author: WILSON, J., FOR THE COURT: GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    William Tracy DIXON, Appellant v. Sandra Michelle DIXON, Appellee
    NO. 2016-CA-00997-COA
    Court of Appeals of Mississippi.
    February 6, 2018
    ATTORNEY FOR APPELLANT: J. EDWARD RAINER
    ATTORNEY FOR APPELLEE: RANCE N. ULMER
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. William Tracy Dixon (Tracy) filed a motion (1) to terminate or modify his duty to pay alimony to his ex-wife Sandra Michelle Dixon (Michelle) and (2) to terminate his duty to pay child support for his daughter Amanda, whom he alleged was emancipated because she was cohabiting with her boyfriend. The chancellor found that Amanda was not emancipated and that Tracy was not entitled to any modification. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Michelle and Tracy married in 1992 and had twin girls, Ashton and Amanda, in 1996. They separated and divorced in 2012. The divorce decree granted Michelle physical custody of their daughters with joint legal custody and liberal visitation for Tracy. Tracy was ordered to pay child support of $770 per month to Michelle and to pay other specified expenses, including private school tuition. Tracy was also required to maintain health insurance for his daughters and pay two-thirds of their non-covered medical expenses. Finally, Tracy was ordered to pay Michelle $2,000 per month in permanent periodic alimony.

¶ 3. On September 16, 2014, Tracy filed a complaint to modify his child support and alimony obligations. He alleged that there had been material changes in circumstances since the divorce judgment was entered in that Amanda and Ashton had graduated from high school and moved out of Michelle's home, Amanda was cohabiting with her boyfriend, Ashton was attending community college on a softball scholarship, and Michelle's income had increased so that she could "support herself." Tracy asked the court to declare Amanda emancipated and to terminate his obligation to pay child support for her, to permit him to pay Ashton's child support directly to her, and to terminate or decrease his obligation to pay alimony to Michelle.

¶ 4. On January 29, 2015, the court held a hearing on the issues of emancipation and child support. Amanda testified that, over both of her parents' objections, she moved in with her boyfriend, Will, after she graduated from high school in May 2014. Will bought a car for her to use and began paying for her cell phone. Amanda was on scholarship at Jones County Junior College (JCJC) and was studying to be a nurse practitioner. However, she testified that she still relied on her mother for support. Her mother bought her clothes, bought her lunch or dinner two or three times a week, and gave her money for gas. Amanda also testified that she would need more help from her parents after she transferred to the University of Southern Mississippi.

¶ 5. Amanda testified she had a good relationship with her father until she told him that she planned to attend JCJC and did not want to play softball anymore. Tracy wanted her to play softball with her sister on a scholarship at Southwest Mississippi Community College, and they "had a big argument" about it. They argued again in May 2014 when Amanda told Tracy that she was moving in with Will, and they had visited only once since. However, Amanda testified that she loved her father and desired to have a relationship with him.

¶ 6. Michelle testified that she still bought Amanda meals and clothes and still gave her money for gas. Michelle also testified that she regularly gave Ashton cash or transferred money to her checking account. Ashton was on scholarship at Southwest but intended to transfer to JCJC and move back in with Michelle at the end of the school year. Michelle testified that her daughters both kept clothes at her house and could move back into their rooms at any time.

¶ 7. Tracy testified that he wanted to mend his relationship with Amanda, but she had ignored his many phone calls, texts, and invitations. He testified that he visited with Ashton regularly, bought her meals, and gave her money for gas. He also testified that he was current on his child support and alimony obligations.

¶ 8. At the conclusion of the hearing, the chancellor (1) denied Tracy's request to declare Amanda emancipated; (2) declined to terminate Amanda's child support under Hambrick v. Prestwood , 382 So.2d 474 (Miss. 1980) ; and (3) denied Tracy's request to permit him to pay Ashton's child support to her directly.

¶ 9. The next hearing in the case was held one year later on January 26, 2016. In the interim, Tracy's income decreased, and he was laid off of work on August 12, 2015. Tracy then unilaterally reduced his alimony payments, eventually stopped paying alimony altogether, and also fell behind on his child support payments. In response, Michelle served Tracy with a complaint for contempt. Michelle failed to file the complaint until the day of the hearing, but Tracy did not object to proceeding on the issue of contempt. Indeed, Tracy's attorney told the court that the issues of contempt and modification should "both be tried at the same time" because both involved "the same evidence," i.e., Tracy's ability to pay.

¶ 10. At the time of the parties' divorce, Tracy was employed by Weatherford Fishing and Rental as a fishing tool supervisor with a total monthly income of $18,516 and a net monthly income of $13,054. Tracy testified that by May 2015, the number of active oil and gas rigs had fallen off dramatically, and his monthly income had decreased to $6,218 (total) and $4,974 (net) due to a loss of bonus pay. Then, on August 12, 2015, Tracy was laid off by Weatherford with five weeks of severance pay. After he was laid off, Tracy went to work for his neighbor as a carpenter, and his monthly income decreased further to $2,880 (total) and $2,319 (net). Tracy testified that there had been numerous layoffs in the local oil industry, and he claimed that no one in the industry was hiring. Tracy also testified that he had cashed out his 401(k) account to pay debts and to continue to pay for insurance and that he was no longer able to pay his alimony and child support obligations. He had not made his full alimony payment in a year, he had not paid any alimony in over six months, and he was three months behind on his child support payments.

¶ 11. Tracy testified that First Financial Bank had approved him for a $1,400,000 loan to build chicken houses and begin operations in the poultry business. In his deposition, he testified that he did not want to go back to work in the oil industry, that he preferred his work as a carpenter, and that he would not take a job in the oil industry if it was offered to him. He acknowledged that he had worked in the oil industry for twenty years and knew all along that was an "up and down" business.

¶ 12. Tracy also admitted that he received $49,276 when he cashed out his retirement account, but he did not use any of the money to pay child support or his alimony arrearage. Instead, he used the money to pay other debts, including a $19,731 loan on his camper, a $9,172 loan on his Polaris Ranger utility vehicle, and credit card debt. He also used the money to pay for his current wife's car tag, to pay his current wife's OB-GYN, and to pay for renovations to his home and furniture for a new nursery.

¶ 13. As of January 2016, Michelle was employed as a secretary with a gross monthly income of $2,000 and net monthly income of $1,606. She owned a home with an estimated value of $135,000 and a $96,000 mortgage. She had a retirement account with a balance of $130,440. She testified that she had to take out a loan to pay her attorney and had incurred credit card debt to help her daughters pay expenses. Ashton had moved back in with Michelle in May 2015, and Amanda had transferred to USM and moved to Hattiesburg. Michelle testified that Amanda went out to eat with Tracy or visited him at his house a couple of times a month in addition to talking to him on the phone and texting with him. Finally, Michelle testified that, as of the hearing, Tracy's total alimony arrearage was $22,644.63, and his total child support arrearage was $2,968.

¶ 14. At the conclusion of the hearing, the chancellor announced his ruling from the bench. He first observed that "the entire case ha[d] changed since the time [Tracy's motion to modify child support and alimony] was filed" in September 2014. Tracy's motion addressed Michelle's increased income and alleged ability to support herself and Amanda's cohabitation with her boyfriend. Tracy's loss of income and employment occurred months later. The chancellor also explained that because Tracy was behind on child support and alimony, the court first had to "resolve this issue of whether or not [Tracy was] in contempt" and "how [he could] purge himself." As the chancellor put it, Tracy had "to wash his hands" before he could obtain any modification.

¶ 15. The chancellor found that Tracy's total arrearage (alimony and child support) was $25,612.63. He then stated that he was "going to ... fashion a remedy" that he thought would be fair and equitable, although he "assure[d]," "guarantee[d]," and "promise[d]" the parties "that the Court of Appeals [would] reverse" it. The chancellor ruled that Tracy could purge himself of contempt by paying $12,800 of the arrearage at a rate of $500 per month, beginning February 1, 2016. The chancellor then reduced Tracy's child support to $464 per month, suspended his obligation to pay alimony (other than the arrearage) for one year, and reduced alimony to $750 per month effective February 1, 2017. Finally, the chancellor awarded Michelle attorney's fees of $1,250 based on Tracy's contempt.

The chancellor's rulings were memorialized in a final judgment of contempt and modification entered February 10 nunc pro tunc January 26, 2016.

¶ 16. Tracy then hired a new lawyer and filed a "Motion for Reconsideration, Correction of Judgment, or, in the Alternative, a New Trial." On March 30, 2016, the court entered a "Post-Trial Order" granting Tracy a "new trial" on the issues of contempt, his arrearage, alimony, and attorney's fees. However, the order did not address the merits of those issues, and no "new trial" was held. The chancellor later explained that he signed the "Post-Trial Order" granting a "new trial" in error. He did not intend to grant a new trial, as the case had been tried fully, the parties had ample opportunity to present evidence on all issues, and no new or additional evidence was necessary. The chancellor only intended to reconsider his prior findings and rulings in an amended final judgment.

¶ 17. On May 9, 2016, the court entered a detailed "Revised and Amended Opinion of the Court." The court's revised opinion again found that Tracy was in contempt for not paying alimony and child support. The court emphasized Tracy's failure to use any of the $49,276 that he withdrew from his retirement account to pay down his arrearage. The court noted that Tracy used some of those funds to pay off a loan on his Polaris Ranger, which he still owned and valued at $13,000. The court further noted that Tracy had been approved for a $1,400,000 loan to start a poultry business. The court found that Tracy had funds available to pay alimony and child support "irrespective of any reduction in his salary" but "chose not to do so." Therefore, he was "in willful, contumacious contempt of court."

