author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    Cindy W. KING v. MISSISSIPPI MILITARY DEPARTMENT
    NO. 2017-CC-00784-SCT
    Supreme Court of Mississippi.
    June 7, 2018
    ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON, SAMUEL STEVEN McHARD, WILLIAM H. JONES
    ATTORNEYS FOR APPELLEE: EMERSON BARNEY ROBINSON, III, LELAND S. SMITH, III, MICHAEL MARK MAJORS
    BEFORE KITCHENS, P.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. On February 11, 2016, the Adjutant General of the Mississippi Military Department (Department) terminated Cindy King's employment with the Department after conducting an investigation into some of King's activities. Aggrieved, King appealed her termination to the Mississippi Employee Appeals Board (Board); however, the Department challenged the Board's jurisdiction to hear King's appeal. The chief hearing officer assigned to King's appeal agreed with the Department and dismissed King's appeal. King then appealed for full Board review, and the Board affirmed the chief hearing officer's determination. Next, King appealed to the Forrest County Circuit Court. The circuit court heard arguments and issued an opinion and judgment affirming the Board. Finally, King filed the present appeal. We hold that, while King may be considered a state service employee as defined by the Legislature, the Adjutant General, by virtue of three statutory provisions, is not subject to review by the Board.

FACTS AND PROCEDURAL HISTORY

¶ 2. King began working for the Department approximately twenty years ago, and her role was that of a supervisor in the Environmental Office at Camp Shelby. However, in late 2015, Colonel Charles Scott was appointed as an investigating officer to determine whether King "utilized information garnered through her position as the Camp Shelby Environmental Officer to front run the Army Compatible Use Buffer Program for personal gain" by purchasing a specific piece of property located near Camp Shelby. King denied the claim against her, but after concluding the investigation, the Adjutant General terminated King's employment with the Department. The February 2016 letter explained that the investigation "determined that [King] willfully and knowingly violated [ Mississippi Code Section] 25-4-105.... This investigation revealed that you used your position for personal gain." The letter concluded that King's "employment with the Mississippi Military Department Environmental Office is terminated for cause, effective immediately pursuant to [ Mississippi Code section] 33-3-11(a)...."

¶ 3. Upon receiving the letter, King appealed her termination from the Department to the Board, and Chief Hearing Officer Michael Watts heard King's and the Department's arguments. The Department's response to King's appeal was to argue that the Board does not have jurisdiction to hear the appeal because King was not a state-service employee and was an at-will employee of the Adjutant General subject to removal at his discretion. Watts concluded that Mississippi Code Section 33-3-11 states that the Adjutant General shall appoint the employees of his department and "remove any of them at his discretion." Watts explained that the determination that King was subject to removal at the Adjutant General's discretion was supported by a 1994 opinion from the Attorney General that said Department employees were nonstate-service employees and held no property rights in their employment. Finally, Watts stated that, since the Legislature used the term "employee" in Section 33-3-11, but not in other statutes, for example Mississippi Code Section 25-9-107(c)(viii), where "officers" or "members" are used, then "the legislature intended to use the term 'employee' in [ Section] 33-3-11 to allow the ... Adjutant General to terminate an employee at his sole discretion. By doing so, [Department] employees are non-state service employees and this tribunal [ (the Board) ] lacks jurisdiction to consider Ms. King's appeal."

¶ 4. King appealed to have the full Board review Watts's order. The Board affirmed Watts's findings and conclusion. The Board noted that Section 33-3-11(a) is not ambiguous and "specifically authorizes the removal of employees employed by the Adjutant General, at his discretion." (Emphasis in original.)

¶ 5. Next, King filed a notice of appeal and petition for judicial review in the Forrest County Circuit Court. After conducting a hearing, the circuit court issued its opinion affirming the Board's decision. In its opinion, the circuit court explained Section 33-3-11, and other statutes located in Title 33 "unambiguously provide[that] employees of the ... Department are at-will employees and have no property interest regarding their employment." The circuit court further explained that it was not persuaded by King's argument that Mississippi Code Section 25-9-129, the Board's jurisdictional statute, applies in the instant case, and "to the extent that [ Section] 25-9-129, and other applicable provisions of Title 25, create an ambiguity with [ Section] 33-3-11, section 33-3-11 is more specific in that it defines the employment of the ... [D]epartment employees, and therefore controls." Additionally, the circuit court did not find the employee handbook provided by King to be persuasive either, because the handbook covered appellate procedures within the Department, not with the Board.

¶ 6. Aggrieved by the decisions, King filed the present appeal, and her sole issue is as follows:

Whether the lower court erred by finding that [King] was not a state service employee, despite extensive evidence indicating that [King] was a state service employee, and affirming the Mississippi Employee Appeals Board's decision to dismiss her appeal from an adverse employment action due to lack of jurisdiction.

STANDARD OF REVIEW

¶ 7. On appeal, the Court reviews the decision of an administrative agency to determine whether the decision was supported by substantial evidence, was arbitrary or capricious, was beyond the agency's power to adopt, or was violative of a constitutional or statutory provision. Watkins Dev., LLC v. Hosemann , 214 So.3d 1050, 1053 (¶ 15) (Miss. 2017).

¶ 8. We pause here, however, to consider closely our standard for reviewing an agency interpretation of statutes. We have stated that the Court's review of an "agency's interpretation of a rule or statute governing the agency's operation is a matter of law that is reviewed de novo , but with great deference to the agency's interpretation." Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid , 21 So.3d 600, 606 (¶ 15) (Miss. 2009). The Court has explained that [t]his "duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate." Id. A caveat being that the agency's interpretation will not be upheld "if it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id. (citing Buelow v. Glidewell , 757 So.2d 216, 219 (Miss. 2000) ).

¶ 9. However, our pronouncements on the deference due the agency have not been consistent and, especially in recent years, we have backed away from showing "great deference" to agency interpretations of statutes. Because only statutes are at issue in the case sub judice , we today address the standard of review only as it applies to agency interpretations of statutes. In Mississippi Department of Corrections v. Cook , 210 So.3d 965 (Miss. 2017), for example, we wrote that no deference will be accorded an agency interpretation that contradicts "the unambiguous terms or best reading of a statute." Id. at 967 (¶ 6) (quoting Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid , 21 So.3d 600, 606 (¶ 15) (Miss. 2009) ). Elsewhere we wrote that we do not " 'yield judgment or opinion' to an agency's statutory interpretation," because "the ultimate authority and responsibility to interpret the law, including statutes, rests with this Court." Miss. State and School Emp. Life and Health Plan v. KCC, Inc. , 108 So.3d 932, 939 (¶ 20) (Miss. 2013). In addition to the contradiction inherent in de novo but deferential review, writing on the one hand that we give great deference to agency interpretations of statutes and, then, with the next strike of the computer keyboard, writing that no deference will be given if the agency's interpretation contradicts the best reading of the statute, creates a confusing and vague standard. The same can be said of claiming to give deference while simultaneously claiming that the Court bears the ultimate responsibility to interpret statutes.

¶ 10. Deferential review of executive-branch statutory interpretations gives rise to another problem under Mississippi's strict constitutional separation of powers. Article 1, Section 1 of the Mississippi Constitution of 1890 divides the power of state government into three branches and assigns legislative powers to the legislative branch, judicial powers to the judicial branch, and executive power to the executive branch. While writing and passing statutes is the function of the Legislature, see Article 4, Section 59 (1890); see also Palermo v. LifeLink Found., Inc. , 152 So.3d 1099, 1105 (¶ 13) (Miss. 2014), interpreting statutes once enacted is the role of the judicial branch. KCC, Inc. , 108 So.3d at 939 (¶ 20).

¶ 11. If Article 1, Section 1, were not enough to establish the strict separation of powers under Mississippi's Constitution, then Article 1, Section 2, leaves no doubt. It provides as follows:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Miss. Const. art. 1, § 2. Executive-branch agencies must follow statutes and, absent a declaration from the judicial branch regarding an interpretation of a statute, must decide what statutes mean. However, when the interpretation of a statute comes before the courts, and when deference is given to an agency interpretation, we share the exercise of the power of statutory interpretation with another branch in violation of Article 1, Section 2.

¶ 12. Pursuant to the foregoing reasoning, we announce today that we abandon the old standard of review giving deference to agency interpretations of statutes. Our pronouncements describing the level of deference were vague and contradictory, such that the deference could be anywhere on a spectrum from "great" to illusory. Moreover, in deciding no longer to give deference to agency interpretations, we step fully into the role the Constitution of 1890 provides for the courts and the courts alone, to interpret statutes. Although not writing of Mississippi's constitutional separation of powers, we find persuasive the reasoning of then-Judge Gorsuch who wrote, in a separate opinion concurring with his own majority in Gutierrez-Brizuela v. Lynch , 834 F.3d 1142 (10th Cir. 2016), that, absent judicial deference to administrative agencies' interpretation of statutes, "[C]ourts would then fulfill their duty to exercise their independent judgment about what the law is ." Id. at 1158 (Gorsuch, J., concurring).

