eighteen-year wording. Nevertheless, prudence requires us to reverse and remand this issue for clarification.

b. Life Insurance

¶ 28. We also find .that the chancellor operated within the authority granted to him by the parties’ submission of the issue of alimony when he ordered Chip to maintain a life-insurance policy with Melanie designated as the beneficiary. Mississippi Code Annotated section 93-5-23 (Rev. 2013) provides that, when granting a divorce, a chancellor

may, in [his] discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders ... touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.

Miss. Code Ann. § 93-5-23. This Court has held that “[a]n alimony payor may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the pay- or’s death.” Coggins v. Coggins, 132 So.3d 636, 644 (¶ 35) (Miss. Ct. App. 2014) (citations and internal quotations omitted). “Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then, die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency.” Id. at 645 (¶ 37); see also Johnson v. Pogue, 716 So.2d 1123, 1134 (¶ 41) (Miss. Ct. App. 1998); Beezley v. Beezley, 917 So.2d 803, 808 (¶ 17) (Miss. Ct. App. 2005).

¶29. While we find that the chancellor was within the authority granted him by the parties when he ordered Chip to maintain a life-insurance policy with Melanie named as the beneficiary, we also find that the amount that Chip was required to maintain—$1,000,000—was unreasonable and excessive. The purpose of requiring an alimony payor to maintain a life-insurance policy with the alimony payee designated as the beneficiary is to protect the vested but unpaid amount of alimony in case of the payor’s death.

¶ 30. In Coggins, we held that the chancellor erred in his requirement that the husband designate his former wife as the beneficiary to a $175,000 life-insurance policy “to protect against [the husband] defaulting on his $504-per-month alimony payments and then dying before curing the default.” Coggins, 132 So.3d at 645 (¶ 38). We reasoned that “[t]his amount of insurance—the equivalent of thirty years worth of alimony payments—assumes not only that [the husband] may fall behind for three decades but also that [his former wife] will experience no material change of circumstances altering or terminating her need for alimony.” Id.

¶31. Here, with respect to the protection of the alimony awarded to Melanie, the chancellor stated in the modified order:

The [c]ourt failed [in its final judgment] to ensure that the amount of alimony awarded to Melanie [was] covered by insurance and hereby directs Chip to-change the beneficiary on his $1,000,000.00 life insurance policy to make the same payable to Melanie for the performance of the [judgment of the [c]ourt in case of Chip’s death.

As noted earlier in this opinion, the chancellor awarded Melanie periodic alimony of $3,000 a month, as well as lump-sum alimony of $480,000, or $4,000 a month for ten years. Although Chip was allowed to pay the lump-sum alimony in installment payments, the full amount vested immediately. Only a $480,000 policy would be required to guarantee payment of the lump-sum alimony. If Chip- immediately paid his lump-sum-alimony obligation in a single payment, he would have to fail making his monthly periodic-alimony payments for more than twenty-seven years to accumulate a $1,000,000 arrearage. And if Chip chose to pay his lump-sum-alimony obligation in installment payments, along with his periodic-alimony payments, and failed to make any payments for ten years, he would be in arrears by only $840,000, not counting any accrued interest. It is unreasonable to assume that Melanie would allow the payments to get that far behind before seeking judicial redress. Moreover, it is not unreasonable that Melanie may remarry, at which time Chip’s periodic-alimony obligation would cease. Since we are already reversing on other grounds, we direct that on remand the chancellor take a new look at the amount of life insurance that will be required to'protect Melanie’s alimony interest.

c. Charlie’s Automobile Tag, Maintenance, and Insurance

¶ 32. Like awards of alimony, “the court may, in its discretion, ... make all-orders touching the care; 'custody'- and maintenance of the children of the marriage.” Miss. Code Ann. § 93-5-23. “Child support can include life and health insurance, college tuition, and other related needs. A party need not specifically request each form of child support ultimately awarded by a chancellor if child support in general is requested.” Massey v. Huggins, 799 So.2d 902, 910 (¶ 30) (Miss. Ct. App. 2001) (internal citation omitted). However, this does not give the chancellor full reign to consider any and every issue that might possibly fall under the category of child support. Here, the parties expressly consented to the court’s disposition of the issue of “child support and related school issues/costs.” .

¶ 33. The record is devoid of any discussion regarding Charlie’s car other than that Chip purchased the car for Charlie and that it was titled in Chip’s name. Under Mississippi law, it is'illegal to operate a vehicle upon the roadways of this state without a tag and liability insurance. So when Chip purchased the vehicle for Charlie, he knew that it had to be tagged and insured. While maintenance on the vehicle is not required by state law, Charlie also knew that if he wanted the vehicle to remain usable, it would from time to time require some maintenance. < Without more information in the record as to why Chip purchased the car for Charlie, we cannot say with confidence that, the chancellor was, authorized to assess responsibility for, the tags, insurance, and-maintenance of .Charlie’s vehicle to Chip under the issue of “child support and related school issues/costs.” However, the parties also submitted the issue,of debts and liabilities to the chancellor for resolution. Clearly, the state-law requirement that the vehicle not be driven upon the roadways without a tag and liability insurance implicates .the liabilities issue submitted to the chancellor for resolution. Consequently, we cannot find that the chancellor, exceeded the authority given-him by assigning responsibility for the expenses associated with Charlie’s - car. This issue is without merit.

¶ 34. For the reasons discussed, we reverse and remand for further proceedings consistent with this opinion.

¶ 35. THE JUDGMENT OF THE MARION COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., BARNES, ISHEE, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J-., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON AND FAIR, JJ., NOT PARTICIPATING.

      . At the time the judgment of divorce was entered, Natalie was twenty-one years old and Charlie was eighteen years old.

      . The “family business,” as it is referenced throughout the record, appears to encompass numerous family-owned business interests, including Griner Drilling Services, Inc.; Griner Family Limited Partnership; Griner Oil and Gas Company, Inc.; Griner Real Estate, LLC; and Griner Energy.

      . Chip asserts that the family used the condominium "once[,] maybe twice a year” during the course of the marriage, while. Melanie argues that they used the condominium "at least twice per year, every year, during the marriage.”

      . Melanie and Chip also requested that the chancellor decide the following: (a) legal and physical custody of Charlie; (b) tax deductions as they pertain to Natalie and Charlie; and (c) attorneys' fees. However, as these issues are not being contested on appeal, we do not address them in our discussion.

      . Chip asserts here, as he did in his motion for relief from the temporary order, that this figure is inaccurate because it accounts for "phantom income.” Chip reiterates this argument throughout his appeal.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).

      . Ferguson v, Ferguson, 639 So.2d 921, 928 (Miss. 1994),

      . Chip maintains that the loans from Griner Drilling Service were taken out for personal reasons, not business reasons, as they were for payment to the rehabilitation center, treatment for alcoholism, and investment loans and losses.

      . In sum, the chancellor made his determination on the basis that Chip held nonmarital assets which put him in a better position than Melanie, even after an award of seventy percent of the marital assets. Additionally, the chancellor noted that Melanie had never developed skills to suddenly be forced into the workplace, and that Chip's alcoholism had ultimately led to the downfall of the marriage.