¶ 18. The court then ruled that Tracy could purge himself of contempt by paying Michelle (a) $13,000 of his arrearage by May 20, 2016, which he could do "by selling or pledging his unencumbered Polaris Ranger"; (b) the balance of the arrearage ($12,612.63) by August 1, 2016; and (c) attorney's fees of $2,500 for his contempt. The court further found that Tracy had "unclean hands" and was not entitled to any modification of alimony or child support until he purged himself of his contempt. Finally, the court found that Tracy was not entitled to a modification for the additional reason that there had "been no unanticipated substantial and material change in circumstances." On May 24, 2016, the court then entered an amended final judgment of contempt and modification, which summarized and implemented the rulings in the court's revised opinion.

¶ 19. Tracy again hired a new lawyer and filed a motion attacking the revised opinion and amended final judgment. The court denied Tracy's motion on July 5, 2016, and Tracy filed a timely notice of appeal. On appeal, he alleges that the chancery court erred by finding that Amanda should not be emancipated, by not reducing his child support, and by not terminating his alimony. He also alleges that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure-specifically, Rule 59(d)-by entering a revised opinion and amended final judgment. We address these issues in turn below. We find no reversible error and affirm.

ANALYSIS

¶ 20. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus , 890 So.2d 806, 810 (¶ 14) (Miss. 2003). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. at 819 (¶ 53). "However, on issues of law, our standard of review is de novo." Stroh v. Stroh , 221 So.3d 399, 406 (¶ 17) (Miss. Ct. App. 2017).

I. The chancellor did not abuse his discretion by finding that Amanda was not emancipated.

¶ 21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda's cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy's obligation to pay child support for her. We disagree.

¶ 22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, "emancipation shall occur when the child" turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years' incarceration. Miss. Code Ann. § 93-11-65(8)(a) (emphasis added). In contrast, section 93-11-65(8)(b) provides that a "court may determine that emancipation has occurred and no other support obligation exists when the child," inter alia , "[c]ohabits with another person without the approval of the parent obligated to pay support." Id. § 93-11-65(8)(b)(iii) (emphasis added). "A basic tenet of statutory construction is that 'shall' is mandatory and 'may' is discretionary." Khurana v. Miss. Dep't of Revenue , 85 So.3d 851, 854 (¶ 9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips , 858 So.2d 110, 115 (¶ 15) (Miss. 2003) ). Thus, subparagraph (8)(b)(iii) applies in this case, but it did not require the chancellor to declare Amanda emancipated or terminate child support for her. Rather, this provision merely gave the chancellor discretion . See Wesson v. Wesson , 818 So.2d 1272, 1282 (¶ 25) (Miss. Ct. App. 2002) (discussing the chancellor's "discretionary decision concerning ... emancipation"); Deborah H. Bell, Mississippi Family Law § 13.09[2], at 452 (2d ed. 2011) (explaining that in circumstances enumerated in subsection (b) "a court has discretion to determine that a child is emancipated").

¶ 23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle's support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams , 723 So.2d 1175, 1178-79 (¶¶ 12-14) (Miss. Ct. App. 1998) (affirming the chancellor's discretionary ruling that child was not emancipated where child was "unable to support himself independently" and desired to attend college but needed help with college expenses).

II. The chancellor did not abuse his discretion by declining to modify child support or by declining to modify or terminate alimony.

¶ 24. Tracy next argues that the chancellor erred by not reducing child support and by not terminating alimony based on his job loss and decreased income. As discussed above, the chancellor's revised opinion and amended final judgment gave two reasons for denying Tracy's requests to modify child support and terminate or modify alimony: (1) Tracy had "unclean hands" and (2) Tracy failed to prove a material and unanticipated change in circumstances. We address these issues in turn.

¶ 25. The chancellor ruled that Tracy had "unclean hands" and was "not entitled to any relief" due to his "willful, contumacious contempt of court"-in particular, his failure to pay any alimony from the $49,276 that he spent from his 401(k). While the chancellor's finding of contempt is supported by ample evidence, the chancellor erred to the extent that he found that Tracy's contempt barred his request for modification. Tracy certainly came into court with unclean hands because he was in arrears and failed to prove that he had paid Michelle all that he could. See Kincaid v. Kincaid , 213 Miss. 451, 456, 57 So.2d 263, 265 (1952) (holding that a payor in arrears may not obtain a modification unless he proves that "performance has been wholly impossible," and that "he earned all he could, ... lived economically and paid all surplus" to the payee). "However, the entry of a judgment for arrearages cleanses the payor's hands" and allows the chancellor to review the merits of the payor's request for modification. Lewis v. Pagel , 172 So.3d 162, 176 (¶ 32) (Miss. 2015) (citing Lane v. Lane , 850 So.2d 122, 126 (¶ 12) (Miss. Ct. App. 2002) ); accord, e.g. , McDonald v. McDonald , 39 So.3d 868, 879-80 (¶ 34) (Miss. 2010) ; Andres v. Andres , 22 So.3d 314, 320-21 (¶¶ 28-29) (Miss. Ct. App. 2009) ; Howard v. Howard , 968 So.2d 961, 976 (¶¶ 36-37) (Miss. Ct. App. 2007). Therefore, the chancellor's entry of a judgment against Tracy for the full amount had the effect of cleansing Tracy's hands, and Tracy's request for modification was properly before the court.

¶ 26. As an alternative basis for his ruling, the chancellor also addressed the merits of Tracy's request for modification. As to both alimony and child support, a modification requires proof of a material and substantial change in circumstances since the date of the prior judgment. See McEwen v. McEwen , 631 So.2d 821, 823 (Miss. 1994) ; McKee v. McKee , 382 So.2d 287, 288 (Miss. 1980). In addition, the change in circumstances must be one that was not reasonably foreseeable at the time of the original judgment. See McEwen , 631 So.2d at 823 ; Tingle v. Tingle , 573 So.2d 1389, 1391 (Miss. 1990). The burden of proof is on the party requesting modification. See Adams v. Adams , 467 So.2d 211, 214 (Miss. 1985) ; McCraw v. McCraw , 759 So.2d 519, 521 (¶ 7) (Miss. Ct. App. 2000).

¶ 27. In his revised opinion and amended final judgment, the chancellor found that Tracy had not proven a substantial and material change in circumstances. Tracy acknowledged that he "knew at the time of [his] divorce" that the oil industry is "up and down"; he also testified that he expects that the industry "will go back up, and it will go back down again." Based on this testimony, the chancellor reasoned Tracy knew at the time of his divorce that he might be out of work for periods of time and later rehired. The chancellor also found that Tracy "has the earnings capacity to pay the alimony and child support previously" ordered by the court but that Tracy "chooses not to" pursue a new job in the oil industry. Tracy acknowledged that he testified in his deposition that if Weatherford offered him "the same job" he "just would not take it." The court also discussed that Tracy could have continued to pay alimony and child support had he used his savings for that purpose, rather than to pay off debt on his Polaris and "to enlarge his [own] home," among other things. In addition, the court discussed Tracy's ability to borrow $1,400,000 for his new poultry business.

¶ 28. Thus, there is evidence in the record to support the chancellor's finding that Tracy choose not to look for a new job in the oil industry. There is also evidence to support the chancellor's finding that Tracy chose to spend his savings on luxuries, his new home, and his new family rather than to meet his alimony and child support obligations. In addition, Tracy's poultry business was yet not in operation at the time of the chancellor's ruling, so Tracy's income from that business remained uncertain. Indeed, although Tracy had applied and been approved for a $1,400,000 loan to start the business, he claimed that he had no idea how much money he could expect to make. He testified that he had not investigated how much money he would make and could not hazard an estimate or a "guess." On this record, we cannot say that the chancellor abused his discretion or manifestly erred by finding that Tracy failed to prove a permanent reduction in his earning capacity or a material and substantial change in circumstances.

III. The chancellor did not exceed his authority by entering a revised opinion and amended final judgment.

¶ 29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy filed a "Motion for Reconsideration, Correction of Judgment, Or In The Alternative For New Trial." The chancellor then entered an order granting a "new trial," which did not address or rule on the merits of any of the issues in the case. Finally, without holding a "new trial" or hearing any additional testimony or evidence, the chancellor entered a revised opinion and amended final judgment, which is the subject of this appeal. Tracy argues that the chancellor's entry of a revised opinion and amended final judgment violated Rule 59(d), which provides as follows:

Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a "new trial"-either sua sponte or "for a reason not stated in [Tracy's timely] motion" for a new trial. Id. If the former, Tracy says that the chancellor violated Rule 59(d) by acting more than "ten days after entry of judgment." Id. If the latter, Tracy says that the chancellor violated Rule 59(d) by not "giving [him] notice and an opportunity to be heard." Id.

¶ 30. We conclude that Tracy has misinterpreted the case's procedural history and the chancellor's rulings. Tracy's "Motion for Reconsideration" primarily sought to alter or amend the judgment in various respects-he sought to change the final judgment based on the evidence already presented, not a "new trial." In fact, the motion's prayer for relief did not even mention a "new trial." Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.

