author: IRVING, P.J.,

text:
    Joshua SEYMOUR, as Administrator of the Estate of Brenda F. Seymour, Deceased, Appellant v. Richard G. TURNER, Deceased, Appellee
    NO. 2016-CA-00592-COA
    Court of Appeals of Mississippi.
    10/03/2017

      ATTORNEY FOR APPELLANT: VIRGIL G. GILLESPIE
    ATTORNEY FOR APPELLEE: RICHARD G. TURNER (PRO SE)
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Joshua Seymour, administrator of the estate of Brenda F. Seymour, appeals the judgment of the Jackson County Chancery Court, arguing that the parties’ joint tenancy was terminated by Brenda’s filing of her partition suit, and that the chancellor erred in failing to award Brenda’s estate with one-half of the ad valorem tax payments made on the property from 2008-2012. Joshua is not alleging that the chancellor’s decision was an abuse of'discretion, since he finds no fault with the chancellor’s factual rulings, but, rather, his position is that the chancellor applied an erroneous legal standard in regard to the circumstances giving rise to this appeal brought about by Brenda’s death.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In light of the chancery court’s succinct statement of facts in its final order, Appellee Richard Turner’s failure to timely submit his appellate brief, and Joshua taking no issue with the court’s statement of the facts, as he used them in his brief, they will be restated below:

Brenda Seymour and Richard Turner met in 1984 and were involved in a romantic relationship. In 1995, Brenda and Richard purchased a home on Point Aux Chenes Road. The deed to the property indicated that Richard Turner and Brenda Seymour were “joint tenants with express right of survivorship, and not tenants in common[.]” Shortly thereafter, Brenda and Richard moved into the home on the property.
* * * *
Brenda filed a [cjomplaint on February 3, 2011[,] requesting that the [cjourt partite the property. Mississippi Code [Annotated section] 11-21-3 [ (Rev. 2004) ] allows a chancery court to partite property held by joint tenants. After the litigation was filed, Brenda died [on November 25, 2012,] and her [e]state was substituted as the [p]laintiff.

¶ 4. On February 26, 2015, Joshua filed an application to the clerk for an entry of default and a supporting affidavit. A clerk’s entry of default was entered on February 26, 2015. On February 11, 2016, the matter came on for trial. Counsel for Brenda’s estate was present. Richard was also present and proceeded pro se. As Richard failed to answer the complaint in this matter, a default judgment was also entered. With respect to the default judgment, the complaint and all of the allegations were taken as admitted and confessed, except that the court would determine all questions of law. At trial, Joshua testified that the taxes on the property had been paid by Nancy Grimes, Brenda’s mother, and that, later, Nancy assigned her rights to reimbursement of those payments to Brenda’s estate. Richard admitted at trial that he did not make the payments. Ultimately, the court found that upon Brenda’s death, the subject property—which was held by Brenda and Richard as joint tenants with the right of survivorship—automatically vested in Richard. In her order, the chancellor did not address the ad valorem taxes, but did find that Richard owned the house by virtue of the right of survivorship that accompanies a joint tenancy. On April 4, 2016, the court denied Joshua’s motion for reconsideration, and this appeal followed.

DISCUSSION

¶ 5. “An appellate court will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, [the decision] was manifestly wrong [or] clearly erroneous, or [the chancellor] applied an erroneous legal standard.” Jones v. Graphia, 95 So.3d 751, 753 (¶ 6) (Miss. Ct. App. 2012). However, questions of law are reviewed de novo. Id.

I. Joint Tenancy

¶ 6. Joshua points out that four unities—time, title, interest, and possession—must be present in a joint tenancy, and if one of the four unities is eliminated or terminated, the joint tenancy defaults into a tenancy in common. He argues that when Brenda filed the lawsuit on February 3, 2011, the filing terminated the joint tenancy existing between the parties and rendered it a tenancy in common, because the unity of possession had been severed. “Unity of possession” means that each joint tenant must have an undivided share in the property. See Wilder v. Currie, 231 Miss. 461, 474, 95 So.2d 563, 566 (1957). He contends that that was no longer the case upon the filing of the petition to partite, as once the partition suit was filed, Brenda was requesting either a division in kind or a division by sale. Consequently, he argues that the joint tenancy was transformed into a tenancy in common, which is not accompanied by a right of survivorship. Therefore, according to him, Brenda’s death did nothing to deprive her estate of its ownership interest in the property.

¶ 7. We do not disagree with Joshua’s contention that “[t]here must be unity of title, time, interest^] and possession in a joint tenancy.” Thornhill v. Chapman, 748 So.2d 819, 828 (¶ 30) (Miss. Ct. App. 1999). The question here is, did the joint tenancy convert to a tenancy in common at the time that Brenda filed her suit to partite the property, vesting her interest in the property and eliminating the right-of-sur-vivorship provision? We find that it did not. This Court has held:

[T]he distinguishing characteristic of a joint tenancy is the right of survivorship. By virtue of survivorship, the property descends outside of probate from the deceased joint tenant to the surviving joint tenant. The requirements for the creation of a joint tenancy with right of survivorship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.”
With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: [Carolyn] Jones owned the whole along with [Anthony] Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Pri- or to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned 'the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition Rearing concerning their contributions to buying the house.

Jones, 95 So.3d at 753-54 (¶¶ 7-8) (emphasis added) (footnote and citations omitted). Appropriately, the court in Jones ruled that upon the death of ope joint tenant, the right of survivorship automatically transfers the whole property to the surviving joint tenant.

¶ 8. Joshua, in an attempt to distinguish Jones, argues that “[i]f Jones enjoyed ownership of the whole prior to the proceeding and lost this enjoyment when Graphia filed, then her death afterward would be at a time after she lost this enjoyment,” We disagree. The filing of Brenda’s complaint had no effect on the status of the property as a joint tenancy. At that point, no rights had been lost, but became merely subject to loss depending on the trial and the chancellor’s ultimate ruling. If Joshua’s analysis were the rule of law, all a party would have .to do is file a complaint to partite to convert the property from a joint tenancy to a tenancy in common and defeat the right of survivorship, effectively rendering the court’s ultimate disposition of the case futile.

