author: WILSON, J., FOR THE COURT:

text:
    Gregory SHOWS, Appellant v. Hope Shows CROSS, Appellee
    NO. 2016-CA-01235-COA
    Court of Appeals of Mississippi.
    February 27, 2018
    ATTORNEY FOR APPELLANT: KURT AUGUST MORD
    ATTORNEY FOR APPELLEE: HOPE SHOWS CROSS (PRO SE)
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Greg Shows and Hope Shows Cross divorced in February 2007. The divorce decree awarded Hope physical custody of the couple's only child, S.S. In December 2011, Greg filed a petition to modify custody. A hearing on the petition was held over the course of four days in 2012, 2015, and 2016. After Greg presented his case, the chancellor dismissed his petition to modify custody, finding that he had failed to meet his burden of proving a material change in circumstances that adversely affected S.S. On appeal, Greg challenges that ruling as well as the chancellor's rulings on issues of child support, contempt, and the apportionment of the fees of the guardian ad litem (GAL). For the reasons discussed below, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Greg and Hope married in July 2005; their son, S.S., was born in March 2006; they separated in May 2006; and the chancery court entered a final judgment of divorce based on irreconcilable differences in February 2007.

¶ 3. The divorce decree adopted and incorporated the parties' custody and property settlement agreement. The parties agreed to joint legal custody of S.S. with Hope to have "primary physical custody." Greg was granted visitation, including alternating weekends, four weeks in the summer, spring break, and certain holidays. The agreement also required Greg to pay child support as follows:

1. The parties agree that [Greg] will pay, as and for support of [S.S], the monthly amount of $200.00....
2. Additionally, as and for further monthly child support, [Greg] shall pay one-half of day-care for [S.S.] per month or $135.00, whichever is greater. When [Greg] pays the current monthly support amount of $200.00 he shall also pay his portion of the day-care expenses, as stated herein, for the preceding month, so that when the $200.00 for February [2007] is paid by [Greg], his portion of the January [2007] day-care expenses shall be added and paid at that time, and likewise for every month.

¶ 4. In December 2011, Greg filed a petition for modification of custody seeking "primary physical custody" of S.S. Greg alleged that Hope had remarried and had "allow[ed] both her new husband, as well as [her] children by a previous marriage, to emotionally and verbally abuse [S.S.]" Greg also alleged that Hope "herself had verbally abused [S.S.]" Greg's petition requested appointment of a GAL for S.S.

¶ 5. Hope answered Greg's petition and also filed a petition for contempt and a counter-complaint to modify or clarify the visitation provisions of the parties' agreement. Hope alleged that Greg had violated the agreement's child support and visitation provisions. Hope denied that a GAL was necessary, but the chancellor subsequently appointed attorney Jonathan Martin as GAL for S.S.

¶ 6. The hearing on Greg's petition and Hope's petition and counter-complaint was held on October 30, 2012; July 16, 2015; and February 17 and 24, 2016. Chancellor Talmadge Littlejohn presided over the first two days of the hearing; however, Chancellor Littlejohn passed away in October 2015. The case was then reassigned to Chancellor T.K. Moffett, who presided over the final two days of the hearing.

¶ 7. On the first day of the hearing, Greg testified that he was living in Senatobia with his new wife, Kip, and a stepdaughter, who was then seven years old. Greg was unemployed at the time, as he had recently closed a used car lot and was still collecting on some car notes. Kip was employed as a sales manager for a company that sells shipping containers.

¶ 8. Greg alleged that Hope had refused to allow him to have scheduled weekend visitation with S.S. three times between 2008 and 2010. He also alleged that seven to ten times he had to ask the sheriff's department to accompany him to pick up S.S. for visitation. Greg claimed that he needed the sheriff's department's help because Hope had threatened that her new husband, Kenny, would "kick [his] A." Greg also testified that Hope interfered with his phone calls with S.S. by requiring S.S. to talk to him on speaker and then eaves-dropping on their conversations. Greg testified that he could hear cursing and threats in the background when he talked to S.S. on the phone. Greg claimed that S.S. was "withdrawn" when Greg picked him up at Hope's house, that his demeanor improved while he was with Greg, and that S.S. became upset and cried when he had to go back to Hope's house.

