text:
    Dewayne PRICE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00624-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Dec. 15, 2009.

      Neysha Larose Sanders, Greenwood, attorney for appellant.
    Office of Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Dewayne Price was convicted of grand larceny by an Attala County jury. Thereafter, the Attala County Circuit Court sentenced him as a habitual offender to ten years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Price appeals and asserts that there is insufficient evidence to support the verdict and that the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. On August 8, 2007, Price, Cordarron Buchannon, and David Holmes were in-dieted for “wilfully, unlawfully, feloniously, and intentionally tak[ing] and carrying] away” on July 13, 2007, a green Kawasaki four-wheeler and a red Honda four-wheeler owned by Michael Kuhn. In March 2008, Price went to trial and was convicted of grand larceny.

¶ 4. During trial, the State called several witnesses to testify about the events surrounding the theft of the four-wheelers. Kuhn testified that the night the four-wheelers were stolen, they were stored on his father-in-law’s property in Attala County. According to Kuhn, the perpetrators cut the property fence in two places in order to get to the four-wheelers.

¶ 5. Buchannon testified that on the day of the theft, Holmes called him and told him where some four-wheelers were located. Buchannon stated that later that day, Holmes took him to the exact location. Buchannon further stated that around 11 p.m., he, Holmes, and Price used Buchan-non’s truck to go to Attala County and steal the four-wheelers. According to Bu-channon, once they got to the property where the four-wheelers were located, they had to cut through the property fence to get to the four-wheelers. Buchannon testified that Price helped push the four-wheelers to the truck and that Price helped load the four-wheelers onto the truck. Buchannon stated that they took one four-wheeler to his house and the other one to Price’s house.

¶ 6. Randy Blakely, an investigator with the Attala County Sheriffs Department, testified that the Department had received reports of four-wheelers being taken illegally from Attala County to Holmes County. Deputy Blakely further testified that he learned a four-wheeler was located at Price’s house in Holmes County. According to Deputy Blakely, when he arrived at Price’s house, he saw a green four-wheeler in a wooded area about thirty to forty yards across the street from the house. Deputy Blakely further stated that he noticed that the ignition was missing from the four-wheeler. Deputy Blakely testified that he ran the vehicle identification number on the four-wheeler, which revealed that the four-wheeler belonged to Kuhn.

¶ 7. Holmes testified that he, Buchan-non, and Price went to Attala County and stole two four-wheelers. Holmes stated that Price stayed in the truck and did not help load the four-wheelers onto Buchan-non’s truck. Holmes further stated that he kept the red four-wheeler and that he did not know what happened to the green four-wheeler.

¶ 8. Curtis Price, Price’s brother, testified that he saw Price riding a green four-wheeler around the time of the theft. However, Curtis stated that he believed that the four-wheeler belonged to his cousin’s boyfriend. Eric Price, who is also Price’s brother, stated that in July 2007, he saw Price and his cousin’s boyfriend riding two four-wheelers, one was blue. However, Eric was impeached with a statement that he had given earlier to police in which he said that Price, Buchan-non, and Holmes came to his house with three four-wheelers and that the green four-wheeler was left at the house. Faced with his prior statement, Eric admitted making the statement but explained that he thought at that time the green four-wheeler was one of the ones that was stolen but later discovered that it belonged to his cousin’s boyfriend.

¶ 9. At this juncture in the trial, the State rested. Price made a motion for a directed verdict, but the circuit court denied the motion. During his case-in-chief, Price called his girlfriend, Cassie Wright. Wright testified that she and Price were on their home telephones talking to each other from six o’clock in the evening on the day the four-wheelers were stolen until four o’clock the following morning. Thereafter, Price rested and did not renew his motion for directed verdict.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency of the Evidence

¶ 10. Our supreme court has discussed the various means by which a criminal defendant can challenge the sufficiency of the evidence against him:

A criminal defendant has several procedural vehicles available to him for challenging the sufficiency of the case for the prosecution-the motion for directed verdict made at the end of the case for the prosecution, the request for a peremptory instruction at the end of all the evidence or the motion for a directed verdict at that point, or finally a motion for judgment of acquittal notwithstanding the verdict.

Hodges v. State, 743 So.2d 319, 325(¶ 36) (Miss.1999) (citation omitted). “When [an appellate court] reviews a denial of a directed verdict, it applies a de novo standard of review.” Branch v. State, 998 So.2d 411, 416(¶ 18) (Miss.2008) (citing Gilmer v. State, 955 So.2d 829, 833(¶ 5) (Miss.2007)). “In reviewing a denial of a motion for a directed verdict, if we determine the evidence points in favor of the defendant on any element of the offense such that a reasonable juror could not have found the defendant guilty beyond a reasonable doubt, we must reverse the conviction.” Id. (quoting Coleman v. State, 947 So.2d 878, 881(¶ 11) (Miss.2006)).

¶ 11. In his first assignment of error, Price argues that the circuit court erred in denying his motion for a directed verdict made at the conclusion of the State’s case and that the State failed to prove beyond a reasonable doubt that he was involved in taking any property from the victim on July 13, 2007. He asserts that the only evidence that led to his conviction was the testimony of his alleged accomplice, Buchannon. Price correctly notes that the testimony of an accomplice is to be viewed with “great caution and suspicion.” Walton v. State, 998 So.2d 971, 977(17) (Miss.2008) (quoting Strahan v. State, 729 So.2d 800, 805(20) (Miss.1998)). Price also correctly notes that only slight corroboration of an accomplice’s testimony is required to sustain a conviction. Hathorne v. State, 759 So.2d 1127, 1133(31) (Miss.1999). Price interprets Hathome to mean that where there is no corroboration, accomplice testimony is insufficient to sustain a conviction. Price concludes that Buchannon’s testimony was uncorroborated and that, as a result, his conviction should be reversed.

¶ 12. In response, the State argues that Price waived his motion for a directed verdict made at the close of the State’s case when Price introduced evidence on his own behalf. Specifically, the State argues that because Price did not renew his motion for a directed verdict at the close of all evidence, he is procedurally barred from challenging the sufficiency of the State’s evidence.

¶ 13. Generally, “[i]f a defendant puts on evidence in his own defense after the denial of his motion for directed verdict, he waives his challenge to the sufficiency of the State’s evidence up to that point.” Robinson v. State, 749 So.2d 1054, 1058-59(13) (Miss.1999) (citing Stringer v. State, 557 So.2d 796, 797 (Miss.1990)). Price did not renew his motion for a directed verdict at the end of all evidence. He filed a motion for a new trial. In the body of the motion, he sought a new trial or a judgment notwithstanding the verdict; however, in support of his contention that he should be granted a judgment notwithstanding the verdict, he simply stated that the court erred in overruling “motion for directed verdict at the conclusion of the State’s case.” In light of this fact, Price is procedurally barred from challenging the sufficiency of the State’s evidence. Accordingly, we decline to address this issue.

2. Weight of the Evidence

¶ 14. The standard of review for claims that a conviction is against the overwhelming weight of the evidence is stated as follows:

[An appellate court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Valmain v. State, 5 So.3d 1079, 1086(¶ 30) (Miss.2009) (quoting Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001)). “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to [an appellate court].” Id. (quoting King v. State, 857 So.2d 702, 731 (¶ 104) (Miss.2003)).

¶ 15. Price asserts that the verdict is against the overwhelming weight of the evidence because the only incriminating evidence presented by the State-Buchan-non’s testimony-was uncorroborated and inconsistent. We disagree.

¶ 16. First, we find that Buchannon’s testimony regarding the events surrounding the theft of the four-wheelers was corroborated by several witnesses during the trial. Like Buchannon, Kuhn testified that the fence surrounding the Attala County property where the four-wheelers were stored was cut. Deputy Blakely’s testimony that he found a four-wheeler thirty to forty yards from Price’s house corroborated Buchannon’s testimony that one of the four-wheelers was left there. Buchannon and Holmes stated that Price went with them to the Attala County property where the four-wheelers were located. Further, Eric and Curtis stated that they saw Price riding a green four-wheeler after the theft had occurred.