¶ 31. Rule 59(e) simply provides that "[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment." M.R.C.P. 59(e). Interpreting the nearly identical federal rule, federal courts have held that "[a] judge may enlarge the issues to be considered in acting on a timely motion under Rule [59(e) ]." Charles v. Daley , 799 F.2d 343, 347 (7th Cir. 1986). The court may amend any part of the judgment, and the court is not limited to the grounds raised in the motion. EEOC v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120 , 235 F.3d 244, 250 (6th Cir. 2000). "The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial] court the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself." Varley v. Tampax Inc. , 855 F.2d 696, 699 (10th Cir. 1988) ; accord Bullock v. Buck , 611 Fed.Appx. 744, 746 n.2 (3d Cir. 2015) ("In ruling on a Rule 59(e) motion, a District Court is not limited to the grounds set forth in the motion itself."); Walker v. Walker , 216 So.3d 1262, 1272-74 (Ala. Ct. Civ. App. 2016).

¶ 32. We conclude that these decisions are consistent with our Supreme Court's recognition of a trial court's "broad[ ] discretionary authority under Rule 59(e) to grant relief."

Bruce v. Bruce , 587 So.2d 898, 904 (Miss. 1991). Our Supreme Court has held that "[w]hen hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio." Id. " Rule 59(e) provides the trial court the proverbial chance to correct its own error ...." Id.

¶ 33. Tracy's filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case "de novo, if not ab initio." Id. At that point, the chancellor had "the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself." Varley , 855 F.2d at 699. On appeal, we review the chancellor's amended final judgment on its own merits.

CONCLUSION

¶ 34. The chancellor did not abuse his discretion or manifestly err in finding that Amanda was not emancipated or in denying Tracy's request to modify his alimony and child support obligations. Nor did the chancellor exceed his authority by entering a revised opinion and amended final judgment.

¶ 35. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON AND FAIR, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., WESTBROOKS AND TINDELL, JJ.

GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 36. I concur with majority's resolution of Issues I and III. However, I disagree with the majority's conclusion upholding the chancellor's denial of Tracy's request to modify his alimony and child support obligations. Therefore, I respectfully dissent.

¶ 37. In Mississippi, it is well established that "[a]limony and child support obligations are subject to modification only where there has been a material change in the circumstances of one or more of the parties." Yancey v. Yancey, 752 So.2d 1006, 1009 (¶ 9) (Miss. 1999). Further, this "change must be the result of an after-arising circumstance not reasonably anticipated at the time the decree was entered." Id. at 1010 (¶ 19). Additionally, "[a] material change in the income and expenses of both parties should be considered in determining any modification of periodic alimony." Cockrell v. Cockrell, 139 So.3d 766, 770 (¶ 12) (Miss. Ct. App. 2014).

¶ 38. At the January 26, 2016 hearing, Tracy contended that a substantial and material change in circumstances had occurred because he had been laid off from his job in the oil industry on August 12, 2015, and Michelle was employed and fully capable of supporting herself. After the hearing, the chancellor issued a "Revised and Amended Opinion of the Court," denying Tracy's request for modification because Tracy had not shown a substantial and material change in circumstances since the divorce decree. The chancellor reasoned that: (1) Tracy's loss of employment was not unanticipated; (2) Tracy used his retirement on other things besides paying his alimony and child support obligations; and (3) Tracy had the ability to procure a business-related loan. The chancellor was manifestly in error in so ruling.

¶ 39. The chancellor manifestly erred in three ways. First, at the time of the hearing, Tracy had lost his job and was unable to obtain a job with equal pay. Second, while he may have cashed in his 401k and spent it on things besides his court-ordered obligations, this bears on his contempt and not on whether or not a material change in circumstances occurred. Third, the chancellor's consideration of Tracy's ability to obtain a business loan is inapposite and far too speculative to use as a basis for denying modification.

I. Tracy's Job

¶ 40. In denying Tracy's request for modification, the chancellor noted that Tracy testified that the oil industry "goes up and down" and "people get laid off." Therefore, the chancellor reasoned that Tracy's loss of employment was "not unanticipated" and that Tracy chose not to look for another job in the oil industry. However, the evidence in the record indicates that Tracy established an unanticipated, substantial, and material change in circumstances such that he was entitled to a modification.

¶ 41. Under Mississippi law, a petitioner seeking modification must clearly show "a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought be modified." Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss. 1992). The supreme court has further explained that this change "must not be one that could have been anticipated by the parties when the chancellor entered the original decree." McEwen v. McEwen , 631 So.2d 821, 823 (Miss. 1994).

¶ 42. At the time of the divorce judgment, Tracy was employed by Weatherford Fishing and Rental, making a gross monthly income of $18,516, with a net monthly income of $13,054. However, at the January 26, 2016 hearing, Tracy testified that he had been laid off from his job at Weatherford in August 2015 because of industry-wide layoffs. He then found employment as a carpenter, making $2,880 a month, netting $2,319. Thus, Tracy's net income had drastically dropped since the divorce decree.

¶ 43. While the chancellor acknowledged in his written opinion that Tracy's financial situation had worsened since the original divorce decree, he reasoned that layoffs were to be expected and Tracy's loss of employment was not unanticipated. However, there is no indication from the record that the parties, at the time of the original decree, contemplated that layoffs would occur.

¶ 44. The chancellor, in finding that Tracy's unemployment was not unanticipated, relied on Tracy's testimony that the oil industry "goes up and down" and that he was not interested in being rehired in the oil industry. However, a review of the record indicates that, while Tracy acknowledged that work in the oil industry fluctuates, he also stated that, as of the time of the modification hearing, "[t]here is no one running at full capacity" and "most [oil companies] are running with a skeleton crew." The chancellor assumed that this showed that Tracy knew that layoffs occurred. It simply does not. It shows that since the time of the divorce decree, employment in the oil industry had declined. There is no indication that, at the time of the original decree, anyone knew or should have known that Tracy would be laid off.

¶ 45. During the modification hearing Tracy also testified that he spoke with friends at three different companies in the oil industry, which did not have work for him. He continued his testimony, explaining that if he was offered a job in the oil field, he would take it and that he "would take an oil field job." Therefore, the chancellor also erred in finding that Tracy would not take a job, were he offered one in the oil industry.

¶ 46. This is not a case where a husband voluntarily quit his job in bad faith to avoid paying alimony. See Ballard v. Ballard , 843 So.2d 76, 79 (¶ 10) (Miss. Ct. App. 2003) ("[I]f an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support."). Rather, Tracy, after working at Weatherford for many years, lost his job due to circumstances outside his control, and was unable to procure a an equal-paying job. Therefore, he did suffer an unanticipated, substantial, and material change in circumstance. See Parker v. Parker, 645 So.2d 1327, 1328 (Miss. 1994) (granting modification where payor's employment was involuntarily terminated causing him to suffer a loss of income).

II. Tracy's Retirement Account

¶ 47. The chancellor acknowledged that Tracy's income had greatly been reduced since the original divorce decree. However, he reasoned that Tracy was not entitled to a modification because he chose to spend his retirement funds on other things besides his court-ordered obligations. Though bearing on the issue of Tracy's contempt of court, this prior practice of Tracy's does not preclude a finding that Tracy had suffered a material and substantial change in circumstances due to a loss of earnings.

¶ 48. Tracy's use of retirement funds for other obligations was properly considered in finding Tracy in contempt of court, as he did not honor his court-ordered obligations. Evans v. Evans, 75 So.3d 1083, 1087 (¶ 14) (Miss. Ct. App. 2011) ("Failure to comply with a court order is prima facie evidence of contempt."). However, once the chancellor entered a judgment against him, Tracy's hands became clean and his request for modification could properly be heard. See Lane v. Lane, 850 So.2d 122, 127 (¶ 14) (Miss. Ct. App. 2002). Therefore, the chancellor erred in considering such payments in Tracy's request for modification. The chancellor, after entering a judgment of contempt, was to consider whether Tracy, based on his present circumstances, showed that he suffered a substantial and material change in circumstances since the previous divorce decree. There is ample evidence showing that Tracy involuntarily lost his job and was unable to procure an equal-paying job; therefore, he adequately showed a material change in circumstances. To consider the past payments of his other obligations in denying modification of future payments of alimony, when Tracy's income was substantially reduced, was manifest error.

III. Tracy's Poultry Business

¶ 49. The chancellor discusses Tracy's attempt to borrow $1.4 million to construct poultry houses in order to enter the business of raising poultry. It is clear that the chancellor considered this in finding that Tracy did not suffer a material change in circumstances. However, the chancellor was counting the chickens before they hatched. First, Tracy's ability to borrow money for the chicken houses would be a business loan to conduct a business. Second, his income from the prospective business is far too speculative to be considered at the present time.

¶ 50. The chancellor implicitly reasoned that because Tracy could obtain this loan, the loan proceeds should be considered as available for support obligations. This is simply not the case. Tracy testified that in order to begin the chicken business, he had to build four chicken houses. He further explained that the poultry company and a bank were in the process of approving his loan for the purpose of building these chicken houses and that, in order to qualify for the loan, he had to take out a second mortgage on his home and use his father's land as collateral. He even explained that if not for the land as collateral, he would not have been able to qualify for the loan. Moreover, he testified that this business loan would also be an obligation of his father's. Therefore, the court, in reasoning that Tracy had access to this $1.4 million, clearly misunderstood the impact of these business loans. The chancellor's conclusion that such business loans should be imputed to ability to pay also ignores the effect on the interests of parties that are not present before this court, including his father, the poultry company, and the bank. As such, the ability to obtain such a loan should not be considered in denying his request for modification.