      . In his appeal, Chip states that Griner Energy had to borrow money to sustain itself before it finally failed, and that he and his siblings are now repaying that debt obligation.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF JACKSON, Appellant v. Kearney BROWN, Appellee
    NO. 2016-WC-01164-COA
    Court of Appeals of Mississippi.
    06/27/2017
    Rehearing Denied October 10, 2017
    Certiorari Denied January 25, 2018

      ATTORNEYS. FOR APPELLANT: CARRIE JOHNSON, MONICA DAVIS JOINER
    ATTORNEY FOR APPELLEE: ANDRE FRANCIS DUCOTE
   IRVING, P.J.,

FOR THE COURT:

¶.1. Kearney Brown sustained injuries in an automobile accident that occurred during the course and scope of his employ-: ment as a patrol officer with the City of Jackson (the City). The City denied workers’ compensation benefits to Brown on the -basis that he exhibited a willful intent to injure himself. An administrative judge (AJ) found that Brown was entitled to benefits. The City appealed, and the Mississippi Workers’ Compensation Commission (Commission) affirmed the decision of the AJ, The City now appeals the. judgment of the Commission, asserting the following issues: (1) whether Brown intended to injure himself; (2) whether a “willful intent to injure” may be inferred from the facts of this case; and (3) even, if a “willful intent to injure” may not be inferred, whether benefits should be denied as. a matter of public policy. We affirm.

FACTS

¶ 2. During the early morning hours of July 21, 2012, Brown, a patrol officer for the City, and several other officers were responding to a domestic call at an apartment complex when a fellow officer radioed for backup at a nightclub about a mile away. Brown and two other officers each got into their respective patrol cars and left the apartment complex to head to the scene. Brown was driving the last patrol car in the line of the three cars. Brown later testified that, just before the accident occurred, all three cars were moving at a steady pace. Brown contended that his car was about “two car lengths from ... the second vehicle” and that the first two vehicles “were not getting any more distance from [Brown] than [he was] from them.” All three patrol cars were moving “at a constant speed,” which Brown admitted was over the speed limit because they were responding to a call for backup. Brown later testified that there is “no specific protocol on responding to any person that’s in need of assistance, especially if it’s priority. You want to get there as safely and as fast as possible.” Crash data retrieved from Brown’s vehicle later determined that Brown’s speed had steadily increased from fifty-three miles per hour to ninety-one miles per hour in the twelve seconds just prior to the accident. Further, the crash data indicated that Brown had willfully caused that acceleration as evidenced by the fact that the gas pedal had been pressed during that time.

¶ 3. Brown testified that, as he was passing an intersection about 800 feet from the exit of the apartment complex, he spotted an item in the road and jerked the steering wheel to the right, causing his car to hit the curb on the right side of the road and the tail end of the car to slide. The car spun across the four-lane road and hit the left curb. At that point, Brown testified that there was a “big bump” and he lost consciousness. Brown was not wearing his seatbelt and was ejected from the vehicle. Subsequently, he was taken by ambulance to the hospital. As a result of the crash, Brown sustained injuries to his head, neck, left upper extremity, right upper extremity, and right ankle. Brown admitted that at the time of the accident, there was no traffic, the road was not wet, and the area was well lit.

¶ 4. In October 2012, Brown received a phone call from the City of Jackson Internal Affairs Division, during which he was told to resign or that he would be terminated for behaving negligently on the night of the accident. Brown resigned from his position shortly thereafter. Brown sought to have the City pay for his medical bills resulting from the accident; the City refused and Brown filed a petition to controvert. The City denied compensability, arguing that Brown exhibited a willful intent to injure himself.

¶ 5. Brown and the City presented proof at a hearing before the AJ. Brown conceded that the two cars in front of him did not swerve for an item in the road, as he claimed to have done. On cross-examination, an attorney for the City questioned Brown about a deposition he gave earlier, pointing out that Brown had previously maintained that he lost control of his car when he hit a bump in the road, rather than that he swerved to avoid missing an item in the road. Brown maintained that he could not recall whether he was wearing his seatbelt; however, the City attorney read from Brown’s deposition, wherein he stated that he was not wearing a seat-belt because his short height caused the seat belt to come across his neck, making it difficult to get in and out of the vehicle. Brown admitted that this was not the first time he had driven without a seatbelt. After Brown testified, the City called Tim Corbitt, an accident reconstructionist, who testified regarding his personal assessment of Brown’s patrol car and the crash-data-retrieval software recovered from the car. Ultimately, the AJ found for Brown on the basis that the City presented “absolutely no credible evidence of ... a willful intent for Brown to injure himself.” The City filed a petition for review, and the Commission affirmed the AJ’s ruling, leading to this appeal.

DISCUSSION

¶ 6. “This Court’s scope of review in workers’ compensation eases is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss. Ct. App. 2006) (citation omitted). “The -Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review.” Id. (citation omitted). “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citation omitted).

¶ 7. Mississippi Code Annotated section 71-3-7(1) (Supp. 2016) provides that “[c]ompensation shall be payable for disability or death of an employee from injury ... arising out of and in the course of employment, without regard to fault as to the cause of the injury.” A compensable injury “means [an] accidental injury ... arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss. Code Ann. § 71-3-3(b) (Rev. 2011). However, “[n]o compensation shall be payable ... if it was the willful intention of the employee to injure or kill himself or another.” Miss. Code Ann. § 71-3-7(4) (Supp. 2016).

¶ 8. The City maintains that Brown willfully intended to injure himself in the accident as evidenced by the fact that Brown purposefully drove at increased speeds while not wearing his, seatbelt; thus, the City contends that it is precluded from having to pay benefits under section 71-3-3(b). In response, Brown contends that there is no legal or factual basis for the City’s claim. We agree.

¶ 9. Brown testified that he was driving fast in order to quickly reach a fellow officer who was in need of assistance. He further testified that there was no protocol for responding to,officers requesting backup; rather, the objective was to provide assistance as quickly and safely as possible. We agree with the finding of the AJ and the Commission that there is no credible evidence to suggest that Brown willfully acted with the intent to injure himself. This issue is without merit.

¶ 10. In Linde Gas v. Edmonds, 167 So.3d 1258, 1265 (¶26) (Miss. Ct. App. 2014), this Court held that Edmonds, an employee of Linde Gas, was not precluded from receiving compensation for injuries sustained in a work-relatéd accident, despite the fact that he was not wearing his seatbelt and the employer’s evidence showed that he was speeding—driving between sixty-seven and ninety-two miles per hour in a fifty-five-mile-per-hour zone—at the time the accident occurred. This Court disagreed with Linde Gas’s assertion that Edmonds’s behavior—driving while having had only five hours of sleep the previous night, taking pain medication and then operating the company vehicle, and driving the vehicle without turning the lights on despite the fact that the sun had not yet risen—exhibited a willful intent to injure himself. Id. Further, this Court held:

Linde Gas cites no authority that would equate Edmonds’s actions before and during the accident to willful intent. In fact, Linde Gas did not provide any evidence that would establish that ‘Ed-monds’s lack of sleep or consumption of pain medication would have caused the accident or demonstrate a willful intent to cause injury to himself.