¶ 17. Second, “[i]t is a well-settled principle of law that issues of weight and credibility of [a] witnesses] testimony are within the sole province of the jury as fact-finder.” King v. State, 798 So.2d 1258, 1262(¶ 14) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 387(¶ 60) (Miss.2000) (overruled on other grounds)). “The jury has a much better vantage point to view and assess the tone, mannerisms, and disposition of witnesses.” Id.

¶ 18. Here, the jury heard all of the witnesses’ versions of events surrounding the theft of the four-wheelers. Buchan-non’s testimony, along with the testimony of the other State’s witnesses, provides ample evidence to support Price’s conviction. Therefore, this issue is without merit.

¶ 19. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF GRAND LARCENY AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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

      . It appears from the record that Buchannon is Price's friend, while Holmes is Price’s cousin.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Willie JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01479-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.
    Leslie S. Lee, Jackson, W. Daniel Hin-chcliff, attorneys for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Willie Jackson was convicted in the Circuit Court of Oktibbeha County of sale of cocaine. The trial court sentenced Jackson as a habitual offender to thirty years in the custody of the Mississippi Department of Corrections, without eligibility for parole or probation. Aggrieved, Jackson appeals, arguing that his conviction resulted from prosecutorial misconduct. Finding no reversible error, we affirm.

FACTS

¶2. At trial, the State produced the testimony of Kimberly Henderson, a civilian informant. Henderson testified that, on January 4, 2007, Jackson telephoned her and offered to sell crack cocaine to her. She then contacted the Tri-County Narcotics Task Force, which arranged a controlled buy. Henderson and her vehicle were searched, and Henderson’s vehicle was outfitted with audio and video recording equipment. She was then given $40 with which to purchase the drugs.

¶ 3. After the preparations for the controlled buy were concluded, Henderson called Jackson and arranged to purchase $40 worth of crack cocaine at McKee Park in Starkville, Mississippi. During the buy, she was monitored and followed at a distance by two agents from the Tri-County Narcotics Task Force.

¶4. Henderson drove to McKee Park, but she was unable to locate Jackson there. A few minutes later, Jackson phoned Henderson and told her that he was unwilling to meet at McKee Park, suggesting they meet at the nearby Fern-dale Apartments. When she arrived at that location, she saw Jackson standing outside. He got into Henderson’s vehicle and offered her an unwrapped “crack rock.” Henderson accepted it and handed Jackson the $40 in exchange. As he was exiting her vehicle, Jackson asked Henderson whether she wanted any “blow,” or powder cocaine. Henderson stated that she did not, at this time, but she asked whether Jackson could obtain “some rolls,” which she later testified was a street name for the drug ecstasy. After Jackson agreed to sell her some of the “yellow ones,” he left. Henderson then placed the “crack rock” into an evidence bag and returned to the Tri-County Narcotics Task Force headquarters, where she handed the bag over to Agent Gus McKay. Henderson identified Jackson in court as the man who had sold her the cocaine.

¶ 5. Agent McKay testified, corroborating Henderson’s account, and the State established through the testimony of a lab technician that the substance obtained from Jackson had been tested and verified to contain 0.051 gram of cocaine base. Two videotaped recordings of the drug buy, taken from different angles, were introduced into evidence and played for the jury-

¶ 6. The defense put on no witnesses, and Jackson was subsequently convicted. On appeal, Jackson argues that the jury’s verdict resulted from prosecutorial misconduct in the form of repeated references to the harmful effects of drugs in the community.

PROSECUTORIAL MISCONDUCT

¶ 7. Jackson cites numerous actions by the State through the course of the trial that he argues advanced a “theme theory” of the case — the drug problem in our society — which inflamed the passions of the jury and influenced the verdict in this case.

¶ 8. Attorneys are allowed wide latitude in arguing their cases to the jury, but “prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000). On appeal, we review comments to determine “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Id. Furthermore, in closing arguments, counsel “cannot ... state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence. Neither can he appeal to the prejudice of men by injecting prejudices not contained in some source of the evidence.” Id. (quoting Williams v. State, 445 So.2d 798, 809 (Miss.1984)).

¶ 9. Jackson cites numerous actions of the prosecutor that he argues developed this “theme theory” of the case: questioning during voir dire regarding the venire’s perceptions of the drug problem, detailed testimony elicited regarding the purpose and procedures of the Tri-County Narcotics Task Force, Henderson’s admission of her prior drug abuse and her elaboration regarding its harmful impact on her life, and the prosecutor’s closing-statement illustrations urging the jury to convict notwithstanding the small quantity of drugs involved.

¶ 10. Only two of the actions cited by Jackson were objected to at trial, and although both objections cited specific grounds, neither objection cited the grounds Jackson argues on appeal. Accordingly, we find that this issue has not been preserved for appeal and is barred from our review. Jones v. State, 856 So.2d 389, 394(¶ 10) (Miss.Ct.App.2003).

¶ 11. Notwithstanding the procedural bar, we find that the jury’s verdict likely was not influenced by any prejudice that might have resulted from the State’s brief discussions of the broader societal harms caused by drug use. Even assuming the evidence and comments were improper, we find that the error was harmless in light of the overwhelming evidence against Jackson. Echols v. State, 759 So.2d 495, 498(¶ 13) (Miss.Ct.App.2000). See also Jones v. State, 841 So.2d 115, 140(¶ 83) (Miss.2003). This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


author: IRVING, J.,

text:
    In re Appointment of a Conservator of the Person and ESTATE OF Ruby Chism ELLIS. Bobbie L. Ellis, Appellant v. Stephanie Chism Turner, Appellee.
    No. 2008-CA-01993-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.

      Rhett R. Russell, Tupelo, attorney for appellant.
    Thomas M. McElroy, Tupelo, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of Bobbie L. Ellis’s attempt to have Stephanie Chism Turner removed from her position as conservator of the person and estate of Ruby Chism Ellis, Bobbie’s "wife. Stephanie is Ruby’s granddaughter. The Lee County Chancery Court, which appointed Stephanie as conservator, declined to remove her from her position as conservator. Feeling aggrieved, Bobbie appeals and asserts three contentions of error, which we quote verbatim:

1. Whether or not the lower court erred in establishing a conservator-ship and appointing Ms. [sic] Ellis’s granddaughter as a conservator of the person and estate of Mrs. Ellis who at such time had in place a valid durable power of attorney and a valid healthcare directive each duly executed in 2002 when she was competent.
2. Whether or not the lower court’s judgment appointing Mrs. Ellis’s granddaughter as conservator of her person and estate is invalid as a result of failure to adhere to the requirement that the husband, a next of kin or other descendant be given prior notice by personal service of the time and place for the hearing.
3. Alternatively, if the appointment of a conservator is deemed reasonably necessary then whether or not her granddaughter should be discharged as conservator due to her perjury, unlawful entry into Mr. Ellis’s residence, unlawful conversion of Mr. Ellis’s funds, failure to adhere to statutory requirements, failure to give inventory and accounting as specifically directed by the court on two (2) occasions and her other abuses of power under color of law while substituting Mrs. Ellis’s spouse who, prior to the interruptions by the granddaughter, had been exclusively handling his wife’s health decisions and financial affairs.

¶ 2. Finding no reversible error, we affirm the judgment of the chancery court.

FACTS

¶ 3. Ruby and Bobbie were married on July 29, 2000. Within a few years, it became clear that Ruby’s mental state was deteriorating, and Ruby was finally admitted to a nursing home in May or June 2006. Ruby has severe Alzheimer’s disease and can no longer communicate with anyone, nor does she recognize family members.

¶4. On April 10, 2008, after becoming suspicious that Bobbie had let a paramour move into Ruby’s home, Stephanie filed a petition to be appointed as Ruby’s conservator. In the petition, Stephanie stated that Ruby no longer possessed “the mental or physical capacity to manage ... her estate or live independently.” Attached to the petition were statements from two physicians, both of whom opined that Ruby was mentally incompetent. The petition did not mention that Ruby was married. On April 19, 2008, Jerry Chism, Stephanie’s father and Ruby’s son, signed a join-der to Stephanie’s petition, although the joinder was not filed until July 1, 2008.