¶ 51. Next, as the majority points out, Tracy's income from the business remained uncertain. Tracy clearly testified that he did not know how much money he was expecting to make nor could he estimate or guess. Therefore, the chancellor ran afoul in considering it. The record lacks any indication whether or not the chicken-house loans would put Tracy in an equal or better financial position. It is simply speculative what will happen in the future and therefore was improperly considered by the chancellor. Hopefully, Tracy's chicken-house business will be successful. This Court has explained that:

[C]hancery courts retain continuous jurisdiction over final decrees providing for alimony, custody of children and child support, and may modify a former decree when the circumstances and conditions have changed after rendition of a former decree. Further, no decree of alimony or child support is ever truly a final judgment, but always subject to modification based upon a material change of circumstances.

Cockrell , 139 So.3d at 771 (¶ 16). Thus, if the poultry business is successful or Tracy's financial situation improves, Michelle may in turn bring such before the court requesting modification.

¶ 52. In summary, the chancellor manifestly erred in denying Tracy's request for modification of the previously ordered child support and alimony. The testimony showed that Tracy had a material change in circumstances when he lost his job and was unable to procure another like-paying job. Tracy had gained employment as a carpenter, but with a reduced income. Further, the chancellor erred in considering Tracy's prior use of his retirement account in determining whether or not a material change in circumstances occurred. Finally, the chancellor erred in considering Tracy's ability to qualify for a business loan and prospective business income when considering whether he suffered a material change in circumstances. Neither the loan nor the business income has any bearing on his present ability to pay and, as such, cannot be considered. The case should be reversed and remanded for the chancellor to set a reduced amount of alimony. For these reasons, I respectfully dissent in part.

IRVING, P.J., WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION.

      Fishing is the retrieval of drilling equipment and removal of junk and other obstructions from a well bore so that drilling operations can resume.

      Tracy remarried shortly after his divorce from Michelle. He and his new wife were expecting a child any day as of the January 2016 hearing.

      At the time of the parties' divorce, she had a gross monthly income of $1,041 and a net monthly income of $916.

      On appeal, Tracy repeatedly emphasizes the chancellor's prediction "that the Court of Appeals [would] reverse" his ruling. However, Tracy ignores that the chancellor was referring to his partial forgiveness of Tracy's alimony and child support arrearage. See Tanner v. Roland , 598 So.2d 783, 786 (Miss. 1992) ("[C]hild support payments vest ... as they accrue. Once ... vested, ... they cannot be modified or forgiven by a court"); Gregg v. Montgomery , 587 So.2d 928, 933 (Miss. 1991) ("[A] court cannot give relief from civil liability for any [alimony] payments that have already accrued."). As discussed below, the chancellor subsequently entered an amended final judgment, which did not forgive any part of the arrearage. Therefore, the chancellor's comment is not relevant to the amended final judgment, which is the subject of this appeal, or any issue before this Court on appeal.

      The court left in place Tracy's obligation to maintain health insurance for his daughters.

      The motion was filed within ten days from the entry of the judgment and therefore tolled the time for appealing from the judgment. See M.R.A.P. 4(d) ; Woods v. Victory Mktg. LLC , 111 So.3d 1234, 1236 (¶ 7) (Miss. Ct. App. 2013).

      The motion was filed within ten days of the court's amended final judgment and therefore tolled the time for appealing from the judgment. See M.R.A.P. 4(d) ; Charles v. Daley , 799 F.2d 343, 348 (7th Cir. 1986) (holding that "when a court alters its judgment, a person aggrieved by the alteration may ask for correction"). The full title of this motion was: "Motion to Strike from the Record and the pleadings in this action the Revised and Amended Opinion of the Court Filed May 9, 2016, and the Amended Final Judgment of Contempt and Modification Filed May 24, 2016, and if Said Filings are not Stricken From the Record Herein, Then in the Alternative, William Tracy Dixon Makes Motion That the Amended Final Judgment of Contempt and Modification be Clarified."

      Tracy misunderstands the amended final judgment entered against him. Tracy's brief on appeal repeatedly states that the chancellor's revised opinion "reinstated in toto" the original final judgment (entered February 10, 2016, nunc pro tunc January 26, 2016). Tracy's brief also assumes that he is entitled to the prospective downward modifications of child support and alimony granted in the original final judgment. However, as described above, the chancellor's revised opinion and amended final judgment both hold Tracy liable for the full amount of the arrearage and find that he is not entitled to any modification.

      It is true, as the partial dissent points out, that Tracy contradicted himself at trial. However, the chancellor, as the finder of fact, was entitled to find Tracy's deposition testimony more credible than his trial testimony. See Henson v. City of Dundee , 682 F.2d 897, 908 n.16 (11th Cir. 1982) (explaining that if a party's trial testimony contradicts his prior deposition testimony, and the deposition testimony is "read ... to" and "acknowledged" by the party at trial, the fact-finder may then consider and rely on the deposition testimony "as substantive evidence").

      See, e.g. , De Marco v. De Marco , 199 Miss. 165, 168, 24 So.2d 358, 359 (Miss. 1946) (holding that alimony generally "takes precedence over" "obligations imposed ... by a second marriage"); Rushing v. Rushing , 909 So.2d 155, 159 (¶ 17) (Miss. Ct. App. 2005) (holding that a payee was not entitled to a modification of alimony based on his remarriage and two new children-"when [he] remarried and fathered two children, he knew of his obligation to [his ex-wife]"); Magee v. Magee , 754 So.2d 1275, 1280 (¶ 11) (Miss. Ct. App. 1999) (holding that a payee was not entitled to a modification based on new personal bills and debts).

      Federal Rule of Civil Procedure 59(e) differs from our Rule 59(e) only in that it permits the motion to be filed within twenty-eight days of entry of judgment. Decisions interpreting a parallel federal rule are "persuasive of what our construction of our rule ought to be." Brown v. Credit Ctr. Inc. , 444 So.2d 358, 364 n.1 (Miss. 1983).

      One commentator on family law has explained that child support may be reduced when a payor loses income, so long as the income reduction is involuntary, is not foreseeable, and impacts the payor's ability to meet reasonable needs. See Deborah H. Bell, Bell on Mississippi Family Law § 10.11[6][a], at 328 (1st ed. 2005).


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    Kimberlana ELKINS, Appellant v. Robert D. ELKINS, Appellee
    NO. 2015-CP-00444-COA
    Court of Appeals of Mississippi.
    February 6, 2018
    ATTORNEY FOR APPELLANT: KIMBERLANA ELKINS (PRO SE)
    ATTORNEY FOR APPELLEE: FRANK PHILIP WITTMANN IV
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Robert and Kimberlana Elkins were granted a judgment of divorce by the Hancock County Chancery Court on February 10, 2015. Robert filed a motion to reconsider the awards for contempt and attorney's fees to Kimberlana. Granting Robert's motion in part, the chancery court modified the award for contempt. The award of attorney's fees was upheld. Asserting numerous issues, Kimberlana filed an appeal of the chancery court's judgment of divorce, including the chancellor's modification of the contempt award.

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Robert and Kimberlana were married on September 11, 1999. The couple had two children: a female, born in 1998; and a male, born in 2008. The couple separated on January 31, 2010, and Kimberlana filed a complaint for divorce against Robert on July 13, 2010, citing irreconcilable differences.

¶ 4. On July 22, 2011, the Hancock County Chancery Court entered a temporary order, granting Kimberlana temporary custody of the minor children and exclusive use of the marital home. Robert was ordered to pay $350 in monthly temporary child support, the children's medical expenses, plus the mortgage, maintenance, and expenses for the marital residence. The issue of alimony was held in abeyance. Robert filed a motion to set aside the temporary order on August 16, 2011, asserting he was never notified of the court hearing regarding the temporary support.

¶ 5. On August 25, 2011, Kimberlana filed a motion for contempt of court, claiming Robert was $3,150 in arrears for child support and $8,659.95 in arrears for the mortgage and home maintenance. On November 15, 2011, the parties appeared before the chancery court, agreeing to have the court review and resolve all claims. But although Robert filed a motion to enforce the agreed judgment of divorce on December 29, 2011, the proposed property-settlement and child-custody agreement was never executed or filed. Kimberlana subsequently filed a handwritten property-settlement agreement, requesting money from an alleged inheritance to be received by Robert.

¶ 6. On February 7, 2012, Kimberlana filed a second motion for contempt, reasserting her argument that Robert failed to pay the mortgage and temporary child support. She filed another motion for citation of contempt on July 2, 2012, claiming Robert "ha[d] failed to meet his financial obligations under the [t]emporary [o]rder and ha[d] placed the marital home at risk for foreclosure" and that his additional failure to pay support and expenses had caused her and the minor children financial hardship.

¶ 7. Kimberlana filed an amended complaint for divorce on March 11, 2013, asserting claims of adultery; habitual cruel and inhuman treatment; and willful, continued, and obstinate desertion for one year; or in the alternative, irreconcilable differences. She requested child support, the children's educational (college) expenses, alimony, and exclusive use and ownership of the marital home. She filed a second amended complaint on May 1, 2013. Robert filed no response to the complaints.

¶ 8. Kimberlana filed a motion for emergency relief, modification, and other relief, on July 26, 2013, requesting an increase in child support and for Robert to pay "all household expenses ... to include travel to and from [their daughter's] medical providers," as a recent medical condition had resulted in "excessive medical expenses" for the daughter. Robert responded with a motion to set aside the temporary order, again claiming he had not received notice of the hearing. On December 17, 2013, the chancery court found Robert to be in contempt of the chancery court's temporary order of July 22, 2011, "but not in wilful and contumacious contempt." Because the evidence reflected Robert's inability to pay the temporary support, the court granted an equitable lien on the marital residence for the total arrearage of $42,604.47. Noting a substantial and material change in circumstances since the temporary order, the chancellor also modified the child support to $415.15 per month, making it retroactive to the date of the filing of the motion for emergency relief.

