author:
PIERCE, Justice,
      WALLER, Chief Justice,

text:
    Michael EDWARDS and Pierce Brewer Individually and in their Representative Capacities as Organizers and Members of Concerned Citizens of Saucier v. HARRISON COUNTY BOARD OF SUPERVISORS.
    No. 2008-CA-01271-SCT.
    Supreme Court of Mississippi.
    Aug. 27, 2009.

    Rehearing Denied Dec. 10, 2009.

      Chester D. Nicholson, Gulfport, attorney for appellant.

      Joseph R. Meadows, Karen J. Young, Gulfport, attorneys for appellee.
   PIERCE, Justice,

for the Court.

¶ 1. The Harrison County Board of Supervisors (the Board) rezoned 627 acres of land located in Harrison County from A-l, agricultural, and E-l, very low density residential, to 1-2, general industry. Michael Edwards, Pierce Brewer, individually and in their representative capacities as organizers and members of Concerned Citizens of Saucier (Edwards) appealed from the Board’s decision to the Circuit Court of Harrison County, First Judicial District. The circuit court affirmed the Board’s rezoning. From this ruling, Edwards appealed to this Court asserting the following errors:

I. The concerned citizens of Saucier were denied their right to due process under the Fourteenth Amendment of the United States Constitution and Article 3, Section 14 of the Mississippi State Constitution, when the decision-maker on the zoning issue was a Party to the contract and had a preexisting contractual duty to change the zoning.
II. Mississippi law requires either an error in the initial zoning; a change in the character of the use of the land; or some compelling need before existing zoning may be changed. None of these circumstances apply; thus, the board of supervisors did not have a fairly debatable reason in changing the zoning as it did, making the decision arbitrary and capricious.
III. The fore contract could not legally go forward, since by its own terms the agreement forbade the county from closing on the contract if there existed any pending or threatened litigation affecting the property.
IV. Since the contract between the county and fore required that at least 73 percent of the fore property be available for development, a precondition for the rezoning, the decision to rezone for the purpose of buying the 627 acres was arbitrary and capricious in that the board knew or should have known that wetlands and the MDOT requirements for the.601 connector would take up to half the purchased land, thus thwarting the putative purpose of the rezoning.
V. The board denied the objectors a fair hearing when it refused to admit and consider clearly relevant information and documents which addressed concerns raised initially at the planning commission meeting, and the circuit court should have taken judicial notice of the exhibits offered by the objectors at the hearing before the board of supervisors.

¶ 2. Although the plaintiffs raise several errors on appeal, vve find the following issues dispositive: Whether the Board’s decision to rezone was arbitrary, capricious, and/or unsupported by the evidence; and whether the zoning authorities, as a party to the purchase agreement, violated the Citizens’ right to due process of law. Finding no error, we affirm the decision of the Circuit Court of Harrison County, First Judicial District.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2006, the Harrison County Development Commission (HCDC) began negotiating with Cotton Fore for the purchase of approximately 627 acres for use as an industrial park. The land, located in Saucier, Mississippi, was zoned A-l/E-1, agricultural and light residential. The HCDC entered into a Real Estate Purchase Agreement with Fore. The option to purchase the land for an industrial park was subject to rezoning approval.

¶ 4. Fore and the HCDC submitted a joint petition to rezone to the Harrison County Planning and Zoning Commission (Planning Commission), requesting the land be rezoned as 1-2, general industrial. A public hearing was held before the Planning Commission on September 21, 2006. Larry Barnett, executive director of the HCDC, and Bill Hessle , director of operations and management of the HCDC, appeared on behalf of the petitioners (Fore and the HCDC). At the hearing, the petitioners asserted the reason the zoning should be changed was the substantial need for additional industrial space. The County lacked industrial land, particularly larger tracts of land. In addition, the petitioners mentioned the change in the area due to the impact of Hurricane Katrina.

¶ 5. In his opening remarks to the Planning Commission, Barnett stated, “We find ourselves in a situation where industrial land in this county has been taken up. It’s been sold. We have industries on those properties. That’s the emphasis of why we’re here today, is the need for additional land.” At the conclusion of his remarks, Barnett stated the reason for the petition: “So the bottom line is-the reason for our request is a need request. It’s a need for additional industrial land.”

¶ 6. Hessle stated that the application for rezoning was being made due to need and that Hurricane Katrina had an impact on the county’s industrial land resources, saying, “Obviously, there is a need for more industrial land. We are running out of land. The demand since Katrina has been surpassing anything we had anticipated.” In addition, Hessle pointed out that the growth of the county is due north and that Hurricane Katrina has increased the growth in that direction. Furthermore, he stated that Saucier was working on a master plan to accommodate the growth in the area. He also stated that current industrial land is located south of Interstate 10 (I — 10), and the county needs industrial sites north of I — 10.

¶ 7. During the Planning Commission’s hearing, a number of citizens commented on the proposed rezoning. Edwards argued that an industrial zone is not compatible near agricultural and residential zones. In addition, he, like other citizens, expressed concern about maintaining drinking water quality in the area. Edwards commented that the area is better suited for a housing development. Furthermore, Edwards addressed available land for the industrial park in other parts of the County. Edwards stated “We’re asking you not to rezone this from an A-land a small E-l, because, as I said before, you’re going from one end of the spectrum of your zoning chart to the other...., So we’re just asking you to consider and deny it and not recommend that the zoning change to I [industrial]. That’s basically it.”

¶ 8. Other citizens testified before the Planning Commission. Steve Howard from the Saucier Improvement Association stated:

The Saucier Improvement Association believes that their best position at the moment is to not make a statement for or against the park. But to make it clear that should the park be put in place, we’re confident that we can work with the Development Commission and the Board of Supervisors on its use and the possible negative impacts it will have on the community.

However, at least two other citizens stated that the Saucier Improvement Association did not represent them. Other citizens expressed concerns about issues including, but not limited to, water quality, a sewer system, and environmental concerns.

¶ 9. At the conclusion of the public hearing, the Planning Commission voted to approve the petition to rezone. The Commission specified the basis of the recommendation to approve the petition was “increase[d] needs in sites as demonstrated in the application.”

¶ 10. Edwards filed a written notice of appeal to the Board on September 27, 2006. He alleged at the Board hearing that none of the circumstances required to legally rezone the property existed; that the Board had acted improperly in becoming Fore’s “business partner” in the sale and thus was unable to sit as a fair tribunal at the hearing; that other land was available for industrial development; that there would not be sufficient usable land to meet the contract’s requirements due to wetlands and an anticipated taking by the Mississippi Department of Transportation (MDOT); (the “seventy-two percent requirement”); the general poor business sense of spending $7.5 million for a parcel of land which contained sizable portions that were unusable, undevelopable and/or would be taken for state use; and strong local opposition of residents to building an industrial park in the midst of their homes and farms.

¶ 11. At the Board hearing, the HCDC again argued the substantial need for additional industrial sites in Harrison County. The HCDC also argued that a change in character of the land sought to be rezoned had occurred subsequent to Hurricane Katrina with the population and industry in Harrison County moving north as a result of Hurricane Katrina. At the conclusion of this hearing, the Board voted unanimously to approve the rezoning.

¶ 12. Edwards filed a bill of exceptions with the Circuit Court of Harrison County, First Judicial District, on November 14, 2006, and a notice of appeal on November 15, 2006. The trial court considered Edwards’s contentions that (1) the Concerned Citizens of Saucier had been denied their right to due process, alleging that the Board had a vested interest in rezoning the land; (2) none of the circumstances required to rezone, including change in the character or public need, applied, and the Board’s decision to rezone was arbitrary and capricious; (3) the agreement could not go forward if there was pending litigation or the threat thereof; (4) there was insufficient land available for development; (5) property owners within 150 feet of the proposed rezoning site were not properly notified of the zoning amendment hearing; and (6) the Board erred by failing to allow supplemental exhibits at the Board hearing.

¶ 13. After briefing, the circuit court ruled in four of the six assignments of error that Edwards’s arguments rested on information or documentation not presented to the Planning Commission and therefore not a part of the record preserved for appellate review. The circuit court declined to consider any additional evidence and found sufficient evidence in the record to support the Board’s zoning decision for each of those four assignments of error.

¶ 14. On the issue of due process, the trial court determined, in part, that the presumption of honesty and integrity by the Board in its decision was not rebutted. In deciding the issue of whether the Board was capable of rendering an unbiased decision consistent with Edwards’s right to due process of law, the circuit court relied upon Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, 515 So.2d 893 (Miss.1987). The circuit court stated that, because a presumption of honesty and integrity attached to the Board’s decisions, Edwards was required to show members of the Board had a personal or financial stake in the decision, or that personal animosity existed toward the objectors. The circuit court found neither of these. The circuit court further found that, because the County has the right to purchase land and to act through the HCDC to do so, no due process violation occurred. Accordingly, Edwards’s due process rights were not violated.