¶ 5. On June 30, 2008, a hearing was set for July 8, 2008, regarding Stephanie’s petition. At the hearing, Stephanie informed the chancellor that her grandmother was married and that Ruby’s present husband, Bobbie, lived in Ruby’s house in Saltillo, Mississippi. Stephanie was asked whether Bobbie had been made aware of the proceedings, and she responded in the affirmative. She further testified that she had told Bobbie about the July 8 hearing. After the July 8 hearing, the chancery court ordered that Stephanie be appointed as Ruby’s conservator. The order, which was entered on July 8, found that Ruby “is 76 years of age and is physically and mentally incapable of managing her own estate.” The chancery court found “that a conser-vatorship should be established for Ruby Chism Ellis and f[ound] and [o]rder[ed] that Stephanie C. Turner should be and is hereby appointed conservator of the person and estate of Ruby Chism Ellis.... ” The court also ordered Stephanie to “file an inventory of the estate of Ruby Chism Ellis within ninety days of the date of this [ojrder....”

¶ 6. On July 24, 2008, Bobbie filed a complaint requesting that Stephanie’s appointment as conservator be set aside or, in the alternative, that he be appointed conservator if one was deemed necessary. Bobbie’s pleadings stated that he first received notice of Stephanie’s conservator-ship on July 19, 2008, “at which time Stephanie ... presented him with a photostatic copy of Letters of Conservator-ship in conjunction with demanding as [conservator that he immediately vacate his and his wife’s residential home.” Bobbie’s complaint alleged that a conser-vatorship was unnecessary because Ruby had executed a valid power of attorney prior to her incompetency. The power of attorney at issue applies to both Bobbie and Stephanie. The complaint further claimed that Jerry’s April joinder did not prove that he had received valid notice of the July 8 hearing.

¶7. On August 6, 2008, Bobbie filed a motion requesting the return of funds that Stephanie had taken; the motion also requested that Stephanie file an accounting and inventory of Ruby’s estate with the chancery court. The motion alleged that on August 1, 2008, Stephanie withdrew all of the funds from a joint account that Bobbie and Ruby shared. Bobbie alleged that the removal of the funds had caused numerous overdrafts.

¶ 8. On August 27, 2008, the chancery court entered an order (1) appointing Jonathan Martin as guardian ad litem on Ruby’s behalf, (2) continuing the case to August 22, 2008, and (3) prohibiting Stephanie from exercising her fiduciary powers as Ruby’s conservator. On August 28, 2008, Martin filed his report as guardian ad litem with the chancery court. We find his report helpful and, therefore, quote from it at length:

The current investigation of the GAL [guardian ad litem] relates to whether a conservatorship of the [w]ard’s person and estate is necessary, and if so, who should be appointed conservator. The GAL’s report will not address the alleged procedural defects of the original conservatorship appointment.
INVESTIGATION
The investigation of the Guardian Ad Litem includes interviews with the following persons:
1. ward, Ruby Chism Ellis;
2. ward’s granddaughter, Stephanie C. Turner,
3. ward’s husband, Bobbie L. Ellis;
4. nursing home administrator, David Horn;
5. nursing home administrative office manager, Katié Joe Lindley.
The undersigned’s investigation of this matter also included a review of the court file in this matter and a review of additional photographs and documents provided by both parties and their counsel.
RUBY CHISM ELLIS
Ruby Chism Ellis, born January 7, 1933, is 75 years old. She has been diagnosed with Alzheimer’s disease and suffers from extreme dementia. She has been a resident of Landmark Personal Care Home since April 10, 2007.
* * * *
Ruby was diagnosed with Alzheimer’s in 2002 by a neurologist in Tupelo. According to Stephanie and Bobbie, she exhibited signs of dementia well prior to the diagnosis.
Ruby Chism owned the home [in] Saltil-lo, [Mississippi,] prior to the marriage. The home had no encumbrance at the time of the marriage. The property deed is in the names of J.T. and Ruby Garrison. It is two bedrooms, one bath, approximately 1200 square feet residence [sic]. She lived in the home by herself prior to the marriage to Bobbie Ellis on July 29, 2000.
In May 2006, Ms. [sic] Ellis became a resident of Region III in Tupelo for two weeks. Then Bob and Stephanie and Stephanie’s mother, Betty McDaniel, moved her to Beverly Health Care in Atnory. She stayed six months. Mr. Ellis then moved her to Tupelo Nursing and Rehab for about 4 months. She then moved to the Landmark facility in Booneville, [Mississippi].
Ruby can no longer verbally communicate. According to both Stephanie and Bobbi [sic], Ruby does not recognize family members. She has fallen and hurt herself at the facility on more than one occasion.
All clothes, toiletries, and pull-up disposable undergarments are supplied by family.
Ruby’s one thousand, five hundred, and seventy-one dollar and fifteen cent ($1,571.15) monthly income consists of the following: $1,120 from Social Security; and, $303.15 from Genlyte Thomas, Mr. Garrison’s retirement; and, $148, Bank of N.Y. pension payments, retirement check.
STEPHANIE C. TURNER, Granddaughter of the Ward
* * ‡ ⅝
Stephanie Turner is the thirty-nine (39) year old daughter of Jerry D. Chism and granddaughter of Ruby Chism Ellis. Jerry D. Chism is the ward’s only child. Mrs. Turner lives in Saltillo, Mississippi[,] with her husband Timothy Turner. The Turners have two children of their own, and Mrs. Turner has two stepchildren, one of [whom] lives with them. She is a dental hygienist....
Stephanie describes her relationship with Bobbie Ellis now as hostile, but until two years ago the relationship was amicable. She states that during the early stages of Ruby’s illness, she and Bobbie rode to the nursing homes to visit Ruby together. Ms. [sic] Turner states that she has visited Ruby five times at Landmark. She is unsure how many times Bobbie has visited her. Stephanie states that she filed the Petition for Conservatorship after discovering that Bobbie had another woman living with him. Ms. [sic] Turner states that she heard rumors concerning a live-in girlfriend in October 2007. Stephanie has not talked to Bobbie since January 2007. Stephanie suspects the relationship with Grace Matthews dates back to at least January 2007. Stephanie has not met Ms. Matthews, nor is she aware of any other paramours.
Stephanie acknowledges that Mr. Ellis buys Ruby’s personal hygiene items. Stephanie states that while she has never brought Ruby personal care items, officials at Landmark have never contacted her.
Stephanie reports that until a year ago, Ruby’s hair was colored each month, but that Bobbie no longer makes those arrangements. Further, Stephanie states that Ruby has had a partial tooth missing for several months but Bobbie refuses to pay for a correction. Stephanie believes this is evidence of that [sic] Bobbie is unconcerned about Ruby’s well-being.
Stephanie reports to [the] GAL that Bobbie and Ruby have a Renasant Bank joint checking account.... Ruby added Bobbie to this account after their marriage. On August 1, 2008, after she was issued the letters of conservatorship, Stephanie Turner withdrew $451.15, representing Ruby’s retirement income. Stephanie also withdrew the additional $140.74 left in the account. She states she assumed those were Bobbie’s personal funds, and she planned to give the money back to him. She then attempted to close the account. She has not given the $140.74 back to Bobbie. She reports that Bobbie will not return her phone calls. She has deposited the withdrawn funds in the account of Ruby Chism Ellis conservatorship, Stephanie C. Turner conservator....
Stephanie states that she notified Bobbie of her appointment as conservator of Ruby on July 19 while the two were on the porch of the home. At that time, she told Bobbie to vacate the residence. She did not give him a date certain to be out. Stephanie says she did not tell Bobbie of her plans to close the joint account.
Stephanie believes Bobbie has wasted Ruby’s money: at the VFW, on presents for his girlfriend, and on other personal expenditures. She states that Bobbie has recently purchased a new truck, a boat and trailer, and a new bicycle. Stephanie says she has always helped her grandmother take care of bills until she married Bobbie. Stephanie also has photographs she believes evidence that Ruby’s personal belongings, including her old photo albums, furniture, and jewelry are being disregarded and stored in a dirt floor tin roof shed in the back yard. Stephanie also states that upon inspection of the home, Bobbie had removed all photographs of Ruby and her family.
BOBBIE L. ELLIS, husband of the ward
GAL met alone with Bobbie.... Although Bobbie was initially defensive, I was impressed by his candor.
Bobbie Ellis, 70, married Ruby on July 29, 2000. He is twice divorced. Bobbie retired from the U.S. Navy (E-7) following twenty (20) years of service. He has an individual account at Renasant. His combined retirement and Social Security income is $1800 a month. This income is deposited in his separate Renasant checking account.
Bobbie states that when they were first married, Ruby was a little forgetful. It got a little worse and a little worse. Bobbie states that Ruby was diagnosed with early onset Alzheimer’s in 2002. Bobbie states that he was the primary care-giver for Ruby in their home for 3 years of her illness. But as Ruby’s condition worsened, she required additional care.
Bobbie states that Ruby, in approximately 2005, first spent two weeks at the Regional Three Behavioral Center.... Bobbie then moved her to the [facility] in Tupelo for 6 months. They could not handle her because they didn’t have a lock-down unit. Ruby’s behavior deteriorated to the point that she scared other patients and could not maintain her own safety. At that time, Bobbie admitted Ruby to Landmark in Boone-ville. When Ruby was admitted, she could no longer care for any of her personal needs. She also had lost her all [sic] interpersonal communication skills.
According to Bobbie, Landmark charges approximately one hundred and sixty-five dollars ($165) a day. Bobbie pays nine hundred twenty-eight dollars ($928) a month, with the remaining balance paid through Medicaid. Bobbie also states that he supplies Landmark with pull-up disposable undergarments each month at a cost of approximately forty-five dollars ($45) a month. He also provides all her toiletries and clothes. Bobbie admits that he has not had Ruby’s hair [sic] in about a year, but that Landmark cuts, washes and combs Ruby’s hair at the facility.
Bobbie has a copy of a durable power of attorney purported [sic] signed by Ruby in 2002 before her first admission to a care facility. The document was filed and registered in November 2007. Bobbie asserts that this document quells the need for the establishment of a conser-vatorship.
Bobbie states that he has consistently visited Ruby at the various care facilities: in 2005 every day, then, beginning last year, twice a week, and now once a week.
Regarding Stephanie Turner, Bobbie states that during the early part of his marriage to Ruby, they often gave financial support to Stephanie. He states that Ms. [sic] Turner rarely visited Ruby at any care facility. Further, he states he is unaware if Stephanie has visited Ruby at Landmark. In describing the events of Stephanie and July 19, Ms. [sic] Turner went to house [sic] with conservatorship papers and told him to get the hell out. Ms. [sic] Turner got the checks stopped.
Bobbie acknowledges a relationship with Grace Matthews. The relationship, he says, started eighteen months ago. She lived in the house for six months. He states that he broke off the relationship and she moved out July 8, 2008. Regarding pictures of Ruby in the house: Bobbie says there remain pictures of Ruby and Ruby’s family in the house. He also asserts that all of wife’s [sic] belongings remain in the house. Bobbie states that he alone maintains Ruby’s home. He contends that since the beginning of their courtship, he has built a porch onto the house, a carport, and replaced the old roof with a new one. He also states that he is responsible for paying the utilities on the home, which run up to two hundred dollars ($200) monthly, and paying for Ruby’s other insurance premiums.
Bobbie states that he should be appointed conservator, if the Court finds the appointment necessary. He contends that Stephanie has children and she works full-time. Therefore she simply cannot be available to provide for Ruby’s needs, particularly in emergency situations, as he can. For example, Bobbie cites that Ruby has fallen several times through the years, including four times while a resident of Landmark. Landmark representative call [sic] him in emergency situations, and every time he immediately responds. He states that Stephanie does not go see Ruby anymore, and has not expressed an interest in Ruby’s well-being in years.
RECOMMENDATION AS TO THE ESTABLISHMENT OF A CONSERVATORSHIP
Based on personal observation along with interviews associated with this investigation, the GAL is of the opinion that Ruby Ellis Chism can no longer handle issues concerning her personal well-being or manage her financial affairs. Two qualified medical professions [sic] have submitted affidavits to the court in line with this opinion. Therefore, it is the recommendation of the GAL that a conservatorship of the person and estate of Ruby Chism Ellis be established by this Court.
RECOMMENDATION AS TO THE APPOINTMENT OF CONSERVATOR
The position of conservator is a fiduciary capacity. A conservator must determine the best interests of the ward and make decisions designed to effectuate those judgements [sic]. I do not find that Bobbie Ellis has grossly misspent the assets of Ruby over the last year. He has timely paid her expenses at Landmark and delivered toiletries and disposable undergarments to her at the first of the month. There is a question as to how much of Ruby’s monthly income Bobbie uses for his own benefit. There also remains a question as to whether, over the course of the marriage, Bobbie dissipated Ruby’s assets. Stephanie indicated she would present additional proof at trial to that effect.
It is, however, uncontroverted that he moved a paramour into his home. Furthermore, the paramour maintained her primary residence in Ruby’s home. Bobbie has clearly transferred his loyalties in his personal life. Bobbie acknowledges that he has committed un-condoned adultery.
Stephanie Turner appears to the GAL to be fít, capable[,] and motivated solely by the interest of Ruby Chism Ellis.
It is therefore the recommendation of the GAL that Ruby Chism Ellis’[s] interest are [sic] best served by Stephanie Turner serving as the conservator of her person and estate.