¶ 9. Although merely persuasive, the Michigan Supreme Court. addressed this very issue in Jackson v. Estate of Green, 484 Mich. 209, 771 N.W.2d 675, 677 (2009), as follows:

A party can sever a joint tenancy, by compelling a partition. Until an order of partition has-been entered, however, a partition has not been compelled and, thus, the .joint tenancy has not been severed; See Anno: .What acts by one or more of joint tenants will sever or terminate the tenancy ... .(explaining that “[i]t - is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”).
Indeed, the universal rule in the United States is that a pending suit'for partition does not survive the death of one of the joint tenants. See Heintz v. Hudkins, 824 S.W.2d 139, 142-143 (Mo. [Ct.] App. 1992), and cases cited therein. This rule is based on two related concepts: First, the theory of survivorship—that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants—and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final'judgment.

For clarity, at the time that Brenda filed her complaint, the joint tenancy was still intact, and when she died, the property automatically transferred to Richard through the right of survivorship. There had been no final order issued at the time of her death, so the tenancy was never severed.

II. Ad Valorem Taxes

¶ 10. Joshua argues that Brenda’s estate is entitled to a reimbursement of ad valo-rem taxes paid on the property from 2008-2012. The record reflects that the property was -sold for taxes for each of the years in question, that Brenda redeemed it from the tax sale'for- two of those; years, and that Nancy redeemed it from the tax sale for the- other three years. Later, .-Nancy assigned to Brenda’s estate her rights to reimbursement of the payments that she had made. Brenda’s deposition was also read into the record, in which she testified that she had paid some 'of the taxes. Richard admitted at trial that he did- not make the payments. The chancellor noted in her order that since Richard “failed to answer the [cjomplaint in this matter, a.[d]efault [j judgment was also entered ... [and] the [c]omplaint and all of the allegations were taken as admitted and confessed except the [c]ourt shall determine'all'questions of law.” The cháncellor did not discuss' the issue of the taxes in her final judgment or in her denial of Joshua’s motion for reconsideration.

¶ 11. Joshua does not cite any authority to support his proposition—that the estate .is.entitled to, a reimbursement of those payments. “Pursuant to Mississippi Rule of Appellate Procedure 28(a)( [7]), an appellant’s brief must contain ... citations to the authorities, statutes, and parts of the record relied on. [Fjailure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” In re Estate of Forrest, 165 So.3d 548, 550 (¶ 7) (Miss. Ct. App. 2015). As such, we decline to address this issue any further. For the reasons discussed, we find no error in the judgment rendered by the chancery court.

¶ 12. AFFIRMED.

LEE, C.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.'

      . Richard is now deceased; he passed away September 11, 2016.

      . The Mississippi Supreme Court denied Joshua's motion seeking additional time for Richard’s estate to file an appellate brief. No brief was filed.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Maria Lynn Pruitt SIMMONS, Appellant v. HARRISON COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee
    NO. 2016-CA-00955-COA
    Court of Appeals of Mississippi.
    AFFIRMED: 10/03/2017

      ATTORNEY FOR APPELLANT: CAROLYN ANN GEARY
    ATTORNEY FOR APPELLEE: TONYA MICHELLE BLAIR
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Maria Lynn Pruitt Simmons appeals the chancellor’s denial of her motion for relief from the judgment terminating her parental rights. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Harrison County Department of Human Services (DHS) conducted an investigation after it received reports of alleged drug abuse and child neglect by Simmons. In August 2011, DHS took custody of Simmons’s five children after they were found living in unsanitary and deplorable conditions. The’ children were placed into temporary foster care. This was Justin Smith’s third time entering DHS custody. Justin is the third oldest of Simmons’s children. He is the subject of this appeal.

¶ 3. On December 16, 2011, Justin was adjudicated a neglected child by the youth court. He was placed in a psychiatric treatment facility while the other children remained in foster homes. DHS developed and implemented a plan to reunite ¡Simmons with her children. After Simmons failed to comply with the plan, DHS ceased its reunification efforts and sought to terminate Simmons’s parental rights.

¶4. On April 3, 2012, DHS presented both- Simmons and Joseph Anthony Smith, Justin’s alleged father, with a “Surrender of Parental Rights and Consent to Adoption to the Mississippi Department of Human Services.” Unbeknownst to DHS, the document incorrectly listed Justin’s date of birth as February 2, 2005—the correct date was February 1, 2005. Despite the error, both Simmons and Smith signed copies of the document, surrendering their parental rights to Justin. Notably, Smith is not listed on the child’s birth certificate, and the record indicates that he is not Justin’s biological father.

¶ 5. On September 4, 2012, a petition was filed -to terminate the parental rights of any unknown father of the minor child so that adoption proceedings .could begin. The matter was set -for a hearing on November 14, 2012. Prior to the .hearing, DHS discovered the error made to Justin’s date of birth. DHS corrected the error and sought to have both Simmons and Smith execute new surrender and release forms. The attempt was unsuccessful. DHS was unable to locate Smith, and Simmons refused to sign the revised document. Justin remained in DHS custody.

¶ 6. Justin was released from inpatient psychiatric treatment and placed with a foster family in October .2014. DHS then filed a petition to terminate the parental rights of Simmons, Smith, and the unknown biological father of Justin. A hearing was set for February 12, 2015. The chancery court issued summonses to Simmons, Smith, and the unknown biological father. Simmons was served with process on October 20, 2014. Neither Simmons, Smith, nor any other person appeared for the hearing as a parent of Justin. As a result of the hearing, the chancellor terminated the parental rights of Simmons, Smith, and any unknown biological father of Justin.

¶ 7. On July 9, 2015, Simmons, through legal counsel, filed a “Motion for Relief of Judgment Pursuant to Mississippi Rule of Civil Procedure 60(b)(l)(2) & (6).” .Simmons contested the judgment terminating her parental rights. She argued that she was denied due process because she had not been personally served with process. She claimed that she never received a copy of the petition to terminate parental rights, and therefore, she was unaware of the hearing date: Simmons requested that the judgment be set aside and that she be given an opportunity to defend herself in a hearing, :In November 2015, while the motion was- pending, Justin’s adoption was finalized.

¶ 8. The chancellor held a hearing on the motion on February 25, 2016, and denied the ihotion. The chancellor ruled that Simmons was not entitled to service of process or notice of the hearing becáuse she voluntarily consented to waiver of process when she signed the document of surrender and release on April 3, 2012. The chancellor further found that the scrivener’s error on the document was a non-fatal defect. In her order, the chancellor noted that Justin’s date of birth had been off by one day. She concluded that the document was'correct in all other aspects—-the child, the city, the state, the year of birth, and the mother’s name were correctly identified. The chancellor also found that Simmons had acknowledged that she signed the document, and that Simmons was aware that she was surrendering her parental rights to Justin. Aggrieved, Simmons now appeals. '

STANDARD OF-REVIEW

¶ 9. “Whether the chancery court had jurisdiction to hear a particular matter is a question of law, to which this Court must apply a de novo standard of review.” In re Adoption of D.N.T., 843 So.2d 690, 697 (¶ 12) (Miss. 2003).

