author: IRVING, J.,

text:
    Prentiss E. SELLERS, Appellant, v. Nancy Bridges SELLERS, Appellee.
    No. 2007-CA-01459-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Nov. 10, 2009.

      Henry Palmer, Marvin E. Wiggins, attorneys for appellant.
    William B. Jacob, Meridian, Attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Prentiss Edsel Sellers (Eddie) appeals from a final judgment of the Nesho-ba County Chancery Court granting a divorce to him and Nancy Bridges Sellers on the ground of irreconcilable differences. Eddie asserts that the chancellor erred in ordering him to pay alimony and child support.

¶2. We find merit to the issues raised by Eddie; therefore, we affirm in part, reverse and render in part, and remand for further consideration.

FACTS

¶ 3. On October 14, 2005, Nancy filed a complaint for divorce in the Neshoba County Chancery Court on the ground of irreconcilable differences, habitual cruel and inhuman treatment, and constructive desertion. Nancy also sought primary custody of their minor children, Prentiss Austin and Isaac Lucas Sellers.

¶ 4. On October 26, 2005, Eddie filed an answer to Nancy’s complaint, and on October 31, 2005, he filed a counterclaim for divorce. Thereafter, on February 21, 2006, the parties reached a temporary agreement whereby they agreed to the following: (1) that Eddie would have temporary custody of Austin, and Nancy would have temporary custody of Isaac; (2) that Eddie would continue to provide medical insurance for both children; (3) that Eddie would have exclusive use and occupancy of the marital residence; (4) that Eddie would have reasonable visitation with Isaac, and Nancy would have reasonable visitation with Austin; and (5) that Eddie and Nancy would enter into a consent for divorce on the ground of irreconcilable differences, and the fault-based grounds would be dismissed with prejudice. The matter was set for trial on May 11-12, 2006.

¶ 5. On May 4, 2006, the chancellor held a status conference, and on June 9, 2006, entered an order providing, inter alia, “that the parties shall submit a motion to the Court to withdraw all pleadings inconsistent with obtaining a divorce on the ground of irreconcilable differences as well as an order granting same to the Court on or before May 11, 2006.” The chancellor also ordered the parties to “submit to the Court on or before May 11, 2006, their consent for divorce on the ground of irreconcilable differences and [identify] specifically those issues contested for the Court’s consideration, along with an itemization of property owned by either of the parties and their values.”

¶ 6. On June 8, 2006, the parties filed a consent for divorce in which they set forth the matters upon which they had agreed as well as those matters upon which they were unable to reach an agreement but were willing to have the chancellor decide. The certification of the notary public indicates that Nancy signed the consent on May 9, 2006, and that Eddie signed it on May 11, 2006.

¶ 7. We have perused the record and have been unable to find any motion seeking leave of court to withdraw Eddie’s contest and denial. We also have been unable to find any order granting such leave. Even though the parties failed to comply with the requirements of Mississippi Code Annotated section 93-5-2(5) (Supp.2008) and with the directives of the chancellor’s June 9th order, the chancellor granted them a divorce on the ground of irreconcilable differences.

¶ 8. Although the trial of the matter was initially set for trial on May 11-12, 2006, the case did not proceed to trial until August 7, 2006. At the conclusion of the trial, the chancellor valued the marital estate at $304,230 and, of that amount, awarded Nancy $142,990. He awarded the remainder, or $161,240, to Eddie. These awards included an equal division of the $100,000 equity in the marital home, resulting in each party receiving $50,000. In determining whether alimony was appropriate, the chancellor conducted an Armstrong analysis and ordered Eddie to pay $62,600 in lump-sum alimony. The chancellor then ordered that $50,000 of the award be paid from Eddie’s portion of the equity in the marital home and that the remaining $12,600 be paid in monthly installments of $700.

¶ 9. As stated, the chancellor awarded to each of the parties custody of one of their minor children. This fact notwithstanding, the chancellor also ordered Eddie to pay Nancy $490 as child support for the child to whom she was awarded custody. This amount represented fourteen percent of an adjusted gross income of $3,500, which the chancellor determined accurately reflected Eddie’s monthly adjusted gross income, notwithstanding that Eddie’s 8.05 financial disclosure statement reflected a different amount.

¶ 10. Additional facts, as appropriate, will be addressed during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. It is well settled that an appellate court’s “review in domestic relations matters is limited by [the] familiar substantial evidence/manifest error rule.” Parker v. Parker, 641 So.2d 1133, 1137 (Miss.1994) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990)). “This Court will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)).

¶ 12. Before discussing the issues, we feel compelled to address a matter highlighted by the procedural facts of this case. As noted, this case started out as a contested divorce proceeding. Sometime during the course of the proceedings, the parties decided to pursue their divorce on the ground of irreconcilable differences even though they could not resolve all of the issues involved. They notified the chancellor of their desire, and he instructed them to file certain pleadings to accomplish their objective. Obtaining an order allowing withdrawal of “all pleadings inconsistent with obtaining a divorce on the ground of irreconcilable differences” was one of the things that they were instructed to do. As previously noted, the parties failed to do so. However, Eddie has not raised this as an issue on appeal. Nevertheless, we address this matter briefly since our holding today is at odds with our holding in Pittman v. Pittman, 4 So.3d 395 (Miss.Ct.App.2009).

¶ 13. On April 23, 2009, approximately six weeks after we decided Pittman, the Mississippi Supreme Court decided Irby v. Estate of Irby, 7 So.3d 223 (Miss.2009) in which it held that subsection (5) of Mississippi Code Annotated section 93-5-2 (Supp.2008) must be read in conjunction with subsection (3) and that when the requirements of subsection (3) have been complied with, “the safeguards provided by subsection (5)[are] no longer necessary.” Irby, 7 So.3d at (¶ 54). The supreme court arrived at this construction of subsection (5) after discussing the history of section 93-5-2. However, as demonstrated by the quoted passages below, the court erroneously stated that the requirement — “that a contest or denial be withdrawn or canceled, by leave and order of the court, by the party who filed the contest” — had been in the statute since its promulgation. Id.

¶ 14. Section 93-5-2 in its original form as enacted by the Legislature, with an effective date of July 1, 1976, provided as follows:

Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint bill of the husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. No divorce shall be granted on the ground of irreconcilable differences unless the court shall affirmatively find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce. Bills for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. A joint bill of husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, may be taken as confessed and a final decree entered thereon, pro confesso, as in other cases and without proof or testimony in term time or vacation, the provisions of section 93-5-17 to the contrary notwithstanding. No divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial. Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in section 93-5-1.

1976 Miss. Laws 704-05 (emphasis added).

¶ 15. In 1978, the Legislature amended section 93-5-2 to read as follows:

Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint bill of the husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. No divorce shall be granted on the ground of irreconcilable differences unless the court shall find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce. Bills for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. A joint bill of husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, shall be taken as confessed and a final decree entered thereon, pro confesso, as in other cases and without proof or testimony in term time or vacation, the provisions of section 93-5-17 to the contrary notwithstanding. No divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of iireconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court. Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in section 93-5-1.

1978 Miss. Laws 570-71 (emphasis added).

¶ 16. In 1990, the Legislature again amended section 93-5-2, and the 1990 amended version of the section read as follows:

(1) Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver or process.
(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.
(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce. Appeals from any orders and judgments rendered pursuant to this subsection may be had as in other cases in chancery court only insofar as such orders and judgments relate to issues that the parties consented to have decided by the court.
(4)Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. Except as otherwise provided in subsection (3) of this section, a joint complaint of husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, shall be taken as proved and a final judgment entered thereon, as in other cases and without proof or testimony in termtime or vacation, the provisions of Section 93-5-17 to the contrary notwithstanding.
(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party ñling same by leave and order of the court.
(6) Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in Section 93-5-1.

1990 Miss. Laws 908-09 (emphasis added).

¶ 17. It seems rather clear that the language following the exception clause of subsection (5) of section 93-5-2 addresses situations where parties begin their divorce proceedings pursuing a fault-based divorce but later change their minds and decide to obtain the divorce, after an answer and denial to the fault-based complaint has been filed, on the ground of irreconcilable differences. As indicated by the 1976 version of the statute, when irreconcilable differences divorce first became a ground for divorce in this state, the parties had no such option. In other words, if the parties started out pursuing a divorce on a fault ground, they either had to pursue it to the end on a fault basis or voluntarily dismiss their fault-based divorce and start over with an irreconcilable-differences-based divorce if they could agree to have the divorce granted on this basis and agree on all the other matters set forth in the statute.

¶ 18. As can be discerned from a plain reading of the 1978 version of the statute, the 1978 amendment eliminated the necessity for the parties to dismiss their fault-based complaint and start over if, after first pursuing a divorce on a fault basis, they later agreed to a divorce on the ground of irreconcilable differences. All that was required was a withdrawal and dismissal of their contest or denial pursuant to leave and order of the court. Of course, an agreement that the divorce be granted on the basis of irreconcilable differences and an agreement regarding all matters set forth in the statute was still required.

