author: WILSON, J.,

text:
    Amaria VASSAR, Appellant v. David VASSAR, Appellee
    NO. 2016-CA-01340-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW
    ATTORNEY FOR APPELLEE: DAVID VASSAR (PRO SE)
   WILSON, J.,

FOR THE COURT:

¶ 1. David and Amaría Vassar consented to an irreconcilable differences divorce and submitted several issues to the chancellor for decision: custody of their son, Martin, who was three years old at the time of the divorce; child support; equitable division of the marital property; alimony; attorney’s fees; and contempt. On appeal, Ama-ría argues that the chancellor erred (1) by awarding David .custody of Martin, (2) in dividing the marital estate, (3) in awarding David permanent alimony, (4) in awarding David attorney’s fees, (5) in setting child support, and (6) in ordering her to be incarcerated for contempt.

¶ 2. We affirm on the issue of custody but reverse on the issues of equitable division, child support, alimony, and attorney’s fees. As discussed below, the sum total of the obligations that the divorce decree imposed on Amaría were beyond her ability to pay. In addition, the chancellor set child support based on an incorrect income figure and did not make findings under Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), to support the division of the marital property! The chancellor also erred in awarding attorney’s fees, as the record shows that Amaría was unable to pay. The chancellor could have ordered Amaría to pay the substantially lesser amount of attorney’s fees that David incurred litigating the issue of contempt. Finally, we hold that the chancellor erred by ordering Amaría to be incarcerated, as she was unable to pay the nearly $13,000 mortgage arrearage that she was ordered to pay as a condition of her release. The chancellor released Amaría from jail forty-seven days later, after she filed for bankruptcy, but we address this issue under the “capable of repetition yet evading review” exception to the mootness doctrine.

FACTS

¶ 3. David and Amaría married on November 8, 2007. Their son, Martin, was born in 2013. They separated around April 30, 2015. Amaría filed for divorce on the grounds of habitual cruel and inhuman treatment and/or irreconcilable differences in May 2015, and David answered and filed a counter-complaint for divorce on the same grounds several weeks later. Both Amaría and David sought custody of Martin, and David alleged that Amaría had abused or neglected Martin, The chancellor entered a temporary order .granting David custody of Martin and granting Amaría specified visitation. The chancellor also appointed a guardian ad litem (GAL) to investigate David’s allegations of abuse and neglect. Finally, the chancellor granted David temporary possession of the marital home but ordered Amaría to continue to pay the mortgage and utilities.

¶ 4. The case was not tried until July 1, 2016. About a month before trial, David filed a petition for contempt alleging that Amaría had stopped paying the mortgage and disconnected the utilities on the marital home in violation of the temporary order. On the day of trial, the parties consented to an irreconcilable differences divorce, while submitting the issues of child custody, child support, property division, alimony, attorney’s fees, 'and contempt to the chancellor for decision.

¶ 5. Amaría and David own a house in DeSoto County, which they purchased in 2009. The original purchase price of the home was approximately $170,000, but they later refinanced the home for approximately $198,000. At the time of trial, the mortgage balance was approximately $185,000, including nearly $13,000 in arrearages. Only Amaría is obligated on the promissory note, apparently because of David’s poor credit history.

¶ 6. Amaría is a Captain in the United States Army Reserve (USAR) and attends drills one weekend a month and training for two weeks in the summer. When she filed for divorce, she was also employed as a medical laboratory technician. Her average, combined net income for her service in the USAR and employment as a lab tech was $3,034.52 per month.

¶ 7. In April 2015, David filed an affidavit to have Amaría civilly Committed. David alleged that Amaría was depressed and might not be taking her psychiatric medications. David also alleged that Ama-ría was suicidal and had threatened him.

¶ 8. Based on David’s affidavit, Amaría was committed to a mental health facility for approximately ten days. She was released after her doctors concluded that she was not a risk to herself or others and did not require treatment. Amaría eventually lost her job as a lab tech, at least in part because she missed work as a result of her commitment.

¶ 9. Amaría testified that after she lost her job, she was unable to pay both her own rent and living expenses and the mortgage note and utilities on the marital home. At trial, she admitted that, without court approval, she simply stopped paying the mortgage and had the utilities disconnected.

¶ 10. Amaría eventually found a new job as a sales consultant at Gossett Motor Cars, where she was still employed at the time of trial. At Gossett, she is paid only minimum wage plus commissions, which has resulted in a substantial reduction in her overall net income. Amaria’s Rule 8.05 financial statement showed $2,208.19 as her total monthly net income. On cross-examination, Amaría acknowledged that she also receives $133 per month for an injury she suffered during an overseas deployment, which was not reflected on her 8.05 statement. Amaría testified that she would ‘like to return to full-time military service and would do so if given the opportunity.

¶ 11. David also served in the military at one time, but he had been unemployed for all but about one year of the parties’ marriage. He last worked for about a month in 2014 before he was injured and received workers’ compensation payments for one year. At the time of trial, he had not worked in over two years and had two pending disability claims. One of the claims had been pending for four years and the other for two years. David did not produce any medical records or documentation regarding his injuries or disability claims.

¶ 12. David testified that a back injury prevents him from doing any work that involves heavy lifting or “standing up for a long time.” Also, he “can’t do a desk job” because he is “prohibited” from “sitting down for certain amounts of time.” A doctor supposedly advised David against doing even “paperwork.” However, David did testify that he is physically capable of caring for Martin because he can “teach [Martin] what’s the perimeter,” and three-year-old Martin “follows [his] command” and “stays within those perimeters.” Ama-ría testified that there is “nothing medically wrong with” David that prevents him from working, and he just “does not want to work.” The GAL’s report noted that David pays $300 per month in child support for a teenage daughter from a prior relationship.

¶ 13. As noted above, Martin was three years old at the time of trial. The GAL found that Martin was a happy and physically and mentally healthy child. The GAL found no evidence to substantiate David’s allegations of neglect and abuse. The GAL also found that Martin had an emotional connection and was “equally comfortable with both” of his parents. In her report, the GAL discussed the Albright factors and opined that two factors favored David, two favored Amaría, and the rest were neutral or inapplicable. The GAL recommended that David be given custody of Martin.

¶ 14. David and Amaría accused each other of acts of physical and verbal abuse. Amaria testified about three, incidents in which David choked her, grabbed her, and pushed her off their porch. The police were called and responded to these incidents, but none resulted in charges. On May 7, 2015, a special master of the chancery court entered a temporary domestic abuse protection order that prohibited David from making contact with Amaría other than during visitation exchanges. The order stated that it would expire on May 21, 2015. Amaría also testified 'that David verbally abused her, falsely accused her of abusing and neglecting Martin, and filed a false affidavit to have her committed. She testified that she' was receiving counseling for depression, which she attributed to David’s abuse.

¶ 15. David testified that Amaria had threatened him with a meat cleaver or a machete on multiple occasions. He testified that she cut him with a knife once. That incident apparently resulted in a charge of simple assault against Amaria and some sort of nonadjudication or suspended sentence. David also testified that Amaria had received treatment and counseling' for mental health issues, although he denied that he was to blame for her issues.