ANALYSIS

I. Whether the chancery court had personal jurisdiction over Simmons,.

¶ 10. Simmons first asserts that the chancery court erred, when it found 'that she waived service of process. She contends that she executed the surrender and release form two years before DHS filed the petition to terminate her parental rights. This, she argues, violates Rule 4(e) of the Mississippi Rules of Civil Procedure. Rule 4(e) requires that a waiver of service of process be signed and filed a day after the petition is filed. As a result of this alleged violation, Simmons contends that the waiver of service of process, contained within the surrender and release form, was invalid.

¶ 11. She further argues that the service of process was invalid because the process server failed to personally serve her. She asserts that the process server left the summons with her brother at a gas station and not at her residence; She claims that she never received a copy of the summons or any notice of the termination hearing. As- a result, Simmons argues that the chancery court lacked personal jurisdiction and should not have proceeded with a termination hearing. She argues that the judgment terminating her parental rights to Justin is invalid.

¶ 12. DHS contends that Simmons erroneously relies on the language of Rule 4 to assert that the waiver was invalid. DHS argues that this, issue is controlled by Mississippi’s statutory provisions rather than the rules of civil procedure. It asserts that the statutory provisions of Mississippi Code Annotated section 93-16-103(2) (Rev, 2013) govern termination-of-parental-rights cases.

¶ 13. DHS further asserts that the surrender and" release form, signed by Simmons, conformed with the statutory requirements of section 93-15-103(2). Thus, DHS -argues that Simmons waived her right to . notice of the termination hearing when she voluntarily executed the document. DHS asserts that the chancery court did in fact have personal jurisdiction over Simmons and properly proceeded with the termination hearing.

¶ 14. The Mississippi Supreme Court has- held that “a parent cannot be deprived of the custody of his or her child without notice and an opportunity to be heard.” Blakeney v. McRee, 188 So.3d 1154, 1162 (¶ 19) (Miss. 2016) (citation omitted). Further, this Court has held that [t]he existence of personal jurisdiction depends upon reasonable notice to the defendant.” Price v. McBeath, 989 So.2d 444, 450 (¶ 21) (Miss. Ct. App. 2008) (citation omitted). “A trial court can acquire jurisdiction over an individual through service of process.” Id. (citation omitted).

¶15. Both the rules of civil procedure and the statutory provisions permit a party defendant to waive service of process. Rule 4(e) provides:

Any party defendant who is not an unmarried minor, or mentally incompetent may, without filing any pleading therein, waive the service of process .... in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof. Such waiver of service ... shall be in writing!!,] dated!,] and signed by the defendant and duly sworn to or acknowledged by him or her .... However, such written waiver of service',.. must be executed after the day on which the action was commenced and be filed among the papers in the cause ....

Similarly, and with specific pertinence to the present matter, section 93-15-103(2) provides:

The rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may b,e relinquished and the relationship of the parent and child terminated by the execution of a written, voluntary release, signed by the parent, regardless of the age of the parent.

¶ 16. Heré, Simmons argues that the waiver was invalid under Rule 4(e), while DHS contends that the waiver was valid pursuant to section 93-15-103(2). The chancellor found that although Simmons was not properly served with process under Rule 4, the insufficient service was of no consequence because the statute rather than the rules of civil procedure controlléd. Therefore, the chancellor found that the waiver was valid and that the chancery court had jurisdiction to hear the termination matter.

¶ 17. The supreme court previously addressed this conflict between the statute and the rules of civil procedure in D.N.T., 843 So.2d at 706-07 (¶¶ 31-36), In D.N.T., the appellant argued that the chancery court lacked jurisdiction because the natural mother was not served with process under the provisions of Rule 4. Id. The supreme court disagreed with the appellant and held, “[notwithstanding the provisions of [Rule 4], we must remember the caveat in [Mississippi Rule of Civil Procedure] 81(a)(9), which provides these rules of civil procedure have limited applicability in the actions described in Title 93 of the Mississippi Code, and that those actions are for the most part governed by statute.” Id. at 706 (¶ 33). Rule 81(a) further provides that “[statutory procedures ... shall remain in effect and shall control to the extent they may be in conflict-with the[ ] rules [of civil procedure].”

¶ 18. The rules of civil procedure clearly defer to Mississippi’s statutory provisions for matters concerning termination of parental rights and adoption. Therefore, we'find that Simmons’s reliance on Rule 4(e) is misplaced. Section 93-15-103(2) governs this issue. The surrender and release form specified that signing the document would result in a waiver of service of process and further notice of any court proceedings regarding Justin. Thus, the language used by DHS in the surrender and release form conformed with the requirements of section 93-15-103(2).

¶ 19. Simmons voluntarily signed the document, and therefore, she waived service of process. Neither at trial nor on appeal has Simmons alleged that the document was executed as a result of fraud, duress, or undue influence. Although, in her trial testimony, Simmons first claimed that she was “forced from the beginning to sign [her] rights over,” she later admitted that she made the choice to sign the “surrenders” because she wanted to ensure that her children were placed with family members rather than strangers. This declaration indicates that Simmons made the calculated decision to voluntarily relinquish her parental rights to her- children, including Justin.

¶ 20. The chancellor, in her application of section 93-15-103(2), found that the written release or consent terminated Simmons’s parental rights to Justin. Therefore, Simmons’s objection to the termination of her parental rights and the subsequent adoption of Justin can not be sustained absent a showing of either fraud, duress, or undue influence by clear and convincing evidence. See Grafe v. Olds, 556 So.2d 690, 694 (Miss. 1990).

¶ 21. We find no error in the chancellor’s application of the statutory provisions. When a chancellor is faced with matters concerning the termination of parental rights or adoption, the controlling body of law is the statute rather than the rules of civil procedure. The document presented to Simmons conformed with the requirements of section 93-15-103(2). The language contained within the surrender and release form expressly provided that signing the document would result in a waiver of notice to court proceedings.