¶ 9. On February 10, 2015, the chancery court entered a judgment of divorce. The court granted Kimberlana a divorce on the ground of adultery, noting that although Robert did not admit to adulterous behavior prior to the couple's separation, he had "openly admitted to extramarital relations after the date of separation." The chancellor awarded joint legal custody to both parents and primary physical custody to Kimberlana. As to child support, the court determined Robert's monthly adjusted gross income to be $1,904.33 and ordered him to pay $381 per month in accordance with the statutory child-support guidelines. See Miss. Code Ann. § 43-19-101 (Rev. 2015). As the marital residence was subject to a mortgage and an unsecured (home disaster) loan through the Small Business Administration (SBA), the chancery court ordered that the home be sold and the proceeds used to pay off the debts. As to Kimberlana's motion for contempt, the court determined that the total arrearage owed by Robert was $65,895.96. He ordered Robert to pay $250 per month for any arrearage due after the proceeds of the sale of the house had been applied to the arrearage. The chancellor denied Kimberlana's request for alimony and homeschooling expenses of $1,500 per year for their daughter.

¶ 10. Robert filed a motion on February 18, 2015, asking the court to reconsider the awards of contempt and attorney's fees. Kimberlana filed a notice of appeal from the chancery court's judgment of divorce on March 6, 2015. On June 5, 2015, the chancery court ruled on Robert's motion for reconsideration, finding that the chancery court had no authority to order Robert to pay "temporary child or spousal support because no such request was made by [Kimberlana] in her initial complaint." Thus, the court determined that the temporary order was "void ab initio" and granted Robert's motion in part, deducting $42,604.47 from the arrearage owed by Robert for support. However, it denied the motion with respect to the remaining arrearage ($23,291.49) and the award of $3,700 in attorney's fees to Kimberlana.

¶ 11. Kimberlana argues on appeal that the chancery court erred: (1) by failing to consider Robert's extra-marital affairs in its determination of the equitable distribution of the marital assets; (2) in calculating Robert's income for the purposes of child support, specifically its failure to consider Robert's alleged inheritance; (3) by decreasing the amount of child support from the December 17, 2013 order; (4) in not ordering Robert to pay tuition for the daughter's online-school program; (5) by not awarding Kimberlana the marital residence; (6) by not awarding Kimberlana lump-sum or rehabilitative alimony; (7) in modifying the award of contempt in its order on Robert's motion for reconsideration; (8) by awarding Kimberlana the trailer from the couple's former business; and (9) in not ordering Robert to acquire and maintain life-insurance policies for the children.

¶ 12. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 13. A chancellor's decision is reviewed for abuse of discretion. Jenkins v. Jenkins , 60 So.3d 198, 200 (¶ 6) (Miss. Ct. App. 2011). "We will not disturb the chancellor's factual findings unless the chancellor was manifestly wrong, [or] clearly erroneous, or the chancellor applied an improper legal standard." Id. at 200-01 (¶ 6). Questions of law, however, are reviewed de novo. Id. at 201 (¶ 6) (citing McNeil v. Hester , 753 So.2d 1057, 1063 (¶ 21) (Miss. 2000) ).

DISCUSSION

I. Whether the chancellor erred by not considering Robert's extra-marital affairs in the equitable distribution of the marital assets.

¶ 14. Kimberlana contends the chancellor failed to account for Robert's extra-marital affairs when making his determination of the equitable distribution of the marital assets. She states that Robert had told her that he had been tested for AIDS, and she suffered emotional harm as a result. This issue, however, is procedurally barred as Kimberlana has cited no authority for her argument. The "failure 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) (quoting Norwood v. Miss. Dep't of Emp't Sec. , 105 So.3d 408, 410 (¶ 5) (Miss. Ct. App. 2012) ). Notwithstanding any bar, we find no error. As our Court has noted: "[C]hancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. ... Rather, marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship." Bond v. Bond , 69 So.3d 771, 773 (¶ 6) (Miss. 2011) (citing Carrow v. Carrow , 642 So.2d 901, 904 (Miss. 1994) ). As noted previously, the only evidence of Robert's adultery occurred after the couple's separation; thus, the chancery court did not err in refusing to give weight to this factor as there was no evidence that it harmed the marital relationship.

II. Whether the chancery court properly calculated Robert's income.

¶ 15. The chancellor determined that Robert's monthly adjusted gross income was $1,904.33. Kimberlana contends the chancery court's findings as to Robert's income were erroneous, and Robert falsified his Rule 8.05 financial statement. The majority of Kimberlana's assignments of error on appeal concern her claim that Robert had other income not included in the court's findings, specifically an inheritance from his deceased father, including a Franklin-Templeton savings account.

¶ 16. Addressing Kimberlana's assertion that Robert had an inheritance from the estate of his deceased father, the chancellor found "no evidence that Robert ha[d] any interest in his late father's estate." Robert's sister had legal title to all of their father's assets; so Robert "has no present or enforceable right to any assets comprising his father's estate." The chancery court also found no evidence to establish that a Franklin-Templeton account existed. At trial, Robert testified that no such account existed. Patricia Davis, his mother, testified that Robert's father did have funds at Franklin-Templeton, but those funds were payable to Robert's sister, Lindsey, upon his death. When counsel for Kimberlana attempted to introduce a report on the accounts purportedly created by Davis, the chancellor determined:

[T]he basic issue that I've got to decide is [if it is] marital property subject to equitable distribution, and I don't think it is. And I don't think that [Robert] could be charged in the absence of proof now unless Lindsey came in and said, I have another letter from my father that says when he asks for $1,000, I have to give him $1,000.... You see, there's no present vested interest in the corpus of this trust. ... It's just that in the absence of any document that goes well beyond this, [Robert] has no present interest in any property that may have passed to Lindsey[.] ... In other words, I could not order Lindsey to give any money to [Kimberlana] here.

We find no abuse of discretion in the court's findings. There was no credible evidence presented at trial that Robert had any present vested interest in any inheritance.

¶ 17. Therefore, we find no error in the chancery court's determination of Robert's income, and any arguments raised by Kimberlana as to the existence of an inheritance are without merit.

III. Whether the chancery court erred in decreasing the amount of child support from its December 17, 2013 order.

¶ 18. In the December 17, 2013 order, the chancery court increased the amount of child support to $415.15. In the judgment of divorce, the court noted that Robert's adjusted gross income was $1,904.33 per month and, in accordance with section 43-19-101, determined that his child-support obligation was $381 (20% of $1,904.33). Kimberlana argues that Robert had the necessary income to pay $800 in child support.

¶ 19. As already noted, we find no evidence that the court's calculation of Robert's income was incorrect, and the calculation of child support was within the statutory guidelines of section 43-19-101. Accordingly, we find no error in the chancery court's findings.

IV. Whether the chancery court erred by not ordering Robert to pay $1,500 for the daughter's school tuition.

¶ 20. Kimberlana testified that the couple's daughter had been homeschooled using an online program since March 2014 because of her medical issues with fibromyalgia and obsessive-compulsive disorder. The chancery court denied Kimberlana's request that Robert pay $1,500 a year for the daughter's homeschooling, finding this would be a "deviation from the child[-]support guidelines." He further noted that neither party could afford this educational expense; nor had either parent addressed whether accommodations could be made for the child with the local school administration.

¶ 21. Kimberlana asserts that it was error for the chancellor not to award her this money for the daughter's educational expenses, considering the child's health issues (fibromyalgia ). Citing section 43-19-101(6), she argues that "[a]ll orders involving support of minor children, as a matter of law, shall include reasonable medical support." But this issue involves the child's educational expenses, not her medical expenses; so we find this statute inapplicable. As already stated, the chancellor properly determined the amount of child support owed by Robert in accordance with the guidelines in section 43-19-101. Ordinarily, "[p]re-college tuition is considered part of child support, not an extraordinary expense," and a chancellor may not require a parent to pay tuition over and above the statutory percentage "without a written or specific finding ... as to why the deviation is needed." Moses v. Moses , 879 So.2d 1043, 1048 (¶ 14) (Miss. Ct. App. 2004) (citing Southerland v. Southerland, 816 So.2d 1004, 1006 (¶ 11) (Miss. 2002) & § 43-19-101(2) ). As Kimberlana has provided no basis for the chancellor to make such a finding, we find no abuse of discretion in the chancellor's ruling on this issue.

V. Whether the chancery court erred by not awarding Kimberlana complete ownership of the marital home.

¶ 22. Noting that the marital home was subject to a mortgage and an unsecured loan through SBA, the chancery court ordered that the home be sold and the proceeds be used to pay off the debts. He further noted that neither party "can afford to pay the liabilities and other expenses associated with it." Kimberlana argues the chancellor erred in denying her "exclusive use and ownership" of the marital home, because she claims that she made all but one or two of the mortgage payments on the home.

¶ 23. "The [c]hancery [c]ourt has authority, where equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties, and the equitable division is left to the chancellor's discretion unless there is an abuse of discretion." Berryman v. Berryman , 907 So.2d 944, 947-48 (¶ 14) (Miss. 2005) (citation and internal quotations omitted). There was substantial evidence presented by both parties that, even during the marriage, the couple struggled to pay the mortgage and loan payments on the home. As the chancery court noted in its judgment:

The intermittent financial assistance of family, principally from Robert's mother and stepfather, has been necessary to avoid multiple foreclosure threats of the marital home where Kimberlana and the children live, to pay utilities for the marital home, to provide Robert with a vehicle necessary for his transportation to and from work; and extra money from time to time for the children's clothing, educational, medical and dental needs.