(Emphasis added and footnotes omitted). The guardian ad litem’s report also indicated that, although Bobbie claimed that he visited Ruby at the Landmark facility once each week, the administrative office manager was able to confirm only that “she sees Mr. Ellis once a month, before the fifth day of each month” when Bobbie “brings that month’s payment, along with a month’s supply of pull-up disposable undergarments.” Bobbie testified at a later hearing that he only saw the office manager once a month because he normally visited on Saturdays and Sundays.

¶ 9. On September 5, 2008, Martin, Bobbie, and Stephanie all appeared for a hearing on Bobbie’s complaint. After September 5, the hearing was continued until October 20, 2008. At the outset of the hearing, Stephanie stipulated that Bobbie and Jerry are Ruby’s only heirs at law, and that Bobbie did not have notice of the July 8 hearing.

¶ 10. At the hearing, Bobbie testified that he first learned of the conservatorship when Stephanie approached him at Ruby’s home on July 19, 2009, and showed him the conservatorship papers. Bobbie denied that he had purchased a trailer, boat, or bicycle in the years immediately preceding the conservatorship action. Bobbie testified that he maintained two bank accounts, and that his retirement and social security income went into one account, while Ruby’s income went into the Rena-sant account that has been discussed previously. During cross-examination, Bobbie admitted that he had used funds from Ruby’s account to pay for a car that he owned: “At that point in time, I didn’t have the money in my account, I took it out of hers, and it will be put back in somewhere down the line.” Bobbie initially claimed that he had repaid the money, but admitted that he could not find on the bank statements where he had reimbursed Ruby’s accounts for his car payments. Bobbie also committed blatant perjury during cross-examination, when he denied that Grace had ever lived with him in Ruby’s house. When confronted with the mail with Grace’s name on it, Bobbie testified that Grace “would come to the house once in a while. She would stay with me for a week and then go back to her house.” Bobbie also testified that, despite his relationship with Grace, he had been “true and faithful” to Ruby. Bobbie adamantly denied that Grace had moved any furniture into Ruby’s house. When the hearing was continued on October 20, 2008, Bobbie’s testimony changed substantially. On that day, Bobbie admitted that he had had a romantic relationship with Grace since August 2006, and that Grace had moved into Ruby’s house in January 2008, upon Bobbie’s request. Bobbie further testified that Grace lived there until July 8, 2008, when he asked her to leave the house. Bobbie claimed that he had used Ruby’s income to pay for the following items for Ruby’s benefit: garbage, water, telephone, insurance, electricity, nursing home expenses, and other expenses for Ruby. This Court questions how Bobbie was paying for garbage, water, telephone, and electricity for Ruby’s benefit when she resided full time at a nursing home that she was also paying for. Regardless of whose name was on the utility bills, Bobbie alone recouped the benefit of those utilities after Ruby was committed to the nursing home.