¶ 19. With the 1990 amendment, the Legislature made it possible, as the language of the statute demonstrates, for parties to obtain a divorce on the ground of irreconcilable differences without first having to resolve all issues relating to property rights, alimony, child support, and child custody. After the 1990 amendment, three avenues were available to parties seeking a divorce on the ground of irreconcilable differences: (1) they could file a joint complaint seeking a divorce on the ground of irreconcilable differences and attach to the complaint an agreement that made adequate and sufficient provision for the custody and maintenance of any children of the marriage and for settlement of any property rights between the parties; (2) they could file a joint complaint seeking a divorce on the ground of irreconcilable differences and attach to the complaint an agreement stating (a) the issues that they were able to agree on, (b) the issues that they were unable to agree on, and (c) that they were submitting to the court for resolution the issues that they were unable to agree on with the understanding that they would be bound by the court’s resolution of those issues; or (3) they could initiate a fault-based divorce and convert to a no-fault or irreconcilable-differences-based divorce during the course of the proceedings.

¶20. Prior to the 1990 amendment, it was clear that before a chancellor could grant a divorce on the ground of irreconcilable differences “there [could] be no [outstanding] contest or denial of any ground for divorce.” Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992); see also Alexander v. Alexander, 493 So.2d 978, 980 (Miss.1986) (interpreting the requirements of section 93-5-2). This was true even if the parties agreed in writing to the granting of the divorce on the ground of irreconcilable differences and, by written agreement, settled any property rights between them and made adequate and sufficient provisions for the custody and maintenance of any children of the marriage. Alexander, 493 So.2d at 980. Thus, it necessarily follows that if the parties had initiated a fault-based divorce, they were required to "withdraw, prior to being granted a divorce on the basis of irreconcilable differences, any contest or denial that they had filed. Neither Massingill nor Alexander explained the procedure for the withdrawal or cancellation of the contest or denial if it were to occur in a manner different than the procedure which is stated in the statute, that is, by leave and order of the court.

¶ 21. As stated, the Irby court held that once the parties have met the procedural requirements of subsection (3) of section 93-5-2, the procedural safeguard of subsection (5) — which the court identified as the "withdrawal or cancellation of the contest or denial by leave of court — was no longer necessary. Apparently, the court reasoned, without specifically saying so, that the filing of the consent that is detailed in subsection (3) operates as a cancellation or withdrawal of the contest or denial referenced in subsection (5). While we are obligated to follow the Mississippi Supreme Court’s interpretation of the statutory law, it seems that interpreting subsection (5) in this manner overlooks the fact that it was the Legislature that enacted subsection (3) without repealing subsection (5), a subsection which contains language that had been in effect and given meaning since 1978. Surely, the Legislature was aware of the provisions of subsection (5) when it enacted subsection (3). Therefore, it is presumed to have considered the effect, if any, that the enactment of subsection (3) would have on the already-existing subsection (5). To suggest that the Legislature intended that subsection (3) serve to abrogate the provision of subsection (5) which follows the exception clause is to assign a nonsensical approach to legislative enactments by the Legislature.

¶ 22. Since prior to the addition of subsection (3) in 1990, parties who initiated a fault-based divorce had to withdraw or cancel their contest or denial by leave and order of the court before being able to obtain a divorce on the ground of irreconcilable differences, it seems quite logical that the Legislature, by leaving subsection (5) in the irreconcilable-differences statute, intended that that process should continue. It also seems logical that since the Legislature, by enacting subsection (3), created another avenue by which parties could obtain an irreconcilable-differences divorce, it was necessary to except from the strictures of subsection (5) the newly created avenue for obtaining a divorce on the basis of irreconcilable differences — thus the rationale or need for the exception clause at the beginning of subsection (5). But as we have already stated, we are duty bound to follow the law as laid down by our supreme court. Therefore, we return to the issues before us, as we must find that the chancery court possessed the requisite jurisdiction to grant the divox*ce on the ground of irreconcilable differences even though the parties never canceled or withdrew their contest or denial by leave and order of the court.

1. The Child Support Award

¶ 23. The crux of Eddie’s argument that the chancellor erred in ordering him to pay child support centers around the chancellor’s revision of figures related to income and expenses listed on his 8.05 disclosure statement. We briefly set forth the figures listed by Eddie and the adjustments made by the chancellor.

¶ 24. On his 8.05 disclosure statement, Eddie listed monthly gross income of $4,479 and adjusted gross income of $3,115.06. The gross income figure includes salary and wages from his employment with the Choctaw Health Center and $200 per month from his karate business. In arriving at his adjusted gross income, Eddie subtracted permissible deductions for child support purposes. However, he also deducted $355.19 for a voluntary 401k account. Finding this an impermissible deduction, the chancellor added the $355.19 back to Eddie’s adjusted gross income, bringing the total to $3,470.25. The chancellor then concluded that Eddie should have shown an adjusted gross income of $3,500 instead of $3,115.06 (apparently the chancellor rounded $3,470.25 up to $3,500).

¶ 25. Next, the chancellor reviewed Eddie’s 2004 tax return, which shows that Eddie experienced a net loss of $516 from his karate business. The chancellor also noted that Eddie’s tax return shows that he deducted $1,328 for depreciation and $3,376 for car and truck expenses associated with his karate business. The chancellor disallowed the deduction for depreciation and reduced the figure for car and truck expenses by half, finding that only $1,688 of the $3,376 had been expended in connection with the karate business. The chancellor then determined that Eddie profited $3,016 from his karate business in 2004. He arrived at this figure by adding the disallowed depreciation in the amount of $1,328 to the reduced car and truck expenses in the amount of $1,688. The chancellor then divided the $3,016 figure by twelve, arriving at a figure of $251.33 which the chancellor rounded down to $250. The chancellor added the $200, which Eddie indicated on his 8.05 financial disclosure statement that he had received monthly from the karate business, to the $250, which the chancellor determined was the correct monthly amount from the karate business, for a total of $450. Finally, the chancellor added the $450 to the $3,500 figure that he determined should have been shown by Eddie on his 8.05 financial disclosure statement, if he had not improperly deducted the $355.19 to the 401k account. Consequently, the chancellor determined that Eddie’s monthly adjusted gross income was $3,950.

¶ 26. We should also point out another matter that appeared to trouble the chancellor and may have overshadowed the way he looked at all income-related claims made by Eddie. Apparently, on an Internet dating web site, Eddie had listed his income at between $50,000 and $75,000. After learning of the web site listing, the chancellor did not alter the amount of gross income that Eddie had listed on his 8.05 financial disclosure statement; however, it is clear from a reading of the record that the chancellor suspected that Eddie may have been understating his income. At the very least, it seems that Eddie’s credibility suffered a substantial blow from the outset because of the website listing. Nevertheless, for purposes of arriving at Eddie’s adjusted gross income, the chancellor utilized Eddie’s 8.05 financial disclosure statement as a starting point. Therefore, we will not discuss this matter any further.

¶ 27. As stated, the chancellor found that Eddie’s adjusted gross income was $3,950. We find that the chancellor manifestly erred in his computation, as $200 of the $450 that the chancellor added to the adjusted gross income figure claimed by Eddie had already been included by Eddie. Thus, the chancellor actually charged Eddie with receiving $650 in monthly income from the karate business instead of $450. Accepting all of the chancellor’s other calculations, we find that Eddie’s adjusted gross income is only $3,720. Had the chancellor simply subtracted the $200 from the $3,115.06 that Eddie claimed as his adjusted gross income and added the $355.19 that Eddie claimed in voluntary 401k payments plus the $450 that the chancellor concluded represents Eddie’s disposable income from the karate business, he would have arrived at the figure of $3,720.25, the amount that we have determined is Eddie’s accurate monthly adjusted gross income.

¶ 28. We also note that even though the chancellor included disposable income from Eddie’s karate business in his calculation of Eddie’s monthly adjusted gross income, he gave the land, including the building that Eddie used to conduct his karate business, to Naney. We further note that the record clearly reflects that Eddie’s karate business has experienced a significant downturn over the last few years. Eddie testified that he had less than five students at the time of the hearing. This number was significantly less than the number he had had in previous years. Moreover, as already noted, the chancellor awarded the building that Eddie used to operate his karate business to Nancy. Thus, if Eddie wishes to continue operating his karate business he will have to incur other expenses in order to reestablish his business at another location. According to Eddie, it would take at least $60,000 to rebuild the karate school. Apparently, while considering the income potential of the karate business and its effect on Eddie’s adjusted income in the future, the chancellor did not take into consideration the increase in overhead expenses, as well as the decline in participants at the karate school. We now turn to the chancellor’s computation of Eddie’s living expenses.

¶ 29. On his 8.05 financial disclosure statement, Eddie claimed total living expenses of $3,619. Included in the $3,619 figure was $700 for food, $250 for incidentals, and $200 for entertainment, totaling $1,150. The chancellor, finding these figures excessive, reduced them from $1,150 to $600, thereby reducing the total amount of Eddie’s living expenses from $3,619 to $3,069. The chancellor then reduced that figure by $200 after concluding that Eddie, in reaching his figure, contemplated expenses for two children and now is only primarily responsible for one. Accordingly, the chancellor reduced Eddie’s total living expenses to $2,869.