¶ 9. Greg testified that in 2011 he became concerned about S.S.'s "withdrawn" and "defiant" behavior. Without consulting Hope, Greg took S.S. to a licensed professional counselor, Tajuana Williams, in September 2011. Williams testified that when she began counseling S.S., who was then five years old, she was concerned that he exhibited symptoms of depression, that he reported hearing a lot of profanity at his mother's house, and that he described Hope as "mean." S.S. also told Williams that his stepfather, Kenny, "had wiped poop on his face"; however, after questioning S.S. further, Williams could not determine what he meant or what exactly happened. Hope told Williams that S.S. simply had misunderstood a bad "joke." Williams initially "had concerns of neglect, verbal abuse, and possible physical abuse." Prior to one session, Greg told Williams that S.S. had slapped his stepsister at Greg's house, and when Williams discussed the incident with S.S., he told her that step-siblings at Hope's house had slapped him. This concerned Williams, but she testified that the incidents "could also be just children playing."

¶ 10. On cross-examination, Williams testified that she ultimately found no evidence of physical abuse, even after follow-up medical examinations by physicians. In addition, after Williams reported her initial concerns to the Department of Human Services (DHS), DHS investigated and found no evidence of physical abuse. Williams opined that some of the incidents that S.S. described to her constituted "emotional maltreatment," but she was unwilling to use the term "emotional abuse." Williams also acknowledged that she had never seen S.S. interact with Hope or Kenny, so she had only seen "one side of the picture." Williams also testified that S.S.'s initial complaints that Hope was "mean" were non-specific, and in later sessions S.S. told her that Hope was "being nice."

¶ 11. Williams stopped counseling S.S. in May 2012 because he was "happy" and "healthy" and no longer exhibited symptoms of anxiety or depression. Williams confirmed that S.S. was doing well in school and had not had any disciplinary problems. The hearing recessed at the conclusion of Williams's testimony.

¶ 12. As noted above, the hearing recessed for about thirty-two months between the first and second days of testimony. In the interim, lawyers on both sides withdrew, new lawyers entered appearances, and there were a number of continuances, most of which Greg requested.

¶ 13. In addition, on July 31, 2013, Greg filed an emergency motion for temporary custody in which he alleged: (a) that S.S. was undergoing counseling and that his counselor had advised it was not in his best interest to be returned to Hope's custody and (b) that S.S. had been "diagnosed ... with ulcers associated with the fear of returning to [Hope's] home and other related matters." Hope denied Greg's allegations and filed a petition for contempt based on Greg's failure to return S.S. to her. Based on the GAL's recommendation, the chancellor found that returning S.S. to Hope's custody pending a final hearing on the merits would not result in any irreparable harm to S.S. The chancellor therefore denied Greg's emergency motion for custody.

¶ 14. Before the hearing resumed, Greg also filed a motion to allow S.S. to testify and for an "in camera Jethrow examination" of S.S. The hearing finally resumed on July 16, 2015, with Greg still on direct examination.

¶ 15. Greg testified that in June 2013 his family and Hope's family both attended a baseball game of S.S.'s in Amory. Greg claimed that after the game Hope approached him and Kip and began "mouthing and saying stuff to us." According to Greg, Hope and her sister then "attacked" him and his sister. Greg testified that S.S. witnessed part of the altercation and was "very shook up and scared" by it. The three women were all arrested and released after posting cash bonds.

¶ 16. About two weeks later, there was another incident at a baseball game in Pascagoula. According to Greg, after the game, Hope "grabbed [S.S.'s] arm and yanked him up away from [Greg]," while "yelling and screaming at [Greg]." Greg claimed that Hope "threw [S.S.] over her shoulder, and turned and started walking out of the ballfield, spanking [S.S.] while [he was] kicking and screaming and crying not wanting to go." Greg testified that he filed his emergency motion for custody based in part on these two incidents.