ANALYSIS

¶ 13. Pursuant to Mississippi Code Section 25-9-101, the Legislature created "a system of personnel administration ... governing the establishment of employment positions, classification of positions ..., [and] movement and separation of state employees[.]" Additionally, the Legislature established the State Personnel Board, which in turn, appoints an employee appeals board to "hold[ ] hearings, compil[e] evidence, and render[ ] decisions on appeals of state agency action adversely affecting the employment status or compensation of any employee in the state service." See Miss. Code Ann. §§ 25-9-109 ; 25-9-129 (Rev. 2010). The Legislature also has specified which employees are considered in the "state service." Mississippi Code Section 25-9-107(b) defines "state service" as "all employees of state departments, agencies and institutions as defined herein, except those officers and employees excluded by this chapter." Miss. Code Ann. § 25-9-107(b) (Rev. 2010). Interestingly, the Legislature also has provided a list of officers and employees who are excluded from the "state service" label. For example, members of the Legislature and their staff and employees are excluded, as are justices and judges of the judicial branch. Miss. Code Ann. § 25-9-107(c)(i), (iii) (Rev. 2010). Employees of the Department are not included in the list of employees excluded from "state service." The above statutes serve as the bases for King's argument, which, in short, is that, because the Department is not excluded by Section 25-9-107(c), she was a "state service" employee, entitling her to have the Board hear her appeal.

¶ 14. The Department also has a strong statutory basis for its position. The Department hangs its hat on the following statute: "The Adjutant General shall: (a) Appoint all of the employees of his department and he may remove any of them at his discretion[.]" Miss. Code Ann. § 33-3-11(a) (Rev. 2010). Further, the Department claims that the Adjutant General is subordinate only to the Governor, so the Board could not and should not intervene by reviewing his decision to terminate an employee. See Miss. Code Ann. § 33-3-3 (Rev. 2010) ("There shall be in the executive branch of the state government a military department. The Adjutant General shall be the executive head of the department and, as such, subordinate only to the Governor in matters pertaining thereto. There shall be in such department ... such other officers, enlisted men and civilian employees as the Adjutant General shall, from time to time, determine.") (emphasis added). Lastly, the Department points to Mississippi Code Section 33-3-7, which provides that "[t]he Adjutant General shall be chief of staff to the Governor, subordinate only to the Governor in matters affecting the military department and militia of this state." Miss. Code Ann. § 33-3-7 (Rev. 2010) (emphasis added). Thus, the Department claims that the Board cannot hear an appeal from an employee terminated at the discretion of the Adjutant General.

¶ 15. King claims that the statutes are in conflict with one another, and as the Court has explained, "[w]henever potentially conflicting statutes are at issue, ... in order to ascertain legislative intent, we employ rules of statutory construction and look to stare decisis for guidance." Lenoir v. Madison Cty. , 641 So.2d 1124, 1128 (Miss. 1994). We agree that the statutes are, indeed, conflicting. We also agree that, pursuant to Section 25-9-107, King is a state-service employee whose appeal otherwise would be heard by the Board. However-and here is the real conflict with the above-described statutes that set the powers of the Adjutant General-the Legislature states that "[t]he employee appeals board may modify the action of the department .... Such appointing authority shall promptly comply with the order issued as a result of the appeal to the employee appeals board." Miss. Code Ann. § 25-9-131(1) (Rev. 2010). The Legislature, in two separate statutes as quoted above, states that the Adjutant General is subordinate only to the Governor, coupled with Section 33-3-11, which explicitly gives the Adjutant General discretion in the hiring and terminating of the Department's employees. Essentially, the Legislature has made the Adjutant General's employment decisions unchangeable by the Board.

¶ 16. Because the statutes are conflicting, we must engage in statutory interpretation to discern the legislative intent. The Court recognizes a "longstanding rule of statutory construction that the terms of a specific statute control the terms of a general statute." Lenoir , 641 So.2d at 1128-9. King's argument is that Sections 25-9-107 and 25-9-129 are more specific than Section 33-3-11, particularly because Section 25-9-129 is a remedial statute that must be interpreted liberally. King explains that the statutes define "state service" but also provide a list of the employees who are "nonstate service," of which employees of the Department are not listed as "nonstate service." On the other hand, the Department argues that Section 33-3-11 is more specific because it applies directly to the Adjutant General's control of employees of the Department. We agree with the Department and hold that Section 33-3-11 is more specific because it directly addresses the termination of Department employees.

¶ 17. King next asserts that the statutes should be read in pari materia , which means that the Court "generally will read the statutes[, upon the same subject] together to interpret them harmoniously." Brown v. State , 102 So.3d 1087, 1092 (¶ 23) (Miss. 2012). She claims that the statutes can be read harmoniously by allowing the Adjutant General to make the employment decision, but then allow the terminated employee to be heard and present a defense to the Board. However, King's interpretation does not give actual effect to the Board's statutes in that no remedy is available for the Board to provide King after completion of a hearing-a fact which King acknowledged in her brief and at oral argument. Based on the language of the Department's statutes giving the Adjutant General, subordinate only to the Governor, the discretion to hire and terminate the Department's employees, the Board could not require the Adjutant General to reverse his decision and rehire King.

¶ 18. Finally, King claims that Sections 25-9-107 and 25-9-129 were enacted, amended, or reaffirmed later than Section 33-3-11 ; thus, the statutes she cites are the most recent and, therefore, controlling. However, in light of the other rules of statutory construction that weigh in favor of the Department, we are not persuaded by King's argument.

CONCLUSION

¶ 19. While the Legislature has not excluded the Department's employees from being defined as "state service," we must affirm the Board's decision to dismiss King's appeal, as the Adjutant General has discretion, given by statute, in the hiring and the termination of the Department's employees; thus, the Board does not have ability to review or adjust his decisions.

¶ 20. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      Mississippi Code Sections 25-9-121 ("state service") and 25-9-123 ("nonstate service") further codify the definitions provided in Sections 25-9-107(c)(i), (iii).

      According to King, she "is not suggesting that the Adjutant General cannot fire [her] for whatever reason he wants."


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    In the MATTER OF the Petition of M.A.S. for Adoption of the Minor Child Described Herein:
    M.A.S. v. Mississippi Department of Human Services a/k/a Department of Child Protection Services, A.B.G.P. and C.P.
    NO. 2017-CA-00541-SCT
    Supreme Court of Mississippi.
    June 7, 2018
    ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS, Ocean Springs
    ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL, BY: KIMBERLY MICHELLE HENRY, Jackson, DALANEY LEE MECHAM
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Prior to April 2016, a chancellor could, as part of a contested adoption, terminate the parents' rights, even when the termination issue was pending in youth court as part of a child-abuse proceeding. But in April 2016, the adoption and termination-of-parental-rights statutes changed. Now, a chancellor cannot grant an adoption contested by the parents unless the parents' rights have been terminated under the Mississippi Termination of Parental Rights Law (MTPRL). And under the MTPRL, the Legislature has carved out an important exception to the chancery court's jurisdiction over termination proceedings, giving "a county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child."

¶ 2. In this contested adoption filed in January 2017, the chancellor applied the MTPRL and recognized the youth court had exclusive jurisdiction over the request to terminate parental rights because the youth court already had jurisdiction over the child as part of an abuse proceeding. And unless and until the youth court terminated the parents' rights, the chancery court could not grant the petition to adopt the child. For this reason, the chancellor dismissed the adoption so the termination could be pursued in youth court.

¶ 3. Because the chancellor correctly interpreted and applied the controlling law when he dismissed the adoption petition, we affirm.

Background Facts and Procedural History

¶ 4. When he was a months-old infant, D.C.G.P. was taken to the emergency room by his parents, A.B.G.P. and C.P. Because the doctors suspected physical abuse, the Mississippi Department of Human Services (MDHS) removed the child from his parents and placed him in the foster care of M.A.S.

¶ 5. MDHS then filed a petition with the Harrison County Youth Court. After an initial adjudication hearing, the youth court ordered the child to remain under MDHS's protection. M.A.S. continued to foster the child for two years. Then, on November 8, 2016, the youth court held another adjudication hearing. The youth court determined reunification with his parents was in the best interest of the child. The youth court adopted a permanency plan to achieve reunification and ordered MDHS to make reasonable efforts to achieve the plan.

¶ 6. Despite the youth court's order to reunite the child with his parents, M.A.S. filed an adoption petition in Harrison County Chancery Court on January 30, 2017. She named MDHS and the child's parents, A.B.G.P. and C.P., as respondents. As part of her petition, she sought to terminate A.B.G.P. and C.P.'s parental rights.

¶ 7. On March 24, 2017, A.B.G.P. and C.P. moved to dismiss M.A.S.'s petition. They alerted the chancery court to the youth court's reunification order, asserting the youth court has original exclusive jurisdiction over whether to terminate their parental rights. And they accused M.A.S. of trying to circumvent the youth court's reunification decision by seeking a termination in chancery court.

¶ 8. On April 17, 2017, the chancellor granted A.B.G.P. and C.P.'s motion to dismiss. Based on the 2016 amendments to the termination-of-parental-rights law, the chancellor agreed with the parents that the youth court had exclusive jurisdiction over M.A.S.'s petition to terminate parental rights. And under the 2016 amendment to the adoption statute, unless and until parental rights were terminated, the chancellor could not grant a contested adoption. Thus, the chancellor dismissed M.A.S.'s petition "in order that the termination of the parental rights of the minor child's biological parents may be pursued in Harrison County Youth Court."

¶ 9. M.A.S. timely appealed, triggering this Court's de novo review. Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 821 (Miss. 2009) (reviewing de novo the grant of a motion to dismiss for lack of subject-matter jurisdiction).

Discussion

I. Governing Statutes

¶ 10. Central to this appeal is the chancellor's interpretation and application of the 2016 bill overhauling termination-of-parental-rights proceedings. 2016 Miss. Laws ch. 431 (H.B. 1240) (effective April 18, 2016). Though often connected to adoptions, terminations of parental rights are distinct proceedings, governed by separate chapters of the Mississippi Code. Mississippi Code Section 93-15-101 et seq. -now titled the Mississippi Termination of Parental Rights Law (MTPRL)-governs terminations of parental rights. And Mississippi Code Section 93-17-1 et seq. governs adoptions.