¶ 30. We also find that the chancellor manifestly erred in calculating Eddie’s reasonable living expenses. The chancellor reduced the food, entertainment, and incidental living expenses claimed by Eddie on his 8.05 financial disclosure statement. The chancellor concluded that Eddie incorporated his expenses and those of both of his children in the claimed expenses for food, entertainment, and incidentals. Therefore, the chancellor reduced the $3,619 that Eddie claimed for living expenses to $3,069. Then, the chancellor further reduced the figure by $200. The problem with the chancellor’s analysis is that he reduced Eddie’s living expenses twice: once when he reduced Eddie’s expenses for food, entertainment, and incidentals to $600, leaving Eddie’s total living expenses at $3,069, and again when he reduced that figure by $200 to $2,869. The children were included in the figures for food, entertainment, and incidentals which were reduced by the chancellor, from $1,150 to $600. When the chancellor reduced the overall figure again by $200, he effectively twice reduced a portion of Eddie’s living expenses.

¶ 31. Since the appropriate amount of child support is based on a party’s properly calculated adjusted gross income, we are compelled to find that the chancellor manifestly erred in ordering Eddie to pay $490 in child support based upon an erroneous calculation of Eddie’s adjusted gross income. Therefore, we reverse and remand the case on this issue for the chancellor to recalculate Eddie’s adjusted gross income, consistent with this opinion, and to determine the amount of child support for Eddie to pay based on Eddie’s adjusted gross income as determined on remand.

2. The Payment of Periodic Alimony

¶ 32. The law is clear in Mississippi that “[i]f the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered.” Franks v. Franks, 759 So.2d 1164, 1167(¶ 8) (Miss.1999) (quoting Knutson v. Knutson, 704 So.2d 1331, 1333(¶ 10) (Miss.1997)).

¶ 33. As mentioned, the chancellor valued the marital estate at $304,230 and awarded Nancy $142,990 of this amount. However, since the chancellor ordered Eddie to make a $50,000 lump-sum alimony payment to Nancy out of his portion of the unliquidated equity in the marital home, the effect of the order was to give Nancy $192,990 of the marital estate and to re-duee Eddie’s $161,240 share of the marital estate to $111,240. Nevertheless, we affirm the chancellor’s grant of $50,000 in lump-sum alimony even though we consider that award part of his distribution of the marital estate. Thus, as we contemplate whether the chancellor erred in ordering Eddie to pay Nancy $12,600 in periodic alimony, we do so from the vantage point that Nancy’s share of the marital estate exceeded Eddie’s by $81,750. On these facts, we are unable to discern a deficit that was suffered by Nancy after the equitable division of the marital estate. Therefore, we find that the chancellor manifestly erred in ordering Eddie to pay Nancy $12,600 in periodic alimony, even though he had determined that Nancy’s separate estate is considerably less than Eddie’s. The chancellor was not charged with equitably dividing the parties’ separate estate.

CONCLUSION

¶ 34. In summary, we affirm the chancellor’s decision awarding Nancy $50,000 in lump-sum alimony from Eddie’s equity in the marital home, although we have determined that the $50,000 constituted a part of the equitable division of the marital estate, not lump-sum alimony, because the equity in the home was unliquidated. We reverse and render the chancellor’s award of $12,600 in periodic alimony to Nancy. We reverse and remand the chancellor’s decision ordering Eddie to pay $490 a month in child support.

¶ 35. We note that were we to affirm the chancellor in toto, Eddie would be unable to pay the amounts ordered. Based on Eddie’s true adjusted gross monthly income of $3,720, he would have only $151 left after paying the $700 monthly periodic alimony installment (the chancellor ordered the $12,600 paid in monthly installments of $700). Yet, Eddie was also ordered to pay $490 in monthly child support payments. For the reasons mentioned above, we affirm in part, reverse and render in part, and remand this case to the Chancery Court of Neshoba County for further proceedings consistent with this opinion.

¶ 36. THE JUDGMENT OF THE NESHOBA COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLEE AND ONE-HALF TO THE APPELLANT.

LEE, P.J., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . Eddie actually presents four issues for our review, three pertaining to alimony and one pertaining to child support. Thus, we have consolidated Eddie's three issues as they relate to alimony.

      . The order was filed on June 13, 2006.

      . In Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), the Mississippi Supreme Court delineated factors for chancellors to consider when determining whether alimony is appropriate.

      . Rule 8.05 of the Uniform Chancery Court Rules requires parties in cases involving domestic economic issues or property division to submit a financial disclosure statement.

      . In Pittman, 4 So.3d at 399 (¶¶ 13, 15), we decided, on facts identical to those here, that the chancellor erred in granting the parties a divorce on the ground of irreconcilable differ-enees because the parties failed to obtain an order withdrawing dieir contest or denial.

      . The court called this requirement a procedural safeguard. Irby, 7 So.3d at (¶ 54).

      . The Legislature amended section 93-5-2 once again in 2008. The amendment substituted "ground” for "grounds” the second time it appears in subsection (5) and added a new subsection, subsection (7). Miss.Code Ann. § 93-5-2 (Supp.2008).

      . The chancellor determined that Nancy had a separate estate of $13,620 and that Eddie's was $137,500.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Benito Jo RUIZ, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02168-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Oct. 27, 2009.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On August 17, 2007, Benito Jo Ruiz, Jr., was found guilty in the Circuit Court of Coahoma County of sexual battery. He was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, and he was ordered to undergo psychological evaluation and treatment as well as alcohol and drug treatment. In addition, Ruiz was ordered to register as a sex offender pursuant to Mississippi Code Annotated section 45-33-25 (Supp.2008). Aggrieved by the circuit court’s ruling, Ruiz appeals, alleging two assignments of error: (1) the evidence was insufficient to support the verdict; and (2) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case involves the sexual battery of an eight-year-old girl, G.W., by Ruiz during the spring of 2006. The case was tried before a jury which unanimously found that Ruiz was guilty of committing the crime. The precise day on which the crime occurred is unclear. At trial, Ruiz’s girlfriend, Jan Harbin, testified that on April 19, 2006, she received a call from Ruiz asking her to come over because he had a private matter that he wished to discuss with her. When she arrived at Ruiz’s house, he confessed to her that he had inappropriately touched a young girl. Harbin recommended that they call the sheriffs office to inform them of the situation, and she stayed with Ruiz until two deputies arrived at his house. The officers advised Ruiz of his rights and took him to the sheriffs department. Harbin also went to the sheriffs department, where she gave her statement to the officers.

¶ 3. Deputy Sheriff Chris Doss testified that on April 19, 2006, he received a call in reference to a child fondling. Deputy Doss was instructed to go to Ruiz’s house, and when he arrived, Ruiz told Deputy Doss that he wished to turn himself in to the authorities for touching an eight-year-old girl on the outside of her pants. Deputy Doss stopped Ruiz from continuing his story and read him his Miranda rights. Investigator Fernando Bee also arrived at Ruiz’s house, and while he was there, he received a call reporting a child rape case. Investigator Bee left Ruiz’s house to go investigate the case while Deputy Doss took Ruiz to the sheriffs department. Investigator Bee soon realized that the call he had received regarding the child rape case and the call Deputy Doss had received about the child fondling arose from the same incident involving G.W. Investigator Bee then returned to the station to talk to Ruiz.

¶ 4. Ruiz told Investigator Bee that one night he had been drinking beer at the home of G.W.’s grandmother, G.M. Ruiz’s cousin was also there, and the two women wanted to go out. They needed a babysitter for G.W., so Ruiz volunteered to watch her. Ruiz took G.W. to his house where he then drank more beer with his father, Benito Ruiz, Sr. After his father went to bed, Ruiz admitted that he sat on the love seat with G.W., and he “put [his] hands down on her private [area] on the outside of her pants.” He then “told [G.W.] to stand up and bend over the arm of the love seat and [he] took [his] penis out and rubbed it against her-against the back of her down by her private area.” Ruiz further stated that he never put his penis inside of her, nor did he ejaculate when he rubbed against her, and he asked G.W. not to tell anyone what happened. According to Ruiz, he then sent G.W. to his bedroom to go to sleep and instructed her to lock the door. He claimed that the only time he had touched G.W. inappropriately was that incident on the love seat.

¶ 5. At the time of trial, G.W. was nine years old, and her testimony was somewhat different than the statement given by Ruiz. She testified that while she was at Ruiz’s house he did not touch her between her legs while they were sitting on the love seat; however, he had asked her to bend over the sofa, and when she did, he “hunch[ed]” her. She further testified that she stayed overnight at Ruiz’s house and slept in his bedroom. When G.W. went to bed, she said that she did not have any clothes on, and that Ruiz, who was also undressed, came into her bedroom and got on top of her, and he “hunch[ed]” her again. She testified that he put his private part in hers, and it hurt and lasted a long time.

