author: GREENLEE, J., FOR THE COURT:

text:
    Ranzino Ahmad HARRIS a/k/a Ranzino Harris a/k/a Ranzino A. Harris, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00347-COA
    Court of Appeals of Mississippi.
    September 26, 2017 Rehearing Denied February 27, 2018 Certiorari Denied May 10, 2018
    ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN, NICOLE H. MCLAUGHLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. Ranzino Ahmad Harris appeals his conviction in Lowndes County Circuit Court of murder asserting (1) the trial court erred when it admitted an unavailable witness's preliminary-hearing testimony because it violated his Sixth Amendment right of confrontation; (2) the trial court erred when it admitted a witness's hearsay statement as an excited utterance; (3) the evidence was insufficient; and (4) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

BACKGROUND

¶ 2. On the morning of May 17, 2010, Harris attempted to contact his ex-girlfriend, Ashley Lee, to no avail. In further efforts to make contact, he went to her house, where he discovered Ashley and her sister, Tericia Lee, each with their own overnight guest, Justin Murray (Ashley's) and Michael Brewer (Tericia's). Harris confronted Ashley, cornered her in her bathroom, and began choking her. Murray and Brewer came to Ashley's aid, pinning Harris on a bed, where the two assaulted Harris, punching him repeatedly. Ashley and Tericia implored the two to stop, and they subsequently unpinned Harris. After he was unpinned, Harris left. Then, moments later, he returned with his pistol drawn and, as the outside kitchen door opened, fired two shots. Both shots struck Murray, who died shortly thereafter from his wounds. At trial, Harris testified he returned to Ashley's home to retrieve his cellular phone, which he purportedly left in the house. Both Tericia and Brewer testified that Harris forced the door open. Brewer also testified he and Murray were both standing and not moving toward the door or Harris.

¶ 3. Detective George Harris of the Columbus Police Department was one of two officers who responded to a 911 call reporting a possible homicide at Ashley's home. Among his discoveries upon arriving at the scene, Detective Harris found Brewer "walking around," repeatedly stating, "he didn't have to do this, he didn't have to do this." Harris later surrendered at the Columbus Police Department.

¶ 4. Harris was indicted on October 27, 2010, for one count of murder in violation of Mississippi Code Annotated section 97-3-19 (Rev. 2006) and one count of aggravated assault in violation of Mississippi Code Annotated section 97-3-7 (Rev. 2006). A four-day jury trial was conducted during September 3-6, 2013. Testimony was heard from Detective Harris and Ashley, among others.

¶ 5. Detective Harris testified, "When we walked up on the porch, I noticed a young man, I know him as Mike, we call him Little Mike, he was walking around in the living room and by the doorway area. Kept stating, 'He didn't have to do this, he didn't have to do this.' " Harris did not object, and Detective Harris continued his testimony, describing a diagram of the scene. Later, the State asked, "How would you describe [Brewer's] demeanor and his emotional state at that point, sir?" Detective Harris responded, "He was, like, walking in circles, kept repeating, 'He didn't have to do this. That wasn't called for.' " Harris (the defendant) contemporaneously objected to that answer as hearsay. In response, the State argued, "at that point it would have been an excited utterance, because he had just been shot and saw his friend killed." The trial court overruled the objection. The State continued, "Okay. Yes, sir?" Detective Harris resumed, "He was-this-'He didn't have to do that. This is my boy, he didn't have to do my boy like that.' " To which the State asked, "Okay. And was he visibly upset? Could you tell that, sir?" "Yes, he was," Detective Harris replied.

¶ 6. Ashley was deemed unavailable to testify at trial. However, she had formerly testified during a probable-cause hearing in which she appeared as a witness for Harris. Prior to trial, the State filed a motion to use Ashley's prior testimony. The trial court heard arguments on this motion on two separate occasions, both of which occurred during trial, but outside the jury's presence. During these arguments, Harris did not contest Ashley's unavailability-only that he was limited in material and scope during the development of her testimony, stating, "it's a confrontation clause issue." Harris further claimed: "[T]hroughout the entire transcript, as I tried to develop the testimony more with each witness, [the State] would object and say, this is for discovery, Your Honor, we're not here to have the trial on the whole case. So I was limited on every witness in my ability to develop the cross-examination." The transcript of Ashley's prior testimony (approximately four pages in length) contained one objection to a question Harris asked: "And you had sex with [Murray], had you not?" Ashley did not respond. That question and objection colloquy was redacted for trial. Later, Harris maintained the redacted question was "the most important question with regard to heat of passion," stating he "wasn't able to develop the testimony as [he] saw fit." However, the question and answer immediately preceding the redacted portion of Ashley's testimony was included. There, Harris asked, "Well, Justin Murry [sic] was in your bed at the time, wasn't he?" Ashley responded, "Yes."

¶ 7. Harris was found guilty of murder. On the same day, he was sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. On the tenth day following the verdict and sentence, Harris moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. Approximately three years later, the trial court denied Harris's motion. Harris timely appealed to this Court.

DISCUSSION

I. Confrontation Clause

¶ 8. Harris asserts the trial court erred in admitting Ashley's prior testimony because it violated his Sixth Amendment right of confrontation, and that he was not afforded a "full cross-examination." We review a trial court's ruling on the admissibility of evidence for abuse of discretion. Barron v. State , 130 So.3d 531, 538 (¶ 23) (Miss. Ct. App. 2013). Constitutional issues are reviewed de novo. Jenkins v. State , 102 So.3d 1063, 1065 (¶ 7) (Miss. 2012).

¶ 9. The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of "testimonial statements" made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington , 541 U.S 36, 53-54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Although the Court in Crawford declined to define "testimonial" statements, it noted the term, at a minimum, includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations." Id. at 68, 124 S.Ct. 1354. Accordingly, Ashley's preliminary-hearing testimony is testimonial, and because she was unavailable, our inquiry turns to whether Harris had a prior opportunity to "cross-examine" or, as here, to examine, because Harris called Ashley as his witness.

¶ 10. A defendant's right to cross-examination is not unlimited, and "[t]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " Goforth v. State , 70 So.3d 174, 184 (¶ 46) (Miss. 2011) (emphasis added) (quoting Kentucky v. Stincer , 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ). Further, no Confrontation Clause violation will be found where defense counsel was not "significantly limited in any way in the scope or nature of his cross-examination of the witness ... at the preliminary hearing." California v. Green , 399 U.S. 149, 166, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

¶ 11. Here, Ashley was Harris's witness at the earlier probable-cause hearing and was thus subject to his direct and redirect examination. Therefore the only pertinent question is whether Harris was "significantly limited in any way in the scope or nature of his cross-examination" or, as here, "examination" of Ashley.

¶ 12. Harris's premier argument is that he was unable to fully develop Ashley's cross-examination. In support, Harris states (1) discovery is necessary to support a meaningful cross-examination; (2) his questioning of Ashley was limited to the issue of probable cause; and (3) the nature of a preliminary hearing inherently changes cross-examination strategy. However, Harris fails to specifically address how these issues limited Ashley's testimony in nature and scope: he does not show how his examination of Ashley would be any different at the preliminary hearing given the benefit of discovery, and fails to demonstrate how limitation to the issue of probable cause changed his course of questioning with respect to Ashley. Harris nevertheless had the opportunity to examine Ashley during the preliminary hearing, despite any perceived change in strategy.

¶ 13. Further, we are unpersuaded by Harris's argument that Ashley's prior testimony did not make clear enough that Ashley and Murray were in bed together, as overnight lovers, when Ashley's ex-boyfriend arrived for an unexpected visit. The question before the redacted portion of Ashley's testimony asked whether Murray and Ashley were in bed together that morning. Ashley answered in the affirmative. The trial court found the jury could "reasonably conclude" any romantic involvement between Ashley and Murray that morning. We agree. In sum, we find Harris's examination of Ashley was not significantly limited in scope or nature, as there was no showing of such limitation within either the record of the case or the testimony itself. In result, admission of Ashley's prior testimony did not violate the Confrontation Clause.

¶ 14. But, even if admission of Ashley's prior testimony was an abuse of discretion, the error was harmless. Ashley's prior testimony mentioned Harris tried to choke her and that Harris fought with Murray and Brewer. But it did not mention anything after Harris was pinned down by Murray and Brewer-not even the shooting. Nor did it include that Harris left, or that he came back. Further, the substance of Ashley's testimony was thoroughly covered by Tericia's and Brewer's testimony. In result, we find this issue is without merit.

II. Excited Utterance

¶ 15. Harris asserts the trial court erred when it found Brewer's statements made in front of Officer Harris were excited utterances under Mississippi Rule of Evidence 803(2). Again, we review a trial court's ruling on the admissibility of evidence for abuse of discretion. Barron , 130 So.3d at 538 (¶ 23).