Id.

¶ 11. The City attempts to distinguish Linde Gas from the case before us by pointing out that, in Linde Gas, Edmonds denied speeding and testified that he was driving the speed limit at the time of the accident; further, there was no evidence to indicate that Edmonds intended to speed. The City further points to Brown’s testimony that he was driving at speeds far above the speed limit and that he intended to do so. The City asserts that the crash data showed that Brown was pressing the gas pedal during the twelve seconds of rapid acceleration prior to the accident, and that Brown, himself, testified that he was driving quickly to reach the officer needing backup. Further, the City points out that Edmonds was only driving at a speed of seven to thirty-seven miles per hour above the speed limit, whereas Brown was driving at sixty miles per hour above the speed limit or more at the time of the accident.

¶ 12. We are unpersuaded by the City’s attempt to distinguish Linde Gas. The Linde Gas decision did not turn on the fact that' there was conflicting testimony regarding Edmonds’s speed at the time of the accident, or that there was a lack of evidence that Edmonds intended to speed. Rather, we held, supra, that Linde Gas cited no authority that would equate Ed-monds’s actions before and during the accident to willful intent to injure himself, nor was there any evidence establishing that Edmonds’s sleep deprivation or consumption of medication demonstrated a willful intent to cause injury to himself. This Court in Linde Gas did not intimate that, had the evidence shown without contradiction that Edmonds was intentionally speeding, the results would have been different. Linde-Gas’s burden there was the same as the City’s is here: to demonstrate or show that the injured employee willfully intended to injure himself.-Just as..Linde Gas failed to meet its burden there, the City has failed to meet its burden here.

¶ 13. The City also argues that even if there is no clear and direct evidence proving that Brown willfully intended to injure himself, willful intent may be inferred from Brown’s actions. In making this argument, the City acknowledges that there are no Mississippi cases construing the phrase “willful intention” that is used in section 71-3-7(4), which provides that workers’ compensation benefits may be denied to an injured employee if there is evidence that the employee willfully intended.to injure himself. However, citing a case from one of Florida’s courts of appeal, 391st Bomb Group v. Robbins, 654 So.2d 1200 (Fla. Dist. Ct. App. 1995), the City argues that willful intent may be inferred from serious or reckless conduct like that engaged in by Brown.

¶ 14. In Robbins, an employee who had just been fired from his employment injured himself as he was exiting the premises through a rear door. Id. The injury occurred when Robbins “pushed hard with an open hand on the security glass of the rear door, causing it to shatter. The window" was approximately [eighteen] inches square and comprised of wire mesh encased by layers of glass.” Id, at 1201.

¶ 15. The City’s reliance on Robbins is misplaced. In holding that Robbins had acted with willful intent to injure himself, the Robbins court stated: “The test (of wil[l]ful intent- to injure) should involve an inquiry into (1) the existence of some premeditation and malice ..., coupled with (2) a reasonable expectation of bringing about real injury to himself or another.” Id. at 1202. The court then stated: “Here, we find that [Robbins’s] act ... was so serious and So likely to result in real injury that it must be construed to show willful intent.” Id. at 1202-03. Clearly, Brown’s actions are not analogous to Robbins’s. A person must surely intend to injure himself if he intentionally strikes a glass in a door with his bare hand with sufficient force to shatter the glass, because he knows that he is likely to be injured by the shards of glass.

¶ 16. Finally, the City argues that Brown should be precluded from receiving workers’ compensation benefits because it should be against public policy to award such benefits to a law enforcement officer who has engaged in conduct in reckless disregard for the safety of a person not engaged in criminal , conduct. In support of this argument, the City points to the provisions of . the Mississippi Tort Claims Act, which deny immunity to a law enforcement employee who in the course and scope of his employment engages in conduct in reckless disregard for the safety of a person not engaged in criminal, conduct. Miss. Code Ann. § ll-46-9(l)(c) (Rev.. 2012). We make two brief points in regard to this argument. First, it is the prerogatiye of the Mississippi Legislature, not the courts, to set the public policy of the state. Second, the Legislature has already spoken on this issue and has decided the public policy of the state: compensation benefits may be denied if the employee’s injury occurs as a result of the employee acting with willful intent to injure himself. This issue is without merit.

¶ 17. Since the record provides substantial evidence to support the finding of the Commission that Brown did not act with

the willful intent to injure himself, we affirm.

¶ 18. THE JUDGMENT OF THE'MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL' ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J„

text:
    Amy Clemons PLUMMER, Appellant v. James Jeffrey PLUMMER, Appellee
    NO. 2016-CA-00409-COA
    Court of Appeals of Mississippi.
    07/18/2017
    Rehearing Denied October 24, 2017
    Certiorari Denied February 1, 2018

      ATTORNEYS FOR APPELLANT: A.E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON
    ATTORNEY FOR APPELLEE: LUTHER PUTNAM CRULL JR.
    BEFORE LEE, C.J., ISHEE AND WESTBROOKS, JJ.
   NATURE OF THE CASE: CIVIL-DOMESTIC RELATIONS

ISHEE, J„

FOR THE COURT:

¶ 1. In 2005, James and Amy Plummer were divorced by decree of the Grenada County Chancery Court. Among others things, James was ordered to pay Amy $100 per month in alimony, and $850 per month in child support. In September 2014, Amy filed a petition for citation of contempt and for modification—requesting an increase in child support. James submitted an answer and a counterclaim for contempt and modification. In his counterclaim, James requested that his child-support obligation be reduced or terminated, and requested that his obligation to pay alimony be terminated.

¶ 2. A trial was held, and the chancery court rendered its written ruling on February 3, 2016. In its ruling, the chancery court terminated James’s alimony obligation, and modified his child-support obligations. Amy appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. James and Amy were divorced on October 25, 2005. At the time of the divorce, James worked as a federal park ranger, and Amy worked for the school system. The parties had three minor children: Jeffery, Jamie, and Aubrey. They shared joint legal custody of Aubrey and Jeffrey, but Amy received sole physical and legal custody of Jamie. In its ruling in 2005, the chancery court found that Jamie was a child of special needs, and thus awarded child support above the statutory guidelines, as well as limited visitation with James. ,

¶ 4. In the divorce decree, the chancery court ordered the following of James: to pay Amy $850 per month in child support, which exceeded the statutory guidelines; to pay Amy $100 per month in alimony; to provide major medical and hospitalization insurance for the children; to pay one-half of noncovered medical expenses for the children; and to pay $6,292.50 in attorney’s fees to Amy. Additionally, the chancellor awarded Amy the right to claim all three of their children as dependents for state and federal income-tax purposes.

¶ 5. Nearly nine years later, in September 2014, Amy filed a petition for citation of contempt and for modification. In the petition, Amy requested an increase in child support, and requested that James be ordered to provide support for Jamie beyond the age of majority, as Jamie has special needs and will require, constant care throughout her lifetime. Additionally,. Amy requested that James be held in contempt for his willful failure, to pay sums as ordered by the chancery court.