¶ 6. G.M. learned in April 2006 what had happened. G.M. testified that Ruiz came to her house one morning and asked if G.W. wanted to go to the store with him. G.W. replied that she did not and put her head down. When G.M. asked G.W. what was wrong, G.W. told her what Ruiz had done. G.M. confronted Ruiz with G.W.’s story, and he confessed that he might have done something like that. On April 19, 2006, G.M. called the sheriffs office and spoke with Investigator Bee.

¶ 7. Patricia White, a family nurse practitioner and certified nurse mid-wife, testified that G.M. brought G.W. in to be examined on April 21, 2006. G.M. told White that someone had touched G.W. between her legs and that it had occurred two weeks earlier. White examined G.W. and found breaks in the tissue around the urethra and breaks in her hymen. White testified that the hymen is located inside the opening of the vagina, between the labia, and it should be intact in virgins and children unless there has been some kind of trauma.

DISCUSSION

I. Sufficiency of the Evidence

¶ 8. Ruiz first complains that the evidence presented was insufficient to sustain a guilty verdict. The standard of review for appeals regarding sufficiency of the evidence requires the appellate court to view the evidence “in a light most favorable to the State. The credible evidence consistent with the defendant’s guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.” McCoy v. State, 878 So.2d 167, 174(¶ 17) (Miss.Ct.App.2004) (quoting Muscolino v. State, 803 So.2d 1240, 1243(¶ 10) (Miss.Ct.App.2002)). The court must determine whether the evidence demonstrates “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). The jury has the duty of resolving matters regarding the weight and credibility of the evidence. Smith v. State, 904 So.2d 1217, 1221(¶ 11) (Miss.Ct.App.2004). This Court “may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id. In addition, with regard to this specific type of case, the Mississippi Supreme Court has consistently held the following:

the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.

Maiden v. State, 802 So.2d 134, 136(¶ 5) (Miss.Ct.App.2001) (citing Cross v. State, 759 So.2d 354, 356(¶ 11) (Miss.1999)).

¶ 9. In reviewing the evidence in a light favorable to the State, we find that the evidence was sufficient to sustain the guilty verdict. G.W. testified that she spent the night at Ruiz’s house, and he came into his bedroom, where he had told her to sleep. She further testified to the following:

[State]: And were your clothes on when you went to bed?
[G.W.]: No.
[State]: And when you saw Benito, did he have clothes on?
[G.W.]: No.
[State]: And did he come into the room where you were at?
[G.W.]: Yes.
[State]: And did you see him at a time when he was undressed, didn’t have any clothes on?
[G.W.]: Yes.
[State]: And when you saw him like that, what did he do?
[G.W.]: Hunch me.
[State]: Say that one more time?
[G.W.]: Hunch me.
[State]: Hunched you. Did he get on top of you?
[G.W.]: Yes.
[State]: And that night, were you able to see the private parts of Benito? Did you see him undress?
[G.W.]: Yes.
[State]: And did he ever do anything to you with his private part?
[G.W.]: Yes.
[State]: Okay, what did he do?
[G.W.]: Got on top of me.
[State]: Did he put his private part in yours?
[G.W.]: Yes.
[Defense Counsel: Objection]
[The Court]: ... Sustained.
[State]: When he got on top of you, can you tell me if it hurt or not?
[G.W.]: Yes.
[State]: And did it last very long?
[G.W.]: Yes.
[State]: Did it hurt the whole time?
[G.W.]: Yes.

¶ 10. Keeping in mind that this testimony is that of a nine-year-old girl, we find that the victim attempted to express herself to the best of her ability. Furthermore, her testimony is corroborated by the medical evidence provided by the examining nurse practitioner. The tears in G.W.’s hymen indicated trauma, which was consistent with G.W.’s recount of what had happened. This Court has held that “any penetration of the labia, no matter how slight, is sufficient to establish the element of ‘sexual penetration’ in a rape case.” Pryer v. State, 958 So.2d 818, 823(¶ 13) (Miss.Ct.App.2007) (quoting McGee v. Cuna Mutual Ins. Society, 452 So.2d 438, 440-41 (Miss.1984)). “The same standard may also be applied to sexual battery.” Id.

¶ 11. We find that Ruiz’s admission, and the testimonies of G.W. and the examining nurse practitioner were sufficient to support the contention that Ruiz’s actions resulted in sexual penetration. While examining G.W., White found tears in G.W.’s hymen, which would have required, at a minimum, some penetration of the labia; therefore, the essential element of sexual penetration required in a sexual battery case was met. In addition, Ruiz admitted to rubbing his penis against G.W.’s private parts, and G.W. testified that he “hunched her.” Upon careful review of the record, we find it was certainly possible for reasonable, fair-minded jurors to have found Ruiz guilty.

¶ 12. With regard to Ruiz’s complaint that conflicts existed in the recounts offered by G.W. and Ruiz of what happened on the night in question, “[jjurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear.” Givens v. State, 967 So.2d 1, 7(¶ 19) (Miss.2007) (citation omitted). The jurors in this case had the opportunity to review the evidence and testimonies presented at trial, and they then had the responsibility of determining the amount of weight to give to the evidence and witnesses in making their decision. As a result, the jury acted properly in their deliberations, and we find that Ruiz’s assignment of error is without merit.

II. Weight of the Evidence

¶ 13. Ruiz also alleges that the verdict was against the overwhelming weight of the evidence and that the circuit court erred in denying his motion for a new trial. He contends that it was not possible for a reasonable jury to have found there was penetration beyond a reasonable doubt. The supreme court has held the following with regard to an appeal which involves a claim that a verdict is against the overwhelming weight of the evidence:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Boone v. State, 973 So.2d 237, 243 (¶¶ 20-21) (Miss.2008) (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 14. We do not find that the circuit court abused its discretion in failing to grant a new trial. The jury found sufficient evidence that penetration had occurred to support a conviction of sexual battery. Their findings were based on the medical evidence presented, an admission by the defendant, and the testimonies of the victim and the examining nurse practitioner. Therefore, we do not find that the verdict was against the overwhelming weight of the evidence. This issue is without merit.

¶ 15. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO REGISTER AS A SEX OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Court of Appeals declines to identify sexual battery victims. In the interest of the child's privacy, the minor's name, as well as the names of family members, have been replaced with initials.


author: MYERS, P.J.,

text:
    Doris A. ANDRES, Appellant v. Patrick T. ANDRES, Appellee.
    No. 2008-CA-01454-COA.
    Court of Appeals of Mississippi.
    Oct. 6, 2009.

      William W. Dreher, Gulfport, attorney for appellant.
    Jennifer Sekul Harris, Jackson, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Harrison County Chancery Court modified the child support obligation of Patrick Andres based upon the emancipation of his son and granted Patrick a credit for child support payments made after his son’s emancipation. Aggrieved by the chancellor’s order, Doris Andres, his ex-wife, appeals arguing: (1) the trial court erred in retroactively modifying the child support owed by Patrick; (2) the trial court erred in granting Patrick a credit for certain child support payments; and (3) the trial court ignored the clean-hands doctrine. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Patrick and Doris were married on May 5, 1989. During their marriage, Patrick adopted Doris’s child from her previous marriage, A.J.; the two also had a daughter together, Alise. However, Patrick and Doris separated in May 1995, and they were subsequently granted an irreconcilable differences divorce by the Harrison County Chancery Court on May 23, 1997. As part of the divorce decree, Patrick and Doris executed a separation agreement which provided in part that Doris would have permanent physical custody of A.J. and Alise and that Patrick would pay $300 per month in child support until July 1, 1997, with child support increasing to $400 per month beginning on August 1, 1997. The agreement provided that the child support would cease when the minor children reached the age of majority, became emancipated, or through a court order. This separation agreement was modified by the Harrison County Chancery Court on June 11, 2003, by increasing the amount of child support Patrick had to pay from $400 per month to $504 per month beginning on June 1, 2003.

¶ 3. After the divorce, Doris remained on the Mississippi Gulf Coast while Patrick moved to Ohio. In August 2005, Hurricane Katrina made landfall on the Mississippi Gulf Coast and caused historic and catastrophic damage. Thereafter, Doris sent Alise to live with her aunt in Georgia, while Doris stayed on the Mississippi Gulf Coast. It is apparent from the record that, prior to Hurricane Katrina making landfall, A.J. had moved out of Doris’s house and remained on the Mississippi Gulf Coast. At Doris’s direction, Patrick mailed his child support payment for August 2005 directly to Alise’s aunt in Georgia. Patrick continued to mail his child support to Alise in Georgia from August 2005 until April 2006, when Alise returned to the Mississippi Gulf Coast. Patrick continued to make his child support payments for another two months, then, after making half of a child support payment for June 2006, Patrick stopped making child support payments. Patrick did not make any child support payments from July 2006 to October 2007, at which time he resumed making his monthly child support payments via a wage garnishment.

¶4. Meanwhile, in January 2007, Doris filed a complaint for contempt and an upward modification of child support. Patrick responded by filing a counterclaim against Doris for contempt and for a downward modification of child support. According to Patrick, the matter was continued several times, and it was finally heard on January 28, 2008.