¶ 16. Rule 803(2) allows for a hearsay exception for an excited utterance, which is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." The advisory-committee notes shed further light on admitting an excited utterance:

The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication. ... [T]he essential ingredient here is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly. ... An excited utterance need only "relate" to the startling event, and, therefore, the scope of the subject matter of the statement may be fairly broad.

M.R.E. 803 advisory committee's note.

¶ 17. Brewer was standing right next to Murray when he was shot twice, and Brewer's statement was made within approximately ten minutes of the shooting. The statement was unsolicited, and when Detective Harris was asked if he could tell whether Brewer was "visibly upset," he testified, "Yes, he was." In Barron , we found no abuse of discretion in admitting similar comments made ten to twenty minutes after the shooting in response to questions from bystanders, and where there was testimony that the declarant was "visibly shaken up." Barron , 130 So.3d at (¶ 21). Here, we find no abuse of the trial court's discretion in admitting Brewer's statements as excited utterances. Thus, we find this issue is without merit.

III. Sufficiency of the Evidence

¶ 18. Harris asserts the evidence was insufficient to convict him of murder. The critical inquiry in addressing a challenge to the sufficiency of evidence is "whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Carr v. State , 208 So.2d 886, 889 (Miss. 1968) ). "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id . (citing Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).

¶ 19. Harris was convicted of deliberate-design murder, which has three requirements: the defendant must have (1) killed the victim, (2) without authority of law, and (3) with deliberate design to effect death. Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). "[D]eliberate design connotes an intent to kill." Wilson v. State , 936 So.2d 357, 364 (¶ 17) (Miss. 2006). "[D]eliberate indicates a full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences." Id. "However, deliberate design to kill a person may be formed quickly and perhaps only moments before the act." Id. "Deliberate design, as a matter of law, may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury." Id .

¶ 20. In addition to arguing self-defense, Harris asserts he killed Murray in the heat of passion upon discovering his ex-girlfriend with an apparent overnight lover. Harris claims this offense, at most, warrants a conviction of heat-of-passion manslaughter. For heat-of-passion manslaughter to be implicated, there must be a provocation that is immediate and reasonable enough. Parker v. State , 119 So.3d 987, 994 (¶ 16) (Miss. 2013). With regard to immediacy, the pertinent question is whether there was a sufficient cooling-off period between the provocation and the killing, which negates a claim the killing occurred in the heat of passion. Id. Heat of passion and immediacy, in particular, are questions of fact to be resolved by the jury on a case-by-case basis. Id.

¶ 21. Here, Harris admitted he killed Murray and that he left the house and came back before he shot Murray. Although Harris testified Murray and Brewer were coming toward him at the time he shot Murray, testimony to the contrary was submitted. That testimony claimed Harris left the house and returned "moments" later to forcefully enter the house with a pistol drawn, twice firing it and killing Murray. Given that evidence, "any rational trier of fact could have found all the essential elements" of deliberate-design murder without authority of law and "beyond a reasonable doubt." Thus, we find no merit in this issue.

IV. Weight of the Evidence

¶ 22. Lastly, Harris asserts his murder conviction is against the weight of the evidence. When reviewing a claim that a conviction is against the weight of the evidence, this Court will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush , 895 So.2d at 844 (¶ 18) (citing Herring v. State , 691 So.2d 948, 957 (Miss. 1997) ). The verdict here was not against the overwhelming weight of the evidence.

¶ 23. Harris admitted to killing Murray and claimed it was in self-defense. He admitted he reapproached the house with his gun drawn, and claimed he returned to the house to retrieve his cell phone. Harris also claimed that as the door opened, Murray and Brewer were charging at him. The State offered evidence that Harris forced the door open, and that neither Murray nor Brewer was moving toward Harris as the door opened. We agree with the jury's resolution of the conflicting testimony. Thus, we find this issue is without merit.

CONCLUSION

¶ 24. We affirm the judgment of the circuit court for Harris's conviction of murder and sentence of life imprisonment.

¶ 25. AFFIRMED.

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

      On the day of the incident, Detective Harris was ranked a patrolman.

      Harris was also charged with aggravated assault, but was found not guilty.

      We note that under the newly created Mississippi Rules of Criminal Procedure, effective July 1, 2017, Harris's motion for a JNOV or, in the alternative, a new trial would have been "deemed denied as of the thirtieth day" of pendency. MRCrP 25.3.


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    Brenda THORNTON, Appellant v. Andy FREEMAN, Appellee
    NO. 2016-CA-01804-COA
    Court of Appeals of Mississippi.
    March 27, 2018
    ATTORNEYS FOR APPELLANT: DENNIS C. SWEET III, DENNIS CHARLES SWEET IV
    ATTORNEYS FOR APPELLEE: MARK C. CARLSON, PRICE WILSON DONAHOO
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. This case concerns a dispute over the sufficiency of service of the summons and complaint in a personal injury suit. The circuit court found numerous defects in the service, one being that there was no evidence Brenda Thornton had mailed copies of the summons and complaint to Andy Freeman's address following the service on his father, as required by Mississippi Rule of Civil Procedure 4(d)(1)(B). On appeal, Thornton does not challenge that finding. For that reason alone, the service was ineffective, and we affirm the circuit court's grant of summary judgment.

DISCUSSION

1. Sufficiency of Process

¶ 2. Thornton and Freeman devote most of their arguments to the question of whether Freeman's father was at Freeman's usual place of abode or in the driveway of his own home across the street. But, as we said, it is clear that the service was ineffective for another reason, and thus it is not necessary to address the question of where Thornton's father was when he was served.

¶ 3. The procedural posture of this case is unusual in two respects. First, while Freeman did assert the defense of insufficiency of process in his answer, it was only in the most general and conclusory terms. To properly raise the defense, the objection should have contained more detail: "Objections to the sufficiency of process must be specific and must point out in what manner the plaintiff has failed to satisfy the service provision utilized." O'Brien v. R.J. O'Brien & Assocs. , 998 F.2d 1394, 1400 (7th Cir. 1993) (quoting Photolab Corp. v. Simplex Specialty Co. , 806 F.2d 807, 810 (8th Cir. 1986) ); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 at 341 (3d ed. 2004). Failure to adequately raise the defense of insufficiency of service in the answer or a pre-answer motion should have barred the issue from consideration. See M.R.C.P. 12(h). Nonetheless, Thornton has made no objection to the sufficiency of the raising of the defense in Freeman's answer, and thus she has waived the issue-waiver of a defense can itself be waived. See Fortner v. Specialty Contracting LLC , 217 So.3d 736, 745-46 (¶ 31) (Miss. Ct. App. 2017).

¶ 4. The second procedural irregularity is the way the issue was presented to the trial court, in a motion for summary judgment. The parties-and to a lesser extent the circuit court-repeatedly have employed or referenced the summary judgment standard in evaluating the sufficiency of the service of process. On appeal, the parties continue to argue about a genuine issue of material fact as to the service of the summons. See M.R.C.P. 56(c). Instead, the question of sufficiency of process should have been addressed under Rule 12(b)(5). The circuit court should have held a preliminary hearing and was free to make its own findings of fact, even if the facts were contested. See M.R.C.P. 12(d) ; Johnson v. Rao , 952 So.2d 151, 154 (¶ 9) (Miss. 2007) ; see also 5B Wright & Miller § 1353 at 340.

¶ 5. Thornton has made no complaint about the application of the summary judgment standard, perhaps because she could only benefit from it; under the summary judgment standard, Thornton would prevail if there was a genuine issue of material fact as to whether service was effected. But because she failed to make a prima facie case that the summons and complaint were properly served, we do not see this error as to the legal standard as impacting the result and requiring reversal.

¶ 6. There is also a concern with the nature of the judgment below. A dismissal under Rule 12(b)(5) should be entered without prejudice, but a summary judgment is with prejudice and precludes refiling of the complaint. See M.R.C.P. 12 ; M.R.C.P. 56. Nonetheless, the circuit court did not grant the summary judgment based on the insufficiency of process alone; rather, the basis for the circuit court's order was that the statute of limitations had run on the negligence cause of action as a result of Thornton's failure to effect service. Since that appears to be the case, and Thornton has not argued the grant of summary judgment was erroneous if the service was properly quashed, we do not see this issue as an impediment to affirming the summary judgment.

¶ 7. Turning to the merits of the sufficiency of service of the summons and complaint, Mississippi Rule of Civil Procedure 4(d)(1) states that the summons and complaint shall be served:

Upon an individual other than an unmarried infant or a mentally incompetent person,
(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or
(B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant's usual place of abode with the defendant's spouse or some other person of the defendant's family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

The service in this case was argued to have been made under Rule 4(d)(1)(B) by serving Freeman's father at Freeman's usual place of abode. The process server executed an affidavit stating that he effected "personal service" on Freeman's father, but the affidavit did not state that the process server had mailed the summons and complaint to the address afterwards as the rule requires. The process server further admitted during his deposition that he did not do the mailing; he stated that it would have been done by the attorney's office, but it is apparent that he lacked any personal knowledge as to whether it was or was not done in this case.