A. Prior Statutes and Interpretation

¶ 11. Before April 2016, however, that distinction was less clear. While the termination statute, Section 93-15-103, provided specific factors justifying termination, the adoption statute, Section 93-17-7, also had its own "expansive list of factors that may be considered as reasons to terminate parental rights in the course of a contested adoption." Miss. Dep't of Human Servs. v. Watts , 116 So.3d 1056, 1059 (Miss. 2012) (citing Miss. Code Ann. § 93-17-7 (Rev. 2004) ).

¶ 12. This statutory authority within Section 93-17-7 to terminate parental rights was key to this Court's holding in a prior case factually similar to this one. In Watts , the youth court had jurisdiction over two abused and neglected children and was working toward reunification with the boys' father, who had just been released from prison. When the foster parents filed in chancery court a petition to terminate parental rights and adopt the children, MDHS challenged the chancery court's jurisdiction, asserting the youth court's continuing jurisdiction over the children. Watts , 116 So.3d at 1057-58.

¶ 13. The chancery court held it had jurisdiction, and this Court agreed. We acknowledged the Legislature had given youth courts " 'exclusive original jurisdiction' over 'all proceedings' involving abused and neglected children." Id. at 1058 (quoting Miss. Code Ann. § 43-21-151 ). We also acknowledged our prior holding in K.M.K. v. S.L.M. that the youth court has priority jurisdiction if "there had been a prior proceeding in the youth court concerning the same child," meaning the "chancery court may not exercise jurisdiction over any abused and neglected child or any proceeding pertaining thereto over which the youth court may exercise jurisdiction." Watts , 116 So.3d at 1059 (quoting K.M.K. v. S.L.M , 775 So.2d 115, 118 (Miss. 2000) ). But one of the proceedings a youth court may not exercise jurisdiction over is an adoption. Instead, "[j]urisdiction to hear and determine adoption proceedings is vested exclusively in our chancery courts." Id. (citing Miss. Code Ann. § 93-17-3(4) (Rev. 2004) ). And when exercising jurisdiction over an adoption petition, chancery courts were statutorily authorized to consider "an expansive list of factors ... as reasons to terminate parental rights in the course of a contested adoption." Id. (citing Miss. Code Ann. § 93-17-7 (Rev. 2004) ).

¶ 14. Based on this statutory authority, we found "nothing that would require a chancery court to hold in abeyance its exclusive jurisdiction over an adoption petition until a youth court first terminates the rights of the natural parents." Id. Instead, "the Chancery Court may exercise its exclusive jurisdiction over these adoption proceedings even though the Youth Court has not yet terminated the rights of the parents." Id.

¶ 15. Chief Justice Waller dissented. While, "[c]ertainly, chancery courts have exclusive jurisdiction to hear and determinate adoption proceedings," a contested adoption cannot be granted over a parent's objection without first terminating the parent's rights. Id. at 1061 (Waller, C.J., dissenting). And in his view, because "the Youth Court ... already has exercised jurisdiction over termination-of-parental-rights proceedings, it retains continuing jurisdiction over that issue, and the ... Chancery Court should not be allowed to reach that same issue by adjudicating an adoption over [the father's] objection." Id. Instead, Chief Justice Waller would have applied K.M.K. 's priority-jurisdiction holding to the particular facts of the case. According to him-

Legislative intent was one of our principal concerns in that case. One of the primary goals of youth court is reunification, if that is found to be in the child's best interest. That goal is thwarted, however, if chancery courts are allowed to exercise jurisdiction over contested adoptions even as reunification is underway. In K.M.K. , we also sought to prevent forum shopping and to avoid conflicting orders between trial courts on the same issues and multiple suits.

Watts , 116 So.3d at 1063 (Waller, C.J., dissenting) (citing K.M.K. , 775 So.2d at 118 ).

B. New and Amended Statutes

¶ 16. Three and a half years after Watts , during the 2016 session, the Legislature passed House Bill 1240, aimed at reforming parental-rights terminations. Significantly, the Legislature removed the separate list of termination factors from Section 93-17-7. 2016 Miss. Laws ch. 431 (H.B. 1240), § 21. In doing so, the Legislature removed the chancery court's authority to grant a contested adoption and terminate parental rights without having to follow the termination-of-parental-rights statutes. Instead, Section 93-17-7 now provides: "No infant shall be adopted to any person if a parent whose parental rights have not been terminated under the Mississippi Termination of Parental Rights Law, after having been summoned, shall appear and object thereto before the making of a decree for adoption." Miss. Code Ann. § 93-17-7(1) (Supp. 2017). In other words, there are no longer two statutory avenues to terminate parental rights-one under the MTPRL and another as part of a contested adoption. Now, all terminations of parental rights must proceed under the MTPRL.

¶ 17. There is also no longer competing jurisdiction between youth court and chancery court over parental-rights terminations involving abused or neglected children. House Bill 1240 added a new Section 93-15-105, which covers jurisdiction and venue of termination-of-parental-rights proceedings. Miss. Code Ann. § 93-15-105(1) (Supp. 2017). Under Section 93-15-105(1), "[t]he chancery court has original exclusive jurisdiction over all termination of parental rights proceedings" with one important exception. In direct contradiction to Watts , Section 95-15-105(1) unequivocally provides that a "county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, has original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child." Miss. Code Ann. § 93-15-105(1) (Supp. 2017) (emphasis added).

¶ 18. This means that when a petition for adoption is filed in chancery court-as it must be -and the parents of that child contest the adoption, amended Section 93-17-7(1) now requires that the parents' rights be terminated under the MTPRL before the contested adoption can be granted. The MTPRL provides that the chancery court also has jurisdiction over the termination proceeding unless the youth court already has jurisdiction over the child in an abuse or neglect proceeding. Miss. Code Ann. § 93-15-105(1) (Supp. 2017). If the youth court already has jurisdiction over the child in an abuse and neglect proceeding, then the youth court has exclusive original jurisdiction to hear a petition to terminate parental rights. So a person seeking to adopt the abused or neglected child no longer can simply seek the termination of the parents' rights as part of her adoption petition. Instead, the MTPRL makes clear she must first petition for the termination of parental rights in youth court, before she can seek an adoption in chancery court.

¶ 19. Thus, House Bill 1240 eliminated Chief Justice Waller's concern in Watts -that a foster parent could potentially thwart a youth court's reunification decision by seeking termination as part of a contested adoption in chancery court. See Watts , 116 So.3d at 1063 (Waller, C.J., dissenting).

II. Application

¶ 20. Turning to this case, the chancellor did not-as M.A.S. urged him to-simply follow Watts and exercise jurisdiction over the termination-of-parental-rights request as part of the contested adoption. Instead, applying amended Section 93-17-7, the chancellor recognized the child could not be adopted because A.B.G.P. and C.P., whose parental rights had not yet been terminated under the MTPRL, had objected. And under newly created Section 93-15-105(1) of the MTPRL, the youth court had exclusive original jurisdiction to hear M.A.S.'s termination-of-parental-rights petition, because the youth court already had jurisdiction over the child as part of the abuse proceeding initiated by MDHS years prior. So the chancellor dismissed the adoption petition in order for termination to be pursued in youth court.

¶ 21. On appeal, M.A.S. makes the same Watts -based argument she made in chancery court-"that the Chancery Court may exercise its exclusive jurisdiction over these adoption proceedings even though the Youth Court has not yet terminated the rights of the parents." Watts , 116 So.3d at 1059. This argument, however, wholly ignores House Bill 1240 and the fact that, through amended Section 93-17-7(1) and newly created Section 93-15-105(1), the Legislature has codified the opposite of Watts -the chancery court may not grant a contested adoption if a youth court with jurisdiction over the child in an abuse proceeding has not yet terminated the parents' rights.

¶ 22. Because the law has changed since Watts , the chancellor did not err by applying the current governing statutes to hold that the youth court had exclusive jurisdiction over the termination of A.B.G.P. and C.P.'s parental rights and, unless and until those rights were terminated, the child could not be adopted.

III. Constitutionality

¶ 23. Alternatively, M.A.S. asserts, if the chancellor correctly interpreted and applied Section 93-15-105(1), then the new jurisdiction statute is unconstitutional. M.A.S. did not bring this constitutional argument before the chancellor. And "this Court has stated repeatedly that constitutional questions not raised in the trial court will not be reviewed on appeal." Pascagoula Sch. Dist. v. Tucker , 91 So.3d 598, 603 (Miss. 2012). That said, "a question of subject matter jurisdiction may be presented at any time"-including during appeal. Burnette v. Hartford Underwriters Ins. Co. , 770 So.2d 948, 951 (Miss. 2000). M.A.S.'s constitutional challenge raises a question of subject-matter jurisdiction. So we proceed to address its merits.

¶ 24. Statutes such as Section 93-15-105(1)"come before us clothed with a heavy presumption of constitutional validity." In the Interest of T.L.C. , 566 So.2d 691, 696 (Miss. 1990), overruled on other grounds by In re J.T. , 188 So.3d 1192 (Miss. 2016). And "[t]he party challenging the constitutionality of a statute"-in this case M.A.S.-"is burdened with carrying [her] case beyond all reasonable doubt before this Court has authority to hold the statute, in whole or in part, of no force or effect." Id. (citations omitted).