¶ 5. In a May 23, 2008, order, reflect the January 28, 2008, hearing, the chancellor found the following: A.J. was emancipated as of June 2005; Patrick should have been paying $354.97 from June 2005 until May 2006 instead of $504; Patrick was given a credit for $1,639.33 to reflect the overages paid to Doris from June 2005 until May 2006; Patrick owed $5,794 in arrearages; and Patrick was in “contumacious contempt” for failure to pay child support. A judgment for $4,154.67 was entered against Patrick for his arrearages. Patrick was also ordered to pay $424 per month in child support until further order of the court, and Patrick was to maintain health insurance on Alise. It is from this order that Doris appeals.

STANDARD OF REVIEW

¶ 6. In R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007), the supreme court outlined our standard of review on appeal:

Our scope of review in domestic relations matters is limited by the familiar substantial evidence/manifest error rule. This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Particularly in the areas of divorce and child support, this Court must respect a chancellor’s findings of fact which are supported by credible evidence and not manifestly wrong.

(Internal citation omitted).

I. WHETHER THE TRIAL COURT ERRED IN MODIFYING THE CHILD SUPPORT.

¶ 7. Mississippi Code Annotated section 93-ll-65(8)(a) (Supp.2008) provides that: The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:

(i) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony

“Our supreme court has also made it clear that ‘[a] parent is relieved of the legal duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.’ ” Houck v. Houck, 812 So.2d 1139, 1142(¶ 9) (Miss.Ct.App.2002) (citing Crow v. Crow, 622 So.2d 1226, 1229 (Miss.1993)).

¶ 8. However, as Doris correctly points out, “child support obligations vest in the child as they accrue. Once they have become vested, ... they cannot be modified or forgiven by the courts.... ” [E]ach payment that becomes due and remains unpaid “becomes a ‘judgment’ against the supporting parent.” Id. at 1143(¶ 11) (citations omitted). “No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity.” Crow, 622 So.2d at 1231.

¶ 9. These rules create a paradox: a vested child support obligation cannot be forgiven, but a child support obligation terminates upon emancipation and cannot be modified by a party. The supreme court ultimately answered this question, but not before reaching a contra position.

¶ 10. In Moore v. Moore, 372 So.2d 270 (Miss.1979), the supreme court addressed this quagmire. In Moore, the supreme court disallowed a retroactive reduction in child support obligations based upon the emancipation of one of multiple children being supported by a child support decree. Id. at 271. Relying on the ruling in Moore, the supreme court in Williams v. Rembert, 654 So.2d 26 (Miss.1995) applied the same logic. In Williams, the chancellor initially forgave a portion of a child support arrearage where the record indicated that the father had unilaterally reduced his child support payments upon the emancipation of one of his children. Id. at 27. Upon reconsideration, the chancellor changed his ruling based upon precedent that precluded the retroactive reduction of vested child support obligations, which the supreme court affirmed. Id. at 27-29.

¶ 11. The supreme court has reversed course more recently. In Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989), an obligor father was allowed a credit for child support paid subsequent to one of his children reaching the age of twenty-one and the child moving into the father’s home.

¶ 12. Citing Nichols, the supreme court in Sumrall v. Munguia, 757 So.2d 279, 285(¶ 28) (Miss.2000), held that the chancellor abused his discretion in refusing to grant the father a credit for excess child support payments made following his son’s emancipation.

¶ 13. The court in Department of Human Services v. Fillingane, 761 So.2d 869 (Miss.2000) settled the conflicting holdings in the above cases. In Fillingane, the chancellor reduced the father’s arrearages to reflect the emancipation of his children. Id. at 870(¶ 6). Citing the equitable principles that form the basis of our chancery court and the deferential standard given to a chancellor’s ruling on appeal, the supreme court found that it was within the discretion of the chancellor to grant a credit to the husband for child support payments made subsequent to a child’s emancipation. Id. at 872(¶ 13).

¶ 14. Turning to the case at bar, we find that the chancellor did not err in modifying Patrick’s child support obligation to reflect A.J.’s emancipation. Mississippi Code Annotated section 93-11-65(8)(a)(i) provides that a person’s child support obligation should terminate upon the child becoming emancipated after attaining the age of twenty-one years. The chancellor found that A.J. was emancipated in June 2005, the month of his twenty-first birthday. Applying the plain language of the statute, we find that the trial court was correct in finding that A.J. was emancipated as of June 2005.

¶ 15. Mississippi Code Annotated section 43-19-101 (Rev.2004) provides the guidelines for the amount of child support due from a percentage of the payor or parent’s gross income as follows: 14% for one child; 20% for two children; 22% for three children; 24% for four children; and 26% for five or more children. Upon finding that A.J. was emancipated, Patrick’s duty to pay child support for A.J. ceased, and his child support obligation then became solely for his daughter, Alise. Therefore, Patrick should have only been paying 14% of his adjusted gross income, instead of 20% for two children. The chancellor recognized this fact and ordered that Patrick should have been paying $354.97 since June 2005, the month of A.J.’s emancipation, instead of $504 for two children. We conclude this is the correct result.

¶ 16. Additionally, Patrick and Doris’s separation agreement provided that Patrick’s child support obligation would terminate upon the emancipation of the children. The supreme court and this Court have treated such separation agreements as contracts and given weight to the stipulations and requirements outlined in them. See Mottley v. Mottley, 729 So.2d 1289, (Miss.1999); Crow, 622 So.2d at 1229; Harmon v. Yarbrough, 767 So.2d 1069, (Miss.Ct.App.2000). There was no evidence presented that the agreement was not entered into freely, and we find that the clause is unambiguous. Therefore, Patrick and Doris were bound by the provision in the separation agreement that Patrick’s child support obligation would discontinue at the emancipation of the minor children.

¶ 17. Given the precedent that allows a chancellor the discretion to grant a parent credit for child support obligations that vested after the emancipation of a child, we find that the chancellor did not abuse his discretion in reducing Patrick’s child support arrears to reflect the emancipation of A.J. To hold otherwise would “unduly restrict a chancellor’s ability to make an equitable ruling.” Fillingane, 761 So.2d at 872(¶ 13). Accordingly, this issue is without merit.

II. WHETHER THE CHANCELLOR ERRED IN GRANTING A CREDIT FOR CHILD SUPPORT PAYMENTS.

¶ 18. “[A] chancellor should have the discretion to grant an obligor parent a credit for child support payments which were made on behalf of a child subsequent to that child’s emancipation.” Id. “Child support payments are for the benefit of the child, not the recipient parent.” Strack v. Sticklin, 959 So.2d 1, 6(¶ 15) (Miss.Ct.App.2006) (citation omitted).

¶ 19. As stated above, the supreme court in Nichols, Sumrall, and Fillingane ruled that a parent should be given credit for child support payments made after a child becomes emancipated. This Court has applied the rule that a parent is owed a credit for overpayments made after a child has been emancipated. See Caldwell v. Caldwell, 823 So.2d 1216, 1221 (¶ 19) (Miss.Ct.App.2002); Houck v. Houck, 812 So.2d 1139, 1143(¶ 12) (Miss.Ct.App.2002).

¶20. The chancellor found that Patrick was owed a credit of $1,639.33 for overpayments made from July 2005 to May 2006. This was during the period when Alise resided with her aunt in Georgia. Doris argues that Patrick should not have been granted a credit for child support payments made to Alise’s aunt while Alise was living with her. Doris states that she only directed Patrick to make one child support payment to Alise’s aunt, and Patrick should not receive a windfall for the other child support payments.

¶ 21. As stated above, child support is for the benefit of the child, not the custodial parent. Patrick maintained his child support duty by directing his payments to Alise as she moved around after being forced out by Hurricane Katrina. Patrick provided photocopies of the canceled checks of his payments made to Alise’s aunt while Alise was residing with her. When Alise returned to the Mississippi Gulf Coast, Patrick resumed sending his payments to Doris. These actions establish that Patrick upheld his child support obligation from July 2005 to May 2006.

¶ 22. Contrarily, the outcome of Doris’s argument would result in an unjust enrichment to her as she would be receiving funds which Patrick had already paid to Alise. This would hardly be an equitable result for Patrick.

¶ 23. Additionally, the chancellor found that A.J. was emancipated in June 2005, yet Patrick continued to pay child support for A.J. and Alise until May 2006. The credit was given by the chancellor to compensate Patrick for child support payments made to A.J. while Patrick was not under a legal duty to continue his child support payments to A. J.

¶ 24. Accordingly, we find the chancellor did not abuse his discretion in granting Patrick a credit for child support payments made to Alise’s aunt while Alise was residing with her and subsequent to A.J.’s emancipation.

III. WHETHER THE TRIAL COURT ERRED BY IGNORING THE CLEAN-HANDS DOCTRINE.

¶ 25. The doctrine of clean-hands provides that “he who comes into equity must come with clean hands.” Cook v. Whiddon, 866 So.2d 494, 498(¶ 13) (Miss.Ct.App.2004) (citing Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970)). “[T]he clean-hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Id. (citing Bailey v. Bailey, 724 So.2d 335, 337(¶ 6) (Miss.1998)).