¶ 15. In addition, the trial court determined that the Board was not arbitrary or capricious in approving the rezoning. The circuit court stated:

An applicant for re-zoning carries the burden of proving by clear and convincing evidence (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify re-zoning, and that there is a public need for the re-zoning. City of Madison v. Shanks, 793 So.2d 576, 578 (Miss.2000); City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). It is undisputed that there was no mistake in the original zoning. With regard to changed conditions and public need, the Board found that there had been substantial development in the subject area, especially since Hurricane Katrina. The Board further noted that a large tract of land for industrial development would attract manufacturing operations and, in turn, create jobs and general economic development for the citizens of Harrison County.
Appellants claim there are zoned industrial sites in Harrison County with acreage of 148, 119, 93, 72 and 55. This claim is disputed by the Appellee. While such industrial sites might exist, Appellants admit this information was not presented to the Planning Commission and was therefore not considered. Because the information was not before the Planning Commission, it was not made part of the record. Thus, this Court will not consider it on appeal.
The evidence presented to the Planning Commission, which was considered on appeal by the Board, along with the Board’s personal knowledge of the subject area, and the needs of Harrison County, support the Board’s decision to approve the zoning changes.

In other words, the circuit court determined that the decision by the Board to rezone was supported by substantial evidence.

¶ 16. Following the trial court’s decision, Edwards appealed to this Court.

DISCUSSION

¶ 17. In Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1223 (Miss. 2000), this Court stated the standard of review for zoning as follows:

This Court has held that zoning is not a judicial matter, but a legislative matter. Luter v. Hammon, 529 So.2d 625, 628 (Miss.1988). On appeal, the decision of the Board must be upheld unless it is “arbitrary, capricious, discriminatory, or is illegal, or without a substantial evi-dentiary basis.” Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991). Therefore, the decision to rezone will not be disturbed where it is “fairly debatable.” Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987). “Fairly debatable’ is the antithesis of arbitrary and capricious.” Id.

See also Saunders v. Jackson, 511 So.2d 902, 906 (Miss.1987) (this Court held that it “does not review the evidence as it would sitting in review of a civil trial. A ‘fairly debatable’ decision will be affirmed.”) (citations omitted).

¶ 18. In Saunders, this Court recognized that zoning issues are legislative in function. Saunders, 511 So.2d at 906. “Where, as here, there is substantial evidence supporting both sides of a rezoning application, it is hard to see how the ultimate decision could be anything but ‘fairly debatable,’ not ‘arbitrary and capricious,’ and therefore beyond our authority to overturn.” Id. at 907. See also Citizens Ass’n for Responsible Dev., Inc. v. Conrad Yelvington Distribs., 859 So.2d 361, 368 (Miss.2003) (“the zoning decision of a local governing body which appears ‘fairly debatable’ will not be disturbed on appeal and will be set aside only if it appears the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence”); City of Madison v. Shanks, 793 So.2d 576, 578 (Miss.2000) (same). Further, on issues of zoning, this Court has stated “Every zoning case must be decided on the basis of all the circumstances of the particular case.” Howie v. Autrey, 209 So.2d 904, 905 (Miss.1968) (citing Palazzola v. City of Gulfport, 211 Miss. 737, 52 So.2d 611 (1951)).

¶ 19. This Court has stated that “[t]he action of the Board of Supervisors in enacting or amending an ordinance, or its action of rezoning, carries a presumption of validity, casting the burden of proof upon the individual or other entity asserting its invalidity.” Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991). See also Gentry v. City of Baldwyn, 821 So.2d 870, 873 (Miss.App.2002) (“The decision of a local governing board is presumed valid, and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and unreasonable,” and to reverse a decision to rezone, the opponents “appealing the decision bear the burden of proving that the decision rendered was arbitrary, capricious, discriminatory, or beyond the legal authority of the city’s board or unsupported by substantial evidence”).

I. Whether the Decision to Rezone by the Board of Supervisors Was Arbitrary, Capricious, And/or Unsupported by the Evidence.

¶ 20. To reclassify property, there must be proof, by clear and convincing evidence, that either: (1) a mistake in the original zoning occurred; or (2) a change occurred in the character of the neighborhood to justify rezoning and a public need. Town of Florence, 759 So.2d at 1224; Old Canton Hills Homeowners Ass'n v. Mayor and City Council of City of Jackson, 749 So.2d 54, 62 (Miss.1999). See also Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 860 (Miss.2009); Cockrell v. Panola County Bd. of Supervisors, 950 So.2d 1086, 1091 (Miss.App.2007); Nichols v. Madison County Bd. of Supervisors, 953 So.2d 1128, 1130 (Miss.App.2006); Byram 3 Dev., Inc. v. Hinds County Bd. of Supervisors, 760 So.2d 841, 844 (Miss.App.2000).

¶ 21. Mississippi statutes provide for comprehensive zoning plans for municipalities and counties. Mississippi Code Section 11 — 1—lY(l)(a) provides in part that “The governing authority of each municipality and county may provide for the preparation, adoption, amendment, extension and carrying out of a comprehensive plan for the purpose of bringing about coordinated physical development in accordance with present and future needs. ...” Miss.Code Ann § ll-l-17(l)(a) (Rev. 2002) (emphasis added). See also Adams v. Mayor and Bd. of Aldermen of City of Natchez, 964 So.2d 629, 633 (Miss.App.2007). This Court has recognized, however, that a balance must be struck when dealing with rezoning issues, because landowners rely on zoning ordinances when choosing to invest their finances and lives in real property and “[wjithout the assurance of the zoning ordinance, such investments would not be made.” Mayor and Comm’rs of City of Jackson v. Wheatley Place, Inc., 468 So.2d 81, 83 (Miss.1985). However, this Court also has stated that “[pjroperly designed, the comprehensive plan contemplates a dynamic community. It recognizes the inevitability of change. Its goal is orderly change, balancing the community’s growth needs and the individual’s interest in using his property as he sees fit.” Woodland Hills Conservation Ass’n, Inc. v. City of Jackson, 443 So.2d 1173, 1179 (Miss.1983).

¶22. Historically, zoning was implemented and based on health, safety, and general welfare of the community. Id.; City of Jackson v. Bridges, 243 Miss. 646, 654, 139 So.2d 660, 663 (1962) (citing Rhyne’s Municipal Law, Zoning and Planning, § 32-2, p. 812). In Bndges, this Court stated “Again Rhyne also points out: ‘Zoning is not static, and zoning restrictions are subject to change. Thus, a municipality may amend its zoning ordinance whenever it deems conditions warrant such change.’ Ibid. 821-2.” Bridges, 139 So.2d at 663.

¶23. Neither Edwards nor the Board asserted that a mistake in the original zoning had occurred in this case. However, Edwards contests the second prong of the zoning criteria that there was evidence of a change in the character of the neighborhood and public need. Edwards contends that no evidence was presented to show a change in the character of the neighborhood or public need. We disagree.

A. Change in the neighborhood.

¶ 24. In Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1227 (Miss.2000), this Court stated “it is impossible to articulate or design a particular test for determining what is sufficient evidence to show a material change and a public need to support rezoning.” In the context of change in the character of the neighborhood, this Court generally has limited its view of what constitutes a “neighborhood.” More recently however, in Kuluz v. City of D’Iberville, rezoning was affirmed where a change in the character of the neighborhood was at issue. Kuluz v. City of D’Iberville, 890 So.2d 938, 942 (Miss.Ct.App.2004), cert. denied, 2005 Miss. LEXIS 9 (Miss., Jan. 6, 2005). In its analysis, the Court of Appeals upheld in part the circuit court’s affirmance of the City of D’Iber-ville’s rezoning for a “neighborhood” that consisted of an area that comprised the whole portion of the City located north of Interstate 10. Id. at 940. The area of land considered was equivalent to approximately twenty-five percent of the entire city’s land mass. Id. Conversely, Kuluz’s argument that the neighborhood comprised a much smaller portion, only one-third of the northern portion of the city, an area mainly rural in nature, was rejected. Id. at 940-41.

¶ 25. While the Mississippi courts have analyzed rezoning more frequently in the context of municipal rezoning rather than county rezoning, the most recent rezoning decision pertains to the rezoning of a county and, like the case before us today, a county located on the Gulf Coast. Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855 (Miss.2009). In Childs, this Court affirmed the rezoning of 1,000 acres of coastal land to a commercial resort classification. Childs, 1 So.3d at 862. The Board of Supervisors adopted the Planning Commission’s findings, but made no additional findings of its own. Id. at 860. The Planning Commission determined that “conditions had changed in and around the area sought to be rezoned which made an amendment necessary and desirable and in the public interest.” Id. Further, this Court determined that, in making its decision, the Board of Supervisors had properly considered its own familiarity and common knowledge of the area sought to be rezoned. Id. (citing Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991)); Northwest Builders, Inc. v. Moore, 475 So.2d 153, 153-55 (Miss.1985); Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327 (Miss.1982). This Court reiterated that “the reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.” Id. (quoting Citizens Ass’n for Responsible Dev., 859 So.2d at 367).

¶ 26. Hurricane Katrina made landfall on August 29, 2005. The impact of this natural disaster on the State of Mississippi and, more significantly, on the Gulf Coast of Mississippi, is a phenomenon that cannot be ignored in the case before the Court today. Indeed, the whole world, let alone the Harrison County Board of Supervisors, was on notice of the devastation and destruction the citizens and land of the Mississippi Gulf Coast suffered from Hurricane Katrina.

¶27. This case is distinguishable from Childs to the extent that, in that case, the county initiated zoning proceedings prior to Hurricane Katrina. Childs, 1 So.3d at 857. Therefore, the decision in Childs to allow rezoning was not based on the impact of Hurricane Katrina. Unfortunately, in the intervening time period between the commencement of Hancock County’s rezoning and the commencement of Harrison County’s rezoning, Hurricane Katrina literally flattened portions of the Gulf Coast. The testimony at the hearings revealed that Hurricane Katrina had significantly changed Harrison County on a number of levels. However, as the following testimony highlights, in part, Hurricane Katrina jettisoned the growth of Harrison County from south of Interstate 1-10 to north of Interstate 1-10. Pursuant to Mississippi caselaw, it is appropriate for the Board to consider information provided at the hearing and its own common knowledge and familiarity with the affected area. Id. at 860.