¶ 25. M.A.S. has not met this burden. Quoting Watts , M.A.S. asserts Section 159(d) of "[t]he Mississippi Constitution gives chancery courts 'full jurisdiction over minor's business,' " which "cannot be diminished by statute." Watts , 116 So.3d at 1058 (quoting Miss. Const. art. 6, § 159 (d) ). But in Watts , the chancery-court jurisdiction that could not be "diminished by statute" was the chancery court's exclusive jurisdiction "to hear and determine adoption proceedings ." Id. (emphasis added). Section 93-15-105(1) does not diminish that. Section 93-15-105(1) does not address adoptions. It applies to termination proceedings only.

¶ 26. Importantly, the chancellor here did not dismiss M.A.S.'s petition based on lack of jurisdiction over the child's adoption . Rather, he dismissed the petition because he lacked jurisdiction over the petition to terminate the parents' rights based on the youth court's jurisdiction over the child. And unless and until those rights were terminated, the child could not be adopted. In other words, he dismissed the petition, not because the chancery court was deprived of its constitutionally set jurisdiction over adoptions, but rather because M.A.S. sought to adopt a child who was not currently eligible for adoption. So M.A.S.'s argument that Section 93-15-105(1) unconstitutionally deprives the chancery court of its jurisdiction over adoptions fails.

¶ 27. The dissent disagrees with our analysis, concluding that, because an action by a county court sitting as a youth court may be required before an abused and neglected child may be adopted, Section 93-15-105(1) unconstitutionally encroaches on the chancery court's jurisdiction over adoptions. But, through Section 43-21-151, the Legislature gave youth courts " 'exclusive original jurisdiction' over 'all proceedings' involving abused and neglected children." Watts , 116 So.3d at 1058 (quoting Miss. Code Ann. § 43-21-151 ). Section 93-15-105(1) is simply an extension of Section 43-21-151, clarifying that, once an abused-and-neglected-child proceeding is initiated in youth court, that court's exclusive jurisdiction carries through the entirety of the proceeding.

¶ 28. By declaring Section 93-15-105(1) unconstitutional, what the dissent is really saying is that Section 43-21-15-and every single county court exercising youth court jurisdiction-is unconstitutional. Taking the dissent's view to its logical conclusion, does not a proceeding over an abused and neglected child also involve "minor's business"? Of course it does. And when faced with a similar Section 159 (d)-based argument against Section 43-21-151, "this [C]ourt has held constitutional the youth court and its jurisdiction." In re T.A.P. , 742 So.2d 1095, 1102-03 (Miss. 1999) (citing In the Interest of D.K.L. , 652 So.2d 184, 189 (Miss. 1995) ; In the Interest of D.L.D. , 606 So.2d 1125, 1127 (Miss. 1992) ; T.L.C. , 566 So.2d at 696-97 ). In particular, the father in T.L.C. made a constitutional argument against Section 43-21-151 very similar to M.A.S.'s complaint against Section 93-15-105(1) -that it "unconstitutionally usurps jurisdiction he believes committed exclusively to Chancery Court." T.L.C. , 566 So.2d at 695. Like the dissent here, the father in that case "h[ung] his hat on Section 159 (d) which vests in the chancery court 'full jurisdiction' in cases concerning 'minor's business' and call[ed] [the Court's] attention to Wheeler v. Shoemake , 213 Miss. 374, 57 So.2d 267 (1952)." T.L.C. , 566 So.2d at 696. But, in this Court's view, "nothing in Wheeler suggests any constitutional infirmity in the jurisdiction of those youth courts in counties having county courts where the youth courts are made divisions thereof." Id.

¶ 29. We find the same to be true here. Nothing suggests any constitutional infirmity in the youth court's jurisdiction over terminations of parental rights as part of an ongoing abused-and-neglected-child proceeding. Contrary to the dissent's contention, Section 93-15-105(1) does not deprive the chancery court of its exclusive jurisdiction over adoptions. And Section 93-15-105(1) is consistent with Section 43-21-151's exclusive-jurisdiction provision, which this Court has upheld as constitutional. Therefore, we hold M.A.S. has failed to overcome the heavy presumption that Section 93-15-105(1)'s exclusive-jurisdiction provision is constitutional.

Conclusion

¶ 30. The chancellor properly interpreted and applied Section 93-15-105(1) and Section 93-17-7(1). Therefore, we affirm the order dismissing M.A.S.'s prematurely filed adoption petition.

¶ 31. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 32. Because Mississippi Code Section 93-15-105(1) unconstitutionally diminishes the jurisdiction of the chancery court to hear and determine petitions for adoption, I respectfully dissent. It is elementary that a contested adoption cannot take place unless parental rights have been terminated. Section 93-15-105(1) purports to prevent chancery courts from terminating parental rights with respect to any child under the jurisdiction of a youth court in an abuse or neglect proceeding. Miss. Code Ann. § 93-15-105(1) (Supp. 2017). But if a chancery court cannot terminate the parental rights of parents who contest an adoption, then it is stymied in the exercise of its constitutional prerogative to adjudicate a petition for adoption. Therefore, I would hold that Section 93-15-105(1) is unconstitutional and void.

¶ 33. Section 93-15-105(1) is part of a 2016 legislative enactment that revised our state's law governing termination of parental rights, now known as the Mississippi Termination of Parental Rights Law, 2016 Miss. Laws Ch. 431 (effective April 18, 2016). Section 93-15-105(1) provides: "The chancery court has original exclusive jurisdiction over all termination of parental rights proceedings except that a county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, has original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child." Miss. Code Ann. § 93-15-105(1) (Supp. 2017). M.A.S. argues that this statute is unconstitutional because it is in conflict with the Mississippi Constitution of 1890, which vests in the chancery court the authority to adjudicate adoptions. See Miss. Const. Art. 6 § 159 (d).

¶ 34. I agree with the majority that, because M.A.S.'s constitutional challenge raises a question of subject-matter jurisdiction, the issue is not procedurally barred despite her failure to bring it to the attention of the chancery court. But unlike the majority, I would hold that Section 93-15-105(1) is unconstitutional beyond a reasonable doubt. Although state statutes come to us clothed with a heavy presumption of constitutional validity, legislation that is in palpable conflict with the constitution is nevertheless void. In the Interest of T.L.C. , 566 So.2d 691, 696 (Miss. 1990), overruled on other grounds . The presumption of constitutionality may be overcome if the statute is shown to be unconstitutional beyond a reasonable doubt. Id.

¶ 35. Because a contested adoption cannot take place without terminating parental rights, and our Constitution vests jurisdiction of minors' business, including adoptions, in the chancery courts, Section 93-15-105(1) is in palpable conflict with our Constitution and it is facially unconstitutional beyond a reasonable doubt. Without the ability to terminate parental rights, a chancery court cannot exercise its constitutional authority to adjudicate a contested adoption petition. This Court held as much in Mississippi Department of Human Services v. Watts , 116 So.3d 1056, 1060-61 (Miss. 2012). In Watts , the youth court had acquired jurisdiction of two minor children taken into custody by the Jackson County Department of Human Services after allegations of neglect. Id. at 1057. The youth court proceedings culminated in an order for reunification with the children's natural father. Id. The children's foster parents filed a petition in chancery court for termination of parental rights and adoption, and the Department argued that the chancery court had no jurisdiction to adjudicate the adoption petition due to the youth court's reunification order. Id.

¶ 36. This Court held that the chancery court had jurisdiction over the adoption proceedings. Id. We recognized that "The Mississippi Constitution gives chancery courts 'full jurisdiction' [over] ... minor's business," and that this constitutional jurisdiction "cannot be diminished by statute." Id. at 1058 (quoting Miss. Const. Art 6 § 159 ; White v. White , 26 So.3d 342, 346 (Miss. 2010) ). We found that, in rendering a judgment of adoption, the chancellor has authority to terminate parental rights. Id. at 1059.

¶ 37. After examining the statute that undertakes to set out the youth court's exclusive jurisdiction over abused and neglected children, and the statute that grants the chancery court exclusive jurisdiction over adoptions, and related statutes, many of which now have been repealed or amended, we discussed the case of In re Beggiani , 519 So.2d 1208 (Miss. 1988). Id. at 1058-59. There, the Court was confronted with another jurisdictional contest between youth court and chancery court. Beggiani , 519 So.2d at 1209. In Beggiani , foster parents had petitioned for adoption of a child under the jurisdiction of the youth court in abuse or neglect proceedings. Id. After the youth court had granted custody to the child's maternal grandmother, the chancery court granted the foster parents' petition for adoption. Id. The grandmother argued that the youth court had priority jurisdiction of the entire controversy, barring the adoption proceedings. Beggiani held that the priority jurisdiction rule did not apply because abuse or neglect proceedings involve a different subject matter from adoption proceedings, finding:

[I]t has been recognized that adoption proceedings are entirely separate and distinct statutory proceedings neither connected with nor controlled by the prior custody awards of another court. Lewison v. State , 193 So.2d 53 (Fla. Dist. Ct. App. 1966). Even though a juvenile court may have obtained and retained jurisdiction over a custody case by an initial adjudication of dependency and a custody award, jurisdiction of another court in a subsequent adoption proceeding is unaffected, and the juvenile court could not act so as to thwart the adoption proceedings.

Id. at 1211 (citation omitted). This Court held that the chancery court had assumed jurisdiction of the adoption proceedings properly despite the youth court's exercise of jurisdiction over the child in the abuse and neglect proceedings and despite the youth court's entry of a custody award. Id. at 1211. Thus, Beggiani recognized that abuse or neglect of a child is an entirely different subject matter from adoption of a child, and that "an adoption is superior to a custody award." Id. at 1213-14.