¶ 6. James filed an answer and a counterclaim for contempt and modification on July 10, 2015. In the counterclaim, James requested'. that Jeffrey be emancipated, that physical custody of Jamie and Aubrey be transferred to him, that his child-support obligation be reduced or terminated, and that his obligation to pay alimony be terminated.'

¶7, A trial was held on January 7, 2016, and the chancery court rendered its ruling on' February 3,- 2016/ In its ruling, among other things, the chancery court found Jeffrey to be emancipated, terminated James’s alimony obligation, and modified the. amount of James’s child-support obligation—from $850 per month for three children to $800 per month for two children. The chancery court also held that for every month James exercised visitation with the children, the next month he would only have to pay $700.

¶8. As it related to the.termination of James’s alimony obligation, the chancery court found that since the time of the parties’ divorce, there was a substantial, material change in circumstances, which warranted termination of James’s alimony payments. Specifically, Amy had received a substantial increase in her salary. At the time of the divorce, Amy worked in -the' school system—making approximately $33,000 per year. Then, at some point, Amy’s salary increased to approximately $44,000 per year. And finally, after receiving her' master’s degree, Amy received a raise in August 2015—making roughly $51,000 per year. In its ruling, the chancery court noted that-Amy has had continuous employment and now makes $4,290 gross monthly income; the chancery court found that this amount was sufficient for Amy to pay a $785 mortgage on a house, finance a new car for herself, buy a new jacuzzi, and buy a vehicle for Jeffrey.

¶ 9. As a federal park ranger for more than twenty-five years, James had maxed out his earnings. James’s maximum base pay was $51,437 annually. James’s Uniform Chancery Court Rule 8.05 financial statement showed that his gross income was $54,415. The difference between the pay-scale base and James’s actual gross income was due to the additional income he earned while working nights and weekends. Additional incóme could have been earned from deployment to natural-disaster areas; this income was not guaranteed. For the 2014 tax year, James’s gross income—according to his tax return—was $65,765, In 2014, James was deployed for two-and-one-half months for work on natural disasters. And in 2015, James worked overtime, nights, and weekends, to earn income exceeding his base pay.

¶ 10. The chancery court then recalculated James’s child-support obligation. In determining James’s monthly adjusted gross income (AGI), the chancellor did not consider only James’s base pay, nor did he consider only James’s highest years of earning—from disaster-relief work; instead,. the chancellor averaged the high and base AGI to reach a monthly AGI of $4,160.12. Ultimately, the chancellor arrived at $700 in child support. Additionally, in accordance with the statutory deviation factors, the chancellor increased this amount by $100 ($800 in total) because one of James’s children has special needs and has no visitation with him. Yet the chancellor qualified this award by finding that for every month James exercises visitation with the children, his next month’s payment would only be $700.

¶ 11. After the chancery court issued its ruling and subsequent order, Amy filed a motion to reconsider on February 25, 2016. The chancery court denied her motion on March 17, 2016. Amy now appeals.

STANDARD OF REVIEW

¶ 12. . The Mississippi Supreme Court has held that an appellate court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor .abused his discretion, was manifestly wrong [or] clearly erroneous[,] or- [applied] an erroneous legal standard.” Wilburn v. Wilburn, 991 So.2d 1185, 1190 (¶ 10) (Miss. 2008). Regarding legal questions, this Court applies a de novo standard of review. Id.

DISCUSSION

I. Termination of Alimony Obligation

¶ 13. On appeal, Amy argues that the chancellor erred in terminating James’s alimony obligation. Specifically, Amy argues that there was not a material change in circumstances that justified the termination of alimony.

¶ 14. “In order to justify the modification of a divorce decree, there must be a material and substantial change in the circumstances of the parties arising subsequently to the entry of the decree.” Magee v. Magee, 754 So.2d 1275, 1279 (¶ 7) (Miss. Ct. App. 1999). Our supreme court has held that in the event of a material change of circumstances periodic alimony may be terminated upon an order of the court. Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss. 1995).

¶ 15. In this case, the chancellor found that there had. been a material change in circumstances since the court’s original alimony award of $100 per month to Amy. We agree. In making his determination, the chancellor noted that—since the original award—Amy made a $4,290 gross monthly income, which was sufficient to pay a $785 mortgage on a house, finance a new vehicle for herself, purchase a jacuzzi, and purchase a vehicle for her son.

¶ 16. After reviewing the record, we agree with the chancellor’s finding of a material change in circumstances. Indeed, the record shows that—since the time of the divorce—Amy’s financial situation had substantially improved. At the time of the divorce, Amy made approximately $33,000 annually. At some point, Amy received a raise to around $44,000 annually. And then finally, in August 2015, after completing her master’s, degree, Amy saw her salary rise to approximately $51,000 annually, This is an increase of roughly $18,000 since the time of the divorce.

11.17, Alternatively, Amy argues that even if there was a material change of circumstances, the evidence proves that termination was not warranted when considering the twelve factors' set forth under Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). Indeed, this Court has held:

Not only must the chancellor consider the Armstrong factors in initially determining whether to award alimony and the amount of the award, but the chancellor should also consider the Armstrong factors in deciding whether to modify periodic alimony, comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.

James v. James, 724 So.2d 1098, 1102 (¶ 14) (Miss. Ct. App. 1998). The record reflects that the chancellor did consider these factors, even if he did not label them as such. The chancellor also considered the relative financial positions of James, and Amy—both at the time of the request for modification, and at the time of the original divorce decree. And so, we find that the chancellor did not err in terminating Amy’s original award of $100 per month in alimony,

¶ 18. In conclusion, and after a careful review of the record, we do not find that the chancellor abused his discretion in finding a material change in circumstances warranting the termination of James’s alimony obligation. This issue is without merit.

II. Reduction of Child-Support Payments

¶ 19. Next, Amy asserts that the chancellor erred in reducing James’s child-support payments. Amy’s argument, under this issue, is twofold. First, Amy argues that the chancellor erred in calculating the child-support amount. Second, she argues that the chancellor erred in reducing the child-support amount—conditioned on James’s exercising certain visitation rights with his children.

¶ 20. This Court has held that “[a] chancellor is afforded broad discretion in the area of modification of child[-]support obligations, and [we] will reverse only when the chancellor was manifestly in error in a finding of fact[,] or if there has been an abuse of discretion[,] or when an erroneous legal standard was applied.” Leiden v. Leiden, 902 So.2d 582, 585 (¶ 10) (Miss. Ct. App. 2004) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss. 1994)).

¶ 21. In order to modify child support, there must be a showing of a material change in circumstances of the child or parents since the decree awarding support. McNair v. Clark, 961 So.2d 73, 79 (¶ 23) (Miss. Ct. App. 2007). Our supreme court has held that “in determining if a material change in circumstances has occurred which would warrant a modification of child support, the change in circumstances could be that of the father, the mother, or the children.” Shipley v. Ferguson, 638 So.2d 1295, 1298 (Miss. 1994).

A. Calculation of Child-Support Payments

¶ 22. Amy argues that the chancellor érred in calculating the modified child-support amount. The Mississippi statutory child-support guidelines provide that noncustodial parents should pay twenty percent of their AGI for two children. Miss. Code Ann. § 43-19-101(1) (Rev. 2015). The guidelines are presumptively correct for persons with an adjusted yearly gross income between $10,000 and $100,000. Id.