¶ 16. The chancellor conducted an Al-bright analysis on the record and agreed with the GAL’s recommendation that David should have custody. The chancellor awarded Amaría visitation every other weekend plus holidays and five weeks in the summer. The chancellor also ordered Amaría to pay David $443 per month in child support and to maintain health insurance for Martin.

¶ 17. In dividing the marital property, the chancellor awarded David the exclusive use and possession of the marital home until Martin reached the age of twenty-one or was otherwise emancipated. As part of the “equitable division of [the marital] property,” the chancellor ordered each party to pay one half of- the mortgage, insurance, and taxes on the home, which was $638 per month. However, the chancellor then ordered Amaría to pay David’s half for him, which the chancellor characterized “periodic, alimony” of $638 per month. Thus, the decree ordered Amaría to pay the full monthly mortgage payment of $1,276 per month.

¶ 18. The chancellor also ordered Ama-ria to pay David’s attorney’s fees in the amount of $10,058.25. The chancellor ordered Amaria to pay $1,462.50 within ten days and the remaining balance within ninety days.

¶ 19. Finally, the chancellor found that Amaría was in contempt because she willfully violated the July 2015 temporary order by ceasing to pay the mortgage and disconnecting the utilities on the marital home. The chancellor ordered Amaría to be incarcerated immediately and to remain in jail until she purged herself of contempt by paying $12,997.65, the amount of the arrearage on the mortgage. The chancellor stated that he would “review this matter every 90 days until such time as it is paid.”

¶ 20. Six days later, on July 7, 2016, Amaria filed a motion to alter the judgment and for release from incarceration, arguing that the evidence at trial showed that she was unable to pay the nearly $13,000 mortgage arrearage. Amaria then obtained new counsel, and on July 27 she filed a second motion requesting release from incarceration. She again argued that she was unable to pay the arrearage, and she also submitted documentation showing that she had been ordered to report for military training on August 6. On August 10, Amaria filed a petition for bankruptcy in bankruptcy court and a notice of bankruptcy in the chancery court. On August 17, the chancellor ordered her released after forty-seven days- in jail.

¶ 21. The court subsequently entered an order denying Amariá’s post-trial motions. The court’s order clarified that the marital home should be sold once Martin reached the age of twenty-one or was otherwise emancipated and that any' “equity” in the home would then be “split between the parties.” The order also awarded David the federal and state income tax deduction for Martin. Amaria filed a timely notice of appeal and a thorough brief, supported by relevant authorities and record citations, addressing the six issues noted in the opening paragraph of this opinion. David failed to file a brief despite a show-cause notice pursuant to Rule 2 of the Mississippi Rules of Appellate Procedure.

DISCUSSION

¶ 22. David’s “failure ... to file a brief is tantamount to confession of error and will be accepted as such unless [this Court] can say with confidence, after considering the record and [Amaria’s] brief ,.., that there was no error.” Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 12) (Miss. 2012) (quotation marks omitted). “Automatic reversal is not required where the appellee fails to file a brief,” but reversal is appropriate if the appellant’s argument creates “doubt in the judiciousness of the trial court’s judgment.” Id. However, when “child custody is at issue, this Court is compelled to review the record, despite [David’s] failure to file a brief ..,, ” Muhammad v. Muhammad, 622 So.2d 1239, 1243 (Miss. 1993).

¶ 23. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss. 2002). “Legal questions, however, are reviewed de novo.” Sanford v. Sanford, 124 So.3d 647, 652-53 (¶ 21) (Miss. 2013).

I. Child Custody'

¶ 24. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So.3d 43, 46 (¶ 7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So.3d 822, 828 (¶ 21) (Miss. Ct. App. 2014). Thus, on appeal in a child custody case, the issue is not whether this Court “agrees with the chancellor’s ruling,” but only whether “the chancellor’s ruling is supported by credible evidence.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss. Ct. App. 2004).

¶ 25. “[T]he polestar consideration in-child custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. In evaluating the child’s best interest, the chancellor must consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) “which has the best parenting skills”; (4) which has “the willingness and capacity to provide primary child care”; (6) both parents’ employment responsibilities; (6) “physical and méntal health and age of the parents”; (7) “emotional ties of parent and child”;. (8) “moral fitness of the parents”; (9) the “home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id,

¶ 26. The chancellor must address each Albright factor that is applicable to the case. See Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss. 2001). However, the chancellor need not decide that each factor favors one parent or the other. See Weeks v. Weeks, 989 So.2d 408, 411 (¶ 12) (Miss. Ct. App. 2008). Nor does Albright require that' “custody must be awarded to the parent who ‘wins’ the most factors.” Blakely v. Blakely, 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012). The point of Albright is to identify the custody arrangement that would be in- the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person,

¶ 27. The Albright factors are intended to ensure that the. chancellor follows a process that leads to consideration of all facts that are relevant to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003).

¶ 28. In this case, the chancellor discussed each of the Albright factors. He found that the sex of the child, continuity of care, willingness to provide care, and parenting skills favored David. He found that Martin’s age and Amaria’s stable employment record weighed in favor of Ama-ría—he commended her consistent employment- and criticized David’s employment record as “spotty at best.” The chancellor found that other factors were neutral or inapplicable. Finally, the chancellor stated that he had considered the GAL’s report. Although his analysis differed from the GAL’s on some factors, he'agreed with her recommendation that David should havé physical and legal custody of Martin, with liberal visitation for Amarla.

¶ 29, Amaria argues that the chancellor erred because he failed to consider the “rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in [the] sole custody ... of a parent who has, á history of perpetrating family violence.” Miss. Code Ann. § 93-5-24(9)(a)(i) (Rev. 2013). She also argues that the chancellor gave insufficient weight to her allegations that David physically and verbally abused her. Finally, she argues that the chancellor’s Albright analysis was flawéd because it rewarded David under multiple factors for his unemployment—crediting his availability to provide care, “continuity of care,” and demonstrated parenting skills. This, she says, is unfair because it penalizes her for providing for her family and serving in the military. We address these arguments in turn.

¶30. In the trial court, neither party argued that the statutory “rebuttable presumption” applied. The statute defines “a history of perpetrating family violence” as at least one incident that “resulted in serious bodily injury” or a “pattern of family violence.” Id. Here, each party accused the other of abuse, but each also denied the other’s allegations. None of the incidents about which Amaría testified resulted in charges against David, and David disputed Amaria’s versions of those incidents. In addition, Amaría did not testify that any of the incidents resulted in a serious bodily injury. Cf. Wolfe v. State, 743 So.2d 380, 384-85 (¶¶ 21-24) (Miss. 1999) (discussing the definitions of “serious bodily injury” in aggravated assault and felony child abuse cases). Without condoning violence by either party, if any occurred, we cannot say that the statute applied in light of the conflicting testimony and inconclusive evidence at trial.

¶31. For the same reason, we cannot agree with Amaria’s argument that the chancellor gave insufficient weight to her allegations of abuse. In his Albright analysis, the chancellor found that both parties were to blame for their “severe arguments, sometimes resulting in assaults.” For this reason, the chancellor found that the “moral fitness” factor did not favor either party. We cannot say that this was clear error or an abuse of discretion. See Powell, 792 So.2d at 243 (¶ 6) (“It is for the chancellor to determine the credibility and weight of evidence.”).