¶ 28. Bill Hessle, director of operations and property management, testified at the Planning Commission hearing. He stated that, apart from having the benefit of jobs and taxes, the site was chosen for other reasons. Hessle stated:

Also, we had another reason, the growth of the county is due north. I think that’s been sped up a little bit because of Katrina. Obviously, the Saucier Community is working on a master plan to try to handle this growth in the future. Of course, we commend them for that effort, too. Because this is where the population is heading we think. And of course, with the growth to the north, jobs are going to be necessary in that location. And we feel this would be an asset to that growth.

(Emphasis added.)

¶ 29. In addition, at the appeal before the Board, Larry Barnett, Executive Director for the Harrison County Development Commission, stated:

The other thing that I would say on my part, as far as need is, it needs to be ... a park needs to be in an area that can accommodate the growth. And, generally, if you look, a rural area that is growing, that we’re in ... that grow [sic] this definitely headed that direction, up Highway 49, up that railway line. It has definitely been moving that direction for the past few years and probably has been enhanced by the ... by the fact that this storm came last year. Unfortunate as that storm is, it is ... it has moved the growth to the north.

(Emphasis added.) Also, at the appeal before the Board, Hessle stated:

I’m just going to briefly add, as is stated, obviously the most important thing and the reason we’re here today is what does your ordinance say it takes to change a piece of property. And if you look at your ordinance in Section 906.01, it does talk about potential changes are based on need and also on changing character as mentioned by the appellant. In what we ... in what I handed you out, you can kind of follow. It briefly just talks strictly about this, In Section 906.01.02, it specifically says that a change or change in condition in a particular area or the county, in general, make an amendment of this ordinance necessarily desirable.

As discussed in the previous hearing, and you’ll see throughout the transcript and stuff, there was discussions about Katrina’s effect on the area in South Mississippi. Um ... as you know, the ... uh ... because of the storm, industries and businesses are looking to the north. And this has changed the whole character of this county because before the interest was south of 1-10. Now, the interest is north of 1-10. And it’s happened because of potential storm surge that is available to changing (inaudible). The insurance market out there is changing drastically for these businesses and these industries. They have to locate in areas that are more favorable to not be damaged by storm surge and stuff, so that’s changed, obviously, the desire in the county. The new highways we’ve discussed are in transit, 67, 49, potential 601, which we did bring up in the previous testimony, you’ll see some references to 601. The problem about 601 is there’s six or seven different alternatives out there. There’s no funding for it yet. It’s just ... it’s proposed. So, obviously, we don’t even know if that’s ever going to happen.
The other thing changing out here is going to be water and sewer in the north part of the county. It’s going to open up all kinds of potential growth once water and sewer hits. Um ... and that is going to be funded in the near future. There’s studies and, at least, over $500,000,000.00 appointed to build these water and sewer facilities. Um ... and of course, the other thing is land value. We all know that land values to the north ... the south has changed because of casinos primarily (inaudible) on the south side is running the land value up so the north of the interstate, the land values are better situated. All of those points I’m trying to make is telling that it is obviously a change in the growth that’s to the north and that’s where we propose to put the park.

(Emphasis added.)

B. Public need.

¶ 30. In addition, the Planning Commission and the Board both heard evidence of public need for rezoning. At the Planning Commission hearing, Larry Barnett, executive director of the HCDC, stated that there was a need for industrial land. Barnett said “We find ourselves in a situation where industrial land in this county has been taken up. It’s been sold. We have industries on those properties. That’s the emphasis of why we’re here today, is the need for additional land.”

¶ 31. Bill Hessle also spoke before the Planning Commission on the issue of public need. He stated that the county had a shortage in available industrial land. He said the demand for industrial land had increased since the impact of Hurricane Katrina. In addition, he said the county needed to have industrial land available in order to be competitive with adjoining counties and states. Furthermore, Hessle stated that most of the former industrial land was located south of Interstate 1-10, however, the county now had a need for an industrial site north of Interstate I — 10 with all the growth to the north of the county. Moreover, Hessle stated that the county had no large tracts of land available to accommodate the industrial park south of 1-10, and that the cost of land in that area is five or six times higher than land in the northern part of the county.

¶ 32. Barnett also spoke before the Board on the issue of need. He explained that there was a need for large parcels of land. These large parcels would make the area more competitive to companies. The HCDC chose the land in Saucier for a number of reasons, he said. This land had highway access and was near a railway line.

¶ 33. While Hessle acknowledged that other industrial parks are located in the county, he said these parks are controlled by various cities and little land is available in those parks. The county had only one industrial park under its control in Long Beach, he said. The Long Beach park was zoned I — 1, therefore, the county lacked land zoned 1-2. He expressed a need for the county to have industrial land that it controls and can market. Hessle also noted that Hurricane Katrina changed the area, growth, and the nature of development in the county, prompting a need for rezoning.

¶ 34. The Planning Commission voted to allow the zoning change based on the evidence provided it. The Board relied on the evidence provided to the Planning Commission and the evidence provided at the appeal hearing and affirmed the Planning Commission’s findings. While much of the hearing focused on the need for rezoning, evidence was provided about a change in the character of the land. Opponents to the rezoning also were permitted to express their reasons for disapproval of the rezoning at the rezoning hearing and appeal before the Board.

¶ 35. In addition, the Board may rely on its own knowledge and familiarity with the affected land. Chüds, 1 So.3d at 860. This Court has stated:

We emphasize that whenever zoning authorities act on the basis of their general knowledge of their community or on the basis of any other information obtained other than “from the parties,” they should clearly so state. In order that we might effectively perform our judicial review responsibilities, it is vital that we be [reliably] informed of all bases of the decision of the zoning authorities.

Woodland Hills, 443 So.2d at 1182 n. 8 (quoting Bd. of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327-1328 (Miss.1982)). The impact of Hurricane Katrina on the area was an underlying concern, and indeed, a significant factor in the change that had occurred in the area sought to be rezoned, as noted in testimony before the Planning Commission and the Board. The Board implemented proper procedures for determining the rezoning of the area. The Board affirmed the Planning Commission’s determination that the affected area should be rezoned. The circuit court affirmed the Board’s decision, in part, due to the changed conditions since Hurricane Katrina.

¶ 36. This Court has stated:

[A]ll presumptions must be indulged in favor of the validity of zoning ordinances. It is presumed to be reasonable and for the public good. It is presumed that the legislative body investigated it and found conditions such that the action which it took was appropriate. The one assailing the validity has the burden of proof to establish that the ordinance is invalid or arbitrary or unreasonable as to his property, and this must be by clear and convincing evidence.

Childs, 1 So.3d at 861 (quoting Ballard v. Smith, 234 Miss. 531, 546-547, 107 So.2d 580 (1958)). Further, this Court has held that all circumstances of an individual case should be considered when deciding a case. Howie, 209 So.2d at 905. As an appellate court, our task “is to determine whether the circuit court erred in its judicial review of whether the Board’s decision to rezone was arbitrary and capricious and unsupported by substantial evidence.” Childs, 1 So.3d at 860. Our role is to verify the existence of substantial evidence, not reweigh the evidence. Id. at 861. “Furthermore, ‘If the Board’s decision is founded upon substantial evidence, then it is binding upon an appellate court, i.e., the Circuit Court, the Court of Appeals and this Court.’ ” Id. (quoting Perez v. Garden Isle Cmty. Ass’n, 882 So.2d 217, 220 (Miss.2004)). Based on the record before this Court and acknowledging that the Board was well aware of the impact of Hurricane Katrina on Harrison County, this Court cannot say that the Board’s decision to rezone in this case was arbitrary or capricious. Further, substantial evidence was before the Board to support its decision to rezone and, thus, the decision was fairly debatable, and cannot be disturbed by this Court on appeal.

II. Due process.

¶ 37. The trial court ruled on Edwards’s contention that he was denied his right to due process of law because the zoning authorities (the Board) were a party to the Purchase Agreement. The trial court determined that a presumption of honesty and integrity attached to the Board’s decisions. To overcome this presumption, Edwards was required to show that members of the Board had a personal or financial stake in the decision, or that personal animosity existed toward the objectors. Finding that Edwards failed to meet this burden, the circuit court determined that no due process rights had been violated. However, this particular issue was not presented to the Planning Commission, therefore, the contract does not constitute a part of the official record and the issue was not preserved for appeal. Accordingly, this Court declines to address this issue.

CONCLUSION

¶ 38. For the reasons stated, we affirm the decision of the Circuit Court of Harrison County, First Judicial District, to affirm the decision of the Harrison County Board of Supervisors and the Planning Commission to allow rezoning.

¶ 39. AFFIRMED.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., AND KITCHENS, J.

WALLER, Chief Justice,

Dissenting.

¶40. Because I respectfully disagree with the majority that there is any evidence of a change in the character of the neighborhood to be rezoned, I respectfully dissent.