Accordingly, we find no abuse of discretion in the court's order to sell the marital home.

VI. Whether the chancery court erred in not awarding Kimberlana $50,000 in lump-sum or rehabilitative alimony.

¶ 24. The chancery court denied Kimberlana's request for alimony, finding that Robert's income was insufficient to pay alimony "after he pays child support, his minimal living expenses, and other sums required to be paid by him in this judgment." Kimberlana claims that the failure to award her alimony would result in financial hardship.

¶ 25. The supreme court has held: "In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion."

Rogillio v. Rogillio , 57 So.3d 1246, 1248 (¶ 7) (Miss. 2011) (citation omitted). Kimberlana cites Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss. 1973), a case in which the supreme court held that a lump-sum award plus monthly alimony was proper where the wife had contributed to the accumulation of the property of her husband. While the evidence supports Kimberlana's claims that she made contributions to the couple's marital assets, unlike Jenkins , this is not an instance where the husband had significant assets, leaving the wife destitute. The evidence at trial was that both parties had difficulty making ends meet, both during the marriage and after their separation. Both Robert and Kimberlana acknowledged that Robert's parents had contributed large sums to help the couple make their house payments and travel during their marriage. Davis, Robert's mother, testified that Robert lived with a couple in New Orleans because "he [could not] afford a house," and at other times, he lived with his sister in her home. Any deficit created by the division of the marital assets was not adverse to Kimberlana, but to Robert. Finding the court's decision to deny Kimberlana alimony was not "so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion," Rogillo , 57 So.2d at 1248 (¶ 7), this assignment of error is without merit.

VII. Whether the chancery court erred in modifying the judgment, decreasing the amount of arrearage owed to Kimberlana.

¶ 26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of $42,604.47. He further held that Robert failed to pay sums accruing from the order of contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually until paid in full. Robert filed a motion to reconsider the judgment, and the court determined that because Kimberlana had not requested temporary child support in her initial complaint for divorce filed in July 2010, the court did not have the authority to order such and the temporary order was void ab initio. Therefore, the judgment was modified, and the amount of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in arrearage, and decreasing the amount of arrearage owed.

¶ 27. "Child support may not be awarded unless it is requested in the pleadings, tried by consent, or the court notifies the parties that the issue will be addressed." Deborah H. Bell, Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted in its order, Kimberlana's complaint did not contain any plea for child support or maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery court grant her a divorce based on irreconcilable differences and additionally stated: "If mistaken in the relief prayed, [she] prays for such further general relief and equitable relief to which she is entitled to receive." Furthermore, the record reflects that Robert was not provided an opportunity to object to the chancellor's award of temporary support, as he was not present at the hearing. A month after the order was entered, Robert filed a motion to set aside the temporary order, claiming that he was not notified of the proceedings. In Massey v. Huggins , 799 So.2d 902, 910-11 (¶¶ 33-34) (Miss. Ct. App. 2001), we reversed a chancery court's award of child support, as the appellant "was not provided notice that she 'might be required to defend a claim of child support' nor was there a 'suggestion in the record that support payments from [the appellant] were even being contemplated by the court on its own or asked for by' [the appellee]." (Quoting Morris v. Morris, 359 So.2d 1138, 1139 (Miss. 1978) ; but cf.

Lee v. Stewart , 724 So.2d 1093, 1095 (¶ 4) (Miss. Ct. App. 1998) (Although child support was not requested in the pleadings, the award of child support was affirmed, as the record indicated the father did not object to the issue at trial, "but instead elected to argue on its merits"; thus, "th[e] issue was tried with [his] implied consent.").

¶ 28. We find no error in the chancery court's findings, as child support was not included in the pleading, and there was no evidence that the issue was tried by consent.

VIII. Whether the chancellor erred in awarding the trailer from the couple's former snowball business to Kimberlana.

¶ 29. Kimberlana contends the chancellor erred in awarding her the couple's trailer for their snowball business, which was damaged during Hurricane Katrina, and valuing the trailer at $10,000. At trial, Robert acknowledged that the trailer had been damaged during Hurricane Katrina and estimated it was only worth approximately $1,500. However, the chancellor based the value of $10,000 for the trailer from Kimberlana's own Rule 8.05 statement. Moreover, we are unsure what relief Kimberlana is requesting on appeal; she simply argues that the trailer's value was not $10,000, saying that when she picked it up, it was severely damaged. She has also cited no authority for her claim; therefore, we find this assignment of error is procedurally barred from review.

IX. Whether the chancellor should have ordered Robert to acquire and maintain life-insurance policies of $500,000 for the children.

¶ 30. Arguing Robert should have been ordered by the court to maintain two life-insurance policies for his children, Kimberlana again claims that Robert has inherited assets from his deceased father and "stands to inherit another $250,000 from his mother." Despite the fact that she has cited no authority, procedurally barring this issue from appellate review, as we have already noted, there was no evidence presented Robert had any present vested interest in any of his parents' assets. Therefore, we find no merit to this issue.

¶ 31. Finding no abuse of discretion in the chancery court's findings, we affirm the judgment.

¶ 32. AFFIRMED.

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

      The couple took out the loan to refurbish the home due to damage from Hurricane Katrina.

      While ordinarily the filing of a notice of appeal comes after the trial court's disposition of post-trial motions, the comment to Mississippi Rule of Appellate Procedure 4(d) provides:
      [A] notice of appeal filed before the disposition of a specified post trial motion will become effective upon disposition of the motion. A notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion's disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.
      M.R.A.P. 4(d) cmt. Kimberlana filed a subsequent Mississippi Rule of Civil Procedure 60(b) motion to set aside the judgment on August 6, 2015. The chancery court denied this motion for lack of jurisdiction, noting Kimberlana's notice of appeal filed in March. Kimberlana has not appealed the court's denial of her Rule 60(b) motion; so we will not address the court's ruling on that motion.

      Kimberlana was represented by counsel during the majority of the trial proceedings below. On February 15, 2013, the chancellor granted counsel's motion to withdraw, and Kimberlana retained new counsel. After the judgment of divorce was entered, Kimberlana proceeded pro se.

      According to Kimberlana, the child has since graduated high school and is attending Tulane University.

      Robert notes in his brief that the court incorrectly refers to this asset in the judgment as a snowmobile .


author: GREENLEE, J., FOR THE COURT:

text:
    Ashley BRYANT, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01649-COA
    Court of Appeals of Mississippi.
    February 27, 2018
    ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Following trial, a jury in the Hinds County Circuit Court found Ashley Bryant guilty of intimidating a witness in violation of Mississippi Code Annotated section 97-9-55 (Rev. 2014). The circuit court sentenced Bryant to serve two years in the custody of the Mississippi Department of Corrections. Bryant appeals, arguing the indictment was fatally flawed, and the trial judge improperly involved himself in Bryant's plea deal by refusing to accept the State's recommended sentence. Finding no error, we affirm.

BACKGROUND

¶ 2. On March 21, 2012, Freda Austin testified as a State's witness in the trial of Cortez Washington, who was later found guilty of armed robbery. As she was testifying, Austin recognized a woman in the audience as a regular customer at the store where Austin worked. The woman, later identified as Bryant, is Cortez's aunt. Later the same day, an "angry" and "bothered" Bryant went to the store and asked to speak to Austin. Bryant was informed that Austin was not there because she had been testifying in court.

¶ 3. The following day, Bryant and Cortaia Washington, Cortez's sister, returned to the store and asked the store manager if they could speak to Austin. The manager testified that she knew why the women were there and that they needed to leave; however, before she could get them to leave, Austin came from the back area where she had gone to get some pain reliever. Upon seeing Austin, Bryant started yelling at her about the case and her testimony. The store manager positioned herself between Austin and the two women, but Bryant was able to reach around her and hit Austin in the face. The store manager pushed Bryant away, and it was then that Washington took the opportunity to attack Austin. The testimony at trial was that Washington punched Austin several times and pulled out some of her hair. The incident lasted only a couple of minutes before Bryant and Washington left the store. Austin testified that she was not afraid at the time of the incident and that she believed the incident occurred in retaliation for her testimony at Cortez's trial.

¶ 4. Bryant and Washington originally were tried together, but the jury was unable to reach a verdict. They then were tried separately. Prior to the second trial, the State and Bryant moved the circuit court to enter an order of nolle prosequi in the case; however, the circuit court denied the motion and rejected the State's plea recommendation. The case later went to trial, and the jury found Bryant guilty of intimidating a witness.

¶ 5. Bryant appeals and raises the following issues for our review: whether her indictment was fatally flawed; and whether the trial court improperly involved itself in her attempted plea deal.

DISCUSSION

I. Indictment

¶ 6. Bryant's indictment stated that she "unlawfully and feloniously attempt[ed] to intimidate Freda Austin, a witness in a criminal case, by force, abuse[,] or reprisals or threats thereof, after the performance of her duties as a witness ...." Bryant now argues her indictment was fatally defective because it did not specify whether the manner of intimidation was verbal or physical. Bryant also argues the indictment did not explain "how [the statute] applied, with specific facts." We note that Bryant did not object to the legal sufficiency of her indictment at trial. However, it is settled that objections to the sufficiency of an indictment may be raised for the first time on appeal. See , e.g. , Tucker v. State , 47 So.3d 135, 137 (¶ 8) (Miss. 2010) ; Ross v. State , 954 So.2d 968, 1015 (¶ 126) (Miss. 2007). Thus, we will review this issue for error.