¶ 11. Stephanie testified that she went to Ruby’s house on July 18 or 19 with her stepmother, Nell Chism. She indicated that Nell went with her because Nell had a key to the house, although Stephanie claimed that the house was unlocked when they arrived. Once inside, Stephanie testified that she took pictures, including pictures of mail addressed to Grace with Ruby’s address on it. Stephanie also testified that she later went to the Renasant Bank and got copies of all of the bank statements for 2005 through 2008. Stephanie testified that she would take better care of her grandmother than Bobbie because she would get Ruby’s tooth fixed, provide her with correctly-sized diapers, and make sure that her hair was done regularly. Stephanie indicated that she was aware that her appointment as conservator might result in Medicaid taking out a lien against Ruby’s house. Stephanie explained that, although she believed that the nursing home would receive a larger portion of her grandmother’s money than it had before, Stephanie did not care because she believed that Bobbie had not been using the excess money for Ruby’s benefit. Stephanie’s testimony was inconsistent as to when she learned about the existence of the power of attorney; regardless, she testified that she wanted to be appointed as Ruby’s conservator in addition to her abilities and rights under the power of attorney.

¶ 12. Grace testified on Stephanie’s behalf at the hearing. She testified that she moved into Ruby’s house in January 2008, and that she was aware that it was Ruby’s house when she moved into it. She testified that Bobbie ended his relationship with her on July 8, 2008, which is apparently Grace’s birthday. Grace testified that she and Bobbie slept in the same bed in Ruby’s house, and that they had sexual relations.

¶ 13. At the conclusion of the hearing, Martin testified that Bobbie had not “grossly misspent the assets of Ruby,” but that there was “some question as to what he did with the additional [$]500 or $600 a month.” Martin opined that Bobbie had spent that additional money on “maintaining the home and purchasing certain appliances that he received the benefit of for the home.” Martin testified that he ultimately believed “that Bobbie’s personal loyalties have been transferred from [Ruby] to someone else in his life, and may once again.”

¶ 14. On October 28, 2008, the chancery court entered a judgment on Bobbie’s complaint. In the judgment, the court noted that Martin had recommended that Stephanie continue to act as Ruby’s conservator. The court confirmed its appointment of Stephanie as conservator and ordered Stephanie to provide an “inventory of the [w]ard’s estate within thirty (30) days of the date of th[e] [o]rder.” The chancery court also ordered Stephanie to provide an accounting for $591.89 that Stephanie withdrew from Bobbie’s joint account with Ruby. The court declined to dissolve the conservatorship and further declined to appoint Bobbie in Stephanie’s place. On November 13, 2008, after a request from Bobbie, the chancery court supplemented its judgment with a “Memorandum Opinion and Judgment,” more fully outlining the court’s findings of fact. In that opinion, the court noted that Mississippi law does not give a spouse preference in con-servatorship matters. The court also noted that Bobbie asked his paramour, Grace, to move out of Ruby’s residence the same day that Stephanie was appointed conservator of Ruby’s person and estate. As to Stephanie’s withdrawal of money from Bobbie and Ruby’s joint account, the chancery court found that Stephanie had a valid, power of attorney at that point in time, and that “[t]he credible proof was that the funds were transferred to a con-servatorship account for the ward.” The court then ordered Stephanie to provide an accounting of how those funds were utilized. Finally, the court found that any procedural deficiency in Stephanie’s appointment as conservator was resolved by the later hearings, and ordered that Stephanie provide “an inventory” within thirty days of the order.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 16. Our standard of review in chancery court cases is extremely limited. We will affirm the decision of the chancellor if the chancellor’s decision is supported by “substantial credible evidence.” In re Estate of Carter, 912 So.2d 138, 143 (¶ 18) (Miss.2005) (citing Williams v. Williams, 843 So.2d 720, 722 (¶ 10) (Miss.2003)). We will disturb the chancellor’s findings only if they are “manifestly wrong, clearly erroneous[,] or applied the wrong legal standard.” Id. (citing Williams, 843 So.2d at 722 (¶ 10)).

1. Establishment of Conservatorship

¶ 17. In his first contention of error, Bobbie maintains that the chancery court erred in finding that the establishment of a conservatorship is in Ruby’s best interest. Bobbie specifically questions the conservatorship in light of the durable powers of attorney that he and Stephanie both possess.

¶ 18. Despite Bobbie’s contentions to the contrary, nothing in Mississippi law prohibits the appointment of a conservator when a durable power of attorney already exists. In fact, Mississippi Code Annotated section 87-3-109(1) (Rev.1999) explains the effect of a conservatorship or other court-appointed fiduciary on a power of attorney:

If, following execution of a durable power of attorney, a court of the principal’s domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal’s property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated.

(Emphasis added). In short, the existence of a power of attorney does not and cannot prohibit a chancery court from exercising its constitutional and statutory authority to appoint a conservator.

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

2. Validity of Conservatorship

¶20. In this contention of error, Bobbie attacks Stephanie’s conservator-ship on the ground that notice of the July 8 hearing was not properly served in accordance with Mississippi Code Annotated section 93-13-253 (Supp.2009). Section 93-13-253 reads, in pertinent part, as follows:

Upon the filing of the petition [for con-servatorship], the clerk of the court shall set a time and place for hearing and shall cause not less than five (5) days’ notice thereof to be given to the person for whom the conservator is to be appointed .... Unless the court finds that the person for whom the conservator is to be appointed is competent and joins in the petition, the notice shall also be given to one (1) relative of the person for whom the conservator is to be appointed who is not the petitioner and who resides in Mississippi ... preferring first the spouse, unless legally separated, then an ascendant or descendant ... so that personal service is had on the person for whom the conservator is to be appointed and on one (1) relative who resides in Mississippi other than the petitioner.

¶21. We find at the outset that one relative other than Stephanie had notice of the hearing. Her father, Jerry, joined in her petition for a conservatorship, and the petition was filed on July 1, 2008, one week before the hearing. There is, however, nothing in the record indicating specifically that Jerry received notice of the hearing. However, we find that Jerry’s joinder in the petition waived his right to receive notice of the hearing. See Alexander v. Alexander, 493 So.2d 978, 980 (Miss.1986); Scrivner v. Lamar, 97 Miss. 848, 850, 53 So. 537, 538 (1910).

¶ 22. Despite Jerry’s notice, the statute “prefers” that notice be given first to a spouse. It is apparent that this must have also weighed on the chancellor’s mind at the July 8 hearing, as she asked Stephanie specifically, “And you tell me [Bobbie] had notice of the hearing today. What kind of notice did he have?” Stephanie responded, “I told him about it,” and then told the chancellor that Bobbie did not have a response when she told him about the hearing. At the September 5 hearing, Stephanie conceded that she, in fact, had not given Bobbie notice of the hearing. This concession is corroborated by Martin’s report, wherein he noted that Stephanie claimed that she had not spoken to Bobbie since January 2007. In short, it appears clear that Bobbie was not given notice of the July 8 hearing, and that Stephanie lied about giving him notice when she testified at the hearing.

¶ 23. Regardless, we find, as the chancellor did, that any defect in Bobbie’s notice was cured by the later hearings regarding the conservatorship. At that time, Stephanie’s untruthfulness at the July 8 hearing became known, as did all of Bobbie’s reasons regarding why a conser-vatorship was not necessary and why, if a conservator was found to be necessary, he would make a better conservator than Stephanie. Bobbie has not explained any way in which the chancery court’s finding would have been different had the full hearing been held on July 8, rather than in September and October.

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

3. Stephanie as Conservator

1125. Finally, Bobbie claims that, even if a conservator is needed, he is the proper party to act as conservator. He bases this assertion on the fact that he took care of Ruby’s finances and personal needs for several years after her illness, and on the fact that Stephanie acted inappropriately several times during the course of the proceedings.

¶26. We note at the outset that our laws concerning conservatorships give no preference to a spouse as conservator. We recognize that Stephanie has engaged in questionable behavior during the course of these proceedings, including entering Ruby’s house without Bobbie’s knowledge, closing Ruby’s joint bank account that was shared with Bobbie, and lying under oath on July 8. Bobbie also alleges that Stephanie has failed to file the court-ordered inventories. Regardless, the chancellor and guardian ad litem were both fully aware of these transgressions. They were also both aware of Bobbie’s adulterous conduct and the fact that he lied about that conduct under oath. As Martin told the chancery court, “Bobbie’s personal loyalties have been transferred from [Ruby] to someone else in his life, and may once again.” There were also questions, as Martin pointed out, regarding whether Bobbie had spent Ruby’s excess money on her care or on himself. Given these facts, we cannot find that the chancery court erred in finding that Stephanie was the appropriate party to act as Ruby’s conservator.