¶ 17. Greg testified that after his emergency motion for temporary custody was denied in August 2013, S.S. was upset about having to return to Hope's custody. Greg also complained that Hope had continued to interfere with his phone conversations with S.S. since the first day of the hearing. The court recessed the hearing at the end of the day on July 16, 2015, with Greg still testifying. The hearing was continued until February 17, 2016.

¶ 18. On January 19, 2016, Greg filed a motion for contempt, alleging that Hope had denied him visitation the weekend before Thanksgiving in 2015. The docket indicates that Hope filed a response, although it is not included in the record.

¶ 19. The hearing resumed on February 17, 2016, before Chancellor Moffett. As noted above, the case was reassigned to Chancellor Moffett after Chancellor Littlejohn's death in October 2015, and the parties agreed that Chancellor Moffett could read and consider the testimony already given during the first two days of the hearing. On February 18, 2016, the court granted Greg's request for a Jethrow examination of S.S. When the hearing continued on February 24, 2016, the chancellor conducted an in camera Jethrow examination and ruled that S.S. was competent to testify, although he was still too young for the chancellor to consider his preference, if any, regarding custody. S.S. testified in chambers with only the chancellor, the court reporter, the GAL, and the parties' attorneys present.

¶ 20. At the time of his testimony, S.S. was in fourth grade and almost ten years old. He lived with Hope, Kenny, two half-brothers (then ages twenty-four and twenty-two), and a half-sister (then age seventeen).

The family lived next door to his grandmother, who operated a daycare out of her home. S.S. testified that he made all As in school except for a B in math, which was consistent with report cards admitted into evidence.

¶ 21. S.S. testified that he had heard profanity at both of his parents' homes but more often at Hope's home. S.S. testified about an incident in which his aunt (Hope's sister) fought with his cousin's wife, and the fight escalated to the point that one woman pointed a shotgun at the other, but no shots were fired. This incident occurred sometime in the spring of 2015, and Hope was not present. S.S. also testified that he had heard Hope and Kenny disparage Greg and even say that "they would like to kill [Greg]"; however, S.S. knew that Hope and Kenny were not actually going to kill Greg.

¶ 22. S.S. testified that the previous summer he had gone to Georgia for two weeks for family gatherings with Hope's family. At a family shrimp and crab boil, his grandfather (Hope's father) gave him a Budweiser, and he "tasted some ... but it was nasty." S.S. testified that Hope saw his grandfather give him the Budweiser. S.S. also testified that Hope and Kenny allowed his then-sixteen-year-old half-sister to have a Michelob Ultra, and "[s]he drank half of it." That was the only time he had ever seen his half-sister drink alcohol. He had witnessed Greg, Kip, Hope, and Kenny all drink beer or wine, but he testified that none of them drank frequently, and he had never seen any of them drunk.

¶ 23. S.S. testified that Hope loses her temper about once or twice a month, and he is "afraid" when that happens. However, he also testified that Hope regularly helps him with his homework and teaches his Wednesday night class at church. S.S. testified that both of his parents were "responsible" and that he got along with both of them well and "[a]bout the same." When the chancellor asked S.S. whether either Greg or Hope could do anything to make his life better or easier, his only comment was that they could both quit smoking.

¶ 24. Following S.S.'s in-chambers testimony, Greg's testimony continued. Greg testified that Hope had continued to interfere with his phone calls with S.S. He also testified that he was working in auto sales on a commission-only basis, that his gross income for 2015 was about $29,000, and that he expected his income to decrease in 2016.

¶ 25. The GAL reported that he did not believe that S.S. was in any danger with either Hope or Greg. In addition, based on his investigation, which included home visits and interviews with S.S., the GAL did not find that there had been any material change in circumstances since the divorce that adversely affected S.S. Therefore, the GAL did not recommend a modification of custody.

¶ 26. Greg's attorney then stated that he rested his case, subject to his right to cross-examine Hope during her case. Hope then moved to dismiss Greg's petition to modify custody because Greg had not proven any material change in circumstances. Greg's attorney objected that he should be allowed to cross-examine Hope before the chancellor ruled. At that point, the chancellor questioned Greg as to what material changes in circumstances he alleged. Greg testified that he considered increased "violence" and cursing and interference with his relationship with S.S. to be material changes in circumstances that had adversely affected S.S. physically (alleged stomach problems) and emotionally.