¶ 41. Zoning laws were first enacted in Mississippi in 1924. See 195 Miss. Laws (1924). Issues of rezoning were first addressed by this Court in the 1950s in W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281 (1953). In that case, the Court recognized that the zoning statutes did not offer guidance as to the various burdens of proof or what facts should be considered when rezoning property. Beginning with Holcomb, this Court set out the legal requirements for rezoning and by 1968, those requirements were firmly and unquestionably established:

Accordingly it is a firmly established rule that before a zoning board reclassifies property from one zone to another, there should be proof either (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification.

Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968).

¶ 42. This has remained the legal standard until the present day. See Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 859-60 (Miss.2009); Bridge v. Mayor and Bd. of Aldermen, City of Oxford, 995 So.2d 81, 83 (Miss.2008); Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1224 (Miss.2000); McWaters v. City of Biloxi, 591 So.2d 824, 827 (Miss.1991); Bd. of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 883 (Miss.1987); Mayor and Comm’rs of Jackson v. Wheatley Place, Inc., 468 So.2d 81, 83 (Miss.1985); and Oxford, v. Inman, 405 So.2d 111, 113 (Miss.1981).

¶ 43. The burden of proof rests upon the party seeking to rezone property. That party must show by clear and convincing evidence that an error in zoning has occurred, or that there has been a substantial change in the character of the neighborhood, with a concomitant public need for rezoning. Cloverleaf Mall, 387 So.2d at 740. See also Sea Lands, 759 So.2d at 1224; Wheatley Place, 468 So.2d at 83; and Inman, 405 So.2d at 113.

¶ 44. Although the vast weight of our precedent deals with challenges to municipal zoning ordinances, the same standard applies to ordinances enacted by county boards of supervisors. See Byram 3 Dev., Inc. v. Hinds County Bd. of Supervisors, 760 So.2d 841 (Miss.App.2000); Faircloth v. Lyles, 592 So.2d 941 (Miss.1991); Nw. Builders, Inc. v. Moore, 475 So.2d 153 (Miss.1985); Bd. of Supervisors of Jackson County v. Roberts, 287 So.2d 436 (Miss.1973); Hinds County Bd. of Supervisors v. Covington, 285 So.2d 143 (Miss.1973); Moore v. Madison County Bd. of Supervisors, 227 So.2d 862 (Miss.1969); Howie v. Autrey, 209 So.2d 904 (Miss.1968); Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So.2d 532 (1962). In deciding cases dealing with county rezoning issues, this Court has not hesitated to cite and rely upon caselaw addressing municipal zoning issues, as the cases above show. It is clear that there is no distinction in the legal elements or application of those elements when the zoning authority in question is a county board rather than a municipal authority.

¶ 45. The majority effectively has omitted the requirement that a change occur in the character of the neighborhood to be rezoned before rezoning is permissible. In essence, the majority finds that changes in the overall county are sufficient to satisfy this requirement. This is a complete departure from existing authority.

¶ 46. This Court consistently has applied the same standard for reviewing whether there has been substantial change in the character of the neighborhood. For purposes of rezoning, “the neighborhood” consists of the specific piece of property sought to be rezoned and its immediate/adjoining surroundings. See Childs, 1 So.3d at 859-60 (conditions changed in and around the area sought to be rezoned); Byram 3 Dev., 760 So.2d at 844 (subject property and immediate area). See also Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221 (Miss.2000) (area proposed to be rezoned and surrounding areas); Fondren N. Renaissance v. Mayor and City Council of Jackson, 749 So.2d 974 (Miss.1999) (area proposed to be rezoned and surrounding area); Jitney-Jungle, Inc. v. City of Brookhaven, 311 So.2d 652 (Miss.1975) (subject property and surrounding properties); Cockrell v. Panola Co. Bd. of Supervisors, 950 So.2d 1086 (Miss.Ct.App.2007) (area to be rezoned and areas surrounding the subject property).

¶ 47. More importantly, this Court has stated on more than one occasion what a neighborhood is not. Changes in the character of the land two miles away from the subject property are not in the subject property’s neighborhood. Wright v. Mayor and Comm’rs of City of Jackson, 421 So.2d 1219, 1223 (Miss.1982). Rezoning for the benefit of the community-at-large does not meet mistake or change rezoning requirements. Sullivan v. Bay St. Louis, 375 So.2d 1200, 1201 (Miss.1979). Changes in character located a half mile from the subject property are not in the neighborhood. Cockrell, 950 So.2d at 1094 (“because this business is approximately one-half mile away from the Martin’s property, and all of the land surrounding the Martin’s is zoned agricultural according to the maps in the record, we do not consider it in the same ‘neighborhood’ as the Martin’s property.”) (emphasis added).

¶48. The majority quotes portions of statements given by the HCDC at both the Planning Commission hearing and Board of Supervisors hearing to support its assertion that there has been a change in the character of the neighborhood. Respectfully, I disagree that the quotations support any such conclusion. Each deals specifically with changes in demographics of the county as a whole that have occurred since Hurricane Katrina and the need for large industrial sites for development.

¶ 49. For purposes of rezoning, the alterations in the county generally are irrelevant considerations. This Court previously has rejected the argument that rezoning to benefit the community-at-large should be permitted. Sullivan, 375 So.2d at 1201. It is questionable whether, under the present circumstances, Saucier would consider itself the same community as Gulfport or Biloxi, even if such a standard were legally permitted. However, the law does not gauge the need of the community; it measures the changes in a given neighborhood, of which there are usually many within any community.

¶ 50. Regardless, this Court has never looked to the county (or the community) as a whole, but specifically and only to the property in question and its surrounding areas to determine whether or not a change in character has occurred. Here, no evidence was given, nor was there any argument to that end. The statements relied upon by the majority speak solely to the general shift to the north of Interstate 10 of people and business, an area which constitutes the vast majority of the county, not merely the Saucier neighborhood.

¶ 51. No evidence of any change in the character of the Saucier neighborhood was offered. The HCDC argued only that there was a need for more industrial space. When specifically asked at oral argument what change in the neighborhood justified rezoning, the HCDC stated the need was the change. With all due respect, this is an impermissible conflation of two separate and distinct requirements and should not be permitted to contravene firmly established legal requirements, particularly where no party to this litigation has asked for' such an exception to be applied.

¶ 52. The need to restrict the change to the immediate property and its surrounding area likely stems from the acknowledgment by this Court of the importance of the significant investment people make in their property, often based upon extant zoning:

Purchasers of small tracts of land invest a substantial portion of their entire lifetime earnings, relying upon a zoning ordinance. Without the assurance of the zoning ordinance, such investments would not be made. On this small area they build their homes, where they expect to spend the most peaceful, restful and enjoyable hours of the day.

Wheatley Place, Inc., 468 So.2d at 83 (“It should also be borne in mind, however, that while a duly enacted comprehensive zoning ordinance is not a true protective covenants agreement, it bears some analogy.”); Sea Lands, 759 So.2d at 1228-29; and Conerly, 509 So.2d at 885-86.

¶ 53. For this reason, the presumption of validity given original zoning decisions is not applied to the same degree in cases of rezoning. Sea Lands, 759 So.2d at 1227; Conerly, 509 So.2d at 883; Sullivan, 375 So.2d at 1201-02; Lewis v. City of Jackson, 184 So.2d 384, 387-88 (Miss.1966).

¶ 54. Since original zoning ordinances are deemed more or less permanent and analogous to protective covenants, this Court presumes original zoning decisions were made thoughtfully and with an eye toward both present and future needs. Sea Lands, 759 So.2d at 1225; Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). Decisions to change those ordinances shortly after they have been enacted are suspect. Sea Lands, 759 So.2d at 1225. The Saucier zoning ordinances were enacted in 2000, and a mere five years passed between that enactment and the first attempt to change it, an attempt identical to that before us. The HCDC/Fore petition therefore falls squarely within the suspect category previously recognized by this Court.

¶ 55. This concern becomes even more obvious and pressing in a case like that before us. In the present case, the only evidence before either the Planning Commission or the Board of Supervisors was that there was no change in the character of the neighborhood in question and that all current uses are consistent with its existing zoning, residential and agricultural. The zoning change requested catapults the use of this land from one of the most restrictive (residential and light agricultural) to the least restrictive (1-2 industrial) category.

¶ 56. Under current zoning regulations for the County, an 1-2 zoned area permits establishment as of right of the following types of land uses: junkyards (including autos); gravel pits; fertilizer manufacturing and processing; foundries; meat slaughtering and packing houses, petroleum and petroleum product manufacturing, plastic products manufacturing; stockyards; solid waste and/or recycling companies and transfer stations; asphalt manufacturing plants; concrete manufacturing plants; paint, oil, shellac and lacquer manufacturing; wood preserving by creosote impregnation treatment plants; auto and truck cleaning; auto and motorcycle race tracks; chemical manufacturing; and poultry processing. All of these endeavors necessarily include traffic, pollutants, noise and/or odor problems for the residents of this neighborhood.

¶ 57. Also permitted as of right are drinking establishments, which includes by definition (in the Harrison County zoning ordinances) private clubs. Since 1-2 zoning permits these uses “by right,” no additional authority would be necessary to establish such facilities; they could simply exist in the middle of residential property.

¶ 58. As the majority notes, Hurricane Katrina had a substantial impact on Harrison County, including Saucier. The majority’s conclusion ignores that Saucier citizens are as entitled to legal protection as those in any other area of the county. The legal mechanisms by which this Court has always measured proposed zoning changes are being setting aside, without request by any party or explanation by the majority, in favor of making Saucier the metaphorical sacrificial lamb to the changes Katrina has wrought. The majority’s conclusion that rezoning the Saucier property is in the best interests of Harrison County contradicts established law and provides a remedy neither sought nor argued for by any party.