¶ 32. Finally, we cannot say that the chancellor committed reversible error in his Albright analysis by giving David excessive credit for his unemployment. The chancellor specifically commended Amaría for her consistent employment, he criticized David’s work history as “spotty at best,” and he weighed that factor in Ama-ria’s favor. The chancellor did weigh other factors in David’s favor based on David’s unemployment and consequent availability to provide childcare. We understand how this may seem to unfairly penalize Amaría for holding down a job, providing for her son, and serving her country in the military. However, as discussed above, the chancellor’s duty is to determine which custody arrangement is in the child’s best interest—not to determine which parent is a better person. The chancellor reasonably considered David’s greater availability to provide childcare as part of this analysis, and we cannot say that he abused his discretion by doing so.

¶ 33. In summary, applying our deferential standard of review, see supra ¶¶ 23-24, we find no abuse of discretion in the chancellor’s Albright analysis and custody ruling.

II. Child Support, Equitablé Division, Alimony, and Attorney’s Fees

¶ 34. Amaría argues that the chancellor erred in setting child support, dividing the marital property, and awarding alimony and attorney’s fees. She alleges specific errors with these awards and also argues generally that they are beyond her ability to‘ pay. We address these issues and arguments together, as it is necessary to consider the cumulative financial burden that the divorce decree iihposed.

¶ 35. Amaria’s average net monthly income at the time of the divorce was $2,341.19. Her assets and liabilities included a 2004 Chevy Tahoe, a checking account with a balance of about $1,000, and credit card debt of nearly $4,000. The divorce decree required her to make-the following payments:

• $443/month child support;
• $638/month for half of the mortgage payment on the marital home;
• $638/month periodic alimony (David’s half of the mortgage payment);
• $12,997.65 in mortgage arrearages (due immediately); and
• $10,058.25 in attorney’s fees ($1,462.50 due in ten days, with the balance due in ninety days).

¶ 36. As discussed above, the chancellor granted David exclusive use and possession of the marital home until Martin, who was only three years old at the time of the divorce, reaches the age of twenty-one or is otherwise emancipated. Nonetheless, the decree requires Amaría to continue making the entire mortgage payment of $1,276 per month—half as part of the “equitable division” of the marital property and half as “periodic alimony.” In addition to the sums listed above, the court also ordered Amaría to provide health insurance for Martin. Thus, although Amaría had no significant assets and a net monthly income of only $2,341.19, the court ordered her to make total monthly payments of $1,719, maintain health insurance for Martin, and pay more than $23,000 in mortgage arrear-ages and attorney’s fees.

¶ 37. The financial aspects of the divorce decree must be reversed because the various obligations imposed on Amaría simply do not leave her with sufficient resources to meet her own reasonable living expenses. Before we address this broader issue, however,'we first address two narrower issues with the chancellor’s ruling that also require reversal.

¶ 38. First, Amaría argues that the chancellor erred by using an incorrect income figure to calculate child support. We agree. “In determining child support, chancellors may consider, inter alia, the health, income, and earning capacity of both parents, the reasonable needs of the child, and the necessary living expenses of the noncustodial parent.” Barnes v. Dep’t of Human Servs., 42 So.3d 10, 18 (¶ 32) (Miss. 2010) (Waller, C.J., concurring in part and in result). There is a rebuttable presumption that a parent should pay fourteen percent of his or her adjusted gross income for thfe support of one child. Miss. Code Ann. § 43-19-101(1) (Rev. 2015).

¶39. In this case, in ruling from the bench, the chancellor stated that Amaria’s “current net income from all sources, including Gossett[], her military pay, and disability payments for her injury to her foot while deployed overseas, totaled $3,167.42 per month.” He then ordered Amaría to pay support of fourteen percent of that amount—$443 per month. As Ama-ría points out on appeal, the chancellor’s ruling was based on a mistake—her actual net income at the time of the divorce was only $2,341.19, as she was earning far. less at Gossett than she had at her prior job as a medical laboratory technician. Because the chancellor’s calculation of child support was based on a “clear mathematical error,” we must reverse, Jackson v. Jackson, 172 So.3d 179, 181 (¶ 9) (Miss. 2015).

¶40. Second, Amaría argues that the chancellor’s equitable division of the.marital property must be reversed because the chancellor made no findings of fact or conclusions of law regarding the Ferguson factors. See Ferguson, 639 So.2d at 928. We agree. “In applying the Ferguson factors, chancellors must support their decisions with findings of fact and conclusions of law.” Dickerson v. Dickerson, 34 So.3d 637, 644 (¶ 24) (Miss. Ct. App. 2010). “While chancellors need not make findings as to each and every factor set forth in Ferguson, they cannot simply mention the guidelines and state they are following them and applying them to the facts of the case." Lee v. Lee, 78 So.3d 326, 329 (¶ 10) (Miss. 2012) (footnote, quotation marks omitted). “The failure to make findings of fact and, conclusions of law is manifest error requiring reversal and remand.” Id. (quotation marks omitted).

¶41. In the present case, the chancellor noted that “the parties have very little property.” While that is true, the chancellor’s equitable division included the financially significant requirement that Amaria continue to pay the mortgage on the marital home for up to eighteen years—even though she would have no right to live there. Despite the significance of this provision, the chancellor did not address any of the Ferguson factors. The divorce decree simply recites that the property division was based on a “full review” of the Ferguson factors. This was error and requires reversal. Lee, 78 So.3d at 329 (¶ 10).

¶ 42. We now return to the larger problem with the’ financial components of the divorce decree: it imposes obligations that’ are beyond Amaria’s ability to pay. It requires Amaría to make monthly mortgage and child support payments of $1,719, which, on her income at the time of the divorce, left her with only $622 per month to provide health insurance for Martin and pay her own rent and living expenses. At the time of trial, Amaría was paying rent of $600 per month, and her 8.05 statement listed over $1,000 per month in additional living expenses. Furthermore, although Amaría had no significant assets, the chancellor ordered her to pay the. $12,997.66 mortgage arrearage immediately, $1,462.60 in attorney’s fees within ten days, and an additional $8,595,75 in attorney’s fees within ninety days; The decree does not leave Amaría with .sufficient income to pay her own reasonable living expenses. Nor was there any realistic way for Amaría to make the more than $23,000 in lump sum payments required by the decree.

¶'43, A court cannot impose support obligations on a parent that are “beyond [her] financial ability to provide.” Adams v. Adams, 467 So.2d 211, 215 (Miss. 1985). Moreover, a chancellor should not award alimony that, when combined with child support and the payor’s own reasonable living expenses, is beyond the payor’s ability to pay. McEachern v. McEachern, 605 So.2d 809, 814-15 (Miss. 1992); see also Brooks v. Fields, 134 So.3d 786, 790-91 (¶¶ 15-17) (Miss. Ct. App. 2013) (holding that it was an abuse of-discretion to order a parent to make a $15,000 lump sum payment when- “there was no evidence that [the parent] had [the necessary] disposable income or cash on hand at the time the chancellor ordered the payment”). In this case, the financial provisions of the divorce decree violate these principles by imposing obligations that Amaría cannot possibly satisfy and by leaving her with insufficient income to meet her own reasonable living expenses. Therefore, the property division and alimony are reversed. On remand, the alimony, if any, and any payments associated with the division of marital property must be within Amaria’s ability to pay.