¶23. In determining James’s monthly AGI, the chancellor did not consider only James’s base pay, nor did he consider only James’s highest years of earning; instead, the chancellor averaged the high and base AGI to reach a monthly AGI of $4,160.12. Ultimately, the chancellor arrived at $700 in child support. Additionally, in accordance with the statutory deviation factors, the chancellor increased this amount by $100 ($800 in total), because one of James’s children has special needs and no visitation with him. The chancellor further ruled that if James exercised his visitation rights for one full weekend, his child-support obligation would be reduced by $100. Meaning the following month, James would only have to pay $700 in child support.

¶24. Amy argues that the chancellor should have considered only the high years of James’s income to determine the appropriate AGI. Yet the chancellor declined to use this figure, and instead averaged the high and base AGI to come up with the monthly AGI to calculate James’s modified child-support payment. Upon review of the record, we cannot say that the chancellor erred in calculating James’s new child-support obligation. This issue is without merit.

B. Reduction of Child Support

¶25. Next, Amy argues that the chancellor erred in reducing James’s child-support obligation in the event that he exercised one full weekend of visitation with the children.

¶ 26. A court may deviate from the presumptively correct amount based on certain statutory factors. Miss. Code Ann. § 43-19-103 (Rev. 2015). Such deviation must be supported by written findings of fact explaining why the presumptively correct amount is inappropriate. Id. The statutory factors include:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Id. A noncustodial parent who exercises little to no visitation may be ordered to pay support exceeding the statutory guidelines. Gray v. Gray, 909 So.2d 108, 114 (¶ 30) (Miss. Ct. App. 2005).

¶ 27. In this case, the chancellor found that a deviation from the statutory child-support guidelines was appropriate based on Jamie’s special needs and James’s lack of visitation with his children. Indeed, the record shows that the chancellor addressed James’s lack of visitation with his children when he considered and then increased the amount of the child-support-obligation. The chancellor, however, ruled that for every month that James exercised one full weekend of visitation, the next month’s child-support obligation would not be $800, but $700. After reviewing the record, we find that the chancellor did not err in reducing James’s child-support obligation—contingent on his visitation with his children. The chancellor was operating under the discretion afforded to him under the statute. See Miss. Code Ann. § 43-19-103. This issue is without merit.

CONCLUSION

¶ 28. After reviewing the record, we find no abuse of discretion on the part of the chancellor. Therefore, we affirm.

¶ 29. AFFIRMED.

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

      . Jeffrey was born in 1995; Jamie was born in 1998; and Aubrey was born in 2000.

      . Jamie is described as being profoundly disabled. The record shows that she is, for the most part, bed-bound; requires a nurse’s care while Amy is at work; ‘ has a tracheotomy that requires ongoing care; needs a wheelchair to leave the house; and requires a diaper, which must be changed every four hours—even through the night.


author: GREENLEE, J., CARLTON, J.,

text:
    Wendell DUNCAN a/k/a Wendell Avery Duncan, Appellant v. Raniece MATTHEWS, Latresia Stewart, Richard Pennington, Mississippi Department of Corrections, and State of Mississippi, Appellees
    NO. 2016-CP-00366-COA
    Court of Appeals of Mississippi.
    07/18/2017
    Rehearing Denied October 31, 2017
    Certiorari Denied February 1, 2018
    WENDELL DUNCAN (PRO SE)."'
    OFFICE OF THE ATTORNEY GENERAL BY: JAMES M. NORRIS DARRELL CLAYTON. BAUGHN ANTHONY LOUIS SCHMIDT JR., ATTORNEYS FOR APPELLEES.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Wendall Duncan appeals from the Rankin County Circuit Court’s dismissal of. his civil complaint. The circuit court held that service of process was not perfected within the 120 days allowed and that Duncan failed to show good cause why service was not made. Duncan’s motion for a writ of mandamus, filed before 120 days had elapsed, indicated that he elected that service should be made by the sheriff. After the motion for a writ of mandamus was filed, the circuit clerk failed to deliver summonses and copies of the complaint to the sheriff for service. As it is apparent that Duncan showed good cause why service was not timely accomplished, and as such service by the sheriff was apparently the only way for Duncan to perfect service, we reverse and remand.

PACTS AND PROCEEDINGS BELOW

¶ 2. On October 29, 2015, Duncan filed a pro se complaint in the circuit court against the appellees. In his complaint, Duncan asserted that he was incarcerated. With his complaint, Duncan submitted a summons and an application to proceed in forma pauperis. The circuit clerk subsequently issued the summons and returned it by mail to Duncan. On November 9, 2015, the circuit court found that Duncan should be allowed to proceed in forma pauperis, which the circuit clerk’s office filed on the same day.

¶ 3. On January 4, 2016, the circuit clerk received correspondence from Duncan with a copy of the summons attached. In the correspondence, Duncan asked, “I would like to know have the defendants been served with the summons?” The circuit clerk replied to Duncan’s inquiry with a letter dated January 11, 2016, in which the clerk informed Duncan that “[t]he summons that you sent to the [c]lerk’s [ojffice was issued and sent back to you for service. The [c]lerk’s office does not serve summons[es].” The clerk’s letter was addressed to “Wendell Duncan, # 32726, S.M.C.I., P.O. Box 1419, Leakesville, Ms [sic] 39451.”

¶ 4. On January 22, 2016, in response to the letter from the clerk’s office, Duncan filed a Motion for Writ of Mandamus with the Rankin County Circuit Clerk asking the court to “order the [c]ircuit [c]lerk to issue the summonses to the sheriff, to serve, the defendants.” In his motion he stated .that the appellees should have been served by that time and asserted that they would have been served “if the [cjircuit [c]lerk had promptly issued process and delivered it to the sheriff.” The motion was stamped by the circuit clerk’s office and filed on January 22, 2016. On March 10, 2016, the circuit clerk’s office received correspondence from Duncan that stated, in pertinent part, “If you are not going to give my complaint and summons to the sheriff for delivering, please inform me of what you have did [sic].” On that same day, Duncan moved for a writ of mandamus with the Mississippi Supreme Court requesting it to order the circuit court to make a ruling on his motion for a writ of mandamus with that court.

¶ 5. On March 24, 2016, the circuit clerk received .further correspondence from Duncan in which he asserted the clerk was not cooperating and asked whether the clerk was going to “issue this process to the sheriff to serve .the defendants.” On May 2, 2016, the circuit clerk received a letter from the Clerk of the Mississippi Supreme Court- seeking the circuit court’s response to Duncan’s motion for a writ of mandamus.

¶ 6. On May 6, 2016, the circuit cóurt issued an order sua sponte concerning Duncan’s complaint. The court found that service of a summons was not .made .upon the appellees within 120 days of the filing of Duncan’s complaint. Further, the circuit court ordered Duncan to show within thirty days good cause why service of a summons and the complaint was not made on any of the appellees within the 120-day period. On the same day, the circuit court issued, an order denying Duncan’s motion for a writ of mandamus, finding, that Duncan never elected to have the clerk deliver summonses to the sheriff for service.