¶ 59. Even if the vague and general statements of a demographic shift in the county from south to north were sufficient to establish two-thirds of Harrison County as “a neighborhood,” the majority also ignores that there exists no evidence of actual change. In the past, this Court has looked to the uses being made of the subject property and its environment, whether those uses constitute a change from prior uses and, if so, how much of a change.

¶ 60. In determining whether there has been substantial change in a neighborhood, our appellate courts have looked to zoning changes in the adjacent areas (McWaters v. City of Biloxi, 591 So.2d 824 (Miss.1991) and Woodland Hills Conservation Ass’n, Inc. v. City of Jackson, 443 So.2d 1173 (Miss.1983)); substantial deterioration of a neighborhood through increased crime and troublesome activity (Walters v. City of Greenville, 751 So.2d 1206 (Miss.Ct.App.1999)); and similar other concerns. Changes ordinarily must be shown by comparable evidence, such as maps establishing previously-rezoned areas in the neighborhood; statistical changes, including quantification of nonconforming commercial or industrial usage; or even a showing that the zoned use had receded, though not necessarily replaced by a nonconforming usage. Sea Lands, 759 So.2d at 1227.

¶ 61. This Court has held that in the absence of such “comparable evidence, there can be no showing of a material change in the neighborhood.” Sea Lands, 759 So.2d at 1227-28. See also Cockrell, 950 So.2d at 1095.

¶ 62. We also have held that one or two instances of nonconforming use or minimal alteration to surrounding areas does not qualify as substantial change. Wright v. City of Jackson, 421 So.2d 1219 (Miss.1982) (holding that minimal new commercial use in area and recent construction of interstate highway two miles away do not constitute substantial change in character). See also Cockrell, 950 So.2d at 1096.

¶ 63. In the present case, there is no question that no evidence was presented to any fact-finder below that any change at all had occurred in or around the Saucier property at issue. The basis of the petition to rezone was, by the petitioner’s own statements, need and need alone:

I wanted to talk about the need for this park because that’s what the whole basis of this application is based on is need. Obviously, there is a need for more industrial land. We are running out of land. The demand since Katrina has been surpassing anything we had anticipated.
Also, if you’ll see, all of this [existing] industrial land is basically south of 1-10. Obviously, there’s a need with the growth to the north, there is a need to have industrial sites north of 1-10.

¶ 64. Need is but one element necessary to rezone, and it is insufficient alone to permit rezoning in the absence of substantial change to the neighborhood (of which the HCDC provided no evidence whatsoever). To the contrary, the only relevant evidence provided for the area in question is that it continues to be used for residential and agricultural purposes. Use in conformity with existing zoning simply does not constitute a change in character. Wheatley Place, 468 So.2d at 84; Inman, 405 So.2d at 113; Jitney-Jungle, 311 So.2d at 654; Martinson, 215 So.2d at 418.

¶ 65. The HCDC neither argued nor presented any evidence of a change in the character of the neighborhood. Neither the Planning Commission nor the Board of Supervisors made any findings of fact or even unsupported conclusions that there had been a change in the character of the neighborhood, nor is there any evidence to support such findings, had they been made. In the absence of such findings, this Court is bound by rule of law to find the Board of Supervisors’ approval of the petition to rezone arbitrary and capricious. Conerly, 509 So.2d at 884 (citing Lewis, 184 So.2d at 387; and Martinson, 215 So.2d at 417-18).

¶ 66. I respectfully dissent.

GRAVES, P.J., and KITCHENS, J., JOIN THIS OPINION.

      . Two different spellings of Hessle’s name appear in the various hearing transcripts.

      .The Purchase Agreement required that at least seventy-two percent of the purchased land be suitable for utilization and development and able to be "conveyed free and clear from any and all restriction with regard to coastal wetlands, promulgated by the United States Army Corps of Engineers or any other applicable local, state or federal ordinance, law or regulation.”

      . While the trial court made a ruling on this issue, Edwards did not assert this assignment of error on appeal, thus, it is considered waived.

      . The Board quoted Section 903.03 of the Comprehensive Zoning Ordinance for Harrison County, which restricts appeals to the Board of Supervisors to the record made before the Planning Commission.


source: Caselaw Access Project

author: GRIFFIS, J., BARNES, J.,

license: Public Domain

text:
    ENTERGY MISSISSIPPI, INCORPORATED, Appellant, v. TCA CABLE PARTNERS d/b/a Cox Communications, Appellee.
    No. 2006-CA-01258-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2009.
    Rehearing Denied July 28, 2009.
    Certiorari Denied Oct. 22, 2009.

      Walter Alan Davis, John H. Dunbar, Oxford, James W. Snider, Jackson, attorneys for appellant.
    M.W. Zummach, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Entergy Mississippi, Inc. (“Enter-gy”) appeals a summary judgment granted in favor of TCA Cable Partners d/b/a Cox Communications (“TCA”) and the subsequent denial of Entergy’s motion to alter or amend the judgment. On appeal, En-tergy argues that: (1) the trial court erred when it found no genuine issue of material fact existed as to Entergy’s claim of indemnity against TCA; (2) TCA breached the Entergy/TCA Agreement when it failed to provide insurance; and (3) Enter-gy’s attorneys’ fees incurred in defense of claims made by Troy P. Cremeen should be covered under the terms of the Agreement and reimbursed by TCA. We find reversible error and render judgment in favor of Entergy against TCA in the amount of $28,852.82, together with pre- and post-judgment interest thereon.

FACTS

¶ 2. On October 1, 1989, Mississippi Power and Light, which was later renamed Entergy, entered into a television cable agreement (the “Agreement”) with Teleca-ble Associates, Inc. d/b/a Delta Cablevision, Inc (“Telecable”). This Agreement was later assigned by Telecable to TCA. The Agreement allowed TCA to utilize En-tergy’s utility poles for placement of television cables.

¶ 3. As a result, television cables were placed on Entergy’s utility poles over a large geographic area, which included property located in Washington County. A television cable was affixed to a utility pole located on real property owned by Cremeen, a resident of Greenville. Cre-meen was working on his property when he walked into a cable/wire and was severely injured.

¶ 4. On December 6, 2002, Cremeen filed a complaint alleging that he was injured by walking “into a power transmission cable owned and/or operated by BellSouth and/or Entergy,” which he claims was “negligently suspended between two utility poles.” TCA was not originally named as defendant in the suit. When it was later discovered that TCA owned a cable located on the utility pole, TCA was added as a defendant in the third and fourth amended complaints, dated March 2, 2003, and September 5, 2008, respectively. In his fourth amended complaint, Cremeen changed his allegation to read that he walked into “a cable” instead of a “power transmission cable.”

¶ 5. On November 24, 2003, Entergy sent a demand letter to TCA. Entergy demanded a defense and indemnity based on the Agreement. On the same day, Entergy also propounded requests for admission to TCA, which asked TCA to admit that it was bound to indemnify Enter-gy against Cremeeris claims. A second letter from Entergy to TCA, dated November 26, 2003, indicated that counsel for both Entergy and TCA had discussed the previous demand letter. Also included in the letter was a request for a copy of the comprehensive general liability insurance policy as required under the terms of the Agreement. On January 13, 2004, TCA’s counsel sent a letter to Entergy stating that the request for indemnification and defense was still being considered, but no decision had been made. TCA did not provide Entergy with a copy of the requested insurance policy.

¶ 6. The preamble to the Agreement states that “complete indemnification of Licensor [Entergy] is contemplated hereunder.” Section 10 provides:

Licensee [TCA] shall indemnify, protect and save harmless Licensor [Entergy] from and against any and all claims and demands for damages to property and injury or death to any person, including, but not restricted to, employees of Licensee and employees of any Contractor or sub-contractor performing work for Licensee, and also including payments made under any workmen’s compensation law or under any plan for employees’ disability and death benefits, which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments or by the proximity of the respective cables, wires, apparatus and appliances of the parties hereto, or by any act of Licensee on or in the vicinity of Licensor’s poles, or other poles permitted by law, any such damages, injury or death claimed to have been due to negligence of the Li-censor.

(Emphasis added). Additionally, Section 11 required TCA to maintain and furnish evidence of comprehensive general liability insurance, in the amount of at least $1,000,000 per occurrence; it further required that Entergy be named as an additional insured on the liability policy.

¶ 7. On February 20, 2004, Cremeen voluntarily dismissed TCA from the lawsuit with prejudice. At the same time, the trial court granted Entergy’s motion for leave to file a cross-claim against TCA. In his fifth and final amended complaint, Cre-meen again only named Entergy and Bell-South as defendants. On September 7, 2004, Entergy filed its cross-claim against TCA. Then, on November 18, 2004, Enter-gy filed a motion for summary judgment with respect to Cremeen’s claims, which the trial court granted on April 6, 2005. At that point, Entergy and TCA were no longer parties to the original complaint filed by Cremeen.

¶ 8. Entergy subsequently filed a motion for summary judgment against TCA based on its claim for indemnity against Cre-meen’s claims and requested a “judgment in favor of [Entergy] in the amount of $28,852.82, plus costs and interest.” TCA responded and entered its motion for summary judgment on October 11, 2005. By opinion and order entered on December 2, 2005, the trial judge denied Entergy’s motion and awarded summary judgment to TCA dismissing Entergy’s claims with prejudice. Entergy filed a motion to alter or amend judgment on December 12, 2005, which was subsequently denied by the trial court.