¶ 27. The chancellor then directed Hope to testify. The chancellor questioned Hope about issues raised in S.S.'s testimony and about Greg's allegations. The chancellor also allowed Greg's attorney to cross-examine Hope. Hope admitted that she had used profanity in front of S.S. Hope testified that she did not know that S.S. had sipped a beer in Georgia. Hope claimed that Greg's family had attacked her in Amory and that she only defended herself. She referred to that incident as "the most embarrassing moment of [her] life." Hope denied that she had interfered with Greg's relationship with S.S. She also denied that S.S. had stomach ulcers; she testified that S.S. did not take any medicine for ulcers and that his primary treating physician told her that he did not have ulcers.

¶ 28. Following Hope's testimony, the chancellor announced his rulings from the bench. First, the chancellor found that Greg had not met his burden of proving a material, adverse change of circumstances. Therefore, he dismissed Greg's petition to modify custody. Next, the chancellor ruled that the parties' original custody and property settlement agreement, which the divorce decree incorporated and adopted, required Greg to pay minimum child support of $335 per month, not $200 per month as Greg contended. See supra ¶ 3. Greg challenges this ruling on appeal, and we discuss the issue in more detail below. In addition, the chancellor ruled that Greg's child support obligation would be modified prospectively based on Greg's current adjusted gross income. The chancellor also ordered that Greg would pay the remaining balance of the GAL's fees. The chancellor also found that Greg was in contempt for failing to return S.S. following visitation in July 2013 but that Hope was not in contempt for denying Greg visitation in November 2015. However, the chancellor denied both parties' requests for attorney's fees. Finally, the chancellor modified Greg's visitation schedule to, inter alia, grant significant additional summer visitation.

¶ 29. The chancellor subsequently entered a final judgment based on his bench rulings. The judgment allowed Greg 120 days to pay his child support arrearage, which the chancellor found to be $7,695. The judgment also ordered Greg to pay the GAL's final bill within 120 days. The judgment modified child support prospectively to $326 per month. The chancellor sentenced Greg to seven days in jail for contempt but suspended the sentence conditioned upon Greg's compliance with future court orders. Again, both parties' requests for attorney's fees were denied.

¶ 30. Greg filed a notice of appeal. On appeal, Greg argues that the chancellor erred by: (1) dismissing his petition to modify custody; (2) finding that the original divorce decree required him to pay minimum child support of $335 per month; (3) modifying child support prospectively; (4) finding him in contempt; (5) not finding Hope in contempt; and (6) requiring him to pay the fees of the GAL. Hope failed to file a brief on appeal, her former attorney informed the Court that she no longer represents Hope, and Hope then informed the Court by letter that she did not intend to file an appellate brief.

ANALYSIS

I. Standard of Review

¶ 31. In general, when the appellee fails to file a brief,

this Court has two options. First, we may take the appellee's failure to file a brief as a confession of error and reverse. This option is favored when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. However, if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard the appellee's error and affirm.

Patrick v. Patrick , 204 So.3d 854, 857 (¶ 10) (Miss. Ct. App. 2016) (quoting Jay Foster PLLC v. McNair , 175 So.3d 565, 571 (¶ 15) (Miss. Ct. App. 2015) ). Moreover, "when 'child custody is at issue, this Court is compelled to review the record, despite [the appellee's] failure to file a brief.' " Vassar v. Vassar , 228 So.3d 367, 374 (¶ 22) (Miss. Ct. App. 2017) (quoting Muhammad v. Muhammad , 622 So.2d 1239, 1243 (Miss. 1993) ).

¶ 32. "This Court does not sit to redetermine questions of fact." Century 21 Deep S. Props., Ltd. v. Corson , 612 So.2d 359, 367 (Miss. 1992). Therefore, "[a] chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Sanderson v. Sanderson , 824 So.2d 623, 625 (¶ 8) (Miss. 2002). "Legal questions, however, are reviewed de novo." Sanford v. Sanford , 124 So.3d 647, 652-53 (¶ 21) (Miss. 2013).