¶ 8. At the hearing on the summary judgment motion, Thornton's attorney asserted that he was unaware that mailing was an issue, though in fact the issue was raised repeatedly and at length in Freeman's briefs in support of summary judgment, and Freeman produced affidavits from his wife and himself to the effect that they had not received a summons and complaint in the mail at their home address. At the hearing, Thornton's attorney did represent to the circuit court that the summons and complaint had been mailed, but he did not claim to have done it himself or otherwise assert personal knowledge; he said it would have been done by someone in his office and that he would have produced affidavits or other evidence if he had been aware the mailing was at issue. Since the attorney did not represent that he had personal knowledge of the mailing, his assertion lacked any evidentiary value. See Handy v. Madison County Nursing Home , 192 So.3d 1005, 1010 (¶ 16) (Miss. 2016).

¶ 9. The trial court's judgment enjoys a presumption of correctness. See Birkhead v. State , 57 So.3d 1223, 1231 (¶ 28) (Miss. 2011). As the appellant, Thornton is required "to demonstrate some reversible error to [the appellate court]." See id. ; see also M.R.A.P. 28(a)(6). But she has entirely failed to address the issue of the mailing in her appellant's brief. And since mailing is required for service under Rule 4(d)(1)(B), Thornton cannot show that the trial court erred in finding that the service was ineffective. We affirm the judgment on that basis alone.

¶ 10. In the alternative, the record shows that Thornton produced no evidence of the mailing. As the plaintiff, she bore the initial burden of showing effective service of the summons and complaint. See 5B Wright & Miller § 1353 at 342-44. Since Thornton produced no evidence that the summons and complaint had been mailed as required by Rule 4(d)(1)(B), that burden was not met. We find no error in the trial court's determinations that the summons and complaint were not mailed and that process was ineffective.

2. Further Discovery

¶ 11. In her final issue, Thornton argues that the trial court erred in deciding the summary judgment issue without providing her with an opportunity to depose Freeman and his wife. Thornton bases this argument on Mississippi Rule of Civil Procedure 56(f), which states:

When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

¶ 12. The Mississippi Supreme Court has held, however, that to be entitled to relief under Rule 56(f), "the party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Owens v. Thomae , 759 So.2d 1117, 1120 (¶ 12) (Miss. 1999) (citation omitted). Thornton fails to meet this requirement; her brief contains no specifics whatsoever except that she would have liked to have inspected the properties of Freeman and his father, something which would have had no effect on the result of the case since it hinges on whether the summons and complaint were mailed. Indeed, Thornton's attorney admitted at the hearing that he could have proven that mailing was done as required by Rule 4(d)(1)(B) if he had realized mailing was at issue, using witnesses who were readily available to him.

¶ 13. Thornton has failed to show any error on this point.

¶ 14. AFFIRMED.

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


author: BARNES, J., FOR THE COURT: FAIR, J., CONCURRING IN PART AND DISSENTING IN PART: TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Robert O. BAUMBACH, Appellant v. Jennifer Anne BAUMBACH, Appellee
    NO. 2016-CA-00978-COA
    Court of Appeals of Mississippi.
    April 3, 2018
    TIFFANY ALAYNE YATES RACHEL LEE HODGES, ATTORNEYS FOR APPELLANT
    CARRIE A. JOURDAN, ATTORNEY FOR APPELLEE
    EN BANC.
   BARNES, J., FOR THE COURT:

¶ 1. Robert and Jennifer Baumbach were granted a divorce on the ground of irreconcilable differences on January 25, 2016. Subsequently, in a June 6, 2016 order determining the remaining issues, the Lowndes County Chancery Court awarded Jennifer sole physical custody of the couple's minor children, the marital residence, all of her 401(k) and Roth IRA, twenty-five percent of Robert's 401(k), and a portion of Robert's military pension. Robert was awarded the couple's other real-estate holdings, which had a negative value of $357,000, and he was ordered to pay rehabilitative alimony, child support, private-school tuition, and mortgage payments on the marital home. Robert was also ordered to maintain a life-insurance policy with Jennifer as the primary beneficiary.

¶ 2. Robert filed a motion to alter or amend the judgment, requesting a clarification of visitation and alleging numerous errors such as the award of alimony, attorney's fees, and the equitable division of the marital assets. While the chancery court granted the motion in part on the issue of visitation, it denied the motion as to the other issues raised. Aggrieved, Robert now appeals.

¶ 3. Finding the chancery court (1) failed to make specific findings regarding the deviation from child support in excess of the statutory guidelines; (2) failed to address the specific McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer's attorney's fees; and (3) erred in the equitable division of marital assets, we reverse the court's judgment in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 4. Robert and Jennifer were married in Florida on November 9, 2003. Jennifer was employed as a flight attendant, and Robert was a pilot with the United States Air Force. A daughter was born of the marriage on October 13, 2006. Jennifer remained employed but used her maternity and sick leave to stay home with the child.

¶ 5. In August 2008, the couple moved to Columbus, Mississippi, where Robert was stationed with the Air Force. A second daughter was born on May 23, 2009. The couple purchased a marital residence in Columbus, valued at $400,000; they also owned four rental properties in Florida through their company, RJB Real Estate Holdings. Although both children were enrolled in school, Jennifer never returned to work. Robert retired from the Air Force on September 1, 2013, and went to work for Delta Airlines, which required him to be out of town often. Eventually, he moved into an apartment in Atlanta in April 2014, and the couple separated.

¶ 6. Jennifer filed a complaint for divorce with the chancery court on May 22, 2014, alleging habitual drunkenness and habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences.

In the complaint, she sought sole legal and physical custody of the couple's children, child support, medical insurance, an equitable division of marital assets, alimony, attorney's fees, and temporary support. She requested an emergency hearing for temporary relief, seeking exclusive use and possession of the marital home, sole custody of the children, and a restraining order against Robert.

¶ 7. Robert filed an answer and counterclaim for divorce, citing the same grounds. He requested sole legal and physical custody of the children, child support, reimbursement for one-half of insurance premiums, and all real property owned by the parties, except for the marital residence. He later supplemented his claim with an affidavit citing instances of Jennifer's excessive drinking, and alleging she had verbally and physically assaulted him. He also refuted Jennifer's claims of habitual drunkenness and noted he had not failed any random drug and alcohol tests by the Federal Aviation Administration over the years.

¶ 8. The chancellor appointed a guardian ad litem (GAL) on July 10, 2014, to investigate the allegations of heavy drinking, prescription drug use, and verbal abuse by both parties. On July 31, 2014, the chancery court temporarily awarded Jennifer "the sole use, possession and control of the marital home, the marital property and contents," and issued a restraining order against Robert, excepting prescribed visitation with the minor children.

¶ 9. The GAL's report noted that both parties had "a history of drinking excessively." The report also expressed concern that Jennifer's drinking caused her to be "a very 'angry drunk.' " However, the report determined that both parties were sincere in their claims they were no longer drinking and "neither parent poses any risk of danger to the children." Because the children were already enrolled in school, the GAL recommended they remain in Jennifer's physical custody until a final hearing on the matter.

¶ 10. On October 14, 2014, the chancery court entered a temporary order, awarding Jennifer temporary legal and physical custody of the children, with Robert entitled to visitation. Robert was ordered to pay $3,000 a month in temporary alimony, $2,000 a month in child support, the mortgage and related expenses for the marital home, and any other joint debts of the parties, except utilities for the residence, which were to be paid by Jennifer. Robert filed a motion for reconsideration, which the court denied.

¶ 11. On November 14, 2014, Jennifer filed a motion for contempt, claiming Robert was $9,400 in arrears for temporary alimony and child support. On November 17, 2014, Robert also filed a petition for contempt, asserting Jennifer was denying him reasonable visitation and telephone contact with the children. Robert filed a subsequent motion for an emergency hearing and a response to Jennifer's motion for contempt, claiming he was simply "unable to pay due to a huge loss in his business." He argued that Jennifer should bear fifty percent of the costs to maintain the couple's four rental properties.

¶ 12. On June 1, 2015, Robert filed another petition for contempt. He claimed Jennifer continued to be uncooperative with visitation and was not paying the household bills or the children's school tuition. Jennifer responded that Robert had been aggressive when exchanging the children and that the children were unkempt and had not bathed after visitation with their father.

¶ 13. Two months later, Jennifer filed a motion to suspend Robert's visitation pending investigation, asserting claims that a couple of weeks after Robert's visitation with the girls in June, she found a search history of pornographic material on the iPad used by the couple's daughters. She attached an affidavit by a technology consultant, Benjamin Hurt. Robert denied the accusations, and he provided an affidavit from a computer forensic examiner who had reviewed the iPad and determined the information gathered by Hurt did "not originate from the iPad Mini under investigation but rather from an additional two iPads and an iPhone that were also associated" with Robert's Apple account. Thus, the examiner questioned the integrity of Hurt's results and concluded that he had "accessed these web sites, and, in turn, destroyed the evidence." On October 6, 2015, the chancery court appointed a second GAL to investigate the allegations. Upon recommendation by the second GAL, the chancellor reinstated temporary visitation to Robert on January 19, 2016.