¶44. At trial, Amaría specifically requested that the marital home be sold. Based on evidence presented and the parties’ circumstances at the time of trial, we agree that there was no sustainable financial solution that did not include selling the home. Because of David’s extended unemployment, Amaria’s limited income was the only income available to support her, Martin, and David at the time of the divorce. A net income of $2,341.19 per month is not enough to pay a $1,276 mortgage, child support, and Amaria’s own living expenses. On rerpand, unless the parties’ financial situation has improved significantly or some other solution is identified, it will likely be necessary to sell the home.

¶ 45. Finally,, we also reverse the award of attorney’s fees because it is beyond .Amaria’s ability to pay. “Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate.” Evans v. Evans, 75 So.3d 1083, 1089 (¶ 24) (Miss. Ct. App. 2011) (citing Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000)); see also, e.g., Farris v. Farris, 202 So.3d 223, 236 (¶ 50) (Miss. Ct. App. 2016) (“[I]f neither party has the ability to pay more- than his or her own fees, no fees should be awarded.”). For the reasons already discussed, the evidence at trial was clear that Amaría was unable to pay $10,058.25 in attorney’s fees. Therefore, the award of attorney’s fees is reversed.

¶ 46. On remand,' the chancellor may consider whether a lesser award of fees based on Amaria’s contempt would be appropriate. However, only a fraction of the fees that David requested relate to the issue of contempt, and fees awarded based on a finding of contempt “should not exceed the expense incurred as a result of the contemptuous conduct.” Roberts v. Roberts, 110 So.3d 820, 828 (¶ 23) (Miss. Ct. App. 2013) (quoting Evans, 75 So.3d at 1089 n.8). Any such award should also take into account fees and costs that Amaría incurred as a result of David’s allegations of abuse, which the chancellor found to be “without merit.” See supra n.10.

III. Incarceration

¶ 47. Amaría also argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the marital home. Amaría does not contest the chancellor’s finding of contempt—only the order of incarceration. Amaría is no longer incarcerated. She was released after she spent forty-seven days in jail and filed for bankruptcy. Nonetheless, she argues that we should review the issue under the “capable of repetition yet evading review” exception to the mootness doctrine. We agree that the issue is appropriate to review and that the chancellor erred by incarcerating Amaría given her clear inability to purge herself of contempt by paying the mortgage arrearage.

¶ 48. “Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree.” Riser v. Peterson, 566 So.2d 210, 211 (Miss. 1990). In Riser, the Mississippi Supreme Court stated: “For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration.” Id. at 212 (emphasis added; capitalization omitted).

¶ 49. Here, Amaría concedes that she was in contempt because she violated the chancery court’s temporary order requiring her to pay the mortgage and utilities on the marital home. Amaria’s only argument is that she should not have been incarcerated because the record is clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage arrearage that the chancellor ordered her to pay as a condition of her release. We agree. Under Riser, even if inability to pay is not a defense to the underlying contempt, it is always a continuing defense to incarceration. The evidence was clear that on July 1, 2016, Amaría could not pay $12,997.65 or anything close to that amount. The chancellor therefore erred by ordering Amaría to be incarcerated until such time as she paid that amount.

¶ 50. Amaria’s release from jail after forty-seven days arguably renders moot her challenge to her incarceration. However, we may address an issue that is otherwise moot when “the following elements combine: (1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) There was a reasonable expectation that the same complaining party would be subject to the same action again.” Strong v. Bostick, 420 So.2d 1356, 1359 (Miss. 1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). This is known as the “capable of repetition yet evading review” exception to the mootness doctrine. Id. The United States Supreme Court has applied this exception in a case in which a father challenged his incarceration for failure to pay child support but was released before his case reached the Court. See Turner v. Rogers, 564 U.S. 431, 439-41, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011); see also Koestler v. Koestler, 976 So.2d 372, 379-80 (¶¶ 19-23) (Miss. Ct. App. 2008) (holding that an appeal from an involuntary civil commitment fit within the exception even though the individual had been discharged).

¶ 51. Although the facts of Turner are distinguishable in some respects, we agree with Amaría that this exception to the mootness doctrine is applicable. Ama-ría remained in jail for forty-seven days until she was released for reasons that are not explained in the record. She was never able to comply with the originally stated condition for her release—payment of the mortgage arrearage. In addition, the final judgment imposed a series of financial obligations that were beyond her ability to pay. While we have reversed and remanded these obligations for reconsideration, it is appropriate to address the order of incarceration because it is capable of repetition in the future and could again result in a period of incarceration too short for full litigation of the issue.

CONCLUSION

¶ 52. The chancellor’s award of custody to David is affirmed. The equitable division of the marital property and the awards of alimony and attorney’s fees are reversed and remanded for further proceedings consistent with this opinion. In addition, we hold that the chancellor erred in ordering Amaría incarcerated, as the record is clear that she was unable to pay the mortgage arrearage on the marital home.

¶ 53. AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.

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

      . The child’s name is changed to protect his privacy.

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

      . See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) ("The relationship of parent and child is not for the benefit of the parent, but of the child,” (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)); see also Hollon v. Hollon, 784 So.2d 943, 947 (¶ 12) (Miss. 2001) (“[M]arital fault should not be used -as a sanction in custody awards:”).

      . See Jones v. Brown, 154 So.3d 919, 924 (¶¶ 15-17) (Miss. Ct. App. 2015) (finding no reversible error given that the appellant failed to raise the issue in the trial court and that each parent denied the other’s allegations of violence); Rolison v. Rolison, 105 So.3d 1136, 1138-39 (¶¶ 8-11) (Miss. Ct. App. 2012) (holding that the chancellor did not err-by not applying the presumption when "[bjoth parents admitted to behaving aggressively" and there was no proof that either inflicted "any serious injury”); C.W.L. v. R.A., 919 So.2d 267, 271-72 (¶¶ 12-17) (Miss. Ct. App. 2005) (similar).

      . As noted above, Amaria’s Rule 8.05 financial statement showed $2,208.19 as her total monthly net income from Gossett and her USAR service, but on cross-examination she acknowledged that she received an additional $133 per month for an injury she suffered during an overseas deployment, which her 8.05 statement did not reflect,

      . The basis for the higher income figure that the chancellor used is not clear from the record.

      . Property division and alimony aré "intertwined” such that a reversal and remand for reconsideration of the former ordinarily requires reconsideration of the latter as well. See McKissack v. McKissack, 45 So.3d 716, 723-24 (¶¶ 41-43) (Miss. Ct. App. 2010). In any event, in this case the alimony award must be reversed for reconsideration for the additional reasons discussed below.

      . David’s 8.05 statement reported $0 income.

      . At this point, the mortgage and arrearage are primarily an issue between Amaría and the bank, as David is not obligated on the note. It has now been more than a year since the divorce decree was entered, and we do not know the current status .of the mortgage. On remand, the divorce decree should not order Amaria to make payments toward the mortgage arrearage that are beyond her ability to pay. Adams, 467 So.2d at 215.