¶ 26. Doris argues that the chancellor erred in granting Patrick relief due to his unclean hands. Doris surmises that because Patrick was in arrears of approximately $4,154.67, his hands were unclean; thus, prohibiting him from coming into the chancery court to seek relief.

¶ 27. Doris is correct that the courts have addressed this situation “countless times.” In Brennan v. Brennan, 605 So.2d 749, 753 (Miss.1992), the supreme court ruled that an entry of final judgment on the petitioner’s dereliction of previous court order obligations cleansed the petitioner’s hands and revived, for consideration of modification purposes, the original divorce judgment.

¶ 28. After finding that the appellant came to court with unclean hands, the Court in Lane v. Lane 850 So.2d 122, 127(¶ 14) (Miss.Ct.App.2002), found the chancellor’s judgment of total arrearages cleansed the appellant’s hands reviving his petition for modification. This Court has continued to apply this holding. See Chapman v. Ward, 3 So.3d 790, 799(¶ 29) (Miss.Ct.App.2008); Howard v. Howard, 968 So.2d 961, 976(¶ 37) (Miss.Ct.App.2007).

¶ 29. In the case at bar, the chancellor found that Patrick was in “contumacious” contempt for his decision to stop paying-child support payments from June 2006 to July 2007. Patrick explained that he elected to stop making the child support payments because of A.J.’s emancipation and because of his difficulty in finding Doris’s address after her relocation because of Hurricane Katrina. These non-payments resulted in Patrick having arrearages of $5,794. Similar to the petitioner in Lane, Patrick came into the court with unclean hands. However, he did not leave with unclean hands. The chancellor entered a judgment against Patrick for $4,154.67 for his child support arrearages. This judgment cleansed Patrick’s hands and allowed the chancellor to consider the modification issue. Therefore, the chancellor did not err in ignoring the clean-hands doctrine, as the judgment of arrearages cleansed Patrick’s hands making the modification ripe for determination. Accordingly, this issue is without merit.

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

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

      . This number reflects the difference between the amount of Patrick's arrearages and his credit for overages paid ($5,794 - $1,639.33 = $4,154.67).

        . There was also testimony at the modification hearing that A.J. had moved out of his mother’s house by August 2006 and had mar-ded, which would also have caused him to become emancipated. See Miss.Code Ann. 93 — 11—65(8)(a)(ii).


author: BARNES, J.,

text:
    Barbara RIGDON, Appellant v. MISSISSIPPI FARM BUREAU FEDERATION, Lauderdale County Farm Bureau (A.A.L.), Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Company, Mississippi Farm Bureau Casualty Insurance Company and Tommy Allen, Appellees. Barbara Rigdon, Appellant v. Mississippi Farm Bureau Federation, Lauderdale County Farm Bureau (A.A.L.), Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Company, Mississippi Farm Bureau Casualty Insurance Company and Tommy Allen, Appellees.
    Nos. 2008-CA-00777-COA, 2008-CA-00780-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2009.

      Mark Thomas McLeod, Mitchell Harry Tyner, Jackson, attorneys for appellant.
    Dale Gibson Russell, Ridgeland, Sam E. Scott, Ken R. Adcock, Ellen Patton Robb, Ridgeland, attorneys for appellees.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Barbara Rigdon appeals the Hinds County Circuit Court’s dismissal of her complaint based upon the statute of limitations. Finding Rigdon’s notice of appeal was untimely filed, we have no alternative but to dismiss the appeal for lack of jurisdiction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Rigdon was an independent contract insurance agent for the appellees, Mississippi Farm Bureau Federation, Lauder-dale County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, and Tommy Allen (hereinafter collectively referred to as “the Appellees”). Each insurance company maintained its own contract with Rigdon, and all contracts had been signed and were in effect by March 8, 1991. On September 3, 1996, Rigdon terminated her employment as an independent contractor with each of the companies; her termination was effective as of September 13,1996.

¶ 3. Rigdon, along with four other plaintiffs, filed a complaint against the Appel-lees on August 30, 1999, in the Circuit Court of Claiborne County. The complaint alleged breach of contract, tortious breach of contract, fraud, conspiracy, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Ultimately, the cases were severed by the Mississippi Supreme Court, and the complaint was dismissed without prejudice by the Claiborne County Circuit Court. Rigdon re-filed her complaint in the proper venue of the Second Judicial District of Hinds County Circuit Court on March 2, 2007. However, service of process was never effected upon the Appellees related to this action.

¶4. On August 21, 2007, the Appellees filed a motion to dismiss Rigdon’s March 2, 2007, complaint under Mississippi Rule of Civil Procedure 12(b)(6) citing statute of limitations as a defense. In the motion, the Appellees claimed that the statute of limitations began to run on September 14, 1996, the day after Rigdon’s termination was effective. Further, they noted that they had never been properly served with process following Rigdon’s filing of this complaint in Hinds County Circuit Court. On August 27, 2007, Rigdon filed a second complaint in the Hinds County Circuit Court based upon the same set of facts and claims included in the first complaint. Service of process for the second complaint was effectuated upon the Appellees on November 16, 2007, which was within 120 days of the filing of the second complaint pursuant to Mississippi Rule of Civil Procedure 4(h). However, according to the Appellees, the statute of limitations expired on July 17, 2007. The Appellees filed a second motion to dismiss on October 9, 2007, again citing statute of limitations as a defense. The circuit court entered a “Memorandum Opinion and Order” in both cases on February 12, 2008, granting the Appellees’ motions to dismiss. The document recited that the court had “considered all filings and submissions of the parties” and found that Rigdon was statutorily barred from bringing either action. The last two sentences of the Memorandum Opinion and Order stated:

IT IS THEREFORE, ORDERED AND ADJUDGED, that defendants’ motion to dismiss be, and the same is hereby, granted.
SO ORDERED AND ADJUDGED, this day the 12th day of February, 2008.

The order was filed with the circuit court clerk the following day on February 13, 2008. Rigdon did not file her notice of appeal until May 5, 2008.

JURISDICTION

¶ 5. The Appellees have filed a motion to dismiss Rigdon’s appeal, citing her failure to file a timely notice of appeal. Under Mississippi Rule of Appellate Procedure 4(a), a notice of appeal must be filed with the clerk of the trial court within thirty days after entry of the judgment or order being appealed. This “time requirement is jurisdictional and will be strictly enforced.” Westbrook v. Miss. Employment Sec. Comm’n, 910 So.2d 1135, 1138(¶ 6) (Miss.Ct.App.2005) (citing Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992)).

¶ 6. Rigdon does not dispute that her notice of appeal, which was filed almost three months after the entry of the court’s order, was untimely filed. Rather, she argues that the circuit court’s order was not a final judgment which expressly dismissed the claims with prejudice under Mississippi Rule of Civil Procedure 54(b); therefore, she claims that her notice of appeal is not procedurally deficient. See Wiggins v. Perry, 989 So.2d 419, 431(¶ 31) (Miss.Ct.App.2008) (“a party may only appeal a final judgment”). Accordingly, Rig-don requests that this Court, in order to promote judicial economy, direct the circuit court to enter a final judgment of dismissal so that her appeal may proceed on its merits. See M.R.A.P. 4(b) (a notice of appeal filed before the entry of a judgment or order “shall be treated as filed after such entry and on the day of the entry”).

¶ 7. The Mississippi Supreme Court has directed that “[a]n appeal ... may be taken as a matter of right only after the trial court disposes of all the claims against all defendants.” Calvert v. Griggs, 992 So.2d 627, 631(¶ 10) (Miss.2008). Mississippi Rule of Civil Procedure 54(b) states that:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). Absent a certification under this rule by the circuit court, “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” Id. cmt. Consequently, a judgment will only be considered final and appealable if it “ ‘adjudicates the merits of the controversy which settles all the issues as to all the parties’ and requires no further action by the lower court.” Walters v. Walters, 956 So.2d 1050, 1053(¶ 8) (Miss.Ct.App.2007) (citation omitted).

¶ 8. Rigdon also points to the fact that the Memorandum Opinion and Order by the circuit court did not bear the title of “Judgment” as required by Mississippi Rule of Civil Procedure 58. The rule states, in pertinent part, that:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which had been entered as provided in [Mississippi Rule of Civil Procedure] 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled.

M.R.C.P. 58. Consequently, the “failure to properly title a judgment which fully adjudicates all claims in a case as to all parties will not be deemed to prevent that judgment from being fully effective so long as it has been entered as required in [Mississippi Rule of Civil Procedure] 79(a).” Id. cmt.

¶ 9. While the circuit court’s Memorandum Opinion and Order was not titled as a “Judgment,” it clearly used words of finality and adjudication. The order concluded that Rigdon could not “maintain this cause of action” against the Appellees and twice included the phrase “ordered and adjudged.” The order further stated that the defendants’ motion “is hereby, granted.” A judgment is final and appeal-able if there is a “writing which is ‘the final determination of an action and thus has the effect of terminating the litigation,”’ that is signed by the court and filed and entered by the clerk pursuant to Rule 58. Roberts, 653 So.2d at 252. We find that the circuit court’s order was clearly a final judgment as it adjudicated all claims against all defendants and “granted” the defendants’ motion to dismiss.