¶ 14. On January 25, 2016, the parties consented to an entry of a divorce based upon irreconcilable differences. All other contested matters were submitted to the court for review. A trial was held on February 12, 2016. Jennifer filed a motion for contempt of the temporary order and to reopen the hearing on June 2, 2016, asserting that Robert was $57,000 in arrears for alimony and $2,225 in arrears for child support.

¶ 15. The chancery court entered a final judgment on June 6, 2016. Jennifer was awarded: (1) sole physical custody of the couple's minor children; (2) the marital residence and one-half of the equity; (3) her 2008 Toyota Sequoia valued at $10,500; (4) her 401(k) and Roth IRA fund cumulatively valued at $92,000; (5) twenty-five percent of Robert's 401(k) which percentage was valued at $92,000; (6) one-half of eight years of his military pension; and (7) one-half of the couple's last joint income-tax refund. Robert was awarded the couple's other real-estate holdings, four rental properties in Florida with a negative value of $357,000. He was also awarded his thrift savings plan valued at $21,900, seventy-five percent of his 401(k) which percentage was valued at $276,000, and a mortgage investment account valued at $6,000. Robert was ordered to pay: (1) $1,500 per month in rehabilitative alimony for thirty-six months for a total of $56,000; (2) $1,817 per month in child support; (3) all tuition and fees associated with the children's private-school education; (4) mortgage payments (approximately $2,400 monthly), taxes, and insurance on the marital home. He was also ordered to provide health insurance for the children. The chancery court further directed Robert to pay $48,000 in arrearage for temporary alimony, paying $1,000 per month until the amount is paid in full.

¶ 16. Additionally, Robert was ordered to maintain a $500,000 life-insurance policy with Jennifer as the primary beneficiary. Finding Jennifer in contempt for denying Robert his visitation and telephone contact, the court awarded Robert $10,000 in attorney's fees. But he also awarded Jennifer $15,000 in attorney's fees, finding she had no ability to pay the fees without liquidating assets.

¶ 17. Robert filed a motion to alter or amend the judgment on June 16, 2016, objecting to the "award of alimony, division of property and debts, award of attorney fees, and judgment of past[-]due alimony." He specifically argued that the monthly financial obligation imposed on him was "excessive and unreasonable," as it exceeded seventy percent of his adjusted monthly gross income. He also claimed the chancery court's order to maintain the $500,000 life-insurance policy would cause him to exceed his available income and created a risk of harm to him because Jennifer had previously threatened him. Lastly, he requested clarification of the visitation.

¶ 18. The chancellor granted Robert's motion to clarify visitation on June 27, 2016, but denied his motion as to the other assignments of error. Robert now appeals.

STANDARD OF REVIEW

¶ 19. Our appellate standard of review in a domestic-relations matter is limited - we generally will not overturn a chancery court's findings of fact unless they are "manifestly wrong or clearly erroneous," or it "applied an erroneous legal standard." White v. White , 208 So.3d 587, 592 (¶ 10) (Miss. Ct. App. 2016) (citations omitted). "In the case of a divorce decree, facts will be viewed in a light most favorable to the appellee." Id . (quoting G.B.W. v. E.R.W. , 9 So.3d 1200, 1204 (¶ 8) (Miss. Ct. App. 2009) ).

DISCUSSION

I. Whether the chancellor erred in awarding Jennifer physical custody of the children.

¶ 20. Citing Jennifer's previous attempts to interfere with his visitation, Robert claims the chancellor's decision to award Jennifer sole physical custody of the children "was against the weight of the evidence and should be overturned." Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:

[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial ... when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter's transcript, ... [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.

Kiddy v. Lipscomb , 628 So.2d 1355, 1359 (Miss. 1993) ; see also Jackson v. State , 423 So.2d 129, 131 (Miss. 1982) ("[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[,] and judgment of the court."). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert's motion to alter or amend the judgment does not bar it from review on appeal.

¶ 21. "In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, the decision was clearly erroneous, or the chancellor applied an erroneous legal standard. Error arises if the chancellor's decision is not supported by substantial evidence in the record." Ethridge v. Ethridge , 226 So.3d 1261, 1262 (¶ 5) (Miss. Ct. App. 2017)

(quoting Limbaugh v. Limbaugh , 749 So.2d 1244, 1246 (¶ 9) (Miss. Ct. App. 1999) ). In Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983), the supreme court held that "the polestar consideration in child custody cases is the best interest and welfare of the child." Factors to be considered in determining an award of custody are:

[the] health[ ] and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of [the] home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id . In this case, the chancellor thoroughly considered the applicable Albright factors and determined that the following factors favored Jennifer: continuity of care; employment of the parent and responsibilities of that employment; home, school, and community record of the children; and stability of the home environment. As to the remaining factors, including parenting skills and moral fitness, the chancellor found neither party was favored.

¶ 22. We find no manifest error in the chancellor's determination to award sole physical custody to Jennifer. As the chancellor mentioned, the children had grown up in Columbus, with Jennifer as the primary caregiver. Robert lived in Atlanta, and was frequently traveling due to his job as a pilot, with little support to help him with the children. Accordingly, this issue is without merit.

II. Whether the chancery court erred in ordering Robert to pay the children's tuition and fees in addition to child support.

¶ 23. The chancery court ordered Robert to pay $1,817 per month in child support. This amount represents twenty percent of his adjusted gross income per the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Rev. 2015). Additionally, the court determined that Robert should pay the children's tuition and fees for private school. The children attend a private school in Columbus with a monthly tuition cost of $780.

¶ 24. Robert argues that this was a deviation from the child-support guidelines and required additional findings of fact by the court. Therefore, he argues this award should be reversed. We agree. Ordinarily, "[p]re-college tuition is considered part of child support, not an extraordinary expense," and the chancery court may not require a parent to pay said tuition in excess of the statutory percentage "without a written or specific finding ... as to why the deviation is needed." Moses v. Moses , 879 So.2d 1043, 1048 (¶ 14) (Miss. Ct. App. 2004) (citing Southerland v. Southerland , 816 So.2d 1004, 1006 (¶ 11) (Miss. 2002) & § 43-19-101(2) ). Since the chancery court failed to make specific findings as to why Robert should be obligated to pay the children's tuition in excess of the ordered child support, we reverse the judgment as to this issue and remand for further findings, especially as Robert's court-ordered monthly financial obligations of over $6,500 exceed, as he notes in his brief, "seventy percent (70%) of his monthly income." Jennifer even acknowledges that "Robert is paying a large percentage of his income to support [her] and [the]

children." While we acknowledge that Robert's adjusted gross income exceeded $100,000, as noted by Judge Fair in his dissent, section 43-19-101(4) requires in such cases that the chancery court "make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable." Here, the chancellor simply determined that Robert "shall pay child support in the amount of $1,817.00 per month" and additionally, "shall be responsible for the timely payment of all tuition and fees associated with the children attending Annunciation Catholic School." There were no specific findings by the court as to its reasons for exceeding the statutory maximum for child support.

III. Whether the chancery court erred with regard to the property division.

¶ 25. In determining the equitable division of the marital assets, the chancery court considered the applicable factors in Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994), and awarded Jennifer: (1) the marital home valued at $400,000; (2) all furnishings and personal property in her possession valued at $36,200; (3) a 2008 Toyota Sequoia valued at $10,500; (4) Jennifer's 401(k) and Roth IRA valued at $92,000; (5) twenty-five percent of Robert's 401(k) which percentage was valued at $92,000; (6) one-half of eight years of Robert's military pension; and (7) one-half of the couple's $10,000 joint tax refund. Robert was awarded: (1) one-half the equity in the marital home; (2) four Florida rental properties with a negative value of $357,000; (3) a 2006 BMW valued at $6,250; (4) seventy-five percent of his 401(k), which percentage was valued at $276,000; (5) his thrift savings plan valued at $21,900; and (6) a mortgage-investment account valued at $6,000. Robert also received the remainder of his miliary pension. While each party was to be responsible for all debt solely in his or her name, Robert was ordered to pay the mortgage on the marital home (approximately $350,000).

A. Consideration of Temporary Support

¶ 26. Citing Wells v. Wells , 35 So.3d 1250, 1259 (¶ 41) (Miss. Ct. App. 2010), Robert argues the chancery court erred in failing to consider the temporary support he paid in the months leading up to trial as a relevant factor in its Ferguson analysis. While the trial court in Wells did consider the temporary support paid by the husband as one "other factor" to be considered under Ferguson , Wells does not stand for the proposition that a trial court's failure to consider temporary support in its equitable division of marital assets constitutes reversible error. Nor have we found any case to support Robert's claim of error. Accordingly, we find the failure to address any temporary support paid by Robert in the analysis of the Ferguson factors was not reversible error.