      . The chancellor initially ordered Amaría to pay David $13,020.75—the total of all fees charged by David’s attorney. The chancellor then offset the award by the amount of the GAL’s fees ($2,962.50), since the GAL determined "that David’s "allegations of abuse were found to be without merit,” The chancellor ordered Amaría to pay $1,462.50 within ten days. This was the balance due to the GAL, which David was ordered to remit to the GAL. The chancellor ordered Amaría to pay the remaining balance of David’s attorney's fees ($8,595.75) to David's attorney within ninety days.

      .In the divorce decree, the chancellor noted that he had not addressed the issue of attorney’s fees based on Amaria’s contempt because he already awarded David "the entire attorney[']s fees and those for contempt [were] included therein.”

      . See, e.g., Lafayette Cty. Bd. of Supervisors v. Third Circuit Drug Court, 80 So.3d 785, 788 (¶ 12) (Miss. 2012) (“Generally, this Court will not adjudicate moot questions.”); see also James L. Robertson, Mootness, 3 Encyclopedia of Mississippi Law § 19:214 (2d. ed. Jeffrey Jackson et al. eds.) (“Where the matter in controversy is a thing of the past, a fait ac-compli, and beyond practical judicial remedy, courts of otherwise competent jurisdiction often stay their hand on grounds the matter is moot.”).


source: Caselaw Access Project

license: Public Domain

text:
    London WILLIAMS, Jr. a/k/a London Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01155-COA
    Court of Appeals of Mississippi.
    10/24/2017
    See also 89 So.3d 676.

      ATTORNEY FOR APPELLANT: LONDON WILLIAMS JR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN
    • BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. London Williams asks us to revisit the questibn whether incest is a “sex crime.” However, •'Williams’s case is now moot because he'was released on post-release supervision during the pendency of this appeal. Therefore, his appeal must be dismissed. ■

,¶2. Williams was convicted of incest, Miss. Code Ann. § 97-29-5 (Rev. 2014), for engaging in sexual activity with his daughter, who was twenty years old at the time. He was acquitted of sexual battery. The facts of the case are discussed in Williams v. State, 89 So.3d 676 (Miss. Ct. App. 2012). The circuit court ultimately sentenced Williams to serve ten years in the custody of the Mississippi Department of Corrections (MDOC), with four years suspended and four years of post-release supervision.

¶ 3.,With one narrow exception not applicable in this case, no inmate “convicted of a sex crime” is eligible for parole or earned time. See Miss. Code Ann. §§ 47-5-139(1)(d) & 47-7-3(1)(b) (Rev. 2015). MDOC considers incest a sex crime, so it classified Williams as ineligible for parole and earned time. Williams disagrees with his classification. He argues that although incest'is a crime that involves sex, it is not a- “sex- crime.” Williams pursued this issue through MDOC’s administrative remedy program. However, MDOC denied relief, citing this Court’s decision in Cochran v. State, 969 So.2d 119, 122 (¶ 10) (Miss. Ct. App. 2007), which held that incest is a sex crime. Williams appealed MDOC’s decision to the Sunflower County Circuit Court, but the circuit court affirmed, also citing Cochran. Williams again appealed, and'his appeal was assigned to this Court.

¶ 4. While his appeal was pending in this Court, Williams was released on post-release supervision^ MDOC suggests that Williams’s release renders the case moot. We agree. Now that Williams has been released, he is unable to show that a ruling in his favor would be of any practical benefit to him. Therefore, we dismiss his appeal as moot. See Fails v. Jefferson Davis Cty. Pub. Sch. Bd., 95 So.3d, 1223, 1225-26 (¶¶ 10-14) (Miss. 2012); Hunt v. MDOC, 217 So.3d 789, 791 (¶ 6) (Miss. Ct. App. 2017).

¶ 5. APPEAL DISMISSED.

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

      . Williams emphasizes that incest is not listed as a "sex offense" in the definitions section of the chapter on sex offender registration, see Miss. Code Ann. § 45-33-23(h)(Rev. 2015), and the Department of Public Safety apparently has confirmed that he is not required to register as a sex offender, However, by its terms, that definition of "sex offense” is controlling only "[f]or putposes of" the sex offender registration.laws. Id. § 45-33-23.


author: LEE, C.J.,

text:
    Douglas Michael LONG, Jr., Appellant v. David J. VITKAUSKAS, Appellee
    NO. 2015-CA-00527-COA
    Court of Appeals of Mississippi.
    October 4, 2016

      MICHAEL J. MALOUF, ROBERT EUGENE JONES II, JAMES MATTHEW LENDERMAN, FOR APPELLANT.
    A.E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON, FOR APPEL-LEE.
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Douglas Long sued David Vitkaus-kas for alienation of affection. The DeSoto County Circuit Court granted Vitkauskas’s motion to dismiss, finding insufficient service of process. In this appeal, we must determine whether the trial court properly granted the motion to dismiss.

PROCEDURAL HISTORY

¶ 2. Long and his wife separated on May 16, 2011. On March 17, 2014, Long sued Vitkauskas for alienation of affection. Vitkauskas, a resident of Pennsylvania, was served with process via certified mail marked “restricted delivery” pursuant to Mississippi Rule of Civil Procedure 4(c)(5). The address listed was Vitkauskas’s place of employment. The return receipt was not signed by Vitkauskas but rather someone named “Mary” with the last name illegible.

¶ 3. On May 14,2014, Vitkauskas’s attorney entered a special appearance to contest jurisdiction. Vitkauskas also filed a motion to dismiss for lack of jurisdiction. On October 9, 2014, the trial court granted the motion, finding that service was insufficient since Vitkauskas himself did not sign the return receipt. Long filed a motion for reconsideration and Vitkauskas responded. After a hearing, the trial court denied Long’s motion for reconsideration and denied Long’s request for additional time to serve Vitkauskas.

¶ 4. Long now appeals, arguing that service of process was sufficient and that the trial court erred by denying his request for additional time to serve Vitkauskas.

STANDARD OF REVIEW

¶ 5. We review de novo a trial court’s decision to grant or deny a motion to dismiss. Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss.2007). Furthermore, “the trial court, not the jury, determines issues of fact regarding service of process, and we apply an abuse-of-discretion standard to the trial court’s findings of fact.” Nelson v. Baptist Mem’l Hosp.-N. Miss. Inc., 70 So.3d 190, 195 (¶ 17) (Miss.2011).

DISCUSSION

I. Service of Process

¶ 6. Long first contends that service of process on Vitkauskas was sufficient. Mississippi Rule of Civil Procedure 4(c)(5) states the following for service of process on a person outside Mississippi:

[A] summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”

¶7. Long claims that he met the requirements of Rule 4(c)(5) regardless of who actually signed the return receipt. And he claims that Vitkauskas clearly had notice since he sought counsel in Mississippi, then filed an extension of time to respond to Long’s complaint as well as a motion to dismiss. Vitkauskas argues that Rule 4(c)(5) requires the defendant himself—not another person—to either sign the return receipt or mark the envelope “refused.”