¶ 10. The comments to Rule 58 provide, however, that if a notice of appeal is filed untimely due to “an inappropriate or misleading title of judgment, such failure may, under proper circumstances, constitute ‘excusable neglect’ under [Mississippi Rule of Appellate Procedure] 4(g)” M.R.C.P 58 cmt. Rule 4(g) does not, under the circumstances of this case, assist Rigdon. That rule allows the trial court to grant an extension of time for filing a notice of appeal if the appellant files a motion for extension within thirty days after the time for filing the notice of appeal otherwise expires. M.R.A.P 4(g). The trial court may then grant an extension limited to that thirty days, or to a period ending ten days after the entry of the order granting the motion, whichever is later. Id. and cmt. “While our appellate rules allow the trial court to extend the time for filing a notice of appeal under Rule 4(g), ... this Court is not so authorized.” Payne v. Magnolia Healthcare, Inc., 984 So.2d 290, 294(¶ 16) (Miss.Ct.App.2007). Accordingly, this Court has no authority to extend Rigdon’s time for filing her notice of appeal. And, since Rigdon failed to file a motion with the circuit court within the thirty-day extension period, the circuit court has no authority to do so. Rigdon’s request that the case be remanded to the circuit court would, thus, serve no purpose.

¶ 11. The circuit court’s Memorandum Opinion and Order was final and appeal-able as of February 13, 2008. As Rigdon’s notice of appeal was untimely filed and she failed to file a motion for an extension of time with the circuit court, under Mississippi Rule of Appellate Procedure 4(g), we must dismiss the appeal for lack of jurisdiction.

¶ 12. THE APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Miss. Farm Bureau Fed’n v. Roberts, 927 So.2d 739 (Miss.2006).

        . Rigdon's March 2, 2007, complaint merely contained a copy of her claims from the dismissed complaint filed in Claiborne County. The August 25, 2007, complaint, however, contained a new factually-detailed history outlining her claims of direct breach of contract and misrepresentation.

      . At the time Rigdon filed her March 2, 2007, complaint, fifteen days remained on the three-year statute of limitations. Although the statute of limitations was tolled for 120 days under Rule 4(h), it resumed at the end of that period, on July 2, 2007. See Parmley v. Prin-gle, 976 So.2d 422, 424 (¶¶ 8, 9) (Miss.Ct.App.2008) (the filing of a complaint tolls the statute of limitations for 120 days, but if the complainant "fails to serve process on the defendant within that 120-day period,” the statute of limitation automatically resumes "when that period expires”).

      .Rigdon filed a motion opposing the motion to dismiss on November 16, 2007, claiming that the statute of limitations was tolled due to fraudulent concealment on the part of the Appellees. A hearing on the motions was held on November 16, 2007. The Appellees then filed a rebuttal to Rigdon's motion on December 4, 2007.

      . On May 27, 2004, Rule 58 was amended to include the language addressing the finality of an improperly-titled judgment. The comments note that the amendment effectively overrules a line of Mississippi Supreme Court cases—Thompson v. City of Vicksburg, 813 So.2d 717 (Miss.2002), Mullen v. Green Tree Financial Corp., 730 So.2d 9 (Miss.1998), and Roberts v. Grafe Auto Co., Inc., 653 So.2d 250 (Miss.1994)-"insofar as they hold that strict compliance with the titling requirement is mandatory and prevents finality, even in the absence of prejudice.” Id. cmt.

      . Rule 79(a) sets forth the requirements for the court clerk to maintain a general docket in which “all appearances, orders, verdicts, and judgments shall be noted[.]” M.R.C.P. 79(a).


author: KING, C.J.,

text:
    Jerome WHITAKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00584-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2009.

      Jerome Whitaker, (Pro Se), attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   KING, C.J.,

for the Court.

¶ 1. On January 7, 2008, Jerome Whitaker filed a pro se motion for post-conviction relief to set aside his sentence. The motion was denied by the trial court. Aggrieved, Whitaker appeals and argues the following issues: (1) the trial court illegally revoked his probation; (2) the trial court erred by imposing a sentence that exceeded his original sentence; (3) the trial court erred by not appointing him counsel; and (4) Whitaker received ineffective assistance of counsel. We affirm the conviction and reverse the sentence of five years with two years suspended and three years to serve, followed by three years’ post-release supervision and remand for the trial court to correct.

FACTS

¶ 2. On February 27, 2007, Whitaker pled guilty to failure to register as a sex offender. Whitaker was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended, and five years’ post-release supervision. Whitaker was also ordered to pay supervision fees and court costs. Thereafter, Whitaker violated the terms of his probation. On October 17, 2007, the trial court conducted a probation revocation hearing.

¶ 3. During the revocation hearing, Patti Chandler, Whitaker’s current probation officer, testified that Whitaker committed the following probation violations: testing positive for drugs; having been arrested for numerous assault charges, disorderly conduct, and public intoxication; failing to report to scheduled probation meetings; failing to pay supervision fees and court costs; maintaining a residence with his brother who had an outstanding felony warrant; and maintaining residence in the State of Tennessee without proper authorization. At the conclusion of the revocation hearing, the trial judge ruled that Whitaker had violated the terms of his probation by engaging in injurious habits, associating with persons of disreputable character, having no suitable residence of record, and failing to pay supervision fees. The trial court revoked Whitaker’s probation and sentenced him to five years with two years suspended and three years to serve, followed by two years’ post-release supervision, all in the custody of the MDOC. Thereafter, Whitaker filed a pro se motion for post-conviction relief to have his original sentence reinstated. On March 14, 2008, the trial court denied Whitaker’s motion. Whitaker timely appeals.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed, absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). “However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Whether the trial court illegally revoked Whitaker’s probation.

¶ 5. Whitaker asserts that his probation was illegally revoked. Whitaker argues that his probation revocation was illegal because it was based solely on a positive urine test rather than the stated alleged violations. Whitaker contends that the State failed to prove any of the alleged violations. Whitaker also asserts that his revocation was illegal because the sentence he received on revocation was not his original sentence.

¶ 6. The procedure for probation revocation is outlined in Mississippi Code Annotated section 47-7-37 (Supp.2008). Section 47-7-37 provides, in part, that:

At any time during the period of probation the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested....
If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge of such court, a report concerning the probationer, and such court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation....
Any probationer who removes himself from the State of Mississippi without permission of the court placing him on probation, or the court to which jurisdiction has been transferred, shall be deemed and considered a fugitive from justice and shall be subject to extradition as now provided by law. No part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.

“[Probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Metcalf v. State, 904 So.2d 1222, 1225(¶ 10) (Miss.Ct.App.2004).

¶ 7. The order of revocation found that Whitaker had violated the terms of his post-release supervision by engaging in injurious habits, associating with persons of disreputable character, having no suitable residence of record, and failing to pay supervision fees. The appellate court’s record does not contain a copy of the affidavit that sets forth Whitaker’s probation violations.

¶ 8. However, during the revocation hearing, Whitaker’s probation officer testified that Whitaker had failed to report to his probation officer as required, failed to receive authorization to reside.in Tennessee while on probation, and resided in Tennessee with his brother, who had an outstanding warrant for burglary of an automobile. Officer Chandler also stated that Whitaker’s drug test indicated the presence of cocaine in his system. Whitaker denied that he was residing outside the State of Mississippi without authority; using alcoholic beverages and illegal narcotics in violation of the conditions of probation; having been arrested for assault, public intoxication, and disorderly conduct; residing in Memphis, Tennessee with his brother, who has an outstanding felony warrant; failing to report in March, April, May, June, July, September, and October 2007; and failing to pay supervision fees and court costs.

¶ 9. Whitaker testified that he had used marijuana one time since being placed on probation. In revoking Whitaker’s probation, the trial judge found that Whitaker had used drugs while on probation, had failed to pay supervision fees and court costs, and had resided with his brother who had an outstanding felony warrant.

¶ 10. Thus, we find that there was sufficient evidence presented to the trial court to establish Whitaker’s violation of his probation. Therefore, we affirm that the trial court’s decision to revoke Whitaker’s probation. This issue lacks merit.

II. Whether the trial court erred by imposing a sentence that exceeded Whitaker’s original sentence.

¶ 11. Whitaker’s original sentence was for a term of five years in the custody of the MDOC, with all five years suspended, and five years’ post-release supervision. However, at the end of the revocation hearing, the trial judge stated his intent to revoke Whitaker’s probation and sentenced Whitaker to five years with two years suspended and three years to serve, followed by two years’ post-release supervision, all in the custody of the MDOC.

¶ 12. However, the actual revocation order sentenced Whitaker to five years with two years suspended and three years to serve, all in the custody of the MDOC, and included a handwritten addendum which stated that the “offender shall be placed on three years’ post-release supervision following his term of incarceration.” Pursuant to Mississippi Code Annotated section 47-7-34(1) (Rev.2004), “the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.” Whitaker’s sentence as stated by the trial judge at the conclusion of the probation revocation hearing did not exceed the statutory maximum allowed under section 47-7-34(1). However, the handwritten addendum to the revocation order caused the new sentence to exceed the five-year maximum sentence. The State concedes that the handwritten addendum imposing three years’ post-release supervision, instead of two years, was a clerical error. Courts of record have inherent power to correct clerical errors in criminal prosecutions as well as civil actions. See Kitchens v. State, 253 Miss. 734, 737, 179 So.2d 13, 14 (1965). The appropriate resolution of this matter is to remand this case to the trial court to correct the clerical error.