¶ 22. Without clear and convincing evidence of any alleged fraud, duress, or undue influence, we must find that Simmons is bóund by her voluntary consent. We find that the chancellor’s judgment terminating Simmons’s parental rights is valid. This issue is without merit.

II. Whether the error to Justin’s'date of birth invalidated Simmons’s consent.

¶ 23. We now address the clerical error regarding Justin’s date of birth. Simmons argues that DHS recognized the defect in the document, yet the agency proceeded to serve the petition upon her. As a result, she claims that the error rendered her consent invalid. She contends that the document did not clearly state Justin’s date of birth, which she asserts is a statutory requirement.- She argues that the chancellor erred when she held that the error was non-fatal to the termination proceedings.

¶ 24." Simmons sought relief from the judgment of termination under Rule 60(b)(2).- Pursuant to Rule 60(b)(2), “the court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... accident or mistake[.]” M.R.C.P. 60. Simmons argues that the chancellor erred when she denied the motion for relief from the judgment because the consent form contained an error.

¶ 25. We first reiterate that this matter is governed by the statutory provisions of title 93 of the Mississippi Code Annotated rather than the rules of civil procedure. Next, we note a flaw in Simmons’s contention. Rule 60(b) provides that a court may relieve a party from a final judgment. The language undoubtedly vests a court with a permissive rather than a mandatory instruction. Therefore, if the chancellor decided this case under the rules of civil procedure, it is not certain that the outcome, regarding this issue, would be different. A chancellor’s grant of relief from a judgment is not automatic upon assertion of an accident or mistake.

¶ 26. Mississippi Code Annotated section 93—15—111(1)(c) (Supp. 2016) now requires that a child’s full name, date and time of birth, and place of birth be included on a parent’s execution of a written voluntary release. Notably, title 93 was amended in 2016 to include this requirement. Prior to the amendment, section 93-15-103 governed the requirements for a parent’s written relinquishment of parental rights. The present action was commenced in 2014, which was prior to thé enactment of section 93-15-111. Thus, this action was governed by section 93-15-103, which provided no such requirements.

¶27. We find that the clerical error made to Justin’s date of birth had no effect on Simmons’s voluntary surrender of her parental rights and waiver of service of process. Simmons does not claim that she did not sign the document. Instead, in her testimony she acknowledged her intent to surrender her parental rights when she signed the document. Therefore, we must agree with the chancellor’s finding that the error was not fatal to Simmons’s consent and waiver of process. This issue is without merit.

¶ 28. AFFIRMED.

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

      . In the interest of privacy, this Court uses a fictitious name for the child. We also use a fictitious surname for the child’s alleged father.

      . In December 2011, Simmons voluntarily relinquished her rights to two of her other children. Both children .were later adopted by relatives outside of the state..

      . The doctrine of scrivener’s error is "a rule ■permitting >a typographical error in a document to be reformed by parol evidence, if the evidence is precise, clear, and convincing." Black’s Law Dictionary (10th ed. 2014).'


text:
    Sarah McKenzie RAYNER, Appellant v. Chance D. SIMS, Appellee
    NO. 2016-CA-00496-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: S. CHRISTOPHER FARRIS
    ATTORNEY FOR APPELLEE: NANCY E. STEEN
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Sarah McKenzie Rayner (“Mackie”) appeals the chancellor’s award of -joint physical custody, his consideration of the Albright factors, and his computation of child support. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Mackie and Chance Sims are the natural parents of Frances, a fernale child born in November 2013. Mackie and Chance dated, but never married. They briefly lived together following the birth of Frances.

¶ 3. Chance filed a “complaint for adjudication of paternity and for custody and other matters,” wherein he requested custody of Frances or, alternatively, , that the parties have joint custody. Mackie filed an answer and requested physical custody of Frances. Mackie further requested that Chance have “restricted” visitation rights, limited to “the daytime only and supervised by a suitable person.”

A. On May 8, 2015, the chancellor entered a temporary order, which provided Chance with scheduled visitation, including overnight visitation, with Frances. The parties subsequently engaged in discovery.

¶ 5. Following a trial on November 17, 2015, the chancellor awarded the parties joint legal and “shared” physical custody of Frances. Specifically, the- chancellor ordered that Chance would have physical custody of Frances three days/nights per week, and Mackie would have physical custody of Frances four days/nights per week. Additionally, the chancellor ordered the parties to pay child support “based upon 14 percent of each party’s adjusted-gross income” and “in proportion to their periods of shared custody and their'incomes.”

¶ 6. Mackie filed a motion to reconsider, which the chancellor denied. Mackie now appeals and argues: (1) the chancellor erroneously granted the parties joint physical custody of Frances, (2) the chancellor erroneously failed to consider all of the Albright factors and ignored thé fact that the factors favored her, and (3) the chancellor erroneously computed the child-support obligation of each .party.

STANDARD OF REVIEW

¶ 7. A chancellor’s factual findings “will not be disturbed unless [he] Was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Blakely v. Blakely, 88 So.3d 798, 801 (¶ 3) (Miss. Ct. App. 2012). Questions of law, however, are reviewed' de novo. Id. “As long as substantial evidence supports the chancellor’s findings; [we are] without authority to disturb them, even if [we] Would have found otherwise as an original matter.” Id. “Additionally, if the chancellor has made no specific findings, we- generally proceed on the assumption that [he] resolved all such fact issues in favor of the appellee.” Id.

ANALYSIS

I. Joint Physical Custody'

¶ 8. Mackie first argues the chancellor erroneously granted joint physical custody of Frances since .the record shows she and Chance cannot cooperatively share custody. Joint custody may be awarded in the discretion of the court, upon application of one or both parents. Miss. Code Ann. § 93-5-24(3) (Rev. 2013). Here, Chance requested joint custody .of Frances. “ ‘[J]oint physical custody means that each of the parents shall have significant periods of physical custody.” Miss. Code Ann. § 93-5-24(5)(c). “Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.” Id. “[U]nless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So.2d 142, 147 (¶ 13) (Miss. 2005). However, “[t]his is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities and intentions of the parties.” Id.

¶ 9. Here, although Mackie opposed Chance’s request for joint physical custody, the record shows both Mackie and Chance are capable of sharing joint custody cooperatively. Although the parties do not always agree, they are willing and able to communicate with each other regarding Frances. Additionally, the parties successfully worked together to, implement the visitation schedule ordered by the chancellor. Moreover, both parties testified that they wanted Frances to be close to the other. .