B. Equity Award of Marital Residence

¶ 27. Although Jennifer retained exclusive use of the marital home without the responsibility of the $350,000 mortgage debt associated with it, the chancery court also awarded her one-half of the equity in the home at such time she decides to sell it, finding that "[b]oth parties contributed to the accumulation of marital assets." While we find no abuse of discretion in the chancery court's determination that Jennifer's homemaking contributions were equal to those of her wage-earning spouse, see Hemsley v. Hemsley , 639 So.2d 909, 915 (Miss. 1994) ; in this particular instance, we agree with Robert's argument that because he has made all contributions to the home's mortgage, the court's decision to order the equity proceeds from the eventual sale of the marital home to be split equally is inequitable.

¶ 28. Our supreme court has held: "An equitable division of property does not necessarily mean an equal division of property." Lowrey v. Lowrey , 25 So.3d 274, 285 (¶ 26) (Miss. 2009) (quoting Chamblee v. Chamblee , 637 So.2d 850, 863-64 (Miss. 1994) ). "[F]airness is the prevailing guideline in marital division." Ferguson , 639 So.2d at 929. An equal distribution of proceeds from the sale of a marital home may be an abuse of discretion if the contributions by one spouse are disproportionately large. Trovato v. Trovato , 649 So.2d 815, 817-18 (Miss. 1995). In Trovato , the chancery court awarded the wife the marital home, but she also bore the responsibility for the remaining mortgage debt. Id . at 817. The husband made no contributions to the home after the divorce. Id . However, the court ruled that the proceeds from the sale of the home should be split equally. Id . The supreme court concluded:

Because [the wife] had the advantage of living in the home, she might not be necessarily entitled to a share of the proceeds proportionate to the payments she made. [The husband], however, is not automatically entitled to an equal share. Brown v. Brown , 574 So.2d 688, 691 (Miss. 1990). Taking into account the fact that [the wife] made a significantly larger contribution to the acquisition of the property, coupled with the fact that during some of the time she was making payments [the husband] was not making child support payments, equal distribution of the proceeds was an abuse of discretion.

Id . at 818. Here, Robert is paying all of the mortgage debt, but Jennifer is allowed to live debt-free in the marital home and benefit from the growing equity that Robert's mortgage payments will provide. Thus, while it may have been equitable to award Jennifer one-half of the equity at the time of the couple's separation (approximately $25,000), we do not find it equitable for her to reap the ongoing benefits of any equity invested by Robert after their divorce, especially considering that Jennifer could potentially live in the marital residence for a number of years, and Robert is responsible for all of the marital debt.

¶ 29. We do observe that the chancery court remarked in its Ferguson analysis that the marital property "needs to be divided to eliminate periodic payments and to avoid friction between the parties." Therefore, this equity award potentially may be in lieu of an award to Jennifer for periodic alimony. But given the broad, non-specific language used by the chancellor with regard to this Ferguson factor, and her award of rehabilitative alimony to Jennifer ($1,500 a month for three years), we decline to make this assumption. Therefore, we reverse and remand for the court to address the disparity between Robert's contributions and the equity award in the marital home.

C. Division of Marital Debt

¶ 30. Lastly, Robert argues the court erred in its division of marital assets because he was "burdened" with the $375,000 debt owed on the Florida properties, as well as the $350,000 mortgage on the marital home occupied by Jennifer and the children; therefore, Jennifer is being "unjustly enriched." At trial, Robert submitted two proposals for the equitable distribution of the marital assets. In one proposal, Jennifer would be awarded the equity in the marital home and her retirement; Robert would retain the four rental properties with their negative value, but keep his entire 401(k). The second proposal involved selling the investment properties and awarding Jennifer a portion of Robert's retirement - essentially, a 50/50 split of assets. However, Robert testified that it was unlikely they would be able to sell the rental properties at that time "without eating a large debt somehow[.]"

[COUNSEL] Okay. So is there any option that you see, as we sit here today, for you to off load these properties or anything like that?
[ROBERT] Bankruptcy would be about it.
[COUNSEL] Okay. Other than bankruptcy.
[ROBERT] I mean, keep them occupied and keep running them is the only way.
....
[COUNSEL] Are you making any profit off any of these based on what you are getting in rent or anything like that?
[ROBERT] Definitely not.

Robert reiterated that while the Florida properties could be sold, "it's going to be a major loss and somehow I would have to come up with the money to ... pay off the loans." He expressed to the court that he really did not want the properties, calling them a "financial drain," but said he would take them "in exchange for retaining [his] full active duty pension" and his 401(k) funds.

¶ 31. Instead, the chancery court ordered Robert to be responsible for all of the debt for the real estate (both in Florida and Mississippi), and Jennifer received $92,000 in the form of a fractional portion of both Robert's retirement and part of his pension. The only debt awarded to Jennifer was her car note. In making its determination under Ferguson , the court noted that Robert was already responsible for all of the marital debt for the homes and vehicles and "clearly has the potential to currently earn more than [Jennifer]."

¶ 32. "Debts acquired during the course of the marriage are also subject to equitable distribution." Carter v. Carter , 98 So.3d 1109, 1114 (¶ 15) (Miss. Ct. App. 2012) (citing McLaurin v. McLaurin , 853 So.2d 1279, 1285-86 (¶ 24) (Miss. Ct. App. 2003) ). In Burnham v. Burnham , 185 So.3d 358, 362 (¶ 13) (Miss. 2015), the trial court awarded the wife assets "with a total value of $303,225.84, and none of the marital debt[, while the husband] received $217,904.64 worth of marital assets but the entire $225,472.79 in marital debt." This left the husband with assets and debt with a negative value of $7,568.15, which the supreme court determined to be "a significantly disparate property distribution." Id .

¶ 33. Similarly, in the present case, Jennifer was awarded over $250,000 in marital assets, not including what she is to receive from Robert's pension. Conversely, due to the approximately $700,000 in marital debt assigned to Robert, the value of marital assets attributed to Robert is less than zero, as the debt negates any value from his retirement accounts. While it is undisputed that Robert's income is substantially greater than Jennifer's, we cannot see how awarding Robert all of the marital debt associated with the couple's real estate is equitable.

¶ 34. Accordingly, finding the chancery court abused its discretion in the division of marital property, specifically the division of the marital debt, we remand for additional findings and a new equitable distribution.

D. Valuation of Retirement Accounts

¶ 35. Robert also asserts that the chancery court's valuation of his retirement accounts was incorrect because the court valued the accounts as of the date of the trial, not the date of the temporary order. Noting he contributed to the retirement accounts after the temporary order was in place, Robert contends those funds were separate property.

¶ 36. Robert has not cited any authority to support his claim; nor has he assigned any value to those funds he alleges are separate property as evidence of the disparity in the award. The supreme court has held: "[W]hen equitably dividing marital property upon divorce, the date of valuation is necessarily within the discretion of the chancellor." Hensarling v. Hensarling , 824 So.2d 583, 591 (¶ 25) (Miss. 2002) (quoting MacDonald v. MacDonald , 698 So.2d 1079, 1086 (Miss. 1997) ).

IV. Whether the chancery court erred in awarding Jennifer rehabilitative alimony.

¶ 37. The chancellor awarded Jennifer $1,500 a month for thirty-six months in rehabilitative alimony. Robert argues that the record does not support a finding that Jennifer is in need of alimony after the property division in this case. Further, he claims that he cannot "achieve a reasonable standard of living after paying the alimony award and other obligations placed on him by the property division."

¶ 38. In his separate opinion, Judge Tindell suggests that "[s]ince other issues regarding equitable distribution are being remanded" for consideration, likewise, the issue of rehabilitative alimony should also be remanded. However, while "[o]rdinarily, the reversal of a chancellor's division of marital property requires [the] reversal of an alimony award[,] ... the decision to award rehabilitative alimony is not considered during equitable distribution." Lacoste v. Lacoste , 197 So.3d 897, 911 (¶ 51) (Miss. Ct. App. 2016) (citations and internal quotations omitted); see also Hearn v. Hearn , 191 So.3d 129, 133-34 (¶¶ 15-18) (Miss. Ct. App. 2016) (affirming an award of rehabilitative alimony even though the issue of the equitable distribution of marital assets was reversed and remanded). The purpose of rehabilitative alimony is to provide the former spouse an opportunity to enter the work force and prevent the party from becoming destitute while searching for employment. Lacoste , 197 So.3d at 911 (¶ 51).

¶ 39. We find the chancellor's award of rehabilitative alimony is supported by the evidence. As noted in the court's order, Jennifer had been out of the workforce for several years to raise the couple's minor children. Furthermore, her former profession as a flight attendant would require travel; so Jennifer would be unable to return to her former job and would require training for a new career. This issue is without merit.