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

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

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

      . Stephanie is not Bobbie's granddaughter, as Stephanie’s father is Ruby's son from a previous relationship.


author:
IRVING, J.,
      CARLTON, J.,

text:
    Steve RUTH, Appellant/Cross-Appellee v. London Suzette BURCHFIELD, Appellee/Cross-Appellant.
    No. 2007-CA-02066-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Timothy C. Hudson, Columbus, attorney for appellant.

      Hal H. McClanahan, Columbus, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. Steve Ruth and London Suzette Burchfield are the parents of Mara Leigh Ruth, a minor. Burchfield, Mara’s primary caregiver, filed a motion in the Lowndes County Chancery Court for modification of child support wherein she requested that Ruth’s monthly child support payments be increased. Burchfield also requested reasonable attorney’s fees. Thereafter, Ruth filed a response and counterclaim wherein he sought primary custody. The Lowndes County Chancery Court granted Burchfield’s request to increase Ruth’s child support payments but denied her request for attorney’s fees. The chancery court also declined to modify custody. Aggrieved by the chancellor’s findings, both parties now appeal. In his appeal, Ruth asserts: (1) that the chancellor erred in failing to find that a material change in circumstances has occurred that adversely affects Mara which requires a change in custody and (2) that the chancellor erred in finding that a material change in circumstances exists which warrants an increase in his child support payments. In her cross-appeal, Burchfield asserts that the chancellor erred in failing to award her attorney’s fees.

¶ 3. -Finding no reversible error, we affirm on both direct and cross-appeal.

FACTS

¶ 4. Mara was born on October 31, 1998. Ruth and Burchfield never married; however, paternity was established in 1999. At that time, Ruth was ordered to make monthly child support payments of $367.03, and he voluntarily began providing medical and dental insurance for Mara. Then, in May 2007, Burchfield filed a motion for modification of child support wherein she asserted that Mara’s financial needs had “materially increased.” Burch-field also requested that the court award her attorney’s fees. Shortly thereafter, Ruth filed a response and counterclaim for modification wherein he sought primary custody of Mara based on his contention that a material change in circumstances had occurred that had adversely affected Mara in the following ways: (1) that Mara had not been properly supervised while in Burchfield’s primary care, (2) that Burch-field was not properly addressing Mara’s educational needs, and (3) that Mara had been exposed to conduct that was detrimental to her moral upbringing. A hearing was held in August 2007. We briefly summarize the testimony as it relates to the issues raised by Ruth.

¶ 5. In his motion, Ruth argued that Burchfield had not exercised good judgment in selecting babysitters for Mara, namely Christian Alexa Burchfield (Lexie), Burchfield’s daughter from a previous relationship, and Kim Brasfield. Burchfield testified that she did not see any problem with Lexie baby-sitting Mara, even though Lexie was only twelve years old, because Lexie was “very mature” for her age.

¶ 6. However, Burchfield expressed regret for continuing to allow Kim to babysit Mara after learning that Kim and Burchfield’s twenty-year-old son, Hunter, who lived in her home at the time, had become involved in an inappropriate relationship. Burchfield admitted that, prior to learning of the relationship, she had allowed Kim to stay overnight at her home to baby-sit Mara while Hunter was also in the home. However, Burchfield stated that after she learned of the relationship, Kim was no longer allowed to stay overnight at her home. Nevertheless, Burch-field testified that she continued to allow Kim to baby-sit Mara for another two to three weeks. Burchfield testified that she should have fired Kim immediately upon learning of the inappropriate behavior.

¶ 7. As for Ruth’s contention regarding Mara’s educational needs, the testimony reveals that Mara has struggled constantly with her schoolwork. Specifically, Mara’s kindergarten teacher recommended that she be held back but agreed to reconsider her position, provided that Mara showed signs of improvement by the start of the following school year. Burchfield testified that Ruth did not want Mara to be held back and that Ruth stated that it would be an embarrassment to his wife, Tracey, who taught at Mara’s school. Burchfield stated that she and Tracey worked with Mara throughout the summer and that Mara was able to move on to the first grade as scheduled. Burchfield testified that Mara continued to be tutored by family members and Tracey during Mara’s first-grade school year, but Burchfield also stated that she did not seek assistance for Mara the following school year because, as far as she knew, Mara was progressing according to schedule. According to Burchfield, she was under the impression that Tracey was continuing to help Mara once a week when Mara went home with Tracey after school.

¶ 8. Ruth testified that he is actively involved in Mara’s academics. He stated that he asked Tracey to communicate with Mara’s teachers since she works at Mara’s school. Ruth stated that he helps Mara with her schoolwork as much as he can but that he often defers to Tracey, since she is a teacher. Ruth acknowledged that he did not want Mara to be held back when she was in kindergarten because he thought that Mara has the ability to learn, even though she may do so at a slower pace than other students. Ruth testified that since Mara first began having problems in kindergarten, he would beg Burchfield to “tell [him] what’s going on.” According to Ruth, he expressed an interest in trying to obtain primary custody of Mara when she was a little over a year old but decided not to after being informed by his attorney that he would be fighting an uphill battle.

¶ 9. Ruth’s contention as it relates to Mara’s moral upbringing centers around certain conduct that he contends Mara has been exposed to while in Burchfield’s primary care, such as Hunter’s use of marijuana while living in Burchfield’s home and Burchfield’s allowing men to stay overnight while Mara is present.

¶ 10. Burchfield testified about when she first became aware that Hunter was using marijuana while he lived in her home. She stated that she confronted Hunter about it and that he denied it. Burchfield testified that, despite his denial, she “got on to him” anyway and informed him that she would not allow him to use marijuana around the children. She testified that sometime thereafter she confronted Hunter again about his marijuana use and that he got upset and moved out of the house, only to return within approximately two to three weeks. Burchfield also stated that Hunter was not living with her at the time of the hearing, as he had recently moved out.

¶ 11. As for Burchfield’s response to Ruth’s assertion that she allowed men to stay overnight while Mara was present, Burchfield testified that she has had two boyfriends over the past two or three years, not including her current boyfriend. Burchfield testified that her current boyfriend has never spent the night at her house. However, she admitted that in the past, she has allowed men to stay overnight at her home. She also admitted that she had had sexual relations with a man that she allowed to stay overnight while her children were in the home. However, Burchfield stated that they did so in the privacy of her bedroom with the doors locked. She also stated that the children were usually asleep by the time she and the gentleman retired for the night and that he would usually leave for work before the children awoke.

¶ 12. Following the hearing, the chancellor issued an opinion and final judgment wherein he concluded that it would be in Mara’s best interest to remain in her mother’s primary care. The chancellor also increased Ruth’s monthly child support payments, finding that Mara’s financial needs have increased. The chancellor denied Burchfield’s request for attorney’s fees.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 14. It is well settled that “[i]n a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (citing Hensarling v. Hensarling, 824 So.2d 583, 587(¶8) (Miss.2002)). Further, the Mississippi Supreme Court has held that “[t]he burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.” Id. (citing Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996)). Additionally, the Mabus court made clear that in modifi cation proceedings the movant must also show: “(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Id. (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992)).

¶ 15. Ruth argues that the chancellor erred in failing to modify the original custody order to award him primary custody of Mara. Ruth’s assertions are based on two major points: that Burchfield has failed to provide Mara with proper supervision, causing her to be exposed to circumstances that could have an adverse effect on her, and that Mara’s educational needs are not being met.

¶ 16. To support his argument that Mara is not receiving proper supervision, Ruth asserts that since the initial custody order was entered, there have been instances when Mara was not properly supervised. The chancellor noted that Ruth only pointed to one instance when Mara was unsupervised: an instance when Lexie slept late instead of watching Mara while Burchfield was at work, thereby leaving Mara to fend for herself. The testimony revealed that Mara passed the time by making herself breakfast and by watching television. The chancellor then concluded that “there was no showing that the mental and emotional well-being of Mara was in danger.”

¶ 17. We cannot conclude that the chancellor’s decision, as it relates to this issue, is manifestly wrong or clearly erroneous. Furthermore, there is nothing in the record which indicates that the chancellor applied an improper legal standard. Accordingly, we have no authority to reverse his decision. This issue lacks merit.