1Í-10. Mackie asserts that the “very nature of the pleadings filed by both indicates that [the parties] cannot cooperatively have shared custody of [Frances].” Thus, according to Mackie, mere allegations of bad acts or conduct by one parent against the other would automatically prohibit the consideration or award of joint custody, regardless of the evidence at trial. We disagree and find Mackie’s assertion would abrogate the chancellor’s role and authority.

¶ 11. Despite Mackie’s criticism of Chance and her opinion that she is capable of providing a more stable environment for Frances, the record does not reflect any inability to cooperatively share custody of Frances. Accordingly, we find the chancellor’s award of joint physical custody is supported by substantial evidence in the record and was not manifestly wrong or clearly erroneous.

II. Albright Factors

¶ 12. Mackie next argues the chancellor failed to consider all of the Al-bright factors when making his custody determination. “As with, all child-custody cases, ‘the polestar consideration is the best interest and welfare of the child.’” Webb v. Webb, 78 So.3d 933, 936 (¶ 8) (Miss. Ct. App. 2012) (quoting Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983)). In Albright, the Mississippi Supreme Court outlined several factors to be considered when determining which parent should be granted custody. Albright, 437 So.2d at 1005. These factors include: (1) the' age,- health, and sex of the child; (2) the continuity of care prior to separation; (3) the parenting skills of each parent, (4) the willingness and capacity to provide primary child care; (5) the employment and employment responsibilities of each parent; (6) the physical and mental health and the age of the parents; (7) the emotional ties between the parent and child; (8) the moral fitness of the parents; (9) the home, school, and community record of the child; (10) the preference of a child twelve years of age or older; (11) the stability of the home environment; and (12) other relevant factors in the parent-child relationship. In re Dissolution of Edwards, 189 So.3d 1284, 1286 (¶ 7) (Miss. Ct. App. 2016) (citing Albright, 437 So.2d at 1005). The chancellor is only required to address those Albright factors that are applicable to the case before him. Id. at (¶ 8).

¶ 13. Here, the record shows the chancellor considered the Albright factors and specifically addressed seven of the twelve factors. The five factors not specifically noted by the chancellor include the willingness and capacity to provide primary care, the moral fitness of the parents, the home, school, and community record of the child, the preference of the child, and the stability of the home environment.

¶ 14. The home, school, and community record of the child, as well as the preference of the child, are not applicable in this case, as the child was only two years old at the time of trial. Although the chancellor did not specifically note the remaining three factors, significant evidence was adduced by each party relevant to each factor and the determination of custody. We discuss the testimony regarding these factors.

1. The willingness and capacity to provide primary care

¶ 15. Both Mackie and Chance testified regarding the care each provides to the child when in his or her custody. Chance testified that when he and Mackie lived together, he would feed, rock, and bathe Prances. Chance specifically .stated he wanted equal time with his daughter and emphasized that there was nothing Mackie could do for Frances that he could not.

¶ 16.. Additionally, both Mackie and Chance are employed and capable of providing care for Frances. Mackie testified that shortly after Frances’s birth, Chance volunteered to put her on his insurance through his employment, and tq pay all medical and pharmacy bills.

2. The moral fitness of the parents

¶ 17. As the chancellor noted, Mackie testified regarding “all the bad things about [Chance].” Specifically, Mackie testified that Chance had a violent nature, was a convicted felon, and had drug and mental health issues. However, the testimony revealed otherwise.

¶ 18. When asked about Chance’s violent nature, Mackie was able , to recall only two incidences since the birth of Frances. One incident was denied by Chance and was admittedly not raised by Mackie at any time prior to trial. The other incident involved confusion over whether Mackie’s then boyfriend, who Chance had not yet met, was allowed around Frances. Mack-ie’s mother testified about an incident with Chance at her house. However, she admitted that following this incident, Mackie voluntarily moved in with Chance.

¶ 19. Additionally, although the record shows Chance was previously convicted of arson, the conviction occurred in 2007, six years prior to the birth of Frances. The record further shows Chance tested positive in 2012 for marijuana. However, there was no evidence of any additional failed drug tests. Moreover, Chance stated he is subject to random drug tests at work.

¶ 20. With regard to Mackie’s claim of mental health issues, the chancellor found nothing to validate this claim. Chance testified that he was previously prescribed medication for bipolar disorder in 2012-2013, but he was never clinically diagnosed with the disorder. Chance explained that he does not have mental health issues, but he saw a physician in order to help deal with the relationship issues he was having with Mackie; Chance further testified that hé had never hit or pushed Mackie.

¶ 21. When asked about her complaints against Chance, Mackie amply stated she did not believe Chance spent quality time with:Frances “based on what [she] [saw] when [she] lived-with him.” However, the record shows Mackie and Chance only lived together for a few months. Mackie admitted that she had no complaints about the way Chance has taken care of Frances since the temporary visitation order.-was entered.

3.. The stability of the home . environment

¶ 22. The testimony shows both' Mackie and Chance have a stable home. Mackie currently lives with ‘her father; Chance lives in a house down the street from his mother. Both live in Jones County, Mississippi. Although Chance has to be at work at 7:00 a.m., his mother'⅛ able to take Frances to daycare in the morning, and Chance picks her up in the afternoon when he gets off work at 3:30 p,m.-

¶23. Although the chancellor did not conduct a detailed analysis of each Albright factor, the record shows he considered the factors and addressed those factors he -determined applied in this case. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Edwards, 189 So.3d at 1286 (¶ 8) (citing Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003)).

¶ 24. In light of the amount of evidence adduced at trial relevant to the Albright factors, including the three factors the chancellor did not specifically note, and the fact that each parent was shown to be a good and fit parent, we find the chancellor’s failure’-to specifically address each Albright factor was not reversible error. See Huseth v. Huseth, 135 So.3d 846, 858-59 (¶¶ 36-39) (Miss. 2014).

¶ 25. Mackie further argues the chancellor erred in his consideration of the Al-bright factors. Specifically, Mackie claims the chancellor ignored the fact that the Albright factors favored her. However, as the-trial transcript clearly shows, the chancellor noted that.the factors “slightly fa-vorfed] Mackie.” Nevertheless, the chancellor found that it was in the child’s best interest to have a relationship with both parents.