¶ 38. After analyzing Beggiani , Watts set forth the constitutional underpinning of its holding that chancery courts may exercise their jurisdiction over adoptions even if a youth court has assumed jurisdiction over the child in an abuse or neglect proceeding. Watts , 116 So.3d at 1060-61. Watts held that "[t]he statutes which bestow jurisdictional powers on the Youth Court do not diminish the Chancery Court's jurisdictional authority granted by our Constitution. Therefore, even though the Youth Court properly exercised jurisdiction over proceedings related to these abused and neglected minors, its jurisdiction did not extend to the Wattses' petition for adoption, and the Youth Court may not exercise its jurisdiction in a manner 'so as to thwart the adoption proceedings.' " Id. (citing Beggiani , 519 So.2d at 1211 ).

¶ 39. The majority finds that Watts has no lasting validity after the legislature's enactment of Section 93-15-105(1). But, although Watts relied on statutes and case law, our decision in that case rested also on constitutional grounds. See Watts , 116 So.3d at 1060 ("we are more persuaded that the dictates of our Constitution, our own caselaw, and the best interests of these two children" mandated that the chancery court assume jurisdiction over the contested adoption proceedings despite the youth court's assertion of jurisdiction over the children in abuse and neglect proceedings). Watts recognized that the chancery court's constitutional jurisdiction over minors' business, which includes adoptions, cannot be diminished by the statutes establishing youth court jurisdiction. Id. at 1060-61. Because Watts 's delineation of chancery court jurisdiction rested upon constitutional grounds, the legislature cannot circumvent this Court's decisions by enacting contrary legislation with the effect of diminishing the constitutionally established chancery court's jurisdiction.

¶ 40. It is beyond question that Section 93-15-105(1) does diminish the chancery court's jurisdiction. The majority finds that, because Section 93-15-105(1) removes only the chancery court's jurisdiction to terminate parental rights, its jurisdiction to adjudicate adoption petitions remains undisturbed. But because no contested adoption can take place unless the rights of the natural parents have been terminated, the majority's conclusion is specious. Of course Section 93-15-105(1) purports to reduce the chancery court's jurisdiction, as this very case illustrates. Applying the new statute, the chancellor found that, because the youth court had jurisdiction over D.C.G.P. in an abuse or neglect proceeding, the chancery court lacked jurisdiction to grant a contested adoption since the chancellor could not terminate parental rights. So the chancery court exercised the only option left to it by the new statute and dismissed the adoption petition.

¶ 41. After today's decision, in those counties in which the county court sits as a youth court, children under the youth court's jurisdiction in abuse or neglect proceedings are uniquely situated because those children will not be eligible for adoption in a contested case absent the action of the youth court. The Mississippi Termination of Parental Rights Law provides no statutory process for coordination between the actions of the youth court and the chancery court, which are two distinct courts with two different judges, respecting the status of such a child or the eligibility of the child for adoption. A potential adoption proceeding is further complicated by the fact that youth court proceedings and records are confidential, although a youth court can order the disclosure of youth court records to a court in which an adoption is pending if the youth court determines that disclosure is required in the best interests of the child. See Miss. Code Ann. § 43-21-251 ; Miss. Code Ann. § 43-21-261(1)(b) (Rev. 2015). As it stands, the chancery court, which is the court with constitutional jurisdiction over adoptions, must dismiss any adoption petition concerning a child under the jurisdiction of a county court that sits as a youth court in an abuse or neglect proceeding.

¶ 42. Youth courts serve an important judicial function in adjudicating abuse or neglect proceedings. But the legislature cannot expand youth court jurisdiction in a way that encroaches upon the chancery court's constitutional jurisdiction over the distinct subject matter of adoptions. I would hold that Section 93-15-105(1), which purports to divest the chancery court of jurisdiction until and unless the youth court has terminated parental rights, is constitutionally infirm. Therefore, I would reverse the decision of the chancery court and remand for further proceedings regarding the adoption petition filed by M.A.S.

KING, J., JOINS THIS OPINION.

      Miss. Dep't of Human Servs. v. Watts , 116 So.3d 1056, 1059 (Miss. 2012).

      Miss. Code Ann. § 93-17-7(1) (Supp. 2017), amended by 2016 Miss. Laws ch. 431 (H.B. 1240) § 21 (effective April 18, 2016).

      Miss. Code Ann. § 93-15-105(1) (Supp. 2017), added by 2016 Miss. Laws ch. 431 (H.B. 1240), § 4 (effective April 18, 2016).

      This case is confidential. So only the parties' initials will be used.

      During the pendency of the youth-court action, the MDHS division that handles abused and neglected children became a separate agency, Mississippi Child Protection Services. But for consistency and because M.A.S. named MDHS as respondent in her petition, we refer to the state agency involved in this case as MDHS.

      Mississippi Code Section 93-15-103 (Rev. 2015) was repealed and replaced by Section 2 of House Bill 1240. Now, the MTPRL's grounds-for-termination factors are found in Mississippi Code Section 93-15-121 (Supp. 2017).

      Miss. Code Ann. § 93-17-3(4) (Supp. 2017).

      Section 43-21-151 has several significant exceptions, not applicable here.

      In a sense, Section 93-15-105(1) codifies our priority-jurisdiction holding in K.M.K. -"that a chancery court may not exercise jurisdiction over any abused or neglected child or any proceeding pertaining thereto over which the youth court may exercise jurisdiction if there has been a prior proceeding in the youth court concerning that same child." K.M.K. , 775 So.2d at 118. While Watts made clear a youth court may not exercise jurisdiction over an adoption proceeding, both Watts and K.M.K. recognized the youth court's jurisdiction over parental-rights terminations involving an abused or neglected child. Watts , 116 So.3d at 1058-59 ; K.M.K. , 775 So.2d at 117.

      Because chancery courts were established by the Mississippi Constitution, they are constitutional courts, and their jurisdiction cannot be diminished. Miss. Const. Art. 6, § 159. Youth courts are inferior courts created by statute pursuant to Article 6, Section 172 of the Mississippi Constitution, which allows the legislature to create "such other inferior courts as may be necessary, and abolish the same whenever deemed expedient." Miss. Const. Art. 6, § 172. They have been deemed "special courts." In the Interest of T.L.C. , 566 So.2d at 696.

      Miss. Code Ann. § 43-21-151 (Rev. 2015).

      Miss. Code Ann. § 93-17-3(4) (Rev. 2013).

      As the majority recognizes, this Court has carved out an exception to chancery court jurisdiction over minors' business by finding that the statute giving youth courts exclusive original jurisdiction over abused and neglected children is constitutional. In the Interest of T.L.C. , 566 So.2d at 696. But until today's decision, the chancery court's jurisdiction over adoptions was inviolate. After this decision, any child under the jurisdiction of a county court sitting as a youth court in abuse or neglect proceedings cannot be adopted over his or her natural parents' objection unless and until the youth court decides to terminate parental rights.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Tanya Dale Wright SANDERSON v. Hobson L. SANDERSON, Jr.
    NO. 2016-CA-01739-SCT
    Supreme Court of Mississippi.
    June 7, 2018
    ATTORNEY FOR APPELLANT: ROY O. PARKER, Tupelo
    ATTORNEYS FOR APPELLEE: JAK McGEE, SMITH GREGORY M. HUNSUCKER
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. This is the second time Tanya Dale Wright Sanderson and Hobson L. "Hob" Sanderson's divorce has ended up before this Court.

¶ 2. In Sanderson v. Sanderson , 170 So.3d 430 (Miss. 2014) ( Sanderson I ), this Court agreed with the chancellor that Tanya and Hob's prenuptial agreement was procedurally conscionable. But we disagreed that potential substantive unconscionability was not a consideration. We reversed and remanded for the chancellor to weigh Tanya's claim that the prenuptial agreement was substantively unconscionable. Tanya had also claimed the chancellor erroneously classified as Hob's separate property several assets that had been commingled with marital property. We agreed with Tanya regarding one asset-the couple's joint bank account. And we reversed the chancellor's finding that the joint bank-account funds were not commingled.

¶ 3. On remand, a different chancellor found the prenuptial agreement was substantively conscionable and thus enforceable. After a detailed Ferguson analysis, the chancellor then awarded Tanya $537.42-the balance of the joint bank account at the time of Tanya and Hob's final separation. Tanya appeals. She first argues the chancellor failed to recognize the prenuptial agreement was unconscionable because the results of enforcement are unfair. Alternatively, she argues the chancellor erred by not expanding the scope of commingled marital assets to include Hob's home and investment accounts.

¶ 4. Upon review, we discern no reversible error. The chancellor's holding the prenuptial agreement was enforceable and his determination the commingled marital assets only encompassed the balance of the joint account are consistent with both Sanderson I and the terms of the prenuptial agreement. Therefore, we affirm.

Background Facts and Procedural History

I. Marriage and Divorce

¶ 5. Tanya and Hob were cohabiting when they decided to marry in 1994. At the time, Hob was sixty-two and owned a construction business and a home. Tanya was twenty-eight, worked as a deputy chancery clerk, and owned a home. Both had been married previously. Hob had children from his first marriage who were grown and not living with him, and Tanya had a young daughter with her ex-husband.

¶ 6. The day before they married, at Hob's insistence, the two entered into a prenuptial agreement. The agreement eliminated all rights to spousal support and entitled each party to keep all separate property acquired not only before but also during the marriage, if traceable. According to Tanya, after she married, she sold her home and quit her job. Tanya raised her daughter in Hob's home, and both she and her daughter lived off Hob's income from his business, saving all child-support payments for her daughter's college education.