STANDARD OF REVIEW

¶ 9. “When reviewing the grant of a motion for summary judgment, we look at the trial court’s decision de novo.” Smith v. Magnolia Lady, Inc., 925 So.2d 898, 901(¶ 7) (Miss.Ct.App.2006) (citation omitted). In reviewing all the “evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavitsU” we must examine the evidence presented “in the light most favorable to the party against whom the motion for summary judgment has been made[.]” Id. “When viewed as such, if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, summary judgment is appropriate.” Phillips v. Enter. Transp. Serv. Co., 988 So.2d 418, 420(¶ 10) (Miss.Ct.App.2008).

ANALYSIS

Whether the trial court erred in granting TCA’s motion for summary judgment.

¶ 10. Entergy’s cross-claim asked for reimbursement of its costs of defending Cremeen’s claim. Entergy argues that such payment is required under TCA’s contractual obligations to: (1) “protect” and “completely indemnify” Entergy (Section 10 of the Agreement) and (2) provide comprehensive liability insurance coverage that would have provided a defense if TCA had obtained a policy and advised Entergy of the name of the insurance carrier (Section 11 of the Agreement).

¶ 11. Section 10 of the Agreement required that TCA “shall indemnify, protect and save harmless [Entergy] from and against any and all claims and demands for damages ... which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments. ...” Cremeen’s claims against En-tergy were certainly “claims and demands” which arose “out of’ or were “caused by” TCA’s placement of television transmission cables under the Agreement. The dissent agrees that Cremeen’s claim, if a judgment had been entered in his favor, would be subject to the indemnification provision of Section 10, and TCA would have been responsible to Entergy under this provision of the Agreement.

¶ 12. The reimbursement of Entergy’s attorneys’ fees, however, is a separate issue. Entergy’s claim for reimbursement of attorneys’ fees comes not from Section 10 but from Section 11 of the Agreement. We find that Section 10 may be interpreted independent of Section 11. Indeed, the purpose for Section 11 is to provide “insurance” that would cover TCA’s indemnification responsibility under Section 10 and a defense to any such claims provided by the insurance carrier.

¶ 13. On November 24, 2003, Entergy made a demand for defense and indemnity against TCA based on their Agreement. Entergy also requested a copy of the insurance policy that required TCA to list Entergy as an “additional insured.” TCA has not accepted the indemnification and defense of Entergy and has not provided a copy of the required insurance policy. By letter dated January 13, 2004, TCA’s counsel notified Entergy that the request for indemnification and defense was being considered, but a decision had not yet been made. TCA did not provide any further response to Entergy’s indemnification demand and never provided a copy of an insurance policy that named Entergy as an additional insured.

¶ 14. Here, TCA offered no evidence to establish that it fulfilled its contractual obligation to provide an insurance policy that named Entergy as an additional insured. Hence, Entergy claims that TCA is liable for its attorneys’ fees because TCA wrongfully refused to defend or provide a defense to Entergy.

¶ 15. In Travelers Insurance Co. v. General Refrigeration & Appliance Co., 218 So.2d 724, 727 (Miss.1969), the supreme court held that “the appellant wrongfully refused to defend appellee and thereby the appellant as insurer became liable for attorneys’ fees incurred and paid in the successful defense of the chancery suit.” Likewise, the following language from the opinion sums up TCA’s liability to Entergy:

Heretofore this Court has addressed the contractual duty of a liability insurance carrier to defend suits brought against the insured. It is a serious duty, requiring a good faith effort to protect the insured’s interest in court. There is no higher ethical duty in the legal profession than complete, absolute fidelity to the interest of the client. An attorney obviously should not attempt to represent a party when he is obligated to represent an adverse interest, and a conflict of interest appears.
Because Commercial Union had a clear duty to defend, which duty State Farm as the secondary carrier fulfilled upon Commercial Union’s failure to do so, it follows State Farm is entitled to all reasonable and necessary expenses in fulfilling Commercial Union’s obligations.

State Farm Mut. Auto. Ins. Co. v. Commercial Union Ins. Co., 394 So.2d 890, 894 (Miss.1981) (internal citations omitted).

¶ 16. The dissent attempts to distinguish Travelers Ins. Co. on the grounds that “it directly involved the insurance company, and the terms of the policy were provided in the record.” This argument fails when the damages that naturally flow from the breach of Section 11 are considered. If Entergy had been aware of TCA’s failure to procure insurance and Entergy had purchased such a policy, the damages would be the cost of the insurance premiums paid. Here, however, the damages that naturally flow from TCA’s breach are the amount of money Entergy expended defending the litigation. Indeed, Entergy would not have incurred that amount had TCA honored Section 11 of the Agreement and procured insurance that would have defended Entergy from Cremeen’s claims.

¶ 17. The trial court’s summary judgment in favor of TCA failed to consider TCA’s obligations to indemnify and defend Entergy against Cremeen’s claims under Sections 10 and 11 of the Agreement. Accordingly, we reverse the summary judgment granted in favor of TCA. Further, we find summary judgment in favor of Enter-gy was appropriate and render judgment in favor of Entergy in the amount of $28,852.82, together with pre- and post-judgment interest thereon.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE AND MYERS, P.JJ., ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., IRVING AND ROBERTS, JJ.

BARNES, J.,

concurring in part, dissenting in part.

¶ 19. Although I concur with the majority that the trial court erred in granting summary judgment to TCA Cable Partners (TCA), I must respectfully dissent with the majority’s decision to reverse and render judgment awarding Entergy Mississippi, Inc. (Entergy) attorneys’ fees, pre- and post-judgment interest and costs of court. I am of the opinion that the case should be reversed and remanded for further proceedings as Entergy has not yet proved it is entitled to a judgment as a matter of law against TCA.

¶ 20. There are three contractual provisions at issue in the case before us: the preamble to the Agreement which states that “complete indemnification of Licensor [Entergy] is contemplated hereunder[,]” Section 10 which provides for indemnification against any “claims and demands for damages[,]” and Section 11 which requires TCA to maintain and furnish evidence of comprehensive general liability (CGL) insurance. The majority reads these provisions together to find an “obligation to indemnify and defend” Entergy from the claims asserted by Troy P. Cremeen. I disagree. While the parties may have intended for Sections 10 and 11 to work together to provide “complete indemnification,” I find that we must review the clauses as written. The Agreement makes no reference to a duty by TCA to defend Entergy against claims made. Entergy may be entitled, after further proceedings, to the amount expended in attorneys’ fees as damages against TCA for breach of the duty to provide CGL insurance or the duty of good faith and fair dealing. However, I cannot agree that Entergy is entitled, at this juncture, to attorneys’ fees against TCA under a duty to defend.

I. Section 10 Indemnity Provision

¶ 21. Section 10 of the Agreement stated that TCA had an obligation to “indemnify, protect and save harmless [Entergy] from and against any and all claims and demands for damages to property and injury or death to any person ... caused by the erection, maintenance, presence, use or removal of said attachments or by the proximity of the respective cables, wires, apparatus and appliances of the parties .... ” This obligation extended to “any such damages, injury or death claimed to have been due to [the] negligence of [En-tergy]” that was caused by “any act of [TCA] on or in the vicinity of [Entergy]’s poles[.]”

¶ 22. As Entergy was dismissed from the original complaint, and no legal liability was established with respect to Cre-meen’s claims against Entergy, the only issue remaining in regard to the indemnification clause is whether it covered Enter-gy’s attorneys’ fees, from the point when TCA became a party to the suit. Entergy states that it incurred $29,642.84 in attorneys’ fees for the defense of the claims arising from the underlying claims asserted by Cremeen. The trial court’s order stated that the Agreement failed to contemplate attorneys’ fees; therefore, summary judgment for TCA was warranted.

¶ 23. Entergy cites Blain v. Sam Finley, Inc., 226 So.2d 742 (Miss.1969) for the “general rule” regarding indemnification for attorneys’ fees. In Blain, the Mississippi Supreme Court stated:

As a general rule an indemnitee is entitled to recover, as a part of the damages, reasonable attorneys’ fees and reasonable and proper legal costs and expenses which he is compelled to pay as a result of suits by or against him in reference to the matter against which he is indemnified, provided that under all of the circumstances of the case he acts in good faith and with due diligence in prosecuting or defending such suits. This rale is especially applicable where the indemnitor is notified and given an opportunity to contest the adverse litigation but fails or refuses to do so....

Id. at 745-46. I note, however, that the supreme court explained that “[w]hen the contract expressly indemnifies a person against the costs and expenses incident to certain acts, or arising from a certain claim, it extends to the costs and expenses of defending groundless suits.” Id. at 745 (citing B & G Elec. Co. v. G.E. Bass & Co., 252 F.2d 698, 701 (5th Cir.1958)) (emphasis added). I find Blain distinguishable as the contract at issue in that case expressly referred to expenses and attorneys’ fees. There is no such express provision in the Agreement at issue in the case before us.

¶ 24. Entergy argues that even if this Court does not follow the “general rule” set forth in Blain, the preamble to the Agreement contemplated “complete indemnification”; therefore, the payment of attorneys’ fees is warranted. “Where there is an indemnification agreement, ‘it is the parties’ intent which controls the propriety of attorney fees.’ ” Microtek Med., Inc. v. 3M Co., 942 So.2d 122, 128(¶ 17) (Miss.2006) (overruled on other grounds) (citations omitted).