¶ 26. A chancellor “heed not decide that every factor favors one parent over the 'other.” Edwards, 189 So.3d at 1286 (¶ 8). As properly noted by the chancellor, Albright is not “a mathematical formula where custody must be awarded to the parent who ‘wins’ the most factors.” Id. The-record shows both Mackie and Chance are good parents. While Mackie expressed concerns over Chance, those concerns wer¿ more directed toward her relationship with Chance, and not Chance’s relationship with his daughter. “[T]he relation: ship of parent and child is for the benefit of the child, not the parent.” Id. at (¶ 6). Although Mackie believes she is in a better position to provide a more stable environment for Frances, there is nothing in the record to indicate Chance is unable to do the same.

27. Overall, we find the chancellor’s findings were neither manifestly wrong nor clearly erroneous, and are supported by substantial evidence in the record.

III. Child Support'

¶ 28. Mackie last argues the chancellor erroneously computed child support. Mackie asserts that “the [chancellor acknowledged at the temporary hearing that [the Department of ' Human Services (DHS) ] had already established [Chance’s] child-support obligation.” However, the record indicates Chance was never ordered to pay child support by DHS; Indeed, -both Mackie and Chance acknowledged that no DHS order was ever entered.

¶ 29. Mackie further claims the chancellor “engaged in his own computation of the child support obligation that is not supported by or authorized by statute.” We disagree. The chancellor ordered that Chance would have physical custody three days per week, and' Mackie would have physical custody four days per week. The chancellor found that child support for the minor child would be based “upon 14 percent of each party’s adjusted-gross- income” and that each party “shall pay child support in proportion to their periods of shared custody and their incomes.” We find statutory support for the chancellor’s decision.

¶ 30. Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of a party’s adjusted gross income should be awarded for the support of one child. Pursuant to section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court “makes, a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43~19-103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor may consider in his adjustment of the statutory guidelines established by section 43-19-101(1), - Miss. Code Ann. § 43-19-103(g).

¶ 31. Here, the record shows that the chancellor'found the statutory percentage, as outlined in section 43-19-101(1), should be- adjusted based on the parties’ joint custody arrangement, “in proportion, to their periods of shared custody.”. The chancellor further ordered that Chance shall continue . to provide insurance for Frances. Such decision is supported and authorized by statute. Accordingly, we find no error and affirm.

¶ 32. AFFIRMED.

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

      . For privacy purposes, we have changed the minor child’s name.

      . Mackie and Chance lived together from March 2014 to June 26, 2014.

      . Although the chancellor did not specify “joint physical custody,” the record shows he granted "shared physical custody” of Frances, not custody to Mackie and visitation with Chance.

      . Although the record indicates Frances is in daycare, there was no testimony regarding her experience at daycare and no records were provided from the facility. ■ .

      . The temporary order incorrectly stated that an order had been entered by DHS for child support. This mistake was clarified at trial.

      . The chancellor stated he would leave it up to the attorneys to "do the math.” Counsel subsequently submitted an exhibit, which outlined the child-support calculation,


text:
    Robert K. DUNCAN a/k/a Robert Duncan a/k/a Robert Kenneth Duncan, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01367-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: ROBERT K. DUNCAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Robert K. Duncan appeals from the judgment of the Jackson County Circuit Court, denying his motion for post-conviction relief (PCR). Because Duncan’s appeal was not timely filed, we dismiss for lack of jurisdiction.

FACTS

¶ 2. In February 2000, Duncan pleaded guilty to armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014). The circuit court sentenced him to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with eight years to serve without parole or early release, and the final seven years to be served on post-release supervision.

¶ 3. In August 2012, while out of prison on post-release supervision, Duncan was arrested in Neshoba County for burglary of a dwelling. The State filed an order of revocation, charging that Duncan had violated several conditions - of his probation. On October 3, 2012, the circuit court held a revocation hearing, wherein Duncan admitted before the court that he had committed the crimes set forth in the order of.revocation, and waived his right to require the State to prove the allegations set forth in the order of revocation. Consequently, the court revoked Duncan’s post-release supervision and required him to serve the remaining seven years of his sentence for armed robbery in, the custody of the MDOC.

¶ 4. On October 2, 2014, Duncan filed a PCR petition, in which he argued that (1) his post-release supervision was unlawfully revoked; (2) there existed evidence of material facts' not previously presented requiring vacation of his sentence; (3) his plea was made involuntarily; and (4) his sentence was wrongly revoked on the basis of nonpayment of fines. On March 6, 2015, the circuit court denied"'Duncan’s motion on the basis that he, in open court, admitted that he had violated the terms of his post-release supervision. and had waived his right to require the State to prove the charges against him. The court held that Duncan had “more likely than not” violated the terms of his probation, pursuant to Fairley v. State, 138 So.3d 280, 282 (¶ 4) (Miss. Ct. App. 2014) (quoting Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss. Ct. App. 1999)).

¶ 5. The record indicates that on July 5, 2015, Duncan wrote a letter to the circuit-court clerk, stating that he had not heard anything regarding the PCR motion he had filed on October 2, 2014, and inquiring about its status. The record further indicates that on July 10, 2015, Duncan received a copy of the circuit court’s order denying his PCR motion, which the circuit clerk sent him following receipt of his July 5, 2015 letter. On August 18, 2015, Duncan signed a motion for leave to file an out-of-time appeal, asserting that he had not received notice of the denial of his PCR motion until July 10, 2015. This motion was not filed with the Jackson County Circuit Clerk until September 8, 2015. A notice of appeal was also filed on September 8, 2015.

¶ 6. The circuit court entered an order on October 7, 2015, granting Duncan’s motion for leave to file an out-of-time appeal. In its order, the circuit court mistakenly provided that Duncan “was not mailed a copy of the. order denying his [PCR] [m]otion until approximately September 8, 2015,” which contrasts with Duncan’s assertion that he received notice of his PCR motion’s denial on July 10, 2015. The circuit court reopened the time for Duncan to file an appeal, pursuant to Rule 4(h) of the Mississippi Rules of Appellate Procedure. Duncan filed another notice of appeal on November 3,2015.

DISCUSSION

¶ 7. Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.” Rule'4(a) of the Mississippi Rules of Appellate Procedure provides that a notice of appeal pursuant to Rule 3 of the Mississippi Rules of Appellate Procedure. must be filed within thirty days after the date of the entry of the judgment being appealed. Rule 4(h) provides that a trial court may reopen the time for an appeal in limited circumstances:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for. a period of 14 days from the date of entry of the order reopening the time for appeal.

M.R.A.P. 4(h).