¶ 18. Ruth also asserts that while under Burchfield’s primary care, Mara was exposed to immoral conduct because of the inappropriate activity that Burchfield allowed to transpire at her home. In his brief, Ruth states that “the drug use at the home and the sexual activity between a male of legal age and an underage female in the presence of the child, constitutes illegal and dangerous activities.” Ruth argues that the chancellor erred in not giving more weight to these concerns during his analysis of the Albright factors. We note that the chancellor addressed the issues raised by Ruth regarding Mara’s supervision and Burchfield’s lack of judgment, stating:

There was no proof that these incidences resulted in any adverse effect upon the child whatsoever even though the possibility existed. The Court would be more concerned about these activities if Mother had completely shirked her parental responsibility of care and supervision. She did provide the basics and also did make the effort to put supervisory safeguards in place. The argument should be whether or not they were capable of and did put the child at unnecessary risk. The Court cannot reach that conclusion. Also, from the testimony, both the teenaged son and the girlfriend/babysitter no longer are present and the potential for adverse effect has been removed.
There was no specific proof about Father’s parenting skills other than he was active about the school and health issues of the child and responded to these quickly. As far as the day-to-day activities, the Court must conclude that there are no prohibitions or concerns about Father’s parenting skills. For the reasons stated, Father would be slightly favored.

According to Ruth, the chancellor is not obligated under the law of this state to wait until Burchfield’s actions negatively affect Mara before modifying custody and cites C.A.M.F. v. 972 So.2d 656 (Miss.Ct.App.2007) for this proposition. In C.A.M.F., this Court affirmed the chancery court’s decision to change primary custody of a minor child from the mother to the father. Id. at 658(¶ 3). In C.A.M.F. there was testimony that the mother’s husband had taken nude photographs of the child when the child was approximately six years old, often walked around the house naked, had “repeatedly exposed himself to neighbors, relatives, and babysitters,” and had been physically abusive toward the mother in the child’s presence. Id. at 659 (¶¶ 6-9). We concluded that the chancellor properly considered the factors set forth in Mabus and that the chancellor did not err in finding that “while the ‘substantial and material change in circumstances may not have at this time adversely affected the child, ... this Court is not obligated to wait until such adverse change has occurred.’” Id. at 661(¶ 19) (citation omitted).

¶ 19. Ruth also cites Riley, 677 So.2d at 744 for the proposition that “[e]vidence that the home of the custodial parent is the site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare.” In Riley, the Mississippi Supreme Court affirmed a chancellor’s decision to transfer custody of a minor child, Desiree, from the mother, Connie, to the father, Billy, even though the chancellor concluded that the father had not met the test for modification. Id. at 745. Our supreme court found that:

[0]nce the chancellor determined that Connie’s home was the site of illegal drug use, as well as other behavior adverse to Desiree’s welfare, and determined that Billy’s circumstances had improved such that he was able to provide a good home for Desiree, it was within his discretion to transfer her custody from Connie to Billy, despite the fact that he could not discern any negative effect on Desiree caused by Connie’s home environment.

Id. at 744. Further, our supreme court stated the following:

It is evident from the chancellor’s comments that he felt constrained by doctrine developed by this Court concerning custody modification from doing what he thought was best for Desiree: transferring her custody from Connie to Billy. The chancellor stated that there was “absolutely no question that ... it would be in the best interest of this child to live with her father,” but that this Court “puts the child’s best interest third and not first or second” in our test for custody modification. Since he could find no change in circumstances, the first element of the test, nor an adverse effect on Desiree, the second element of the test, the chancellor concluded that he was powerless to consider whether a change in custody was in Desiree’s best interest — the third element of the test for modification. We understand and appreciate the chancellor’s adherence to the test we have articulated. However, we take this opportunity to clarify that a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else.

Id.

¶ 20. While this Court in no way makes light of Burchfield’s actions, we note that our facts do not compare to what transpired in either C.A.M.F. or Riley; thus, we find both cases distinguishable from our case. Furthermore, we note at the outset that the issues raised by Ruth regarding conduct that Mara has been exposed to while in Burchfield’s primary care are moot. We agree with the chancellor that the potential for Mara to be adversely affected has been removed based on Burchfield’s testimony that Kim no longer baby-sits Mara, and Hunter no longer lives in her home. Notwithstanding our conclusion that this issue is moot, we point out that, pursuant to the law of this state, the chancellor was not required to wait for proof that Burchfield’s actions had adversely affected Mara. Nevertheless, we affirm the chancellor’s decision as we note, as did he, that Burchfield has removed the conditions that could have arguably had an adverse effect on Mara had they been allowed to continue. Therefore, we find no merit to this issue.

¶ 21. Ruth also contends that the chancellor erred in increasing his monthly child support payments to $500. It is well settled that “[t]he burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties, whether it be the father, mother, or the childfren), arising subsequent to the original decree.” McEachern v. McEachern, 605 So.2d 809, 818 (Miss.1992) (citing Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986)). “The change must occur as a result of after-arising circumstances of the parties, not reasonably anticipated at the time of the agreement.” Evans v. Evans, 994 So.2d 765, 770(¶ 16) (Miss.2008) (citing Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990)). Chancellors should consider the following factors when determining whether a modification in child support is warranted:

(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence.

Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991) (quoting Adams v. Adams, 467 So.2d 211, 215 (Miss.1985)).

¶ 22. In 1999, Ruth was ordered to pay $367.03, which represented 14% of his adjusted gross income at that time. On appeal, Burchfield argues that Mara’s needs have increased, as she is now involved in extra-curricular activities, namely, softball and cheerleading. Burchfield testified that she needs additional money to pay for Mara’s uniforms, cheerleading camp, and for gasoline to get Mara to and from cheerleading and softball-related events.

¶23. Our review of the record leads us to conclude that the chancellor’s decision to increase Ruth’s child support obligation was supported by substantial, credible evidence. The chancellor stated the following in his opinion and final judgment:

The Court finds that Mother has met her burden of proof and has shown that there has been a material change in circumstances since the entry of the original decree. That is, the needs of Mara have increased and the income of Father has increased as well. Therefore, using $42,993.12 as Father’s current annual adjusted gross income, which includes deductions of mandated child support for another child, and applying the statutory guideline percentage of 14%, Father shall pay Mother $500.00 in monthly child support beginning November 1, 2007, and continuing on the first day of each month thereafter.

Ruth cites Pierce v. Chandler, 855 So.2d 455, 458(¶ 12) (Miss.Ct.App.2003), wherein this Court held that “age alone does not constitute a material change in circumstances.” We note at the outset that Pierce involved modification of custody, rather than a modification of child support. Nevertheless, we recognize that in both instances the chancellor is required to find that a material change in circumstances has occurred prior to making a modification. As evidenced by the statement quoted above, the chancellor not only considered the fact that Mara was getting older as a reason to increase Ruth’s child support payments, but he also noted that Ruth’s income had increased since the original order. It is well settled in this state that an increase in income constitutes a material change in circumstances. Our supreme court stated the following in Edmonds v. Edmonds, 935 So.2d 980, 987(¶ 19) (Miss.2006):

Our Courts have found the modification of a child support award (both an increase and reduction) to be warranted on a number of grounds. See Parker v. Parker, 645 So.2d 1327 (Miss.1994) (affirming reduction in support because father’s loss of income due to loss of job was a substantial and material change in circumstances); Setser v. Piazza, 644 So.2d 1211 (Miss.1994) (finding father’s support obligation should have been abated due to material change in circumstance where hurricane destroyed his home and his truck and trailer needed for his job); Edwards v. Edwards-Barker, 875 So.2d 1126 (Miss.Ct.App.2004) (affirming increase in support where evidence showed that costs of supporting children had increased as they got older and father was making more money than at time of divorce).

¶ 24. We cannot conclude that the chancellor’s decision was manifestly wrong or clearly erroneous, nor can we say that an incorrect legal standard was applied. Therefore, we find no merit to this issue.