¶ 25. However, the Mississippi Supreme Court has also stated: “[O]ur concern is not nearly so much what the parties may have intended as it is what they said, for the words employed are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy.” Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 836(¶ 20) (Miss.2003). Mississippi “follows the American rule regarding attorney fees,” which states that “[u]nless there is a contractual provision or statutory authority providing for attorney fees, they may not be awarded as damages unless punitive damages are also proper.” Kennedy v. Anderson, 881 So.2d 840, 348(¶ 36) (Miss.Ct.App.2004). Therefore, “unless provided by statute or contract ... attorneys’ fees may not be recovered.” Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 517(¶ 68) (Miss.2007).

¶26. In Kinsinger v. Taco Tico, Inc., 861 So.2d 669, 673 (La.Ct.App.2003), the Louisiana Court of Appeals stated:

We agree that an indemnification agreement may impose the obligation to pay reasonable attorney fees in some instances when the obligation to pay attorney fees is not specifically identified in the indemnification agreement, but is implied by inference. However, we hold that in order for the indemnitor to be liable for attorney fees the indemnification language must be sufficient to infer the obligation.

In other words, the indemnification language must imply a level of indemnification beyond just the obligation to pay claims or damages. Id. In Kinsinger, the indemnification language only stated that the indemnity was for “any claims or damages” and failed to specify a duty to defend or pay expenses. Id. at 671-72. The appellate court concluded that the “limited indemnification language” of the contract at issue did not impose an “obligation to pay attorneys fees[,]” relying on the general rule that, absent a specific provision or language in the indemnification contract, attorneys’ fees and defense costs are not owed. Id. at 673.

¶ 27. The indemnification language contained in Section 10 of the Agreement, like the language in Kinsinger, refers only to indemnification from “claims and damages.” Consequently, I find, as did the trial court, that such language does not impose an obligation on the part of TCA to pay attorneys’ fees under this provision. Although the preamble to the Agreement stated that “complete indemnification” was contemplated, I find this language insufficient to expand the limited provision of Section 10, which negates any implication of an inclusion for attorneys’ fees. Therefore, I would affirm the trial court’s findings on this issue.

II. The Section 11 Provision of CGL Insurance

¶28. Entergy next argues that TCA clearly breached its contractual duty by not providing evidence of the CGL insurance policy, as required by the Agreement, and requests that this Court reverse and render on the issue of insurance coverage. The trial judge failed to address this issue which TCA maintains was moot based on the granting of summary judgment in its favor. I agree with the majority that TCA’s argument is misplaced. The Alabama Supreme Court has noted that:

A contractual obligation to indemnify is distinct from a contractual obligation to procure insurance. Under an agreement to indemnify, the promisor assumes liability for all injuries and damages upon the occurrence of a contingency. In contrast, an agreement to obtain insurance involves the promisor’s agreement to obtain or purchase insurance coverage, regardless of whether [a] contingency occurs.

Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 639 (Ala.1993) (emphasis added).

¶29. Section 11 of the Agreement states in pertinent part:

Licensee shall effect, maintain and furnish evidence of insurance satisfactory to the Licensor ...:
(b)(1) Comprehensive General Liability Insurance including Contractual Liability Coverage and Personal Injury Coverage.
(c) Licensee’s insurance policy required by paragraph (b) above shall name Li-censor, and its affiliated and associated companies as additional insureds. Licensee hereby waives all rights of recourse against Licensor, and its affiliated and associated companies for bodily injury, including death and property damage. All of Licensee’s policies of insurance are to provide Licensor with 30 days prior written notice of cancellation or any material adverse change. Licensee shall, before making any attachments to poles of Licensor hereunder, provide Licensor with Certificates of Insurance upon execution of the Agreement which shall include the type of policy issued, occurrence or claims made, and specifically address that the required endorsements are provided (i.e., additional insureds and waiver of subrogation.).

TCA claims that Entergy must have been provided with certificates of insurance at the execution of the Agreement; otherwise, Entergy would not have continued with the Agreement. It is disingenuous for TCA to claim that it was not obligated to provide a copy of the entire policy, rather only the certificate of insurance, and then decline to furnish that certificate based upon its contention that Entergy should already have the certificate in its possession. Any such certificate would have been dated approximately fifteen years prior to the claims asserted here. I agree with the majority that “[t]he law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract governed thereby[.]” Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 525(¶ 47) (Miss.2005) (quoting Bank of Indiana, Nat’l Ass’n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)); see also Baker, Donelson, Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 451(¶ 40) (Miss.2006) (“[t]he duty of good faith and fair dealing attends all contracts interpreted under Mississippi law”). For TCA to withhold the policy, which should have been readily available, may be a violation of its good faith obligation as a contracting party and may subject TCA to damages for that breach if it is now too late for Entergy to file a claim under the policy. I cannot see, however, that it transforms TCA into the insurer.

¶ 30. The majority cites Travelers Ins. Co. v. General Refrigeration & Appliance Co., 218 So.2d 724, 727 (Miss.1969), for the proposition that when there is a contractual duty to defend, the insured is entitled to “all reasonable and necessary expenses” in fulfilling that obligation. However, I find Travelers distinguishable from the present case in that it directly involved the insurance company, and the terms of the policy were provided in the record. Consequently, the supreme court was able to ascertain Traveler’s contractual duty under the policy’s terms. In this case, there is no evidence of a contractual duty of TCA to defend Entergy; no insurer was a party to the litigation, and no policy has been admitted into evidence to identify the obligations of the insurer carrier.

¶ 31. Under Section 11 of the Agreement, Entergy was to be named as an additional insured under the CGL insurance policy, and it was to be provided proof of such policy. The Agreement did not require TCA to serve as the insurer. However, the record fails to show whether TCA complied with its contractual duties to provide CGL insurance with Entergy named as an additional insured. Due to this lack of evidence, I conclude that neither TCA, nor Entergy, has proved any entitlement to a judgment as a matter of law.

¶ 32. If TCA did not, in fact, obtain the CGL insurance as required by the Agreement, or if its refusal to provide information required for Entergy to file a claim under the policy precludes Entergy’s recovery, TCA may be liable for the costs of defense as damages for breach of contract. However, I cannot hold TCA hable for failing to defend Entergy. Therefore, I would reverse and remand on this issue for further proceedings by the trial court.

KING, C.J., IRVING, AND ROBERTS, JJ„ JOIN THIS OPINION.

      . The evidence established that there was no power-transmission line connected to Enter-gy’s utility pole — only telephone and television cable lines.

      . Often in litigation, counsel may be reluctant to produce a copy of an insurance policy. As a result, counsel may not promptly provide an insurance policy to the other side. The reluctance and delay in the production may be understandable, but it is not permitted. Indeed, Mississippi Rule of Civil Procedure 26(b)(2) specifically provides for the ''discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”
      Similarly, if a contract requires one party to purchase an insurance policy that benefits the other party, then a copy should be provided within a reasonable time and additional copies should be provided as requested. Section 11 expressly required TCA to "furnish evidence of insurance" to Entergy. Further, Mississippi law provides that "[a]ll contracts contain an implied covenant of good faith and fair dealing in performance and enforcement.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992) (citing Morris v. Macione, 546 So.2d 969, 971 (Miss.1989)). "The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Id. Certainly, the "standards of decency, fairness or reasonableness” required the production of an insurance policy when it was initially requested by Entergy. The failure to provide or the unreasonable delay in providing an insurance policy should be considered a sanctiona-ble event, and courts should not allow parties or counsel to avoid this requirement through delay or complete omission.

      . I cannot agree with the majority that TCA’s withholding of the policy "should be considered a sanctionable event” under the facts of this case. Entergy merely sent an informal request for the policy to TCA; it never utilized the discovery procedures outlined in the Mississippi Rules for Civil Procedure. Accordingly, Entergy could not seek sanctions for violation of the rules.


author: MYERS, P. J.,

text:
    James Craig PALCULICT, Appellant, v. Luciana Gascon Curtis PALCULICT, Appellee.
    No. 2007-CA-01954-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.
    Rehearing Denied Nov. 24, 2009.

      Lee Ann Self Turner, Charles E. Win-field, attorneys for appellant.
    Luciana Gascon Curtis Palculict, pro se.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P. J.,

for the Court.

¶ 1. James Craig Palculict and Luciana Gascon Curtis Palculict were granted an irreconcilable differences divorce by the DeSoto County Chancery Court after ten years of marriage. Aggrieved by the chancellor’s decision regarding certain issues submitted to the chancery court, James appeals. Finding error, we affirm in part and reverse and remand in part.

FACTS

¶ 2. James and Luciana were married on January 10, 1997, in Colorado Springs, Colorado. One child was born of the marriage, Anthony Carlos Palculict, on September 13, 1997. At the time of their marriage, James and Luciana were medics in the Air Force and Air Force Reserves, respectively. After leaving the service, James obtained an associate’s degree in healthcare services, and he was later licensed in Arkansas as a nursing home administrator before ultimately moving to Southaven, Mississippi, in August 2004. Luciana, however, was only intermittently employed during the marriage. The parties separated on January 25, 2006, and an irreconcilable differences divorce was granted on September 17, 2007.