¶ 8. Duncan did not file his motion for an out-of-time appeal within the prescribed seven days of receipt of notice that his PCR motion had been denied. In his motion for leave to file an out-of-time appeal, Duncan asserts that he received a letter on July 10, 2015, informing him of the March 6, 2015 judgment. However, Duncan did not execute his motion until August. 18, 2015, and the motion was not filed until September 8, 2015. While the circuit court held that Duncan both received notice of the judgment and filed a notice of appeal on September 8, 2015, such a holding was erroneous. The record includes an envelope postmarked July 10, 2015; in his motion, Duncan asserts that this envelope contained the order informing him that his PCR motion had been denied. As such, Duncan should have filed his motion for an out-of-time appeal within seven days of July 10, 2015, and his failure to. do so renders his motion untimely under Rule 4(h).

¶ 9. Further, Duncan’s appeal is barred because, after the circuit court reopened the time for Duncan to file an appeal on October 7, 2015, he did not file a notice of appeal within the allotted fourteen-day time period. Rather, the record reflects that Duncan signed' his notice of appeal on October 26, 2015, and filed it on November 3, 2015, outside of the fourteen-day time period. The fact that Duncan had already filed a notice of appeal on September 8, 2015, is. inconsequential because such was untimely, and he had not yet obtained leave to file an untimely appeal.

¶ 10. In Deloach v. State, 890 So.2d 852, 854 (¶ 11) (Miss. 2004), our Mississippi Supreme Court reiterated the premise that

[w]hether a trial .court has authority to remedy the failure to file timely a notice after the time set by the rules for filing a notice of appeal had expired is doubtful. Coleman v. State, 804 So.2d 1032, 1037 [ (]¶ 22) (Miss. 2002). However,, [appellate courts] may grant an out-of-time appeal “where a person is convicted of a crime and through no fault of,his own is effectively denied his right to perfect his appeal within the time prescribed by law .by the acts of his attorney or the trial court.” Jones v. State, 355 So.2d 89, 90 (Miss. 1978). [Appellate courts] may suspend Rules 2 and 4 “when justice demands” to allow an out-of-time appeal in criminal cases. Fair v. State, 571 So.2d 965, 966 (Miss. 1990).

(Quoting McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss. 2003)). There is no evidence in the record to suggest that Duncan was aware of the disposition of his PCR motion prior to July 10, 2015, and he cannot be faulted for not perfecting his appeal within thirty days of the March 6, 2015 decision, as required by our rules. However, Duncan was not without-fault, as he did not pursue a' remedy within the time constraints of our appellate rules. He was not only untimely in filing, his motion for an out-of-time appeal, but also untimely in perfecting his appeal after the trial court granted him the right to commence an out-of-time appeal. While the trial court was without authority, pursuant to the provisions of Rule 4(h), to reopen the time for the appeal because Duncan’s motion was filed more than seven days after he received a copy of the order denying his PCR motion, we may, pursuant to Rule 2 of the Mississippi Rules of Appellate Procedure, grant such a right for good cause shown. However, based upon the facts here, we do not find that justice demands that we allow Duncan’s out-of-time appeal. Accordingly, we dismiss this appeal for lack of jurisdiction.

¶ 11. APPEAL DISMISSED.

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

      . The circuit court ordered that this sentence run consecutively to a sentence that Duncan was already serving in Neshoba County on a separate grand-larceny charge.

      . The Neshoba County grand jury did not return an indictment.

      . Duncan does not argue this final issue on appeal.

      . As we discuss later in this opinion, the circuit court did not have the authority to allow an out-of-time appeal.

      . There was no date' on the actual notice of appeal itself. However, the notice of appeal was page one of two. Duncan signed the second page—a. "Designation of Records"— and dated it October 26, 2015. As such, we deduce that Duncan signed the notice of appeal on October 26, 2015,


text:
    Joseph THOMPSON, individually and in his capacity as the administrator of the Estate of Vickie Thompson, Deceased Appellant v. William P. MEYER, John M. Meyer, and Bud’s Mobile Homes, Inc., Appellees
    NO. 2016-CA-00806-COA
    Court of Appeals of Mississippi.
    10/17/2017

      WAYNE L. HENGEN ATTORNEY FOR APPELLANT
    VIRGIL G. GILLESPIE ATTORNEY FOR APPELLEES
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Joseph Thompson, individually and as the administrator of the estate of Vickie Thompson, appeals the.judgment of the Harrison County Chancery Court, Second Judicial District, arguing that the chancellor erred in denying his Mississippi Rule of Civil Procedure 60(b)(6) motion.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This is a breaeh-of-contract case that was dismissed for want of prosecution, In 2003, Thompson and his wife Vickie (hereinafter the Thompsons, unless the context requires otherwise), entered into an agreement creating a joint venture with John Meyer and William Meyer (hereinafter Meyer, unless the context requires otherwise), involving End of the Rainbow Trailer Park, which was owned and operated by the Thompsons. The agreement stipulated that the Thompsons would sign over all rights to their property, and, in exchange, Meyer would pay the existing debt on the property in furtherance of purchasing it. Meyer also agreed to remit any rents to the Thompsons that were in excess of the amount needed to service the debt pursuant to the partnership agreement. Meyer obtained a loan for $350,000 to pay off the existing debt on the' property and took up the payments. In May 2005, Meyer sent a letter to the Thompsons, stating that they had violated the agreement by encumbering the property with further debt after they had transferred it to Meyer. Meyer sent ,a second letter to the Thompsons in July . 2005, informing them that the agreement was null and void because they had not remedied the breach.

¶-4. Aggrieved by Meyer’s perceived failure to abide by the terms and conditions of the agreement, Joseph filed a Complaint for a preliminary injunction on January 8, 2008, against William, John, and Bud’s Mobile Homes, Inc. The complaint alleged, among other things, that Meyer had failed to honor any of its contractual obligations other than accepting the transfer of the property from the Thompsons to Meyer. After Meyer answered the complaint, a hearing was held on March 14, 2008, wherein the Thompsons’ counsel requested a receivership to handle the rent being paid on the property by the Federal Emergency Management Agency (FEMA) in response to Hurricane Katrina, until a hearing on the merits could be held. Meyer and counsel were absent from that hearing.