¶ 7. After seventeen years of marriage, Tanya was granted a divorce. The chancellor enforced the prenuptial agreement, granting each party his or her separate property. Relevant to this appeal, the chancellor found six investment accounts in Hob's name remained his separate, nonmarital property and two investment accounts were Tanya's separate property. While the couple had a joint bank account, the chancellor found the funds deposited in this account were completely traceable to Hob's separate assets, so the joint account was merely a "clearinghouse" to facilitate the transfer of funds. The chancellor also found Hob had exclusive title, possession, and control of the house and 320 acres in Aberdeen, Mississippi, where he and Tanya had lived during their marriage. In total, Hob left the marriage with more than $3.5 million in separate property, and Tanya left with approximately $425,000 in separate property.

II. First Appeal

¶ 8. Tanya appealed. She challenged both the chancellor's determination the prenuptial agreement was enforceable and his application of the agreement to find certain assets, otherwise subject to equitable distribution, remained Hob's separate property.

A. Conscionability

¶ 9. Tanya argued the chancellor erred in finding the prenuptial agreement procedurally conscionable, as well as refusing to consider whether the agreement was substantively conscionable. This Court affirmed the chancellor's finding the agreement was procedurally conscionable. Sanderson I , 170 So.3d at 435. But we clarified that, because "a prenuptial agreement is a contract like any other contract," it is "subject to the same rules of construction and application"-including the consideration whether the agreement is substantively conscionable. Id. at 436 (citations omitted). Substantive conscionability "looks at the terms of the contract" and "the circumstances existing at the time the contract was made ." Id. at 437 (emphasis in original). We held "that substantive unconscionability feasibly could be measured at the time the prenuptial agreement is made," thus "ensur[ing] that the Court does not 'relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.' " Id. (quoting Mabus v. Mabus , 890 So.2d 806, 819 (Miss. 2003) ). And we reversed and remanded this case for the chancellor to do so. Id.

B. Asset Classification

¶ 10. Tanya's other points of error focused on property-its classification and distribution. She argued commingling had converted Hob's separate property into marital assets subject to distribution. Specifically, she claimed all of Hob's investment accounts were marital property subject to distribution. And the joint account was not a "clearinghouse" but instead the funds deposited into the account were for familial use. She also asserted the chancellor erred when he did not classify the marital home, surrounding acreage, and contents of the marital home as marital property subject to equitable distribution.

¶ 11. Our opinion in Sanderson I only addressed Tanya's commingling claim concerning the joint account. We reversed the chancellor's finding that the account merely served as a "clearinghouse." Id. at 437. Instead, we found "the money deposited in the joint account became a marital asset subject to equitable division because of its family use." Id. (citing A & L, Inc. v. Grantham , 747 So.2d 832, 838 (Miss. 1999) ). Because Tanya had contributed in "disburs[ing] the funds for familial purposes," under Mississippi's law concerning marital property, "her contributions and the familial use to which the money in the joint account was put changed the legal nature of the money in the account from separate property subject to tracing to marital property." Id. at 438.

¶ 12. We concluded that "Tanya and Hob[ ] could have drafted the prenuptial agreement to address funds for familial use, but they did not." Id. (internal citations omitted). So we "reverse[d] the chancellor's finding that the joint bank account funds were not commingled." Id.

¶ 13. "After due consideration of the other issues raised," we "discern[ed] no other errors." Id.

III. Remand

A. Conscionability

¶ 14. Due to the passing of the original chancellor, another chancellor was assigned this case on remand. He first tackled the "main remanded issue"-whether the prenuptial agreement was substantively conscionable. He rejected Tanya's assertions that the true test of fairness was to compare what she would have received had there been no prenuptial agreement to what she would receive if the agreement is enforced. He also rejected Tanya's request to apply caselaw from other jurisdictions and reach the same result. Instead, he considered the agreement's terms and the circumstances at the time the agreement was formed. See Sanderson I , 170 So.3d at 438. And he concluded the terms were mutual and the circumstances were not so unfair and one-sided to make the agreement unconscionable.

B. Equitable Distribution

¶ 15. By separate order, the chancellor then addressed the more "limited" issue of the commingled joint bank account. On remand, Tanya had argued that Hob's investment accounts and home fell into the scope of marital assets to be distributed, based on commingling. But the chancellor found Tanya's "extensive and all-encompassing commingling and familial use claims" were incompatible with the enforceable terms of the prenuptial agreement. While this Court had held funds "kept" in the joint account were marital, the funds Tanya claims were also marital were not kept in the joint account for family use. Instead they were separated out and thus regained the status of separate property under the prenuptial agreement. See Johnson v. Johnson , 650 So.2d 1281, 1286 (Miss. 1994) (holding timber-sale proceeds, generated by wife's separate estate, though commingled in the family account, "reacquired" their nonmarital status when the funds were transferred back to the wife).

¶ 16. Moreover, in the first appeal, Tanya had challenged the original chancellor's classification of these specific assets, based on the exact same commingling arguments. And this Court affirmed the chancellor's classification except for the joint account. So based on the language of Sanderson I and the prenuptial agreement, the chancellor concluded his authority on remand was limited to distributing the balance of the joint account, which was $537.42 at the time of final separation.

¶ 17. The chancellor then went through a detailed Ferguson analysis. See Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994). He noted, had all the money deposited into the joint account been "kept" there, he would have to consider how much money went to Tanya and her daughter-almost $95,000. Another equitable consideration would be the more than $200,000 in court-ordered temporary support Tanya received during the divorce proceedings that she otherwise was not entitled to under the prenuptial agreement. In total, there was more than $305,000 in credits and set-offs the chancellor would have to consider, if the marital estate was as large as Tanya claimed.

¶ 18. Because, however, the only asset to be distributed on remand was the $537.42 in the joint account at the time of separation, the chancellor awarded it to Tanya.

¶ 19. With all issues on remand being finally resolved, the chancellor's post-remand judgments became final and appealable.

IV. Second Appeal

¶ 20. Tanya again has appealed. She raises seven points of error, which we have condensed into two questions:

(1) Did the chancellor err in ruling the prenuptial agreement was substantively conscionable?
(2) Did the chancellor err in categorizing the funds left in the joint account as the only marital asset to be distributed?

Discussion

¶ 21. This Court reviews the chancellor's decision that the prenuptial agreement is enforceable for abuse of discretion. Sanderson I , 170 So.3d at 434 (citing Mabus , 890 So.2d at 810 ). We apply a similarly limited standard of review to the chancellor's ruling on property division and distribution. Id. (citing Owen v. Owen , 798 So.2d 394, 397 (Miss. 2001) ). With this deferential standard of review in mind, we discern no post-remand abuse of discretion.

I. Substantive Conscionability

¶ 22. In Tanya's first appeal, this Court held the prenuptial agreement was procedurally conscionable. Sanderson I , 170 So.3d at 435. So the only question on remand was whether it was substantively conscionable as well. Id. at 436-37. "Substantive unconscionability occurs when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms." West v. West , 891 So.2d 203, 213 (Miss. 2004). See also Smith v. Express Check Advance of Miss., LLC , 153 So.3d 601, 607 (Miss. 2014) ("An unconscionable contract is one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other."). So, in contrast to procedural unconscionability, which "deals with the formation of the contract," substantive unconscionability focuses on the fairness of the agreement's terms . McLeod v. McLeod , 145 So.3d 1246, 1249 (Miss. Ct. App. 2014) (citing West , 891 So.2d at 213 ). See also Sanderson I , 170 So.3d at 437 ("Unconscionability looks at the terms of the contract.").

A. Prenuptial Agreement's Terms

¶ 23. Here, the chancellor held that the terms of the prenuptial agreement were not so harsh, fundamentally unfair, oppressive, or one-sided as to render the agreement in whole or in part substantively unconscionable. Instead, the agreement "treats both parties the same and contains mutual terms." We agree. Under the agreement, "each" party "shall separately retain all rights in his or her own property, ... whether now owned or hereafter acquired," "each shall have and maintain, regardless of circumstances or change of circumstances, the absolute and unrestricted right to dispose of and maintain use and retain the use and ownership of such separate property," and "each party waives and releases all rights, statutory or otherwise, in and to the other's property ...." Further, both Tanya and Hob waived all rights to statutory allowances, alimony, intestate distribution, will renunciation, and employment benefits sharing. So the terms of the agreement are not one-sided.

B. Post-Agreement Results

¶ 24. Tanya asserts, however, it is not the terms of the agreement that should be the Court's focus. Rather, this Court must consider the consequences of enforcing the agreement and her resulting financial circumstances.

1. Comparing Agreement Enforcement to Equitable Distribution

¶ 25. Tanya first argues the chancellor erred by not considering what she would receive if the prenuptial agreement is enforced versus if there was no prenuptial agreement. According to her, this disparity makes the prenuptial agreement unconscionable. The chancellor rejected this results-based analysis. And so do we.

¶ 26. To support her argument, Tanya cites In re Johnson's Will , 351 So.2d 1339 (Miss. 1977). But that case concerned a post- nuptial agreement, not a prenuptial one. So in Johnson's Will , at the time the wife signed the agreement to not contest her husband's will, she had statutory inheritance rights. And she gave up these rights when she signed the post-nuptial agreement. Id. at 1340. So when considering the fairness of the agreement, this Court found it was necessary to compare what the wife would have received if she had been able to renounce the will and take her statutory widow's share versus if the agreement not to renounce the will was enforced. Id. at 1342.

¶ 27. Here, by contrast, Tanya was not Hob's wife when she signed the prenuptial agreement. So at the time of entering the agreement, she had no right to the equitable distribution of the marital estate, because at that time there was no marriage. And without the prenuptial agreement, there would be no marriage. So, unlike the widow in Johnson's Will , this Court cannot compare what Tanya would have received as Hob's wife if there was no prenuptial agreement.