¶ 25. In her cross-appeal, Burch-field argues that the chancellor erred in failing to grant her request for attorney’s fees. In Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (citing Cumberland v. Cumberland, 564 So.2d 839, 844 (Miss.1990)), the Mississippi Supreme Court stated that “[t]he standard for an award of attorney[’s] fees on a motion for modification of support is basically the same as that applied in an original divorce action.” The court further held that “[a]ttorney[’s] fees are not awarded in child support modification cases unless the party requesting fees is financially unable to pay them.” Id.

¶ 26. The record reflects that when asked whether she had money to retain an attorney, Burchfield responded by saying, “[n]o, not really. No, sir.” Nevertheless, the chancellor declined to grant her request for attorney’s fees and concluded that “[o]ther than Mother’s testimony that she could not pay, there was no proof otherwise. The Court notes that she is employed at a good job, has assets and child support from two sources. She also has equity in her home.” The chancellor denied Burchfield’s request for attorney’s fees after thoroughly considering whether she was financially able to pay them. Thus, we cannot second-guess the chancellor’s determination. Accordingly, we find no merit to this issue.

¶ 27. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPEL-LEE.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS AND BARNES, JJ., CONCUR. MAXWELL, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J. ROBERTS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting.

¶28. I respectfully dissent. The majority distinguishes this case from the precedents of C.A.M.F. v. J.B.M. 972 So.2d 656 (Miss.Ct.App.2007) and Riley v. Doerner, 677 So.2d 740 (Miss.1996). These cases stand for the proposition that where evidence exists to show criminal or immoral conduct in the home of the custodial parent such as drug use or nudity, then such evidence may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare.

¶ 29. The majority finds that the conduct in this case does not compare to what transpired in C.A.M.F. or Riley. The majority also finds that the conduct that the child was exposed to is now moot. I respectfully disagree and would remand the case for the chancellor to reconsider the Albright factors in light of the Riley exception and the potentially criminal conduct in this case.

¶ 30. Traditionally, Mississippi law has held that a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody. Riley, 677 So.2d at 744. The Riley court created a narrow exception to this principle. The Riley exception applies “if the custodial parent’s home environment is found to be contrary to the child’s best interest and the non-custodial parent’s home environment has improved and surpassed that of the custodial parent, so that it is now in the child’s best interest to live with the non-custodial parent.” Lewis v. Lewis, 974 So.2d 265, 267-68(¶ 15) (Miss.Ct.App.2008).

¶ 31. Steve Ruth and London Suzette Burchfield were not married when paternity of their child was established in 1999. At that time, the court ordered child support, and Burchfield was awarded physical custody of the child with the parents sharing joint legal custody. In considering the present matter, the chancellor found no material change in circumstances, but he still conducted an Albright analysis. In the record before the Court, Burchfield admitted that she allowed her twelve-year-old daughter to baby-sit the child on a recurring basis. This included all-day supervision during the summer. Such circumstances could be viewed as child neglect depending on the length of time the child was left in the twelve-year-old’s care. Nonetheless, Burchfield defended her choice of this youthful supervision by claiming that her twelve-year-old daughter was very mature.

¶ 32. Then Burchfield also admitted that her other babysitter, age fifteen, engaged in an inappropriate relationship with Burchfield’s twenty-year-old son. Therefore, the sexual relationship between the two was more than inappropriate. The babysitter, age fifteen at the time of the sexual relationship, was not of age to consent to such sexual relations. The relationship was potentially criminal. The record shows that Burchfield expressed regret for continuing to allow the fifteen-year-old babysitter to continue to baby-sit the child after she discovered the sexual relationship. No evidence in the record reflects that Burchfield ever reported this behavior, whether labeled as an inappropriate sexual relationship, statutory rape, or fondling of a child under the age of sixteen, to the babysitter’s parents, to the Mississippi Department of Human Services, or to other authorities. She simply fired the babysitter after another two or three weeks of baby-sitting.

¶ 33. Burchfield also admits she discovered that her twenty-year-old son had used marijuana in her home. She testified that after she confronted him about his marijuana use, he moved out of the home, only to return within several weeks. The son was not living with Burchfield at the time of trial. The majority finds the immoral conduct of Burchfield’s son is now moot. I respectfully submit that the son’s use of an illegal drug constitutes not just immoral behavior, but also criminal behavior. Such circumstances could fall within the scope of child endangerment, depending on the facts.

¶ 34. Additionally, I do not find that the son’s behavior and influence is now moot. Nothing prohibits him from moving back into his mother’s home or from visiting, thereby exposing the child to his conduct. The record contains no evidence of any steps Burchfield has taken to restrain her son from returning to the home or to rehabilitate him. Burchfield has also shown an inability or unwillingness to report her son’s illegal behavior to authorities.

¶ 35. In sum, I find the criminal conduct and lack of supervision in Burchfield’s home dispositive in finding that the chancellor abused his discretion when he determined the custody issue in this case. Therefore, I would remand this case to the chancellor for reconsideration of the custody issue. On remand, I would direct the chancellor to reconsider the criminal acts of Burchfield’s son that occurred in Burch-field’s home and the lack of appropriate supervision provided to the child in light of the Albright factors and the Riley exception.

ISHEE, J., joins this opinion.

      . Lexie was twelve years old at the time that Burchfield allowed her to supervise Mara, and Kim was fifteen years old when she supervised Mara.

      . Mara testified that there were times when Kim stayed overnight in Hunter's room. She also testified that she had witnessed Kim enter the bathroom when Hunter was already inside.

      . Shortly after Mara began her first-grade year, her first-grade teacher, Pam Cobb, discussed with Ruth, Tracey, and Burchfield putting Mara back in kindergarten. Cobb testified that Burchfield expressed to her that she was willing to do whatever would be most beneficial to Mara; however, according to Cobb, Ruth stated that he wanted Mara to remain in the first grade and stated that he would get a tutor for her. Cobb stated that she worked one-on-one with Mara extensively and that Tracey helped with Mara as well. Cobb noted that Mara completed the first grade.

      .Mara's second-grade teacher testified that although she communicated with Burchfield about Mara’s status, Tracey was the primary person that she spoke with regarding Mara’s progress.

      . In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court established a list of factors that chancellors must consider when determining which parent should be awarded primary custody of a child.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

      . It does not appear from the record that the chancellor conducted an Albright analysis when Burchfield was awarded physical custody of the child in 1999.

      . See Miss.Code Ann. § 97 — 5—39(l)(b) (Rev. 2006) ("If the child’s deprivation of necessary ... supervision appropriate to the child's age results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment for not more than five ... years or to payment of a fine of not more than ... $ 5,000.00 ..., or both.”).

        .See Miss.Code Ann. § 97-3-65(1) (Supp. 2009) (“The crime of statutory rape is committed when: (a) Any person seventeen ... years of age or older has sexual intercourse with a child who: (i) Is at least fourteen ... but under sixteen ... years of age.”); Miss. Code Ann. § 97-5-23(1) (Rev.2006) ("Any person above the age of eighteen ... years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen ... years, with or without the child's consent ... shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than ... $ 1,000[ ] ... nor more than ... $ 5,000[] ..., or be committed to the custody of the State Department of Corrections not less than two ... years nor more than fifteen ... years, or be punished by both such fine and imprisonment, at the discretion of the court.").

      . See Miss.Code Ann. § 97-5-39(2)(b)(i) (Rev.2006) ("A parent, legal guardian or caretaker who endangers a child’s person or health by knowingly causing or permitting the child to be present where any person is selling, manufacturing or possessing immediate precursors or chemical substances with intent to manufacture, sell or possess a controlled substance as prohibited under Section 41-29-139 or 41-29-313, is guilty of child endangerment and may be sentenced to imprisonment for not more than ten ... years or to payment of a fine of not more than ... $10,000[] ..., or both.”).

      . See Weeks v. Weeks, 989 So.2d 408, 412-13 (¶¶ 17-18) (Miss.Ct.App.2008) (finding that the chancellor properly considered in her Al-bright analysis the violent behavior of the mother's boyfriend and the overall environment of the mother's home when she awarded physical custody of the child to the father); Powell v. Powell, 976 So.2d 358, 362 (¶¶ 17-18) (Miss.Ct.App.2008) (reversing and remanding on child custody issue so the chancellor could reconsider the Albright factors in light of the totality of the circumstances when the chancellor failed to consider the rape of one of the two children and the mother’s failure to obtain counseling for this child, as well as the overall unstable home environment which the mother provided).