¶ 8. It is well settled that service of process on a nonresident defendant is jurisdictional and requires strict compliance with the rules. Worthy v. Trainor, 11 So.3d 1267, 1268 (¶ 4) (Miss.Ct.App.2009) (citation omitted). In this instance, Vitkauskas did not sign the return receipt. The purpose of restricted delivery is to ensure that the addressee will be the actual recipient of the posted item. Restricted delivery “alerts the Post Office personnel attempting delivery that the person to whom it is addressed must either sign for it or refuse it.” DeCarlo v. Bonus Stores Inc., 413 F.Supp.2d 770, 774 (S.D.Miss. 2006) (Service of process was insufficient where the envelope was not marked “restricted delivery” and a member of the defendant’s household signed the return receipt.). Additionally, there was no evidence or testimony that the person who did sign the return receipt had the authority to receive service of process on Vitkaus-kas’s behalf.

¶ 9. In regard to Long’s contention that Vitkauskas had sufficient notice of the suit, we find it has no merit. Vitkauskas affirmatively asserted the issue of insufficient service of process by entering a special appearance to contest jurisdiction and by filing a motion to dismiss. See Burleson v. Lathem, 968 So.2d 930, 933 (¶ 10) (Miss. 2007) (“Even when service of process is insufficient, this Court has held that, service-of-process defenses must be affirmatively asserted either in the initial responsive pleading or by motion.”).

II. Request for Additional Time

¶ 10. Long contends that good cause exists for additional time to serve Vitkauskas with process. Rule 4(h) of the Mississippi Rules of Civil Procedure states a party must show good cause why service of process was not made within 120 days of filing the complaint. We review a trial court’s determination of whether good cause existed under our familiar abuse-of-discretion standard. Stutts v. Miller, 37 So.3d 1, 3 (¶ 7) (Miss.2010).

¶ 11. We first note that the trial court did not actually address Long’s argument concerning good cause. Long only raised this argument in his motion for reconsideration, but the trial court did not address it in its order. The trial court simply denied the motion for reconsideration. Long’s reason for good cause is that he thought he had strictly complied with Rule 4(c)(5). However, “[t]o establish good cause the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or igno-ranee of the rules usually does not suffice.” Powe v. Byrd, 892 So.2d 223, 226 (¶ 10) (Miss.2004). The “excusable neglect standard is a very strict standard.” Moore ex rel. Moore v. Boyd, 799 So.2d 133, 136 (¶ 7) (Miss.Ct.App.2001). Here, Vitkauskas clearly did not sign the return receipt. And Long could have attempted to serve process again or filed a motion for additional time. We can find no abuse of discretion by the trial court in this instance.

, ¶ 12. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND GREENLEE,.JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Our supreme court has held that although "a motion for additional time may be filed after the 120-day time period has expired, a diligent plaintiff should file such a motion within the 120-day time period” to support a claim that good cause existed for the failure to properly serve process. Webster v. Webster, 834 So.2d 26, 29 (¶ 11) (Miss.2002); see also Worthy v. Trainor, 11 So.3d 1267, 1269 (¶ 6) (Miss.Ct.App.2009) (good cause not shown and no extension granted).


author: MAIN, Justice.

text:
    EX PARTE TENAX CORPORATION and Tenax Manufacturing Alabama, LLC (In re John Dees v. Tenax Corporation; Tenax Manufacturing Alabama, LLC; Onin Staffing, LLC; and Tenax SPA (Italy))
    1151122
    Supreme Court of Alabama.
    January 27, 2017

      Carroll H. Sullivan and George M. Zoghby of Scott Sullivan Streetman & Fox, P.C., Mobile, for petitioners.
    Evan G. Allen of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   MAIN, Justice.

Tenax Corporation (“Tenax”) and Tenax Manufacturing Alabama, LLC (“Tenax Alabama”), petition this Court for a writ of mandamus directing the Conecuh Circuit Court to enter a summary judgment in their favor in John Dees’s tort action against them. Tenax and Tenax Alabama contend that they are immune from Dees’s tort claims under the exclusive-remedy provisions of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975. Additionally, Tenax Alabama contends that it is entitled to a summary judgment because it was not a legal entity when Dees was injured. We grant the petition and issue the writ.

Facts and Procedural History

Tenax owns a plant in Evergreen that makes, plastic netting and other plastic products. Dees worked at the plant for about six months in. 2010 and again for about two months in 2013. Dees went back to work at the plant in July 2014, but, at the direction of the plant’s general manager, Dees had applied to Onin Staffing, LLC (“Onin”), for the job at the Tenax plant. On January 14, 2015, while operating a machine, Dees suffered significant injuries to his left arm.

In December 2015, Dees sued Tenax, Tenax Alabama, Tenax SPA (Italy) (a foreign corporation doing business in Cone-cuh County), Onin, and fictitiously named defendants claiming that, while he was operating a machine at the plant as instructed and according to proper procedures, he was injured as a result of the alleged defective condition of the machine. Dees sought workers’ compensation benefits from Onin, and he sought damages under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) and for negligence and wantonness from the other defendants. In their answer, Tenax and Tenax Alabama asserted the immunity defense under the Alabama Workers’ Compensation Act and then moved for a summary judgment on that same ground. Tenax Alabama also claimed that it was entitled to a summary judgment because it did not exist as a legal entity at the time of Dees’s injury on January 14, 2015.

According to Dees’s complaint, in January 2015 he was employed by Onin and, at the time of his injury, “was acting within the line and scope of his job duties and responsibilities with Defendant Onin.” However, Dees testified in deposition that in January 2015 his understanding was that he was employed by Tenax and that Onin was a “temp agency:” Dees further testified that “if I fill out an application [asking for the name of my employer], I don’t put Onin Staffing, I put Tenax.” According to Dees, Tenax trained him, supervised him, took any necessary disciplinary actions against him, and controlled his work. Dees also submitted his work hours to his supervisor at Tenax, and Dees received and signed for a Tenax employee handbook. Onin- never placed Dees in any job other than the job at the Tenax plant.

Melvin Owens, the general manager for the Tenax plant, testified that Tenax had a relationship with Onin whereby Onin supplied Tenax with temporary labor. To pay the workers supplied by Onin, Tenax would write Onin a check, and Onin in turn would withhold appropriate taxes and other items and issue a check to the workers. In 2014, Dees, who had worked for Tenax as a permanent employee on two previous occasions, approached Owens and asked for a job. Owens agreed to hire Dees but instructed him to go to Onin to “process it through,” which Dees did. During this third stint with Tenax, Dees worked full-time, but he was on probationary status and did not receive benefits from Tenax. During his third stint, Dees was fired by Tenax in September 2014, but he was rehired about a month later. When Dees was injured, Tenax prepared an accident report. Owens testified that he considered Dees “to be a Tenax employee like any other Tenax worker in the Evergreen plant” at the time he was injured.

Christa Mrachkovskiy, Oniris director of safety and risk management, testified in deposition that Onin is a “temporary agency” that -provider workers and that Onin “brokerfs] the relationship .between- .a worker and [Oniris] client, or the business providing employment to the worker,” much like “Manpower or Labor Finders and other temporary agencies.” According to Mrachkovskiy, Onin charges a business an hourly rate, “say, $15 an hour. The worker may get $10, and the remaining $5 goes to for [sic] like workers’ compensation premiums, general liability premiums, health insurance,- et cetera.” Mrachkovskiy testified that Onin performs “ministerial duties,” such as “paying the worker, taking out for workers’ comp, taking out general liability insurance, taking out for health insurance,” and -withholding taxes. Onin also conducts criminal backgrohnd checks and drug screenings. According to Oniris “proposal for staffing services” between Onin and Tenax:

“As the employer, Onin Staffing assumes all of the responsibility for personnel administration. These responsibilities include the withholding of taxes, payment of wages, employer contributions for FICA, Federal and State Unemployment taxes, and providing insurance for occupational injuries, and general liability insurance coverage up to $1,000,000. per incident, $2,000,000 aggregate.”