¶ 13. Whitaker claims that this new sentence subjected him to cruel and unusual punishment and to double jeopardy. “[D]ouble jeopardy is violated ‘only if the court attempts to administer a longer sentence than what was originally conferred upon the defendant.’ ” Leech v. State, 994 So.2d 850, 856(¶ 26) (Miss.Ct.App.2008). Therefore, we affirm Whitaker’s conviction, reverse the sentence, and remand the case to the trial court to correct the sentencing order consistent with this opinion.

III. Whether the trial court erred by not appointing Whitaker counsel for his revocation hearing.

¶ 14. Whitaker contends that the trial court erred by not appointing counsel to represent him during his probation revocation hearing. Because Whitaker failed to raise this issue before the trial court in his motion for post-conviction relief, this argument is proeedurally barred from our review. See Fannings v. State, 997 So.2d 953, 963(¶ 35) (Miss.Ct.App.2008).

IV. Whether Whitaker received ineffective assistance of counsel.

¶ 15. Whitaker argues that he received ineffective assistance of counsel which resulted in prejudice to his defense. Whitaker claims that his former defense counsel failed to inform the trial court that Whitaker had registered as a sex offender in Tennessee and Mississippi. Whitaker failed to raise this issue in his motion for post-conviction relief before the trial court; therefore, he raises this issue for the first time on appeal. Smith v. State, 729 So.2d 1191, 1201 (¶ 38) (Miss.1998). This Court notes that it takes only one violation to serve as a basis for revocation. The trial court found several violations: engaging in drug use while on probation, failing to pay supervision fees and court costs, and residing with and associating his brother who had an outstanding warrant for burglary of an automobile. Therefore, this issue is without merit.

CONCLUSION

¶ 16. Whitaker’s probation was lawfully revoked as the State presented sufficient evidence that Whitaker violated the terms of his probation. The trial court did not abuse its discretion in sentencing Whitaker as his sentence does not exceed the maximum sentence allowed by statute. We find that the handwritten addendum was merely a clerical error that can be corrected by the trial court on remand. Because Whitaker failed to raise the issues of failure to appoint counsel and ineffective assistance of counsel at the trial court level, he is proeedurally barred from raising them now on appeal. The conviction of the trial court is affirmed; the sentence is reversed; and the case is remanded for the trial court to correct the sentencing order.

¶ 17. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Eula PRICE a/k/a Baby Eula Jones Bell Price, Appellant v. James PRICE, Appellee.
    No. 2008-CA-01802-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    David L. Walker, attorney for Appellant.
    James Price, Appellant, pro se.
    Before MYERS, P.J, ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the court.

¶ 1. The Chancery Court of DeSoto County entered an order granting James Price a divorce from his wife, “Baby” Eula Price (Eula). Aggrieved by the chancellor’s order, Eula appeals. She asserts that the chancellor erred in granting the divorce on the ground of habitual cruel and inhuman treatment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. James and Eula were married on May 30, 2004, in DeSoto County, Mississippi. After staying together for approximately two years, they separated on or about July 1, 2006. They have no children together. Eula filed for divorce on July 3, 2006, and James filed his counterclaim four days later. Prior to trial, Eula withdrew her complaint but continued to defend against the relief sought by James.

¶ 3. During their marriage, the police were called on at least three different occasions with regard to Eula and her behavior. In November 2005, Eula, who has been diagnosed with bipolar disorder, began throwing and breaking dishes inside of her and James’s home; one was thrown with enough force to puncture a hole in the sink. In June 2006, the Price family decided to go to Dollywood on a family vacation. Shortly after the vacation had begun, Eula and James started arguing over money. She eventually attacked him, kicking him in the buttocks and repeatedly punching him in the back. She also tried to bite off his finger. Later that night, the argument escalated to the point that the police were called to the hotel room where the family was staying. There is nothing in the record to indicate that James ever laid a violent hand on Eula.

¶ 4. Additionally, and perhaps more importantly, Eula also had been indicted by a DeSoto County grand jury for the charge of false pretenses for taking out credit-card applications in James’s name. She had already pleaded guilty to this charge, and at the time of trial in this case, she was awaiting sentencing.

¶ 5. Eula’s destructive behavior continued up to the point where she actually left the home. After packing her belongings, Eula discharged a fire extinguisher inside the home, ruining most of James’s personal belongings. Eula was a habitual marijuana smoker, and although James knew of her habit before marriage, the couple argued over her constantly smoking marijuana.

¶ 6. Joshua Price, James’s son from his first marriage testified at trial. He corroborated his father’s testimony, with regard to the Dollywood incident and the plate-throwing incident. He also testified as to the condition of the home the day that Eula left. Furthermore, he testified that when he was fifteen years old, Eula became so frustrated with him that she poured hot coffee down the front of his body.

¶ 7. At the conclusion of the trial, the chancellor entered an order granting James’s request for a divorce based on cruel and inhuman treatment. The chancellor found that the incidents collectively showed a pattern of conduct that constituted cruel and inhuman treatment.

STANDARD OF REVIEW

¶ 8. The scope of review in a domestic relations case is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(¶ 13). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law. Potts v. Potts, 700 So.2d 321, 322(¶ 10) (Miss.1997); Reed v. Reed, 839 So.2d 565, 569(¶ 13) (Miss.Ct.App.2003). Such a finding is reversible if the chancellor employed an erroneous legal standard. Potts, 700 So.2d at 322(¶ 10). In reviewing a divorce decree, this Court must view the facts in the light most favorable to the appellee. Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 13) (Miss.2002).

ISSUE AND ANALYSIS

Whether it was error to grant James a divorce.

¶ 9. The causes for divorce are provided for by Mississippi Code Annotated section 93-5-1 (Supp.2008), which states, in part, that a divorce decree may be based on habitual cruel and inhuman treatment. In order for a divorce to be granted properly on the ground of habitual cruel and inhuman treatment, the following must be proven by a preponderance of the evidence:

Conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Peters v. Peters, 906 So.2d 64, 68(¶ 13) (Miss.Ct.App.2004) (quoting Richard v. Richard, 711 So.2d 884, 889(¶ 22) (Miss.1998)). “The conduct must consist of ‘something more than unkindness or rudeness or mere incompatibility or want of affection.’ ” Horn v. Horn, 909 So.2d 1151, 1155(¶ 7) (Miss.Ct.App.2005) (quoting Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)).

¶ 10. Although cruel and inhuman treatment usually must be shown to have been systematic and continuous, a single incident may provide grounds for divorce. Rakestraw v. Rakestraw, 717 So.2d 1284, 1287(¶ 8) (Miss.Ct.App.1998). There must be a causal connection between the treatment and the separation. Daigle, 626 So.2d at 144.

¶ 11. Here, there is evidence showing that, within the two-year marriage, James has been the subject of numerous physical and verbal assaults by Eula, including the Dollywood incident and the plate-throwing incident. Further, James has dealt with the destruction of his property, both during the marriage and after the separation. Additionally, Eula had pleaded guilty to a charge of false pretenses for taking out credit cards in her husband’s name. Finally, James testified that, although many of the couple’s problems involved his children, the main reason for asking for a divorce was predicated on the violence within the marriage.

¶ 12. To corroborate his testimony, James put his son, Joshua, on the stand. Joshua, who was nineteen years old at the time of trial, testified that he witnessed, first-hand, the physical abuse of his father by Eula during their family vacation to Dollywood. He also corroborated his father’s testimony with regard to the kitchen-sink incident and the fire-extinguisher incident. Furthermore, Eula, in her testimony, admitted that all of these incidents occurred.

¶ 13. The chancellor found that the defendant had shown by the preponderance of the evidence that the defendant was entitled to a divorce on the ground of habitual cruel and unusual treatment. This finding was supported by the numerous physical and verbal assaults toward James, including the Dollywood and kitchen-sink incidents. This was also supported by Eula’s destruction of the marital property and James’s personal property both before and after the separation. The chancellor also noted that Eula’s felony conviction and guilty plea to false pretenses was so infamous that it made James perceive the marriage as revolting, thus discharging him from the duties of marriage.

¶ 14. In the past, the supreme court has upheld a chancellor’s findings of habitual cruel and inhuman treatment for similar circumstances. In Ethridge v. Ethridge, 483 So.2d 370, 371 (1986), the supreme court found that the facts supported the finding that the former husband used physical violence on the former wife, as well as insults, abuse, and other conduct that would impair her health and physical well-being.

1Í15. Accordingly, we agree with the chancellor’s findings and find that James has met his burden of proving his ground for a divorce of cruel and inhuman treatment by a preponderance of the evidence. We find no abuse of discretion with the chancellor’s findings; therefore, this issue is without merit.

¶ 16. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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