¶ 5. On November 5, 2009, another hearing was held addressing the merits of the case, but there was no final resolution. According to the record, the next hearing was not held until September 8, 2011, in which the court addressed Meyer’s change of counsel issues and Joseph’s request for a special commissioner to be appointed. At the conclusion of that hearing the case was continued, and was to be reset at a time that was agreeable to both parties. The case was then noticed for another hearing, but it never occurred. On May 18, 2012, Joseph’s attorney filed a “Motion for Status and Pinal Disposition,” requesting that the court grant Joseph 'money' damages and the property, and noticed the motion for a hearing. In September 2012, Joseph’s attorney filed another notice for a hearing on his motion, and, again, the case entered a period of relative inaction, where no substantive motions were filed.

¶ 6. Suffice it to say that on January 25, 2013, the chancellor issued an order, directing the parties’ counsel to, among other things, meet and try to resolve the. case within sixty days and to “set the matter for a conference with the court no later than sixty days out.” The order set the case for review on March 18, 2013. The record reflects that nothing else transpired in the case until April 29, 2014, when the clerk filed a motion to dismiss for want of prosecution. On June 3, 2014, the chancellor entered an order granting the motion to dismiss the case. On January 5, 2015, Joseph filed a Rule 60 motion for relief from judgment, and it was denied by the court on May 2, 2016, without prejudice. This appeal followed.

DISCUSSION

¶ 7. “[M]otions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984). “The appeal from a denial of a Rule 60(b) motion brings 'up for review only the order of denial itself and not the underlying judgment.” Stevens v. Wade, 214 So.3d 301, 304 (¶ 11) (Miss. Ct. App. 2017) (internal quotations omitted). Rule 60(b) reads as follows:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by. due diligence could not have, been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality .of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and .the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court ....

¶ 8. Joseph argues that the chancellor abused his discretion in denying the motion for Rule 60(b) relief, because his attorney’s dereliction of duties was' the reason the case had not been adjudicated timely. He asserts that he never received notice that the case was to be dismissed, and the Rule 60(b) motion should have been granted in light of his attorney’s failure. At the hearing on the motion, Joseph testified that, at some point, his attorney had been suspended by the Mississippi, Bar for failure to pay his dues. He also testified that his attorney had pending indictments for drug charges. He asserts that he was not notified by the court about any of those occurrences, as the notices went to his attorney.

¶ 9. Joseph acknowledges that the trial court held, as has been held many times on appeal, that gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief under Rule 60. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984). However, he argues that an attorney’s infidelity and failure to support the laws of this state should be more than sufficient. He also submits that the record sets out extraordinary and compelling circumstances, establishing that he, was denied notice that the case was going to be dismissed and notice of the order that, dismissed the case. In light of his attorney’s actions, Joseph contends that the Rule. 60(b) motion should have, been granted.

¶ 10. Meyer responds that the court was correct in denying Joseph’s motion. Meyer’s argument is centered around the fact that there are no special circumstances that warrant a finding that the chancellor abused his discretion in dismissing this case for lack of prosecution. Although Joseph acknowledges that-misconduct of an attorney is not grounds for setting aside such an order, he alleges that he falls into a special category, having been mistreated in a different fashion by his attorney. Meyer submits that, no such special circumstances exist in this matter, as the record shows that over .seven years passed between the time the.lawsuit was filed and the motion to set aside the order dismissing the case for lack pf prosecution was filedl Meyer also submits that the record shows that almost three years passed between when the last substantive action was filed in this matter on May 18, 2012, and the date the Rule 60(b) motion was filed on January 6,2016.

¶ 11. Although the court did not provide an explanation for denying Joseph’s motion in its order, it did discuss its reasoning on the record as follows:.

I have myself reviewed what I appreciate is the law on this issue. And the cases that I feel are controlling here are the Town of Winstonville versus Demco, D-E-M-C-O, Distributing Company, 630 So.2d 40 (1993), which in effect holds that a dismissal based on a clerk’s motion,-is, then treated the same as any other, motion insofar as setting it aside. It becomes a final motion and may not be set aside after that particular term of court, except pursuant to a Rule 60 motion which applies.
The next case, that I feel is instructive is the Stringfellow case at 461 So.2d 219, a 1984 Supreme Court case, which says that a Rule 60 motion—well, restated, that neither ignorance nor carelessness on the part of an attorney provides grounds for relief.

¶ 12. The seminal question in this case is whether Joseph’s attorney’s actions provide a proper basis to support Joseph’s motion. We.find that they do not. Just as the supreme, court points out, “Rule 60(b) provides for. extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Stringfellow, 451 So.2d at 221. Based on the record, the- delay could be equally attributable to Joseph’s inaction to assert his rights to hire another attorney if he was unsatisfied with the representation that he was receiving. Joseph’s attorney had represented him from the inception of the case and continued to represent him after the court’s January 25, 2013 order. Clearly, Joseph was satisfied enough with his attorney’s performance to keep him as his attorney from at least 2007 to 2014. The record is unclear as to both the date of Joseph’s attorney’s inattentiveness to Joseph’s case, and the date when the attorney no longer served as his attorney. Joseph testified that he was unaware of the ultimate dismissal of his case, and when he heard rumors that his attorney might lose his license, he then obtained new counsel. Underlying Rule 60(b) “is the implicit burden on the party and counsel to make periodic inquiries into the course of the proceedings.” Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 894 (¶ 17) (Miss. 2006) (internal quotations omitted). Joseph’s testimony at the Rule 60(b) motion hearing demonstrated that he did not contact the court or make any inquires into his case, besides attempting to contact his attorney, even after he had learned about the dismissal from other sources.

¶ 13. Since Joseph’s motion was filed more than six months after the date of the judgment, the catch-all provision of subsection (b)(6) of Rule 60, which provides relief from a judgment “for any other reason justifying relief,’’ would be the only provision available for the granting of relief. The Mississippi Supreme Court has “referred to this catch-all provision as a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses,- or when it is uncertain that one or more of the preceding clauses afford relief.” Hartford, 936 So.2d at 893-94 (¶ 15)(citation and internal quotations omitted). Based on our caselaw, we do not find that Joseph’s attorney’s actions warranted the- granting of Joseph’s motion.

¶ 14. Joseph failed to meet his burden of proof necessary to obtain relief under Rule 60(b). Therefore, we find that the chancellor acted within his sound discretion in denying the motion. Accordingly, we affirm the judgment of the circuit court denying Joseph’s Rule 60(b) motion, which sought relief from the judgment dismissing the Thompsons’ complaint for-failure’to prosecute.

¶ 15. AFFIRMED.

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