V. Whether the chancery court erred in awarding Jennifer attorney's fees.

¶ 40. In its decision to award Jennifer attorney's fees, the chancery court concluded: "After considering the McKee factors and the fact that [Jennifer] has no ability to pay her attorney fees without liquidating some of the assets awarded to her herein, ... an award of attorney fees in the amount of $15,000 is appropriate." Robert was awarded $10,000 in attorney's fees due to Jennifer's contempt in denying him his court-ordered visitation and telephone contact with the children. Robert contends that the court's decision to award Jennifer attorney's fees was inequitable as he also would be forced to liquidate assets to pay her attorney's fees. He further asserts the chancery court erred in failing to conduct an on-the-record analysis of the factors outlined in McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982). Those factors are:

[T]he relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, ... the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id.

¶ 41. A chancery court's decision to award attorney's fees is discretionary. Mitchell v. Mitchell , 823 So.2d 568, 573 (¶ 21) (Miss. Ct. App. 2002) (citing Grogan v. Grogan , 641 So.2d 734, 744 (Miss. 1994) ). Attorney's fees are justified when equity suggests "one party should assist the other, and the other party is unable to pay." Rodriguez v. Rodriguez , 2 So.3d 720, 732 (¶ 43) (Miss. Ct. App. 2009) (quoting Haney v. Haney , 907 So.2d 948, 957 (¶ 41) (Miss. 2005) ). "An inability to pay could be created if one party would be forced to liquidate a portion of [his] retirement or savings accounts in order to pay attorneys' fees." Id . (citing Wells v. Wells , 800 So.2d 1239, 1246 (¶¶ 16-17) (Miss. Ct. App. 2001) ).

¶ 42. Robert contends: "It is hardly equitable that Jennifer should not be required to liquidate her assets to pay her own fees when she received the majority of the assets, but Robert should liquidate his to pay her fees for her." While we find no abuse of discretion in the chancery court's determination that Jennifer should be awarded some attorney's fees as she would be forced to liquidate assets to pay her fees, since both parties were found in contempt, we do find it was an abuse of the court's discretion not to likewise discuss whether Robert would be forced to liquidate his assets in order to pay Jennifer's attorney's fees. Under the circumstances of this case, and since the chancery court failed to make detailed findings pursuant to the McKee factors, we reverse and remand for further findings.

VI. Whether the chancery court erred in awarding payment of temporary support in excess of Robert's monthly income and in refusing to credit Robert any of his temporary-support payments.

¶ 43. Robert argues that because he lacked the financial ability to pay the court-ordered temporary alimony of $3,000 a month, he should not have been found in contempt of the court's order. He cites Davis v. Davis , 268 So.2d 913, 916 (Miss. 1972), in which the supreme court reversed a finding of contempt because the husband was left with only $85 a month after paying the temporary support and did not have the ability to comply with the court order absent being a "financial genius or magician."

¶ 44. In determining whether a party is in contempt, "[t]he chancellor has substantial discretion." Watkins v. Watkins , 942 So.2d 224, 230 (¶ 20) (Miss. Ct. App. 2006). "[W]e will not reverse the chancellor's decision unless it is manifestly erroneous." Id . In its order, the chancery court noted that Robert's Rule 8.05 financial form listed his monthly adjusted gross income as $9,093. While the obligation to pay temporary alimony, temporary child support, and the mortgage on the marital home certainly necessitated that Robert had to budget carefully his monthly income, those obligations did not "far exceed[ ]" his monthly income as he claims, or leave Robert with little to no money to live, as in Davis . At trial, the chancellor told Robert to start paying temporary alimony as ordered and admonished him:

If you have to let something else go, you [have] got to let something else go. ... I consider a lot of times people who, you know, are having financial problems and can't pay it, but they pay something. "I couldn't pay it all, but I paid something." That makes me know that you are trying. You just didn't do anything.

We find no error in the court's finding of contempt; nor do we find the order by the court to pay $1,000 a month until the arrearage is satisfied to be unreasonable or excessive.

CONCLUSION

¶ 45. As the chancellor (1) failed to make specific findings why Robert should pay private-school tuition in excess of the statutory guidelines for child support; (2) failed to specifically address the McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer's attorney's fees; and (3) erred in the equitable distribution of the marital assets, we reverse and remand on these issues. Regarding the remaining issues, we affirm the court's findings.

¶ 46. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CONCUR. GREENLEE, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND WESTBROOKS, JJ.; WILSON, J., JOINS IN PART. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J.

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

¶ 47. Jennifer and Robert Baumbach were married for eleven years. During that time, they had two children, and Jennifer quit her job as a flight attendant to stay home with them. She could not return to that line of work after the divorce, and she had poor employment prospects otherwise; while her husband earned more than $200,000 per year as an airline pilot and military retiree. The chancellor did give Jennifer a lopsided share of the meager marital estate and generous temporary support, but these awards clearly were calculated to eliminate the need for periodic alimony.

¶ 48. The majority reverses the chancellor's judgment on several sub-issues for further findings of fact. The reason for requiring findings of fact and conclusions of law as to the various factor tests is to allow the reviewing court to know why the chancellor did what she did and to ensure that the chancellor considered all the relevant facts and employed the correct legal standard in reaching her decision. In my opinion, those requirements are met if the chancellor's twenty-four-page judgment is read as a whole. I would affirm the judgment in full, and so I respectfully dissent.

1. Equitable Distribution

¶ 49. The majority concludes that the chancellor's division of the marital property and debts was not equitable. But "[i]t is well settled that an equitable division of property does not necessarily mean an equal division of property." Carney v. Carney , 201 So.3d 432, 440 (¶ 27) (Miss. 2016) (quoting Chamblee v. Chamblee , 637 So.2d 850, 863-64 (Miss. 1994) ). Given that Jennifer was not awarded periodic alimony, I see no abuse of discretion in the assignment of marital debts or in the orders that Robert pay mortgage on the marital home and split the proceeds from its eventual sale with Jennifer. "Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede." Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994) (citation omitted). "[T]he chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony, as equity demands." Id .

¶ 50. The chancellor explained that Jennifer had been a stay-at-home mother and would be unable to resume her prior occupation. She relied on Robert's implicit promise to support her not just during the time she is actually raising the children, but over the course of her life, given that their decision for her to stay home with the children resulted in a lifetime of reduced earnings. Accordingly, the chancellor awarded Jennifer rehabilitative alimony to allow her time to find a new job and more of the marital estate to allow Jennifer to maintain her standard of living despite the loss of her husband's income upon which she depended. The chancellor further held that "[t]he marital property needs to be divided to eliminate periodic [alimony] payments and to avoid friction between the parties." See id. at 928. Respectfully, I disagree with the majority's characterization of this statement as too "broad" and "non-specific," as the chancellor's intent was clear when considered alongside her discussion of the Armstrong factors ; the chancellor discussed the assets, liabilities, earnings, and earning potential of the parties at some length. In my judgment, the chancellor's reason for the award is clear, rational, and supported by the evidence.

¶ 51. At the time of the divorce, Robert earned more than $200,000 per year while Jennifer had no income and poor prospects of future employment. The property division is indeed lopsided, but I would emphasize that despite the fact that Robert and Jennifer owned a substantial amount of property, the net value of the marital estate was almost zero. The most important marital "assets" were investment properties located in Florida that had a net negative value of approximately $350,000. The chancellor had to do something with these properties, and the testimony at trial suggested that Robert had taken a much more active role in their acquisition and management than Jennifer had. But these properties were not the albatross Robert suggests in his brief; they produced income that mostly paid for the debt service. Only Robert had the means to maintain the properties when the rental income fell short, as it sometimes did. And while the properties had negative net values at the time of the divorce, they would eventually be saleable after the debt is paid down (or if the properties appreciate in the future).

¶ 52. As to the particular issue of the division of the equity in the marital home after it is sold, the chancellor ordered that it would be split equally between the parties. Obviously, this benefitted Jennifer, as Robert would be paying the mortgage for up to eleven years before the sale occurs. The majority would find this to be reversible error, but it is apparent to me that the chancellor intended this result, as the marital estate was otherwise inadequate to eliminate the need for alimony. And given the immediate demands on Robert's income following the divorce, he also benefitted from the chancellor's decision to structure the award this way.

¶ 53. I would also note that Robert's obligations are temporary and mostly short-lived. The award of rehabilitative alimony was for just three years, and Robert's discretionary income would gradually increase as the marital debts are paid off, the children graduate from school, and the marital home is sold. I concede that his obligations are initially onerous, but they are front loaded by design and not beyond his ability to pay. Property division is entrusted to the sound discretion of the chancery court and should not be disturbed unless that discretion has been abused. Berryman v. Berryman , 907 So.2d 944, 947-48 (¶ 14) (Miss. 2005). I cannot call this decision an abuse of discretion given that the needs of Jennifer and the children are immediate and Ferguson instructs that, if possible, property division should be effected to eliminate the need for periodic alimony. See Ferguson , 639 So.2d at 928.