Onin did not provide any training to Dees other than showing him a short video concerning general safety, which is shown to all workers supplied by Onin. According to Mrachkovskiy’s deposition testimony, at some point Dees signed a document that stated, in part: “I understand that I am an employee of Onin Staffing. Only Onin Staffing or I can terminate my employment. I also understand that I have exactly one (1) business day to report back to Onin Staffing for further job assessment and that potential unemployment benefits may be denied to [me] for failure to do so.” Under Onin’s policies -concerning injuries sustained by their employees in the workplace, employees were required to report any work-related injury to their field supervisor immediately and to Onin before the end of the shift during which the employee was injured. Along with Tenax, Onin investigated Dees’s accident. MracK-kovskiy testified that she considered Dees to be a. dual employee of Onin ’and Tenax.

It is undisputed that Tenax and Tenax Alabama merged in December 2014. Tenax was the successor entity, and Tenax Alabama ceased to exist as a legal entity before Dees was injured.

After conducting a. hearing and reviewing the cases upon which the, parties.relied,, the trial court denied Tenax and Te-nax Alabama’s motion for a summary judgment.

Discussion

I.

Concerning. the claims against Tenax Alabama, it is .undisputed that Tenax. Alabama was not a legal entity at the time Dees was injured. In his answer to the mandamus petition, Dees “concedes that the trial court should have granted Defendant Tenax. Manufacturing- Alabama, LLC’s Motion for Summary Judgment. This issue was uncontested at the trial court level by Plaintiff Dees.” Dees’s answer, at 1 n.1. Therefore, a summary judgment is due to be entered in favor of Tenax- Alabama.

II.

Tenax seeks a writ of mandamus directing the trial court to enter a summary judgment in its favor because, Tenax says, it is immune from Dees’s tort claims under the -exclusive-remedy provisions of the Alabama Workers’ Compensation Act. Specifically, Tenax contends that, although Onin was Dees’s “general employer," Tenax was Dees’s “special employer” and, thus, that the exclusive-remedy provisions of the Workers’ Compensation Act extend to Tenax.

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a.clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala. 2001) ].'
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).
‘“Subject to certain narrow exceptions ..., we have held that, because an “adequate remedy” exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not renewable by petition for writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).”

Ex parte Kohlberg Kravis Roberts & Co., L.P., 78 So.3d 959, 965-66 (Ala. 2011).

This Court has repeatedly held that the denial of a motion to dismiss is reviewable by a petition for a writ of mandamus when the motion to dismiss asserts immunity under the exclusive-remedy provisions of the Workers’ Compensation Act. See Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala. 1998), Ex parte Progress Rail Servs. Corp., 869 So.2d 459 (Ala. 2003), and Ex parte Rock Wool Mfg. Co., 202 So.3d 669 (Ala. 2016). Further, this Court agrees with the Court of Civil Appeals’ conclusion in Ex parte Salvation Army, 72 So.3d 1224 (Ala. Civ. App. 2011), that the denial of a summary-judgment motion based on a claim of immunity under the exclusive-remedy provisions of the Workers’ Compensation Act is also an exception to the general rule and is reviewable by a petition for a writ of mandamus. See Ex parte Salvation Army, 72, So.3d at 1228 (stating that “whether a claim of immunity is denied following a motion to dismiss or a summary-judgment motion appears to be immaterial to the issue whether such a denial may be reviewed by mandamus”).

In Gaut v. Medrano, 630 So.2d 362 (Ala. 1993), this Court stated:

“Alabama Code 1975, § 25-5-53, provides that an action brought under the Workers’ Compensation Act is the exclusive remedy for an employee’s injuries sustained in the course of his employment. Rhodes v. Alabama Power Co., 599 So.2d 27 (Ala. 1992). The exclusivity bar is an affirmative defense. Rule 8(c), Ala. R. Civ. P. Therefore, on a motion for summary judgment, the defendants have the burden of establishing a prima facie showing as to each element of the defense of exclusivity; if the defendants are able to carry this burden, then the plaintiff must present substantial evidence to overcome this prima facie case. [Ala.]R.Civ.P. 56; Ala. Code 1975, § 12-21-12. Substantial evidence has been defined as ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)....
“The exclusive remedy provision extends to ‘special employers,’ which have been described as ‘individuals or businesses who, for practical purposes, may be considered primary or co-employers of the injured employee.’ Rhodes, supra, at 28 (quoting Tweedy v. Tennessee Valley Authority, 882 F.2d 477, 479 (11th Cir. 1989)). In Terry v. Read Steel Products, 430 So.2d 862 (Ala. 1983) this Court adopted a three-pronged test for determining when an employee of a general employer can become the employee of a ‘special employer’ for purposes of workers’ compensation:
“ ‘ “When a general employer lends an employee to a- special employer, the special employer becomes liable for workmen’s compensation [and thus immune from liability for tort actions brought by the special employee] only if
‘““(a) the employee has made a contract of hire, express or implied, with the special employer;
“ ‘ “(b) the work being done is essentially that of the special employer; and.
“ ‘ “(c) the special employer has the right to control the details' of the work.
“ ‘ “When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.” ’
430 So.2d at 865 (quoting 1C A. Larson, The Law of Workmen’s, Compensation, § 48 (1980)). The requirement of a contract of hire comports directly with our Workers’ Compensation Act; which, defines an ‘employee’ as a ‘person in the service of another under any contract of hire, express or implied, oral or written.’ Ala. Code 1975, § 25-5-1(5).”

630 So.2d at 364 (footnote omitted).

In the present case, Dees concedes that the work being done by him was that of Tenax and that Tenax had the right to control the details of his work, and Tenax does not argue that Dees had entered into an express contract of hire with Tenax. Thus, the only issue for this Court to decide is whether Dees had an implied contract of hire with Tenax. If an implied contract of hire existed between Dees and Tenax, then Tenax was Dees’s “special employer” and the exclusive-remedy provisions of the Workers’ Compensation Act extend to Tenax.