¶ 7. Whether an indictment is fatally defective is a question of law that we review de novo. Moten v. State , 20 So.3d 757, 759 (¶ 4) (Miss. Ct. App. 2009).

¶ 8. "The chief objective of an indictment is to provide a defendant fair notice of the crime charged." Davis v. State , 171 So.3d 537, 540 (¶ 11) (Miss. Ct. App. 2015) (citing Hines v. State , 126 So.3d 985, 987 (¶ 10) (Miss. Ct. App. 2013) ). Uniform Rule of Circuit and County Court 7.06 mandated that an indictment shall contain "the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Further, "[a]n indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Davis , 171 So.3d at 540 (¶ 11) (quoting Gilmer v. State , 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007) ). The Mississippi Supreme Court has held that "[s]o long as from a fair reading of the indictment[,] taken as a whole[,] the nature and cause of the charge against the accused are clear, the indictment is legally sufficient." Harrison v. State , 722 So.2d 681, 687 (¶ 22) (Miss. 1998) (quoting Henderson v. State , 445 So.2d 1364, 1368 (Miss. 1984) ).

¶ 9. Here, the indictment charged that Bryant attempted to intimidate Austin "by force, abuse or reprisals or threats thereof." Bryant argues this language is defective because it did not specifically state how she violated section 97-9-55, and as a result, she was not provided fair notice. However, we find that in reading the indictment as a whole, the nature and cause of the charge against Bryant are clear, and the indictment contains the necessary elements of the crime charged. Moreover, Bryant has not shown that she was unaware of what crime she was charged with committing, or that she was unable to prepare an adequate defense because of the indictment. This issue is without merit.

II. Plea Deal

¶ 10. During the plea hearing, the State represented it sought to enter a nolle prosequi order in exchange for two years' probation, based on the belief that Austin would become a reluctant witness. The trial court refused to accept Bryant's guilty plea. Its exchange with defense counsel is as follows:

THE COURT: All right. Again, I heard the testimony from the witness stand.
And I don't remember exactly, but I know that there's a serious public interest in protecting the security and the integrity of the court system. Your client, per that testimony, violated that in a very dramatic fashion.... I will allow you to withdraw your petition. I'll give you to the rest of the morning to confer with the D.A.'s Office ... to try to resolve the case .... I'll extend this until tomorrow so that you can sit down with the D.A's office and see if you can acceptably work it out. But I'm not gonna accept that plea bargaining offer.
[DEFENSE]: Would the Court entertain a plea from, where she-
THE COURT: I'm not going to be engaged in plea bargaining-

¶ 11. Bryant argues the trial court abused its discretion in refusing her plea because it based its decision on the desire that she receive a higher punishment. Bryant also argues the trial court engaged in judicial overreach by indicating the only acceptable deal was one that included jail time.

¶ 12. Under Mississippi law, prosecutors must seek leave of court before an indictment or a count in an indictment may be dismissed. Miss. Code Ann. § 99-15-53 (Rev. 2015) ("A district attorney, or other prosecuting attorney, shall not compromise any cause or enter a nolle prosequi either before or after indictment ... without the consent of the court ...."). Rule 8.04(B)(2)(b) of the Uniform Circuit and County Court Rules also provided that any "recommendation [made] to the trial court for a particular sentence ... will not be binding upon the court." Thus, "the decision to accept or reject a plea agreement is purely within the trial judge's discretion." Goss v. State , 730 So.2d 568, 572 (¶ 17) (Miss. 1998). However, although the trial judge may exercise his discretion to accept or reject a plea agreement, Rule 8.04(B)(4) specified that "[t]he trial judge shall not participate in any plea discussion."

¶ 13. In applying the abuse of discretion standard to the leave of court requirement in section 99-15-53, the Mississippi Supreme Court has held that trial judges need only provide a "reasonable basis" to grant or deny a prosecutor leave to dismiss or nolle pros an indictment. State v. Adams Cty. Circuit Court , 735 So.2d 201, 205 (¶ 11) (Miss. 1999) ; see also Moody v. State , 716 So.2d 592, 594 (¶ 9) (Miss. 1998) (When reviewing a decision within the trial court's discretion, if a correct legal standard was applied, we next ask if the trial court's "decision was one of those several reasonable ones [that] could have been made.").

¶ 14. Bryant contends this case is factually similar to Moody . In Moody , the supreme court found a trial judge abused his discretion in unreasonably rejecting a plea agreement in a murder case where the prosecutor agreed to the plea and declined to pursue the death penalty in exchange for the defendant's cooperation. Moody , 716 So.2d at 594-95 (¶¶ 11-14). The supreme court found Moody was entitled to have the plea agreement enforced for two reasons. First, the trial judge abused his discretion when he flatly rejected the plea based on his desire that the defendant not receive less than the death penalty. Id. at 594 (¶ 11). Second, Moody detrimentally relied on the agreement by substantially performing many of the agreement's terms prior to the trial court's refusal. Id. Bryant argues the trial judge in her case likewise denied her plea agreement because he sought a higher punishment than the State. However, here, unlike Moody , there was no detrimental reliance, and the trial judge based his decision on the public interest in protecting the security and integrity of the court system. We find no error in the refusal of Bryant's plea agreement. The trial court provided a reasonable basis for its decision. Further, we find the trial court did not engage in any plea negotiation. The trial judge did not go beyond providing reasons for rejecting the agreement presented and did not comment on the hypothetical agreements it would or would not accept.

CONCLUSION

¶ 15. Bryant's indictment was legally sufficient. It met all necessary requirements and gave Bryant sufficient knowledge of the crime charged in order to enable her to prepare an adequate defense. The trial court was properly within its discretion to deny Bryant's plea agreement and provided a rational basis for its decision. Further, the trial court did not engage in judicial overreach by participating in any plea discussion. We affirm.

¶ 16. AFFIRMED.

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

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect during Bryant's trial, Rule 7.06 applies to Bryant's case.

      The proposed plea agreement provided that the court would withhold acceptance of Bryant's guilty plea and place her on two years of nonadjudicated probation. If Bryant completed the two years without violating probation, the State then would enter a nolle pros.


text:
    William R. EDMONSON, Jr. a/k/a William Edmonson a/k/a William Randle Edmonson, Jr. a/k/a William Randall Edmonson, Jr. a/k/a Randall Edmonson a/k/a William R. Edmonson a/k/a William Randall Edmondson, Jr. a/k/a William Randall Edmondson a/k/a William Edmondson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01806-COA
    Court of Appeals of Mississippi.
    February 27, 2018
    WILLIAM R. EDMONSON, JR. (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. William R. Edmonson, Jr., filed a post-conviction-relief (PCR) motion claiming that the Lowndes County Circuit Court improperly revoked his post-release supervision (PRS) and imposed the remainder of his two previously suspended consecutive five-year sentences for uttering forgeries. More specifically, he argued that he was denied due process because he had ineffective assistance of counsel, and his sentences exceeded statutory guidelines. The circuit court summarily dismissed the PCR motion without the necessity of a hearing. On appeal, Edmonson does not reiterate his ineffective-assistance-of-counsel claim. Therefore, it is not before this Court. As to all other claims, we find no error and affirm the circuit court's judgment summarily dismissing Edmonson's PCR motion.

STATEMENT OF FACTS

¶ 2. On May 24, 2006, Edmonson pled guilty to two counts of uttering a forgery. On both counts, he was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), followed by five years of PRS. The sentences were ordered to run consecutively, for a total of ten years of incarceration, followed by ten years of PRS.

¶ 3. In September 2015, Edmonson's PRS was revoked because he had violated several conditions of his PRS: he was arrested and charged with grand larceny, he had tested positive for illegal drugs, he had failed to pay required supervision fees to MDOC, and he had failed to pay court-ordered restitution and fines. The circuit court then ordered him to serve the remainder of his two sentences, ten years in total, with credit for time served awaiting revocation.

¶ 4. On October 18, 2016, Edmonson filed a PCR motion. Relevant to this appeal, Edmonson argued that (1) the circuit court lacked authority to impose a period of imprisonment greater than ninety days for his first technical violation of his PRS, (2) he was unconstitutionally held in excess of the statutory time period to conduct a revocation hearing, and (3) a discrepancy existed between his written revocation sentence and the sentence orally imposed at his revocation hearing. The circuit court summarily dismissed Edmonson's PCR motion. Edmonson appeals.

STANDARD OF REVIEW

¶ 5. We review the denial of a PCR motion for abuse of discretion, meaning "this Court will not disturb the factual findings of a trial court in denying the [motion] unless such findings are clearly erroneous." Rowland v. State , 42 So.3d 503, 506 (¶ 8) (Miss. 2010). "When reviewing questions of law, our standard is de novo." Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). The summary dismissal of a PCR motion will be affirmed "if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Id.

DISCUSSION

¶ 6. On appeal, Edmonson argues that he is entitled to relief for several reasons. First, he asserts that the circuit court lacked the authority to impose a period of imprisonment greater than ninety days for his first technical violation. See Miss. Code Ann. § 47-7-37(5)(a) (Rev. 2015). Second, he argues that he was unconstitutionally held in custody for sixty-seven days, which he asserts is in violation of Mississippi Code Annotated section 47-7-37(3) (Rev. 2015). Finally, he argues that the written order revoking his sentence, which imposed a ten-year term of imprisonment, is invalid because it contradicted the circuit court's verbal five-year sentence.