2. Attorney's Fees

¶ 54. Chancellors are instructed to apply the McKee factors in granting or denying attorney's fees. Here, the chancellor stated that she had considered the McKee factors in reaching her decision, though she did not expressly list the factors or subdivide her analysis between them. But where there is substantial evidence in the record supporting the chancellor's award of attorneys' fees, the omission of specific McKee findings cannot be deemed reversible error. See Varner v. Varner , 666 So.2d 493, 498 (Miss. 1995). The McKee factors include:

(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case.

Chesney v. Chesney , 849 So.2d 860, 862-63 (¶ 10) (Miss. 2002) (citing McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982) ).

¶ 55. The attorney's fee award to Jennifer was $15,000, substantially less than she requested. Thus, on appeal, Robert does not take issue with the chancellor's decision on six of the seven factors; the only factor he challenges is the relative financial ability of the parties. The majority concedes that Jennifer is unable to pay her attorney's fees without liquidating assets, but it would remand for the chancellor to "discuss whether Robert would [likewise] be forced to liquidate his assets in order to pay Jennifer's attorney's fees."

¶ 56. The chancellor laid out both parties' incomes, earning potential, and assets at great length in her opinion and judgment and directly compared them more than once. I cannot agree that she failed to consider Robert's ability to pay $15,000 of Jennifer's attorney's fees, and I would affirm that aspect of the judgment as well.

3. Child Support

¶ 57. Even though Robert's income exceeded $200,000 per year, the chancellor accepted Robert's rather conservative claim that his adjusted gross income was just $109,116 per year or $9,093 per month. The chancellor ordered Robert to pay monthly child support of $1,817 and an additional $780 per month for private-school tuition, as the children had attended private school by agreement of both parties during the marriage.

¶ 58. Taken together, these awards amount to 28.5% of Robert's adjusted gross income. The majority would find this reversible error because it is a deviation from the statutory guidelines for two children, which is 20% of the adjusted gross income. See Miss. Code Ann. § 43-19-101 (Rev. 2015). But the statutory guidelines simply do not apply to this case because Robert's adjusted income exceeds $100,000. Rather, the question is whether application of the guidelines is reasonable. See Miss. Code Ann. § 43-19-101(4) (Rev. 2015). While the chancellor did not explicitly say that she found it unreasonable, she did find that Robert "has substantially more earning capacity" and "more opportunity to increase his savings and build up his retirement." Meanwhile, Jennifer "has been out of the workforce for 10 years so that she could stay home and take care of the children" and "is unable to return to her former job as a flight attendant and will need training to return to the workforce." During their marriage, the Baumbachs "lived an above average lifestyle" and "the children attend[ed] private school." As we recently said in Ali v. Ali , 232 So.3d 770, 777 (¶ 21) (Miss. Ct. App. 2017), "the 'reasonable needs' of the child ought to be viewed at least as broadly as the reasonable needs of a wife seeking alimony." (Citation omitted). "It is not an abuse of discretion for the chancellor to consider the standard of living to which the child is accustomed in deciding what amount of support is reasonable." Id.

¶ 59. Determinations of child support are intensely fact-sensitive, requiring "a knowledge special to the actual circumstances and to the individual child or children." Thurman v. Thurman , 559 So.2d 1014, 1018 (Miss. 1990). The chancellor's opinion reflects that she ordered Robert to pay more because the girls had been attending private school and were accustomed to an "above average lifestyle." Both Robert and Jennifer had jointly determined the education the girls were receiving was in their best interest, and the chancellor found it should be continued, a decision which did not constitute an abuse of discretion in light of Robert's income and the resolution of other financial aspects of this divorce. Thus, I would affirm the chancellor's award of private-school tuition.

Conclusion

¶ 60. The chancery court's judgment in this case is somewhat unusual because the facts are somewhat unusual-Robert has a very high income, but the marital estate was encumbered by much debt and had very little net value. It may have been more straightforward for the chancellor to have just ordered periodic alimony, but she followed the supreme court's dictates in Ferguson and crafted a property settlement that, though lopsided, eliminated the need for alimony. See Ferguson , 639 So.2d at 928. The award was not inequitable and was reached after applying the proper legal standard and making the required findings of fact. I would affirm the judgment in its entirety.

CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART.

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

¶ 61. On the issues of rehabilitative alimony and temporary support, I must respectfully dissent. In October 2014, Robert was ordered to pay temporary alimony and child support and to make monthly payments on the parties' marital debts, which accounted for seventy-six percent of his net monthly income. In the chancellor's final judgment, Robert was ordered to pay another thirty-six months of rehabilitative alimony, with no apparent consideration for what he had already paid pursuant to the temporary order.

¶ 62. The Mississippi Supreme Court has long acknowledged that equitable distribution and alimony are intertwined and should be considered together to prevent inequity. Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994). Since other issues regarding equitable distribution are being remanded for the chancellor's consideration, I would remand the issue of rehabilitative alimony as well. I therefore concur in part and dissent in part from the majority's opinion.

GREENLEE J., JOINS THIS OPINION.

      On November 18, 2014, the chancellor entered an order requiring Robert's employer, Delta Airlines, to withhold child support from his salary.

      The court required Jennifer to sell the home when either: (1) the children graduate from high school; (2) she remarries; or (3) she moves. Robert was awarded one-half of the equity.

      Robert testified he had twenty-four years of service.

      Robert stated his annual salary was approximately $200,000, and the chancellor determined that Robert's monthly adjusted gross income was $9,093.

      The parties are to split equally the costs of the children's extracurricular activities.

      Robert testified the equity on the home was approximately $50,000.

      Robert was ordered to pay any costs associated with this retirement fund to ensure Jennifer receives the monthly amount, "unless a lump sum is permissible."

      See n.2, supra .

      See n.2, supra . The youngest child, born in 2009, would not be expected to graduate from high school (one of the triggering events for the sale of the marital residence) for another eleven years after the date of the court's order.

      The proposal indicated no profit from the sale of the rental properties.

      Jennifer did not dispute that the properties were subject to considerable debt. When asked on cross-examination if all Robert would be awarded "is four underwater pieces of property [with a] complete negative equity," Jennifer replied, "Correct[,] if you want to put it that way."

      No one estimated the value of his military pension.

      Jennifer testified she was working toward obtaining a real-estate license.

      Jennifer responds that had Robert not hired an "expensive out-of-state attorney" to represent him, he could have managed his funds to meet his temporary-support obligations. But, Robert clarifies that his attorney was located in Mississippi during the majority of the proceedings and only moved to Texas just before trial. We agree with Robert that Jennifer's argument is "irrelevant and inappropriate."

      There was evidence of Robert's excessive credit-card debt, approximately $70,000 according to his testimony, and counsel for Jennifer noted that some expenses were for items such as a gym membership, dinners, and gifts from a jewelry store.

      See Sandlin v. Sandlin , 699 So.2d 1198, 1203-04 (Miss. 1997).

      Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993).


text:
    Julia N. BENNETT, Appellant v. Andre D. BENNETT, Appellee
    NO. 2016-CA-01779-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: WILLIAM P. FEATHERSTON JR., RIDGELAND
    ATTORNEY FOR APPELLEE: TAMEIKA LADANYA BENNETT, GRENADA
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Julia Bennett appeals the Rankin County Chancery Court's judgment awarding her ex-husband, Andre Bennett, custody of their two daughters if she removed them to another state. The sole issue on appeal is whether the chancery court complied with Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) by declining to honor the eldest child's stated preference to live with her mother. Because the chancellor adopted the findings of the family master explaining the deviation from the child's preference, we affirm.

FACTS

¶ 2. Andre and Julia married in 1999. During their marriage, they had two daughters-Madeline (born in 2002) and Camille (born in 2006). In 2011, the couple divorced on the ground of irreconcilable differences. The final judgment of divorce ordered Andre and Julia to share joint legal and physical custody of the children, with Julia maintaining physical custody. The judgment further detailed alternating weekly custodial periods, with Andre having overnight visits every Wednesday and every other Friday and Saturday.

¶ 3. On July 29, 2016, Andre filed a petition to cite Julia for contempt, modify physical child custody, and other relief. He claimed that a material change in circumstances had occurred, namely Julia's decision to relocate with the children to St. Louis, Missouri. Less than two weeks later, Andre filed a petition for an emergency hearing. He requested temporary legal and physical custody of the children to continue their enrollment in Rankin County schools pending a final custody determination by the court. The chancellor granted Andre's motion.

¶ 4. Julia immediately filed an emergency motion to dissolve the chancellor's order granting emergency relief. The court granted her motion in part, dissolving the previous award of temporary custody to Andre in favor of their continued joint legal and physical custody. However, the court maintained its decision that the children would continue attending schools in Rankin County until the scheduled hearing on custody modification.

¶ 5. Julia counterclaimed Andre's petition to modify custody. She requested sole physical custody of the minor children. She also requested that Andre receive visitation based on the move to St. Louis.

¶ 6. The court appointed a family master, who held the modification hearing on August 19, 2016. Andre testified that he was very active in his daughters' lives and that he did not want the custodial arrangement to change (which would be inevitable if Julia moved to St. Louis). Andre also testified that he recently bought a three-bedroom house for himself and the girls. When the girls stayed over, he helped them with their homework and cooked for them.