“This Court has considered a number of factors to be particularly significant to the analysis of [whether the worker impliedly consented to a contract of hire]. One consideration is whether the general employer is, in reality, acting as a ‘labor broker’ or a temporary employment agency for the special employer. Hicks v. Alabama Power [Co.], 623 So.2d [1050] at 1055 [(Ala. 1993)]; Gaut [v. Medrano], 630 So.2d [362] at 367 [ (Ala. 1993) ]. Another consideration is whether the special employer provided the workers’ compensation insurance. See Gaut, 630 So.2d at 363, 368 (holding that alleged special employer Holnam, Inc., which did not provide the employee’s workers’ compensation insurance, was not entitled to a summary judgment); Pinson v. Alabama Power Co., 557 So.2d [1236] at 1237 [(Ala. 1990)] (holding that alleged special employer Alabama Power Company, which did provide the employee’s workers’ compensation insurance, was entitled to a summary judgment). Still another.important consideration is “whether the employment with the borrowing employer was of such duration that the employee could be reasonably .presumed to have evaluated and acquiesced in the risks of his employment.” ’ Gaut, 630 So.2d at 367 (quoting Vanterpool v. Hess Oil V.I. Corp., 766 F.2d 117, 122 (3d Cir. 1985)); see also Rast Constr., Inc. v. Peters, 689 So.2d 781, 784 (Ala. 1996). Always, the focus is on what the employee intended in providing services for the alleged special employer.
“Regarding the first consideration, we have explained:
“ ‘Terry v. Read Steel [Products, 430 So.2d 862 (Ala. 1983),] and three of the cases following it [namely, Means v. International Systems, Inc., 555 So.2d 142 (Ala. 1989); Marlow v. Mid South Tool Co., 535 So.2d 120 (Ala. 1988); and Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228 (Ala. 1985),] have involved general employers that were unambiguously temporary employment placement agencies. Terry and Pettaway were placed with their special employers by Manpower, Inc.; Marlow, by Kelly Services, Inc.; and Means, by Long’s Temporary Services, Inc. In such cases, the employee applies to the general employer for the specific purpose of temporary placement with special employers and thus necessarily agrees to a contract of hire with the special employer. For example, the Court in Pettaway, supra, stated: “Approximately two weeks before his injury, Manpower informed Pettaway of an available work assignment at Mobile Paint. Manpower asked Pettaway if he would accept such an assignment, as, this was the normal procedure. Pettaway agreed to do so.” 467 So.2d at 228 (emphasis added).
“ ‘In Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1054 (Ala. 1986), Pep Services, Inc., had “agreed to supply Crown with gasoline filling station personnel.” The opinion does not discuss how Bechtel started working with Pep or with Crown, but it recites the following, facts in rejecting Bechtel’s argument that she had not consented to a contract of hire with Crown:
“ ‘ “Bechtel submitted to the control and supervision of a Crown employee, Steve Thornton; Bechtel wore uniforms supplied by Crown, bearing Crown labels;. Crown participated in the hiring process; the service station manager (a Crown employee) would sign the weekly time sheets and had authority to transfer Bechtel to another station or to terminate her. This is clearly evidence that Bechtel submitted to employment with Crown, as a special employer, and, therefore, entered into a contract of hire with Crown.”
“ ‘Id. The Court stated that there was no evidence in the record that Bechtel had not consented to a contract of hire with Crown, and it affirmed the summary judgment for Crown.’
“Gaut, 630 So.2d at 366.”

G.UB.MK Constructors v. Garner, 44 So.3d 479, 488-89 (Ala. 2010) (some emphasis added).

In the present case, Dees intended to enter into a contract of hire with Tenax. After asking Tenax’s plant manager for a job, Dees applied to Onin for the job at Tenax at the direction of Tenax’s plant manager.for the specific purpose of placement with Tenax; thus, Dees necessarily agreed to a contract of hire with Tenax. Also, Dees clearly submitted to Tenax’s control and supervision, and he testified that it was his understanding that he was employed by Tenax. That testimony is in sharp contrast with cases, such as Gaut and Hicks v. Alabama Power Co., 623 So.2d 1050 (Ala. 1993), in which this Court concluded that there was a genuine issue of material fact concerning whether an implied contract of hire existed between the employee and the alleged special employer. In Gaut, the plaintiff presented evidence supporting his assertion “that he always believed that ... [the alleged special employer] was [not] his employer” and that “he believed [his general employer] was an independent maintenance contractor.” 630 So.2d at 365. In Hicks, the plaintiff submitted evidence supporting his assertion “that once he secured employment with [his general employer], he did not expect or intend [the general employer] to then transfer him to [the alleged special employer’s] employ.” 623 So.2d at 1055.

Further, contrary to Dees’s assertion before this Court, Tenax provided workers’ compensation insurance, albeit through Onin. In Terry v. Read Steel Products, 430 So.2d 862 (Ala. 1983), this Court quoted with approval the following from St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521 (D. Minn. 1962):

‘“This brings .up the final and most damning fact. What do the defendant and others who use the services of Manpower get when they buy the commodity that Manpower is selling? In this case the plaintiff received a wage of $1.05 per hour but defendant had to pay $1.71 per hour to get the plaintiff from Manpower. What did the defendant pay that $0.66 differential for? ... There is more than a vague connection between the extra $0.66 per hour paid by defendant and. the Workman’s Compensation which this unfortunate plaintiff received. Part of that $0.66 per hour will pay someone’s premium, and in the eyes of the law it must be deemed to have paid the premium for this plaintiff. In other words, the plaintiff is suing in tort the man who paid for his Workman’s Compensation. The defendant paid part of this extra $0,66 per hour for the sole and express purpose of assuring that employees which Manpower sent over for temporary employment would be covered by Workman’s Compensation. The defendant paid part of this extra $0,66 per hour for the sole and express purpose of not having to defend actions such as the one which has been brought here. This case strikes at the heart of the Workman’s Compensation law; this case is in unequivocal opposition to the well-known principles on which Workman’s Compensation is founded.’ ”

Terry, 430 So.2d at 865 (quoting St. Claire, 211 F.Supp. at 528).

Likewise, in the present case,, the uncon-tradicted evidence indicated that Tenax paid Onin a rate above the rate paid to Dees, in part, to pay for workers’ compensation insurance premiums. Mrachkovskiy spéeifically testified that the amount above that paid to Dees paid for things “like workers’ compensation premiums.” “‘[I]f the special employer doctrine does not apply in such a situation, the employee is effectively suing the entity that provided his1 workers’ compensation insurance, which is-contrary to the reasons for and provisions of the- workers’ compensation statute,’ ” Garner, 44 So.3d at 489 (quoting reply brief).

Also, Dees’s activities with Tenax were “of such duration that [he] could be rea-sohably presumed to have 'evaluated and acquiesced in the risks of his* employment.” See Garner, 44 So.3d at 488. “ ‘[T]his is not a case of an employee’s being lent to another employer for a very short time or being lent on an ad hoc basis and thus having little or no reason to actually consent to a contract of hire with the borrowing employer.’” Garner, 44 So.3d at 489 (quoting Gaut, 630 So.2d at 367). Instead, other than being fired for about a month, Dees worked at the Tenax plant from July 2014 until he was injured in January 2015. There was no evidence indicating that he worked anywhere else during that six months, and every day he worked he used Tenax’s equipment and submitted to Te-nax’s direction,

Based on the above factors, Tenax made a prima facie Showing that it was Dees’s special employer, and Dees did not present substantial evidence to overcome that pri-ma facie showing. Therefore, the exclusive-remedy provisions of the Workers’ Compensation Act extend to Tenax, and a summary judgment in favor of Tenax is due to be entered.

Conclusion

Based on the foregoing, we hold that Tenax and Tenax Alabama have demonstrated a clear legal right to a writ of mandamus directing the Conecuh Circuit Court to. enter a summary judgment in their favor and against Dees.

PETITION GRANTED; .WRIT ISSUED.

Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.

Murdock, J., concurs in the result.

Shaw, J., recuses himself.

      . It appears that Tenax SPA manufactured the machine Dees was operating when he was injured. Tenax SPA is not a party to this mandamus petition.