¶7. On May 16, 2016, the circuit court received a copy of an order from the Mississippi Supreme Court dismissing Duncan’s motion for a writ of mandamus as moot, given the circuit court’s order denying Duncan’s motion for a writ of mandamus filed with the circuit court.

¶ 8. On May 23, 2016, Duncan moved for reconsideration of the circuit court’s order. On June 10, 2016, the circuit court denied Duncan’s motion for reconsideration. That same day, the court issued a judgment of dismissal, having found that Duncan did not show good cause within thirty days as to why service of a summons and the complaint was not made on any of the appellees within 120 days of filing the complaint. On June 21, 2016, Duncan appealed the circuit court’s judgment to this Court.

DISCUSSION

¶ 9. A trial court’s grant or denial of a motion to dismiss is reviewed de novo; however, fact-based findings are reviewed on an abuse-of-discretion basis, looking to whether there was substantial evidence supporting the determination. Lewis v. Forest Family Practice Clinic P.A., 124 So.3d 654, 656 (¶ 7) (Miss. 2013).

¶ 10. On appeal, Duncan asserts the circuit clerk should have issued summonses to the sheriff to deliver to the appellees after he requested the same.

¶ 11. Mississippi Rule of CM Procedure 4(h) states that a plaintiff has 120 days to serve a summons and the complaint upon a defendant. Further, Rule 4(h) states that if service is not perfected within the 120-day period, and the party upon whose behalf service was required does not show good cause why such service was not made -within that period, the action shall be dismissed without prejudice.

¶ 12. Rule 4(a)(1)(B) states that the clerk shall “[djeliver the summons to the sheriff of the county in which the defendant resides or is found for service” “at the written election of the plaintiff.” M.R.C.P. 4(a)(1)(B).

¶ 13. On January 22, 2016, Duncan filed a motion for a writ of mandamus with the circuit-court clerk. A writ of mandamus is a command issued from a court and directed to “a lower court or governmental officer or body.” Black’s Law Dictionary (9th ed. 2009). Here, Duncan moved for the circuit court to order the circuit clerk to deliver summonses and the complaint to the sheriff so that service could be perfected. The circuit court did not so order, nor did the circuit clerk deliver the requested summonses to be served.

¶ 14. “The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner.” Copiah Cty. Sch. Dist. v. Buckner, 61 So.3d 162, 166 (1114) (Miss. 2011). Good cause is likely to be found when the plaintiffs failure to perfect service is the result of a third person’s conduct, the defendant has evaded service of process or engaged in misleading conduct, the plaintiff has acted diligently in trying to perfect service, there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis. Id. at (¶ 15).

¶ 15. Here, Duncan filed his complaint on October 29, 2015. Therefore, he had 120 days or until approximately February 26, 2016, to perfect service upon the appellees. Based on our review of the record, the circuit clerk was first made aware of Duncan’s desire to have service perfected by the sheriff by his writ of mandamus filed and stamped by the circuit clerk on January 22, 2016, before the 120 days had run. Here, Duncan gave notice of his written election through the language of his mandamus motion, and Duncan was proceeding in forma pauperis and pro se from the custody of the Mississippi Department of Corrections. The circuit clerk should then have delivered summonses and copies of the complaint to the sheriff for service. Given that Duncan was incarcerated and proceeding in forma pauperis, it is highly unlikely Duncan could have perfected service unless he had done so through the sheriff.

¶ 16. The circuit clerk—a third party— did not deliver summonses and copies of the complaint to the sheriff for service. Duncan, being incarcerated, had no other available means of perfecting service. Duncan also was proceeding both in forma pauperis and pro se. We find that the circuit court did not have substantial evidence for its finding of no good cause for Duncan’s failure to perfect service within the 120-day period. Therefore, the circuit court erred in finding that Duncan did not show good cause as to why service should be allowed to be perfected outside of the 120-day period. We further find that Duncan elected under Rule 4(a)(1)(B) for the sheriff to be delivered summonses and copies of the complaint to effect service of process.

CONCLUSION

¶ 17. We reverse the judgment of the circuit court dismissing Duncan’s complaint for failure to perfect service upon the appellees, and remand for further proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

IRVING AND GRIFFIS, P.JJ., ISHEE, WILSON AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES AND FAIR, JJ.

CARLTON, J.,

DISSENTING:

¶ 19.1 respectfully dissent from the majority’s opinion. Duncan failed to properly serve his complaint upon MDOC and all other parties as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. In addition to failing to serve summonses and copies of the complaint within 120 days from the date of filing, Duncan failed to file a motion to seek an extension of time to effect service pursuant to Rule 6(b)(2) of the Mississippi Rules of Civil Procedure. Duncan then failed to show good cause as to why he had not timely served process. As a result, I find no error in the trial court’s dismissal of Duncan’s complaint without prejudice.

LEE, C.J., BARNES AND FAIR, JJ., JOIN THIS OPINION.


text:
    Edwina ROBBINS, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01627-COA
    Court of Appeals of Mississippi.
    08/01/2017
    Rehearing Denied November 14, 2017
    Certiorari Denied February 1, 2018

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE IRVING, P.J., CARLTON • AND'WESTBROOKS, JJ. •
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Edwina Robbins appeals the judgment of the Perry. County Circuit Court adjudicating her guilty of robbery. She argues that the trial court erred by admitting a witness’s testimony. In addition, she argues that the evidence was insufficient to support the verdict, or alternatively, the verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 2, 2015, a Perry County grand jury returned a joint indictment against Robbins, Jonathan Hinton, and Samuel Moody, charging them with one count of armed robbery under Mississippi Code Annotated section 97-3-79 (Rev. 2014) and one count of conspiracy to commit armed robbery under Mississippi Code Annotated section 97-1-1 (Rev. 2014). Specifically, the indictment alleged that on November 21, 2014, Robbins, Hinton, and Moody robbed Lisa Barnes of her car keys and approximately forty dollars by the exhibition of a knife. Hinton pleaded guilty and testified as a witness for the State in Robbins’s trial. The charges against Moody were still pending at the time of Robbins’s trial. Jaylon Bolton, Robbins’s daughter’s boyfriend, was present during the robbery but was not charged. He testified during Robbins’s trial. Although 'the facts were disputed in several aspects and the testimony conflicting in some instances as to the extent of Robbins’s involvement in the robbery, all of the witnesses’ testimonies were consistent with respect to the following facts:

On November 21, 2014,.Barnes went to Robbins’s home to discuss a debt that she owed Robbins for drugs—crack cocaine—that Robbins had purchased for her. After talking with Barnes for a few minutes, Robbins stepped into another room, leaving Barnes sitting at her kitchen table. Barnes was then struck from behind in the head and neck by Hinton. Hinton threatened Barnes with a knife during the encounter. Hinton then took from Barnes, or was givens forty dollars. Robbins returned from the other room while Hinton held Barnes, threatening her and telling her to give him money.

¶4. Hinton testified that he searched Barnes’s shirt for money and that she gave him forty dollars out of her pocket; he took her car keys. He then went out to Barnes’s vehicle to search her purse for anything of value. He stated that he gave the keys to Moody and the knife to Bolton,' so he could hide it. He also testified that prior to Barnes’s arrival, Robbins had told him that a white lady was coming over to buy drugs, and she wanted him to rob her.