¶ 7. Julia testified that her father and boyfriend lived in St. Louis. She stated that she had been in a relationship for about one year and she planned to get married. Julia further stated that she would live with her father until she married her boyfriend. At the time of the hearing, Julia had no income. However, she stated that she had a job lined up in St. Louis beginning in September. Julia testified that, prior to the emergency order, she was in the process of enrolling the children in a St. Louis school.

¶ 8. The court also heard from Madeline, age fourteen at the time. She testified that if her mother moved, she wanted to go with her. When asked why, she replied that she had been with her mother her entire life and they were very close. On the other hand, Madeline stated that she was also close to her father and she would honor a court order awarding custody to her father.

¶ 9. Ultimately, the family master found that no material change in circumstances had occurred yet . He explained that if Julia did move to St. Louis, she would create a material change in circumstances that would be adverse to the children. The family master conducted an Albright analysis in light of Julia's possible move. After weighing the Albright factors, including Madeline's expression of preference, the family master determined that the evidence favored a modification of custody to Andre. The chancellor agreed. So, if Julia moved, Andre would get physical custody and Julia would have liberal visitation. Julia would also have to pay $750 a month in child support.

¶ 10. Julia appeals.

STANDARD OF REVIEW

¶ 11. The standard of review for a child custody case is a narrow one. We will not reverse unless the trial court made findings that are manifestly wrong or clearly erroneous or applied an improper legal standard. Smith v. Smith , 97 So.3d 43, 46 (¶ 7) (Miss. 2012) (citations omitted).

DISCUSSION

¶ 12. Julia only challenges one Albright factor-the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child's preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

"[T]he chancellor is not bound by the election of a minor child." Floyd v. Floyd , 949 So.2d 26, 30 (¶ 12) (Miss. 2007). However, if a chancellor declines to follow a child's election, he must place the reasons in the record. Id.

¶ 13. In his Albright analysis, the family master noted the following regarding the child's preference:

The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [ ] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he's been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you're going to live with your dad. You don't really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I'm just saying that's just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to-to dad.

¶ 14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor's discretion to adopt the family master's recommendation. Accordingly, we affirm.

¶ 15. AFFIRMED.

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

      The children's names have been changed to protect their identities.

      The children had been enrolled in the Rankin County School System in years past, but they had not yet been enrolled for the 2016-2017 school year.

      Albright v. Albright , 437 So.2d 1003, 1005 (Miss.1983) (outlining the relevant factors to be considered in child custody determinations).


text:
    Kamarian MILLENDER v. STATE
    CR-14-0879
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald DEARDORFF v. STATE
    CR-12-1966
    Court of Criminal Appeals of Alabama.
    January 27, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Brandon Jamal RYLES v. STATE
    CR-14-0381
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Vincent Lovelace LOWE v. STATE
    CR-14-1239
    Court of Criminal Appeals of Alabama.
    January 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jeffery Octavia WHITEHEAD v. STATE
    CR-15-0067
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Darryl Elton SCOTT
    CR-14-1366
    Court of Criminal Appeals of Alabama.
    March 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. dismissed.


text:
    EX PARTE Willie BROOKS, Jr.
    CR-14-1434
    Court of Criminal Appeals of Alabama.
    March 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Habeas corpus pet. dismissed.


text:
    EX PARTE Olin Grimsley HERNDON
    CR-14-1371
    Court of Criminal Appeals of Alabama.
    March 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. dismissed.


text:
    EX PARTE Jason Jermaine HALL
    CR-14-1442
    Court of Criminal Appeals of Alabama.
    February 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Transferred to Mobile Cir. Ct.


text:
    Rehan HANIF v. STATE
    CR-15-0100
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Alex Parnell NEAL v. STATE
    CR-15-0339
    Court of Criminal Appeals of Alabama.
    February 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jairo Uriel PAL v. STATE
    CR-15-0101
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason Michael SHARP v. STATE
    CR-15-0194
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied February 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Barry Van WHITTON v. STATE
    CR-15-0333
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    J.A.R. v. STATE
    CR-15-0378
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wardell Jackson MCCLENDON v. STATE
    CR-15-0417
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony Q. LAWRENCE v. STATE
    CR-15-0403
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Alexius Rhamon FOSTER v. STATE
    CR-15-0435
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jeremy Leshun WILLIAMS v. STATE
    CR-15-0494
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nicholas Robert DUNLAP v. STATE
    CR-15-0439
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mario LaShawn WHITE v. STATE
    CR-15-0452
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Johnny Lee KING v. STATE
    CR-15-0464
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Lacy SLATE v. STATE
    CR-15-0507
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied February 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arlando Raeshun NICHOLS v. STATE
    CR-15-0515
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied February 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David T. HUGHES v. STATE
    CR-15-0541
    Court of Criminal Appeals of Alabama.
    January 27, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Tony Lavaughn PEPPERS v. STATE
    CR-15-0565
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Joe REID v. STATE
    CR-15-0580
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed in part and dismissed in part.


text:
    David Gregory COPENHAVER v. STATE
    CR-15-0609
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stephen Dewayne PARKER v. STATE
    CR-15-0602
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Londesso SPENCER v. STATE
    CR-15-0589
    Court of Criminal Appeals of Alabama.
    January 27, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Maurice Jamal HARRIS v. STATE
    CR-15-0671
    Court of Criminal Appeals of Alabama.
    March 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Zachary Ryan TADLOCK v. STATE
    CR-15-0656
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Robert Marcus RUSSELL
    CR-15-0702
    Court of Criminal Appeals of Alabama.
    February 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Jessie RIGGS v. STATE
    CR-15-0707
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Damon D. MAGWOOD v. STATE
    CR-15-0613
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Richard Lammel ARNOLD, Jr. v. STATE
    CR-15-0735
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darious Lashun BRIGGS v. STATE
    CR-15-0714
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Michael CLARK v. STATE
    CR-15-0721
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Timothy Mark GRIFFIN v. STATE
    CR-15-0716
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arlis WILSON v. STATE
    CR-15-0746
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan Mikeal RAYNES v. STATE
    CR-15-0767
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Courtney HUNTER v. STATE
    CR-15-0754
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Simon Lee FRANK v. STATE
    CR-15-0771
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Robert Keith CATCHINGS v. STATE
    CR-15-0797
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeremy Charles CHRISTIE v. STATE
    CR-15-0785
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James BUSBY v. STATE
    CR-15-0807
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rodney BOWDEN v. STATE
    CR-15-0817
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Tommy Leon STEWART v. STATE
    CR-15-0843
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    L.W.M. v. STATE
    CR-15-0847
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Kevin PRINCE
    CR-15-0830
    Court of Criminal Appeals of Alabama.
    March 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. dismissed.


text:
    Timothy Bradford POOLE v. STATE
    CR-15-0845
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ernest WALKER v. STATE
    CR-15-0858
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied February 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph Antonio QUATES v. STATE
    CR-15-0859
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lakeisha Alisheia JONES v. STATE
    CR-15-0878
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Artie James COLLIER v. STATE
    CR-15-0880
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vantwain LaShun STOKES v. STATE
    CR-15-0887
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Alphonso ABRAHAM v. STATE
    CR-15-0923
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Roy Dexter COOPER, Jr. v. STATE
    CR-15-0901
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Clarence Alvin NORRIS v. STATE
    CR-15-0929
    Court of Criminal Appeals of Alabama.
    February 3, 2017 Reh. denied February 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE v. Bob COTCHERY
    CR-15-0889
    Court of Criminal Appeals of Alabama.
    February 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reversed and remanded.


text:
    Blake COFIELD v. STATE
    CR-15-0932
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Austin Jeremy BOBO v. STATE
    CR-15-0960
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Vernon MADISON v. STATE
    CR-15-0931
    Court of Criminal Appeals of Alabama.
    January 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Wayne Demetric PERRY v. STATE
    CR-15-0955
    Court of Criminal Appeals of Alabama.
    January 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Joshua Raheem LONG v. STATE
    CR-15-0963
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Thomas CHAMPION v. STATE
    CR-15-0962
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cecil Madison FERGUSON v. STATE
    CR-15-0980
    Court of Criminal Appeals of Alabama.
    January 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Susie Lee MCLEMORE v. CITY OF MONTGOMERY
    CR-15-0977
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Torren Dewayne WILLIAMS v. STATE
    CR-15-1040
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marcus Leshawn HARRIS v. STATE
    CR-15-1011
    Court of Criminal Appeals of Alabama.
    February 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sidney BAKER v. STATE
    CR-15-1022
    Court of Criminal Appeals of Alabama.
    January 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Petro Deran PUGH v. STATE
    CR-15-1033
    Court of Criminal Appeals of Alabama.
    January 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Antavis Dewayne THORNTON v. STATE
    CR-15-1043
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.