¶ 3. On appeal, James argues that the chancellor erred in determining equitable distribution of the marital estate; awarding Luciana lump-sum, permanent, and rehabilitative alimony; awarding Luciana child support; and awarding full legal custody of the minor child to Luciana.

STANDARD OF REVIEW

¶4. Appellate review of domestic relation matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). We will not reverse unless the chancellor abused his discretion, was manifestly in error, or applied an erroneous legal standard. Id. (citation omitted). This is especially true when dealing with divorce, alimony, or child support. Sumrall v. Munguia, 757 So.2d 279, 282(¶ 12) (Miss.2000).

DISCUSSION

1. Equitable Distribution and Lump-Sum Alimony

¶ 5. The supreme court has set a number of guidelines for chancellors to follow during equitable distribution. The chancellor must: (1) classify the parties’ assets as marital or separate, (2) value those assets, and (3) divide the marital assets equitably. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Marital property consists of assets acquired or accumulated during the course of the marriage, Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), whereas separate property consists of property acquired before or outside of the marriage. MacDonald v. MacDonald, 698 So.2d 1079, 1082-83 (Miss.1997). All assets acquired during the marriage are presumed to be marital. Hemsley, 639 So.2d at 915.

¶ 6. The chancellor found the only marital property to be a rental house in Monticello, Arkansas, which was awarded to James. On appeal, James argues that the chancellor failed to identify and value other marital assets; however, in his proposed findings of fact and conclusions of law, James identified the rental house as the only marital property. He cannot complain on appeal that the chancellor adopted a finding of fact after proposing it himself.

¶ 7. James also argues that the chancellor erred in valuing the Arkansas property, but we can find no abuse of discretion. The chancellor valued the property at a net equity of $21,120, which is significantly below Luciana’s valuation of $33,120. Generally, “findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ 8.05 financial disclosures, in the testimony, or in other evidence.” Horn v. Horn, 909 So.2d 1151, 1165(¶ 49) (Miss.Ct.App.2005). James argues that Luciana’s valuation of the home was contradicted by her stated desire that it be awarded to him; however, the testimony indicated that Luciana moved to California after the separation, intended to stay there permanently, and that the Monticello home required considerable repairs which James, who had experience renovating homes, was in the best position to effect.

¶ 8. Finally, James argues that the chancellor’s grant of a $60,000 lump-sum alimony to Luciana to balance a deficiency in the equitable distribution is an abuse of discretion. The supreme court has propounded four factors to be considered by a chancellor in determining lump-sum alimony: (1) substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business; (2) a long marriage; (3) where recipient spouse has no separate income or the separate estate is meager by comparison; and (4) without the lump-sum award the receiving spouse would lack any financial security. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). “A closer analysis of these cases, however, reveal[s] that the single most important factor undoubtedly is the disparity of the separate estates.” Id. The supreme court has also stated that it “has allowed lump[-]sum alimony as an adjustment to property division to prevent unfair division” and has noted that “[t]he lump[-]sum award has been described as a method of dividing property under the guise of alimony.” Haney v. Haney, 907 So.2d 948, 952(¶ 16) (Miss.2005) (citations and internal quotations omitted).

¶ 9. The chancellor made detailed findings on this issue, stating that he awarded Luciana permanent alimony to counterbalance the award of the Arkansas property to James. The chancellor also noted that Luciana presently had no separate estate because she had contributed her entire inheritance from her mother, approximately $80,000, to the family, and those funds had been used in large part to purchase the Arkansas home. He also found that Luciana lacked financial security because she had repeatedly sacrificed her career to help James advance his, had supported James while he went to school, and was in remission after surviving breast cancer. Accordingly, we find no abuse of discretion in the chancellor’s award of lump[-]sum alimony to Luciana.

2. Periodic Alimony

¶ 10. The chancellor made detailed findings under the twelve factors propounded by the supreme court in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), and awarded Luciana $1,500 per month as permanent periodic alimony. On appeal, James asserts that the chancellor abused his discretion, arguing that the chancellor erred in taking into account Lu-ciana’s residence in California, in failing to consider Luciana’s ability to work, and in not considering James’s ability to pay.

¶ 11. “The supreme court has recognized on numerous occasions that the general rule under which the amount of alimony is to be calculated provides that the recipient should be entitled to a reasonable allowance that is commiserate with the standard of living to which they had become accustomed measured against the ability to pay on the part of the party subjected to the payment order.” Johnson v. Johnson, 877 So.2d 485, 495-96(¶ 45) (Miss.Ct.App.2003) (citations omitted). The record reflects that the Palculicts had earned an average of almost $175,000 per year over the last three years but, by James’s own admission, lived beyond their means. The record also reflects that the couple had moved to Southaven, Mississippi, as a result of James’s job, and had resided there for approximately one and one-half years prior to the separation.

¶ 12. The chancellor noted in his decision that, during the marriage, Luciana had worked infrequently as a result of her struggle with breast cancer and her family’s frequent moves. Luciana testified that she was working toward a license to sell insurance in California, and the chancellor expressed concern that she may suffer a recurrence of breast cancer in the future or may find it difficult to secure permanent employment as a result of her illness. The chancellor also found Lucia-na’s and Anthony’s post-separation standard of living to be far below James’s under the temporary support order, which provided for $750 in alimony and $500 in child support per month.

¶ 13. James’s net income at the time of the divorce was approximately $7,500 per month. The chancellor ordered that James pay $1,500 per month in periodic alimony, $112 per month for Anthony’s medical insurance, and $980 per month in child support. Additionally, James’s living expenses at the time of the divorce included $1,800 per month in rent, approximately $625 per month in utilities, and approximately $1,200 per month for the leasing, insuring, and fueling of his BMW automobile. James also cites the present monthly cost of one-time or temporary payments ordered by the chancellor, which include monthly payments on the lump-sum alimony. We have noted, however, that a chancellor may disregard such short-term, temporary obligations in computing periodic alimony or child support. See, e.g., Traxler v. Traxler, 730 So.2d 1098, 1104(¶ 32) (Miss.1998); Bumpous v. Bumpous, 770 So.2d 558, 561(¶ 16) (Miss.Ct.App.2000).

¶ 14. On our review of the record, we can find no abuse of discretion in the chancellor’s award of periodic alimony.

3. Rehabilitative Alimony

¶ 15. James argues that the issue of rehabilitative alimony was not submitted to the chancellor and that the award amounts to an abuse of discretion. He asserts that the chancellor ordered as rehabilitative alimony that James pay Lucia-na’s outstanding out-of-pocket medical expenses at the time of the divorce and maintain health insurance on Luciana for twenty-four months.

¶ 16. However, our review of the record does not reveal that rehabilitative alimony was ordered. We note that the chancellor did state in his findings of fact and conclusions of law that he would order it, but the judgment of divorce contains no provision requiring the payment of rehabilitative alimony. Accordingly, this issue is without merit.

4. Child Support

¶ 17. James argues that the chancellor erred in ordering that he pay $980 per month in child support. Particularly, James argues that the chancellor erred in considering the cost of parochial schooling in California and that the child support obligation is excessive in light of the other awards.

¶ 18. As we stated above, we do not find the child support excessive in light of the other awards. Furthermore, the record reflects that Anthony attended a private, parochial school prior to the divorce, and the chancellor made written findings that the child support guidelines were appropriate in light of the circumstances. Additionally, at the divorce hearing, James stated that he “absolutely” would consent to an order for child support under the guidelines. We find no abuse of discretion here, and this issue is without merit.

5. Legal Custody

¶ 19. The parties agreed that Luciana would receive physical custody of Anthony, but they submitted the issue to the chancellor as to whether they should share joint legal custody. The chancellor found that Luciana should receive full legal custody.

¶ 20. James argues that the chancellor abused his discretion in not considering the familiar Albright factors. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). However, the Albright factors are required only where physical custody is at issue; the chancellor’s decision as to the child’s best interest as to legal custody alone is less regimented. In this case, we find no abuse of discretion; the chancellor properly considered the distance between the parties, and there is evidence in the record that the parties could not agree on basic issues relating to Anthony’s care, particularly whether the child should live in California or attend private school. This issue is without merit.

6. Visitation Costs

¶ 21. James argues that the chancellor erred in ordering him to pay the costs of visitation to and from California. We find this argument meritorious. The chancellor stated that this issue had been decided by agreement of the parties; however, it was clearly submitted to the court. Other than Luciana’s representation at the hearing that James had agreed to pay transportation costs, there is no evidence in the record that James conceded the issue. Accordingly, we reverse and remand on this issue for the trial court to determine how transportation costs should be allocated.

CONCLUSION

¶ 22. We remand for proceedings consistent with this opinion on the issue of visitation travel costs. The chancellor’s judgment is otherwise affirmed.

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

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

      . James initially sought to set aside the divorce judgment on appeal, but in his reply brief he asks to withdraw that issue, stating that he has now remarried. We therefore decline to address it.

      . James asserts that the chancellor failed to consider a 1999-model Dodge truck worth at least $3,610; proceeds from the sale of the marital home that were previously divided equally among the parties; at least $11,000 Luciana took from joint accounts prior to the separation; certain marital debt James paid after the entry of a temporary support order; and unspecified household items and tools.

      . James asserts that his other obligations include $1,250 per month for the mortgages and upkeep of the Arkansas property, $500 per month on another child support order for children of a prior marriage, and “$1[,]000 + " for "credit card and other debt payment."

      . James also cites the cost of travel to and from California for visitation. However, we remand on that issue.