¶5. After the robbery, Barnes.left and went to a friend’s house because she was scared to go back to her home. She called the police later that night and alerted them of the robbery.. Later, Robbins was arrested.

¶6. During the trial, Robbins, Barnes, Hinton, and Bolton all testified as to the events of that night. Over the defense counsel’s objection, Thado McSwain testified that on the same night that Barnes was robbed, he was assaulted by Hinton when he went to Robbins’s home to discuss money that he owed her. He stated that Robbins had called him to stop by and pay her the thirty dollars that he owed her. He testified that, when he arrived Robbins and Hinton were there, and Hinton jumped at him as if to threaten him, asking him to pay money. He also stated that Hinton had his hand behind Hinton’s back, so he could not tell if he had a weapon or not. He also testified that as he left out the door, Hinton kicked him in his butt. He later called the police to report what he viewed as an attempted robbery and assault. There is no information in the record whether any charges were pursed with respect to his 911 call.

¶ 7. The essence of the State’s theory of the case was that Robbins was a drug dealer, Barnes owed Robbins money for drugs, and Hinton—at Robbins’s direction—robbed Barnes with a knife for money owed to Robbins. However, Robbins testified that she did not order Hinton to rob Barnes, she tried to help Barnes, and encouraged her to call the police. Prior to trial, Robbins’s counsel made an ore tenus motion in limine to prohibit other-bad-acts evidence; specifically, (1) evidence that Robbins was a drug dealer, and Barnes owed Robbins money for drugs, and (2) evidence that, after Barnes left Robbins’s house, McSwain later came to Robbins’s house and was threatened/robbed by Hinton for money that he owed Robbins. Robbins’s counsel argued that evidence that Robbins was a drug dealer, Barnes’s debt to Robbins was for drugs, and McSwain’s separate, uncharged, alleged robbery was irrelevant as to whether Robbins robbed Barnes or directed Hinton to do so, and it would be prejudicial to Robbins’s trial. The State argued that the evidence of Robbins’s drug dealing was “inextricably intertwined” with the charges, was admissible as to motive and intent, and was necessary to explain why Barnes went to Robbins’s house. The court overruled both of Robbins’s motions and admitted the evidence.

¶8. Robbins was convicted of simple robbery and sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Hinton pleaded guilty to armed robbery and was sentenced to fifteen years, with nine years suspended. Despite Robbins’s argument— that the State had not proven its burden— her motion for a new trial was denied by the court. This appeal followed.

DISCUSSION

I. Whether the court properly admitted, the testimony of a witness who testified concerning bad acts committed by Robbins.

¶ 9. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses his discretion so as to be prejudicial to the accused-, the [cjourt will not reverse his ruling.” Green v. State, 89 So.3d 543, 549 (¶ 15) (Miss. 2012).

¶ 10. Robbins argues that the trial court erred in allowing the State to (1) introduce evidence that Robbins was a drug dealer and that Barnes’s debt to Robbins was for drugs, and (2) ask questions and elicit evidence about a separate incident in which Hinton and Robbins allegedly threatened and/or robbed another person, McSwain, for money that he owed to Robbins. She contends that this evidence was inadmissible bad-acts evidence under Mississippi Rule of Evidence 404(b), and it was more prejudicial than probative under Mississippi Rule of Evidence 403. She further contends that allowing the State to introduce this evidence permitted the jury to infer that she was a bad person and was more likely to have committed the robbery. In addition, with respect to McSwain, she contends that the evidence allows for the inference that because Hinton and Robbins threatened or attempted to rob McSwain, it was more likely that Hinton and Robbins robbed Barnes.

¶ 11. The State argues that the trial court made an implicit finding that the testimony allowed was more probative than prejudicial, and any error due to the failure to conduct a Rule 403 balancing analysis on the record was harmless error. The State asserts that the evidence was admissible under Rule 404(b) to show that the same modus operandi was used indicating a “plan” being used by Robbins to collect money. The trial court’s care in determining what evidence was admissible, and what testimony could be given is suggestive of the trial court’s determination that the evidence was more probative than prejudicial and therefore admissible. In the alternative, any error suffered was harmless, as the State contends that the evidence of Robbins’s guilt was overwhelming. Barnes’s testimony, Bolton’s testimony, Hinton’s testimony, the preserved text messages to Lisa Barnes, and the evidence of the knife constitute overwhelming evidence of Robbins’s guilt.

¶ 12. We find no error with the court’s resolution of these evidentiary matters; as such, this issue is without merit.

II. Whether the verdict was sufficient on each element of proof, and, whether the verdict was supported by the overwhelming weight of the evidence.

¶ 13. In addressing the sufficiency of the evidence, “[t]he Mississippi Supreme Court has stated that ‘the relevant question is whether[,] after viewing the evidence in the light most favorable to the prosecution[,] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Hoffman v. State, 189 So.3d 715, 720 (¶ 21) (Miss. Ct. App. 2016) (quoting Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005)). As the record reflects, the jury was instructed that if it did not find Robbins guilty of armed robbery, it could find her guilty of - the simple robbery, a lesser-included offense of armed robbery. “Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery.” Miss. Code Ann. § 97-3-79 (Rev. 2014). Considering the evidence presented in the light most favorable to the State, we find that there was sufficient evidence to convict Robbins of simple robbery.

¶ 14. In reviewing a challenge to the weight of the evidence, the verdict may be disturbed “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Green, 89 So.3d at 554 (¶29).

¶ 15. We find, based on the evidence discussed earlier in this opinion, that allowing the verdict to stand would not sane» tion an unconscionable injustice. This issue is without merit. Therefore, we affirm Robbins’s conviction of robbéry and sentence of fifteen years in the .custody of the MDOC.

¶ 16. AFFIRMED.

LEE, C.J.,'GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Since issues one and two are related, we will discuss them together.

      . The State chose not to prosecute the conspiracy charge.

      . Moody was Robbins’s boyfriend and lived with her.

      .There is conflicting testimony as to whether Hinton held a knife to. Barnes's throat, whether the sheath had been removed from the knife, and who the owner-, of the kriife was; however, there is no dispute that Hinton threatened Barnes with a knife.

      . "Rule 404(b) provides that: evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Green, 89 So.3d at 549 (¶ 16).

      . “The Mississippi Supreme Court has stated that 'a lesser included offense by definition is one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense.’ ” Fulcher v. State, 805 So.2d 556, 560 (1110) (Miss. Ct. App. 2001).


author: LEE, C.J.,

text:
    Heath GRAMES, Appellant v. Holly GRAMES, Appellee
    NO. 2015-CA-01686-COA
    Court of Appeals of Mississippi.
    08/01/2017
    Rehearing Denied November 7, 2017
    Certiorari Denied January 25, 2018

      ATTORNEY FOR APPELLANT: CHASE FORD MORGAN
    ATTORNEYS FOR APPELLEE: JOHN D. SMALLWOOD, SHEILA HA-VARD SMALLWOOD
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this case, we must determine whether the. chancellor erred in dividing custody of the couple’s minor children. Finding no error, we affirm. :

PROCEDURAL HISTORY

¶ 2. Heath and Holly Grames were married in 1995 and separated in January 2014. The couple had four children: Parker, born in 1998; Miles, born in 2000; Clarissa, born in 2002; and Savannah, born in 2006. In February 2015, Holly filed her complaint for divorce in the Forrest County Chancery Court, By agreement of the, parties,' the chancellor appointed a guardian .ad litem (GAL) to represent the best interest of the children.