I. Sentence Revocation

¶ 7. First, Edmonson argues that the circuit court lacked authority to impose a period of imprisonment greater than ninety days for his first technical violation. See Miss. Code Ann. § 47-7-37(5)(a). He does not deny that he violated the conditions of his PRS. As Edmonson was found to have committed at least three technical violations, we cannot say the circuit court's decision was clearly erroneous.

¶ 8. Section 47-7-37(5)(a) provides a circuit court with authority to revoke PRS and impose a period of imprisonment. Atwood v. State , 183 So.3d 843, 846 (¶ 8) (Miss. 2016). It states in pertinent part:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence.

Miss. Code Ann. § 47-7-37(5)(a). A "technical violation" is defined as "an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer." Miss. Code Ann. § 47-7-2(q) (Rev. 2015).

¶ 9. Recently, this Court addressed technical violations as they pertain to section 47-7-37 in Cobbert v. State , 223 So.3d 822 (Miss. Ct. App. 2017). In Cobbert , Karanja Cobbert's PRS was revoked, and the remainder of the suspended portion of his sentence was reinstated when he was found to have committed four technical violations of conditions of his PRS. Id. at 823-24 (¶ 4). After unsuccessfully challenging the circuit court's decision through a PCR motion, Cobbert appealed, arguing that the circuit court exceeded its authority by imposing the full remainder of his sentence. Id. at 824 (¶ 5). This Court affirmed the circuit court's decision, finding that Cobbert had committed four technical violations. Id. at 826 (¶ 15).

¶ 10. We reasoned that during his first revocation hearing, it was established that Cobbert had committed three technical violations: he failed to report to his parole officer, he failed to pay required fees, and he failed to pay court costs. Id. at (¶ 12). Further, it was established at his second revocation hearing that he had once again failed to report. Id. Therefore, this Court found that, under the plain meaning of the statute, Cobbert had "committed four separate acts or omissions that violated a condition or conditions of his PRS." Id. at 825 (¶ 7). This same reasoning was explicitly adopted by the Mississippi Supreme Court in Walker v. State, 230 So.3d 703, 706 (¶ 13) (Miss. 2017) ("[A] proper interpretation of Section 47-7-37(5)(a) requires a finding of each separate violation of parole to be a separate and distinct technical violation.").

¶ 11. In the present case, the circuit court found Edmonson had violated four conditions of his PRS: (1) he was arrested and charged with grand larceny, (2) he tested positive for illegal drugs, (3) he failed to pay required supervision fees to MDOC, and (4) he failed to pay court-ordered restitution and fines. Edmonson does not deny that he committed such violations, but rather argues that his charge of grand larceny cannot be used to revoke his PRS because the charge was ultimately dropped. However, the record is void of any information regarding the disposition of this charge. Further, the outcome of this charge is not important to our analysis because, pursuant to Cobbert and Walker , Edmonson still committed three "technical violations," and therefore "the court [could] impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court [could] impose the remainder of the suspended portion of the sentence ." Miss. Code Ann. § 47-7-37(5)(a) (emphasis added). Therefore, this issue is without merit.

II. Excessive Detention

¶ 12. Second, Edmonson argues that his right to due process was violated because he was held in the county jail for sixty-seven days awaiting a revocation hearing. He asserts that his detention is in violation of section 47-7-37(3), which reads in part that "[i]f the revocation hearing is not held within twenty-one (21) days, the probationer shall be released from custody and returned to probation status." While we acknowledge that Edmonson has a statutory right to a timely revocation hearing, his failure to file a habeas corpus petition or any motion for relief with the court at the time of his imprisonment procedurally bars this Court from considering the issue.

¶ 13. Generally, when a person believes he has been illegally detained or confined, he may file a habeas corpus petition at the time of imprisonment. Miss. Code Ann. § 11-43-1 (Rev. 2012). "The purpose of the writ of habeas corpus is to give a person restrained of his liberty an immediate hearing so that it can be determined whether that person is being deprived of constitutional rights, such as the right to due process of law." Carson v. Hargett , 689 So.2d 753, 755 (Miss. 1996). Further, the writ of habeas corpus was not abolished by the Post-Conviction Collateral Relief Act. Id.

¶ 14. In order to receive relief from a habeas petition, the petitioner or someone on his behalf must file a sworn petition, in writing, describing the circumstances and facts of the alleged illegal restraint or detention and state the grounds for relief. Miss. Code Ann. § 11-43-9 (Rev. 2012). Further, this petition should be filed in the county where the person is illegally restrained or detained. Id.

¶ 15. In the present case, Edmonson asserts that he should have been released from custody and placed back on probation status because he was illegally held for sixty-seven days awaiting his revocation hearing. However, while he was detained in both Newton and Lowndes counties, Edmonson never sought any relief from either circuit court. To properly preserve this error on appeal, Edmonson should have either filed a habeas petition or a "Motion For Relief Pursuant To Section 47-7-37(3)." His failure to do so resulted in the issue never being presented to the circuit court and, therefore, it is procedurally barred on appeal. "A trial judge will not be found in error on a matter not presented to him for decision."

Smiley v. State , 798 So.2d 584, 587 (¶ 7) (Miss. Ct. App. 2001). Further, "post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial." Cole v. State , 666 So.2d 767, 773 (Miss. 1995).

¶ 16. Edmonson's assignment of error not only fails because he failed to preserve the issue on appeal, but also because he failed to show any supporting proof thereof. "The burden falls upon an appellant to ensure the record contains sufficient evidence to support his assignments of error on appeal." Underwood v. State , 708 So.2d 18, 26 (¶ 22) (Miss. 1998). The record before us is sparse on the details of Edmonson's grand larceny arrest and subsequent pre-hearing detention. The record reflects that he was arrested on June 27, 2015, on a grand larceny charge; however, it is void of any other criminal information or disposition of this charge. The record also is void of any transcript from his revocation hearing. The only information we have regarding Edmonson's pre-hearing detention is that a bench warrant was issued on July 16, 2015, commanding him to report for violations of his supervised release, and that his revocation hearing was on September 8, 2015. The rest of Edmonson's claim is based solely on a narrative that is uncorroborated by the record. See Genry v. State , 735 So.2d 186, 200 (¶ 72) (Miss. 1999) ("This Court cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record.").

¶ 17. While we agree with the circuit court's determination that Edmonson should receive "credit for time served awaiting disposition of the State's petition to revoke," it remains unclear why Edmonson was held-whether it was for the new charge, a violation of his PRS, or both. As a result, this Court is left without the present ability to fairly and adequately assess Edmonson's claim.

III. Discrepancy in Sentencing

¶ 18. Finally, Edmonson argues that the written order sentencing him to a period of ten years' imprisonment contradicted the verbal order the judge gave on the day of his revocation hearing. He asserts that the transcript from the revocation hearing would show that the judge verbally sentenced him to five years of incarceration. However, the record before us today does not contain the transcript of the revocation hearing. Edmonson relies on Rule 30(c) of the Mississippi Rules of Appellate Procedure, stating that, because he is an inmate filing an appeal pro se, he is exempt from the requirement to file record excerpts. It is well established throughout Mississippi jurisprudence that an appellant, pro se or not, must provide evidence in the record to support his allegations. Therefore, Edmonson has failed to show that a discrepancy in his sentencing existed.

CONCLUSION

¶ 19. In summary, the circuit court had the authority to impose the remainder of Edmonson's suspended sentence based on violations of his PRS conditions. Further, Edmonson's claim for excessive detention while awaiting a revocation hearing is procedurally barred and lacks support. Likewise, Edmonson's discrepancy-in-sentencing claim lacks support in the record. Therefore, we affirm the circuit court's judgment summarily dismissing Edmonson's PCR motion.

¶ 20. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      On August 1, 2005, a grand jury indicted Edmonson on five counts of uttering a forgery. Pursuant to his plea deal, Counts 3-5 of the indictment were retired to the files on May 24, 2006.

      See also Miss. Code Ann. § 47-7-34(2) (Rev. 2015) ("Procedures for termination [of PRS] and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence as required pursuant to [s]ection 47-7-37.").

      Edmonson was originally arrested by Newton County Sheriff's Department on charges of grand larceny. He was later transported to Lowndes County, where he was served with a bench warrant and awaited his revocation hearing.

      While "Motion For Relief" is not explicitly provided for in the statute, section 47-3-37 statutorily grants sole authority to the circuit court to set conditions of PRS, to hold a revocation hearing, and to revoke PRS. See Miss. Code Ann. § 47-7-37(1) -(5). Therefore, the circuit court has jurisdiction to hear illegal detainment claims while awaiting a revocation hearing. However, this requires that the illegal detainment be brought to the circuit court's attention through a motion or a habeas petition.

      On May 22, 2017, the Mississippi Supreme Court denied Edmonson's request to supplement the record in this case with a transcript of the revocation hearing. Therefore, we are bound by this determination.

      See Bell v. State , 117 So.3d 661, 663 (¶ 8) (Miss. Ct. App. 2013) ("Bell offers no support for the claim other than his bare assertions in his brief. And we cannot decide issues based on assertions from the briefs alone. The issues must be supported and proved by the record."); Gaddis v. State , 904 So.2d 1197, 1199 (¶ 8) (Miss. Ct. App. 2004) ("Additionally, the necessary transcripts are to be made a part of the record and the appellant bears the burden of presenting a record."); Lyons v. State , 881 So.2d 373, 376 (¶ 8) (Miss. Ct. App. 2004) ("As has been oft-stated, it is the duty of the appellant to see that the record of trial proceedings wherein error is claim is brought before this Court.").