¶ 28. Instead of Johnson's Will , the factually similar case we look to for guidance is McLeod . Just months before Sanderson I 's explicit holding that a prenuptial agreement must be both procedurally and substantively conscionable, the Mississippi Court of Appeals considered both aspects of conscionability when deciding to enforce a prenuptial agreement. McLeod , 145 So.3d at 1252-53. And the court reversed the chancellor's holding that the prenuptial agreement was substantively unconscionable. The chancellor had made the same comparison that Tanya asks this Court to make. He concluded the agreement was unconscionable because it did not provide the wife any portion of her husband's estate in the event of divorce, whereas, "under the laws in Mississippi, without a prenuptial [agreement] Jeanell would be entitled to an equitable share of the marital estate at the time of divorce." Id. at 1252.

¶ 29. The Court of Appeals rejected this comparison, because the fact Jeanell would not be entitled to an equitable distribution was the entire point of the prenuptial agreement. "By signing the agreement, Jeanell acknowledged that she knew that if she and Willie divorced, she relinquished any potential claims to Willie's property" and "would leave with the few assets she brought into the marriage." Id. at 1253. In other words, Jeanell got what she bargained for. And "[i]t is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated." Id. (quoting Estate of Hensley v. Estate of Hensley , 524 So.2d 325, 328 (Miss. 1988) ).

¶ 30. As in McLeod , here, equitable distribution upon divorce was never an option for Tanya, because, without the prenuptial agreement contractually dictating property rights upon divorce, Hob and Tanya would not have married. So the chancellor did not err when he rejected Tanya's comparative analysis.

2. Comparing Tanya's Separate Property to Hob's

¶ 31. Nor did the chancellor err when he rejected Tanya's other result-based argument, in which she compared her separate property to Hob's.

¶ 32. Tanya argues the prenuptial agreement is unconscionably one-sided because it protects Hob's substantial amount of separate property, while providing her with essentially nothing. According to Tanya, after they married, Hob had promised to take care of her. And he encouraged her to sell her own house and stop working, ensuring she has no separate assets. So because she spent her seventeen-year marriage, in her own words, "100% dependent upon Hob's largesse," the prenuptial agreement is substantively unconscionable.

¶ 33. Claiming Mississippi's "law regarding prenuptial agreements is so unsettled," Tanya asserts that "well established precedent from similar jurisdictions is necessary for guidance on this issue." Tanya argues that a decision from the Missouri Court of Appeals, Potts v. Potts , 303 S.W.3d 177 (Mo. Ct. App. 2010), is most on point and should control. Like the Sandersons, Raymond and Susan Potts signed a prenuptial agreement the day before they married. And like the Sandersons', the Pottses' prenuptial agreement provided the parties keep as separate both the property they each brought into the marriage and the property they each separately acquired during the marriage and kept titled as separate. The Missouri court held the agreement was substantively unconscionable, because Raymond Potts had been the only party to come into the marriage "with assets that would generate future assets"-i.e., his business. Id. at 189 (emphasis removed). And the agreement allowed him to keep and protect as his separate property any income generated from his business that would otherwise have become marital by titling and holding the new property in his name. Id. Thus, in the court's view, "[t]he agreement, by its terms, allowed Raymond to generate a large estate of non-marital property while limiting the distribution to Susan (upon dissolution) exclusively to a formula to be in lieu of maintenance, even after a twenty year marriage in which Susan had devoted her efforts to raising the children and running the household and thereby supporting Raymond's business." Id. at 190.

¶ 34. Zeroing in on the provision in their prenuptial agreement that allowed both Hob and Tanya to retain as separate any after-acquired property, Tanya asserts her agreement with Hob is equally unconscionable, because only Hob generated assets during their marriage. However, though there are factual similarities between this case and Potts , there are also important differences.

¶ 35. First, integral to the Missouri court's holding that the prenuptial agreement was unenforceable was the court's finding of procedural unconscionability -something this Court in Sanderson I specifically held was not present in this case. But the bigger problem with applying Potts is Tanya's reasoning-that what happened after she entered the prenuptial agreement justifies not enforcing it. When determining unconscionability, circumstances do matter. Sanderson I , 170 So.3d at 437. But it is the "circumstances existing at the time the contract was made " that the court must consider-not the circumstances at the time of divorce. Id. (emphasis in original).

¶ 36. What Tanya claims is unfair is that, after she married, she sold her house and stopped acquiring separate property through an income. In other words, she asks this Court to find the prenuptial agreement is unenforceable because the "burdens of a provision" have turned out by her own actions to be "more onerous than [she] had originally anticipated"-something this Court has refused to do. Id. (quoting Mabus , 890 So.2d at 819 ). See also Hensley , 524 So.2d at 328.

¶ 37. In Sanderson I , this Court specifically directed the chancellor on remand to measure substantive unconscionability "at the time the prenuptial agreement is made[.]" Sanderson I , 170 So.3d at 437. So, as mandated in that opinion, the chancellor on remand measured conscionability at the time the prenuptial agreement was made, focusing on the terms and the circumstances at the time the contract was made, and not the consequences seventeen years later.

¶ 38. At the time the prenuptial agreement was made, Tanya had a significant asset-a house-and a job. True, her assets and asset-generating ability were much smaller than Hob's. But since Tanya has asked this Court to look to other jurisdictions for guidance, the Supreme Court of Georgia has held a prenuptial agreement is "not rendered unconscionable just because it 'perpetuated the already existing disparity between the parties' estates.' " Mallen v. Mallen , 280 Ga. 43, 622 S.E.2d 812, 817 (2005) (quoting Adams v. Adams , 278 Ga. 521, 603 S.E.2d 273, 275 (2004) ). Similarly, the Iowa Supreme Court has recognized "premarital agreements are typically financially one-sided in order to protect the assets of one prospective spouse." In re Marriage of Shanks , 758 N.W.2d 506, 516 (Iowa 2008). And "[c]ourts must resist the temptation to view disparity between the parties' financial circumstances as requiring a finding of substantive unconscionability." Id. Turning to our own precedent, in Mabus v. Mabus , we upheld a prenuptial agreement protecting the separate estates, even though the wife's estate was smaller. And in doing so, it specifically rejected the claim that the estates were "so disparate that it questions fundamental fairness[.]" Mabus , 890 So.2d at 821.

¶ 39. Again, a substantively unconscionable prenuptial agreement is one with "terms ... so one-sided that no one in his right mind would agree to it[ ]." West , 891 So.2d at 213. Here, both Hob and Tanya had been divorced previously and had children from their prior marriages. So it makes sense that each would want to keep their separate property separate both for themselves and their heirs. See Farris v. Farris , 202 So.3d 223, 234 (Miss. Ct. App. 2016) (enforcing prenuptial agreement that, "[i]n substance, ... simply provided that neither Becky nor Gene-who were both in their sixties, had been married and divorced previously, and had grown children-would 'make a claim against the other for their separate properties including any additional separate properties acquired, whether by means of purchase, gift, inheritance or other means' "). The agreement they entered, though protecting estates of different sizes, did so with provisions that applied mutually to both parties. See Mabus , 890 So.2d at 821 (upholding prenuptial agreement that mutually protected separate estates of different sizes); McLeod , 145 So.3d at 1252-53 (same). Though Tanya claims she did not know the full extent of Hob's property, she knew through premarital cohabitation that his assets and income-generating ability were larger than hers. See Farris , 202 So.3d at 233 (holding that, because wife had cohabited with her husband for three years prior to marriage, "[t]here is no question that Becky was aware of Gene's assets"). And "[b]y signing the agreement, [Tanya] acknowledged that she knew that if she and [Hob] divorced, she relinquished any potential claims to [Hob's] property" and "would leave with the few assets she brought into the marriage." McLeod , 145 So.3d at 1253.

¶ 40. In the end, the premarital agreement "has done exactly what it was intended to do"-allowed the parties to keep all separate property acquired before or during the marriage. Mabus , 890 So.2d at 821.

Thus, as in Mabus , we will not judicially set it aside for being unconscionable. Instead, we affirm the chancellor's holding that the prenuptial agreement-in addition to being procedurally conscionable-was substantively conscionable as well.

II. Equitable Distribution

¶ 41. We also affirm the chancellor's equitable distribution of the one marital asset-the balance of the joint banking account.

¶ 42. Tanya takes exception to the chancellor's finding that only the balance of the joint bank account was subject to equitable distribution on remand. Instead, she asserts that further commingling with joint account funds, which Sanderson I held became marital through family use, transformed the home where she and Hob lived and Hob's separate investment and banking accounts into marital assets subject to equitable distribution.

A. Prenuptial Agreement

¶ 43. The chancellor rejected Tanya's "extensive and all-encompassing commingling and familial use claims" as "unenforceable and inequitable." Because the parties clearly intended through the prenuptial agreement to keep their separate property separate, the chancellor found there was "no way the scope of equitable distribution, as sought by [Tanya,] can be granted." Relying on Court of Appeals precedent, Long v. Long , 928 So.2d 1001, 1003 (Miss. Ct. App. 2006), the chancellor found Tanya's request to expand the scope of marital assets based on commingling was incompatible with the clear language of the enforceable prenuptial agreement. We agree.

¶ 44. At first blush, Tanya's argument appeared valid. For if the funds deposited into the joint account became marital, what about the funds transferred out ? But in delving into Tanya's argument on remand and in her second appeal, it becomes apparent that Tanya made no real attempt to trace familial-use funds out of the joint account. Instead, she has cited commingling cases broadly as her reason for why Hob's investment accounts and home are marital. Like the chancellor on remand, we find Tanya's argument to be so overbroad that it can only be seen as an attempt to circumvent the clear terms of the enforceable prenuptial agreement.