¶ 3. After a trial, the chancellor awarded Holly custody of the two girls and Heath custody of the two boys. The chancellor also set a visitation schedule. Heath filed a motion to" alter or amend the judgment. The chancellor issued a supplemental judgment to clarify several matters, including the visitation schedule.

¶4. Heath now appeals, arguing the chancellor erred by separating the children and by failing to award him reasonable visitation with his daughters.

FACTS

¶ 5. Heath and Holly are originally from Utah and moved to Hattiesburg, Mississippi, in 2006 for Heath’s job. Heath has a Ph.D. in marriage and family counseling and works at the University of Southern Mississippi as an associate professor. Throughout the marriage, Holly worked part-time to finish college and ultimately graduated with a master’s degree in accounting. In 2012, she began working for the Richton School District as a financial officer.

¶ 6⅛ Although Heath and Holly each accuse the other of cruel and immature behavior toward one another, both agree that they are good parents and all four children are well adjusted. After the parties separated, Holly began a long-distance relationship with a man living in Utah. This relationship caused tension between Holly and Miles, especially after Miles saw a suggestive photograph on Holly’s phone that Holly had texted to her boyfriend. The picture was of Holly in her bathing suit at a tanning salon. Miles did tell the GAL that he loved his mother, but preferred to live with his father.

¶ 7. The oldest son, Parker, requested to live with his father. Parker told the GAL he felt more comfortable at Holly’s house, but did not want to change schools since he would be graduating from high school in 2016. Clarissa told the GAL that she loved both her parents, but preferred to live with her mother. Savannah was too young to have a preference, although the GAL found that Savannah had a closer relationship with Clarissa due to their ages and sharing a bedroom. Other pertinent facts will be discussed as relevant in analyzing the issue of child custody.

STANDARD OF REVIEW

¶ 8. This Court will not disturb a chancellor’s findings “unless manifestly wrong or clearly erroneous.” Sanderson v. Sand-erson, 824 So.2d 623, 625 (¶ 8) (Miss. 2002). However, “[a] chancellor’s conclusions of law are reviewed de novo.” Lowrey v. Low-rey, 25 So.3d 274, 285 (¶26) (Miss. 2009).

DISCUSSION

I. Child Custody

¶ 9. In his first issue on appeal, Heath argues that the chancellor’s decision to separate the children was not in the best interest of the children and constitutes reversible error. Heath contends that it was in the children’s best interest to remain together in his custody.

¶ 10. Heath concedes that there is no per se rule against the separation of children. Sootin v. Sootin, 737 So.2d 1022, 1026 (¶ 14) (Miss. Ct. App. 1998). “Rather, the polestar consideration in all child[-]custody cases is the best interest of the child[ren].” Bowen v. Bowen, 688 So.2d 1374, 1381 (Miss. 1997). This Court has further stated that,

[w]hile the placement of children with their siblings is not a concern that “overrides” the best interest of the child, our case law makes it clear that keeping siblings together is assumed to be in the best interest of a child, absent a showing that the circumstances in a particular case are to the contrary.

Owens v. Owens, 950 So.2d 202, 207 (¶ 16) (Miss. Ct. App. 2006).

¶ 11. We now look to whether the chancellor properly considered the Al-bright factors and the best interest of the children. The factors used to determine what is in the best interest of a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who has 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 child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the 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 employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). “An Albright analysis is not a mathematical equation.” Hall v. Hall, 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014) (citation omitted). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Id. at 828 (¶ 21).

¶12. On appeal, Heath questions the chancellor’s ruling on the following factors that he believes weigh in his favor: moral fitness; preference of the children; and stability of employment. In regard to the moral-fitness factor, the chancellor determined that there was no substantial evidence that either party was guilty of any immoral conduct prior to or after the separation. Heath argues that both Holly’s long-distance relationship, which was entered into prior to their divorce, and the suggestive photograph she texted to her boyfriend are evidence of her immoral conduct. Holly testified that her relationship was not physical and that the photograph was not as salacious as portrayed by Heath. The GAL’s report noted that both parties accused the other of immoral conduct, and as a result, she also found this factor neutral. We cannot find the chancellor erred in finding this factor was neutral.

¶ 13. Heath argues that the preference-of-the-children factor should favor him because two of the three children old enough to state their preference chose to live with Heath. The chancellor found the factor to be neutral. Again, analysis of Albright is not a mathematical equation, and a child’s preference is “but one factor in considering the ultimate issue of what is in the best interest of the child.” Anderson v. Anderson, 961 So.2d 55, 59 (¶ 7) (Miss. Ct. App. 2007). Furthermore, Heath provides no authority for this argument; thus, this argument is procedurally barred. See M.R.A.P. 28(a)(7); Little v. Norman, 119 So.3d 382, 386 (¶ 14) (Miss. Ct. App. 2013).

¶ 14. Lastly, Heath contends the chancellor did not make specific findings regarding the stability-of-employment factor. And that any facts relevant to this factor favor him. However, the chancellor did discuss the stability of employment in his findings under factor 4—the employment of the parties and responsibilities of that employment—and under factor 11—other factors relevant to the parent-child relationship. In fact, the chancellor determined that factor 4 favored Heath simply because Heath’s work schedule was more flexible than Holly’s work schedule.

¶ 15. Ultimately, the chancellor noted that although separating siblings was not ideal, the best interest of the children would be for Parker and Miles to live with Heath and for Clarissa and Savannah to live with Holly. In ruling so, the chancellor relied upon the GAL’s extensive report, noting that he could “not find good reasons not to accept the recommendations of the GAL.” Here, substantial evidence supported the chancellor’s decision; thus, we find no merit to this issue.

II. Visitation

¶ 16. In the alternative, Heath argues that the chancellor’s visitation schedule was unreasonable since it deprived him of significant contact with his two daughters. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Fountain v. Fountain, 877 So.2d 474, 481 (¶ 26) (Miss. Ct. App. 2003) (citation omitted). “In determining visitation, the chancellor must continue to keep the best interest of the child[ren] as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child[ren].” Id.

¶ 17. The chancellor’s visitation schedule reflected the fact that Holly would be moving to Utah with Clarissa and Savannah to be near her and Heath’s extended family. In order for the children to see each other as much as possible, the chancellor ordered visitation of all four children to alternate between Holly and Heath for any week-long holidays. If either Holly or Heath traveled to Utah or Mississippi, then they would divide visitation equally. In the summer, Holly would have all four children during June, and Heath would have all four children during July. Due to the parties’ distance apart and the division of custody, we cannot find that the chancellor erred in setting visitation. This issue is without merit.

¶ 18. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE, AND WESTBROOKS, CONCUR.