¶ 45. As Tanya views "commingling," not only did "the money deposited into the joint checking account bec[o]me a marital asset subject to equitable division because of its familial use," but so did everything that came into contact with this money. In other words, it is not just the increased equity in Hob's home that came from improvements paid for through joint account funds but the entire home that became marital. And since the home was marital, she further reasons the proceeds from the timber cut from the land the home sits on became marital. Further still, because those proceeds were deposited in the residential maintenance account, then that account became marital. Regarding Hob's separate accounts, Tanya does not point to what portion is attributable to Hob's separate property and what portion represents joint-account funds. Instead, as best we can understand, her argument is that all of Hob's separate income from his business became marital because it was designated primarily for family use. Thus, any account containing Hob's separate income became marital. And any account containing funds from those accounts likewise became marital.

¶ 46. In other words, Tanya's argument completely ignores the prenuptial agreement's clear language that "any property hereinafter acquired by each that shall be traceable to proceeds or appreciation from their separate property shall ... be free from any claim of the other that may arise by reason of the contemplated marriage." Instead, she tries to use the joint account as a wedge to open the door to the entire value of the home and all of Hob's accounts being marital-without explaining how these assets were "not acquired as a result of the separate property" and not "traceable to proceeds or appreciation from their separate property" and thus fell outside the scope of the prenuptial agreement. Sanderson I , 170 So.3d at 432 (quoting the Sandersons' prenuptial agreement).

¶ 47. In Long , the chancellor decided not to enforce the prenuptial agreement based on commingled property, which the agreement had not addressed. Long , 928 So.2d at 1003. The Court of Appeals reversed, holding the chancellor in error for failing to enforce the agreement. Id. Based on the language of the agreement, the parties clearly intended their separate property to remain separate. Thus, it was error for the chancellor to award the wife a portion of the marital home, which was built using funds the husband received from an eminent domain proceeding condemning his premarital, separate home. Id.

¶ 48. Here, the chancellor rightly recognized, based on the language of the Sandersons' prenuptial agreement, the parties clearly intended that assets traceable to their separate property were to remain separate. And he found Tanya's overly broad commingling argument would have rendered this clear provision meaningless. Because the chancellor's decision was based on a reasonable application of the prenuptial agreement, we find no abuse of discretion.

B. Sanderson I

¶ 49. Not only was the chancellor's limitation of the marital assets to the funds remaining in the joint account at the time of separation consistent with the clear terms of the prenuptial agreement, it was also rooted in Sanderson I . The chancellor's reasoning was two-fold. First, Sanderson I 's holding was specific-"certain funds, used for familial purposes, kept in a joint bank account created after the marriage began do not fall within the parameters of the prenuptial agreement." Sanderson I , 170 So.3d at 432. Second, Sanderson I 's holding did not include reversing the prior chancellor's classification of Hob's home and investment accounts as marital-even though Tanya had raised the exact same commingling arguments in her Sanderson I briefs, as she did on remand.

¶ 50. The chancellor was right on both counts. Tanya raised the exact same commingling arguments in Sanderson I regarding Hob's home and investment accounts as she did on remand and in this second appeal. And while we acknowledged these raised points of error, we addressed only the joint bank account and the chancellor's "clearinghouse" finding. See Sanderson I , 170 So.3d at 437-38. The joint bank account was the only asset we held had been wrongly classified by the chancellor. Id. at 438. The opinion began by holding "that certain funds, used for familial purposes, kept in a joint bank account created after the marriage began, do not fall within the parameters of the prenuptial agreement." Id. at 432 (emphasis added). Section III of the discussion specifically held "that the money deposited into the joint checking account became a marital asset subject to equitable division because of its familial use." Id. at 437. And the opinion concluded by "revers[ing] the chancellor's finding that the joint bank account funds were not commingled." Id. at 438.

¶ 51. Significantly, we did not address whether potential further commingling may have occurred based on finding that the joint account was marital through the familial-use doctrine. Nor did we direct the chancellor to consider Tanya's arguments that other assets had been commingled, in light of its holding.

¶ 52. As the chancellor noted, this Court could have reversed and remanded the original chancellor's finding that the marital home and Hob's investment and banking accounts were his separate property but did not. Thus, the second chancellor reasonably concluded that Tanya's request to reclassify these assets as marital was outside the scope of remand. And we find no abuse of discretion in the chancellor's following this Court's specific holding "that certain funds, used for familial purposes, kept in a joint bank account created after the marriage began, do not fall within the parameters of the prenuptial agreement" and thus were subject to equitable distribution. Id. at 432.

Conclusion

¶ 53. Because the prenuptial agreement is enforceable as substantively conscionable, and because, under the prenuptial agreement, as interpreted by Sanderson I , the only asset not subject to the agreement was certain funds kept in a joint bank account, the chancellor did not abuse his discretion on remand. We therefore affirm.

¶ 54. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P. JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994).

      She also argued the couple's joint tax returns were further evidence of commingling.

      According to the second chancellor, had the marital estate been as large as Tanya claimed, it would have been valued at approximately $1.5 million-or $750,000 each, if divided equally.

      Tanya's seven issues on appeal are, verbatim:
      (1) Whether the trial court erred in finding the prenuptial agreement entered into by the parties on July 21, 1994, was substantively conscionable.
      (2) Whether the trial court erred in only considering the balance of the joint account when the parties separated, instead of the investments and other assets purchased with money from the joint account, which converts those investments and assets to commingled marital property.
      (3) Whether the trial court erred in not hearing the complaint regarding Hob cutting and selling timber from the marital homestead, in spite of an existing Lis Pendens, prior to the trial court deciding on whether the prenuptial agreement was substantively conscionable. The trial court ruled on the motion even though it was not even considered until the final order.
      (4) Whether the trial court erred in its interpretation of the Supreme Court's order.
      (5) Whether the trial court erred in assessing the credibility of trial witnesses.
      (6) Whether the trial court erred in granting offset of the spousal support and use of the marital home to Hob in figuring the equitable distribution of marital assets, even though Tanya was entitled, by law, to the standard of living she was accustomed to, including the spousal support and use of the marital home.
      (7) Whether the trial court erred by not using Chancellor Littlejohn's Classification of Assets to determine what Tanya was entitled to in the equitable distribution of assets.

      This opinion does not address Tanya's Issues 3, 5, 6, and 7.
      Issue 3-"Whether the trial court erred in not hearing the complaint regarding Hob cutting and selling timber from the marital homestead"-is outside the scope of this Court's remand in Sanderson I , which did not disturb the chancellor's classification the of "marital homestead" as Hob's separate property.
      And as for Issues 5 through 7, Tanya cites no authority to support her positions. So these issues are waived. Tyler v. Auto. Fin. Co. , 113 So.3d 1236, 1242 (Miss. 2013) (citations omitted). Further, for Issue 5-witness credibility-the law is clear that the chancellor "is in a better position than this Court to judge the veracity of witnesses and credibility of evidence." Lee v. Lee , 798 So.2d 1284, 1291 (Miss. 2001). For Issue 6, Tanya does not attack the chancellor's equitable consideration of the more than $200,000 in court-ordered spousal support and court-ordered use of Hob's home as an error of law. Rather, she merely urges this point as evidence of the second chancellor's alleged bias against her. And, finally, for Issue 7, the second chancellor specifically stated he was basing his property award on the prior chancellor's classification, as modified by Sanderson I . And Tanya fails to cite any record evidence contradicting this assertion.

      In fact, the one nonmutual provision actually favored Tanya. If Hob had died during the first year of marriage, Tanya would have received $50,000. And if he had died after a year of marriage, she would have received $100,000. But if Tanya had died during the first year of marriage, Hob would have received only $10,000, and after the first year of marriage, only $20,000.

      Tanya claims that, because she and Hob cohabited prior to marrying, she and Hob were "de facto husband and wife." But Mississippi has refused to acknowledge common-law marriages for more than sixty years. Miss. Code Ann. § 93-1-15 (Rev. 2013). And instead of conveying marital rights, cohabitation is a statutory crime. Miss. Code Ann. § 97-29-1 (Rev. 2014).

      We also note that during the marriage, Tanya used solely marital property to support herself and her daughter. Hob agreed to allow Tanya to save the more than $200,000 in child-support payments for her daughter's college education.

      Sanderson I , 170 So. 3d at 437.

      A good example involves the $50,000 transferred from the joint account in March 2002 into Hob's Smith Barney account, ending in 2803. Tanya does not rely on this transfer to argue the $50,000, plus interest, was marital and subject to distribution. Indeed, this account was not one of the investment accounts the first chancellor awarded to Hob as his separate property. And there is no indication in the record or from Tanya's argument what happened to this account. Instead, Tanya relies on the $50,000 transfer to support her wider position that money from the joint account was commingled with Hob's investment accounts, converting all funds in all accounts into marital assets.

      Another example is Tanya's claim that the "Church Bonds Flow Chart" is marital. The joint bank account is nowhere to found on this chart. Instead, as far as can be determined, Tanya claims all the accounts on the chart are marital, based on commingling upon commingling.

      Section III of the opinion begins by noting that "Tanya argues the chancellor improperly found certain assets not commingled for purposes of making an equitable distribution of marital property. Included in the charge of error is a joint bank account." Sanderson I , 170 So.3d at 438.

      Instead, the opinion merely stated, "After due consideration of the other issues raised, we discern no other errors." Id.