¶ 33. At the conclusion of Greg's case in chief, the chancellor dismissed Greg's petition to modify custody pursuant to Mississippi Rule of Civil Procedure 41(b) because Greg failed to prove a material change in circumstances that adversely affected S.S. In a bench trial, a judge ruling on a motion for involuntary dismissal under Rule 41(b)"must consider the evidence fairly, rather than in the light most favorable to the plaintiff." Corson , 612 So.2d at 369. If the judge "would find for the defendant, the case should be dismissed." Id. The judge should deny a Rule 41(b) motion "only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case." Id. "This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [ Rule] 41(b)." Id.

II. Petition to Modify Custody

¶ 34. "To obtain a change in custody, the moving party must prove by a preponderance of the evidence that (1) a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) the change adversely affects the child, and (3) the child's best interests mandate a change in custody." Butler v. Butler , 218 So.3d 759, 762 (¶ 11) (Miss. Ct. App. 2017). "To determine whether a material change in circumstances has occurred, the court must consider the 'totality of the circumstances.' " Id. (quoting Moreland v. Spears , 187 So.3d 661, 664 (¶ 6) (Miss. Ct. App. 2016) ). The chancellor does not conduct an Albright analysis unless he first finds that there has been a material change in circumstances that adversely affects the child. Strait v. Lorenz , 155 So.3d 197, 203 (¶ 20) (Miss. Ct. App. 2015) (citing White v. White , 26 So.3d 342, 351 (¶ 28) (Miss. 2010) ).

¶ 35. On appeal, Greg contends that the chancellor should have found a material change in circumstances. Greg relies primarily on evidence that S.S. sipped a Budweiser in Hope's presence at a family gathering. Greg also cites evidence that Hope and others cursed and disparaged him in S.S.'s presence and interfered with his visitation. Greg also alleges that Hope has "inflicted" "emotional abuse ... on [S.S.]," including by "losing her temper." Finally, Greg cites the two incidents at baseball games in the summer of 2013.

¶ 36. We cannot say that the chancellor erred in finding that Greg failed to meet his burden of proving a material change in circumstances that adversely affected S.S. Hope testified that she did not know that S.S.'s grandfather had given him a beer in Georgia. Moreover, S.S. concluded on his own that the beer "was nasty," and there is no evidence that Hope allowed S.S. to drink beer on any other occasion. Without condoning or minimizing any consumption of alcohol by minors, there is no evidence that this single incident had any adverse effect on S.S. See Touchstone v. Touchstone , 682 So.2d 374, 378-79 (Miss. 1996) (explaining that "isolated incidents" do not typically justify a modification of custody).

¶ 37. In addition, we cannot say that the chancellor clearly erred by finding that Hope's temper, profanity, and the incidents at baseball games in 2013 were not material changes in circumstances that adversely affected S.S. The evidence in this case, which spanned several years, showed that S.S. continued to perform well in school, was in good physical and mental health, and had good relationships with both of his parents. Hope also denied that she had interfered with Greg's visitation or relationship with S.S., and even accepting Greg's allegations as true, Greg did not establish interference so severe as to constitute a material change in circumstances. See Mixon v. Sharp , 853 So.2d 834, 838 (¶ 10) (Miss. Ct. App. 2003) ("Changing child custody is not an appropriate punishment for [a refusal to allow visitation]."). Accordingly, we find no error in the chancellor's dismissal of Greg's petition to modify custody.

III. Child Support

¶ 38. As discussed above, the parties' custody and property settlement agreement, which their final judgment of divorce adopted and incorporated by reference, required Greg to pay child support as follows:

1. The parties agree that [Greg] will pay, as and for support of [S.S.], the monthly amount of $200.00....
2. Additionally, as and for further monthly child support, [Greg] shall pay one-half of day-care for [S.S.] per month or $135.00, whichever is greater. When [Greg] pays the current monthly support amount of $200.00 he shall also pay his portion of the day-care expenses, as stated herein, for the preceding month, so that when the $200.00 for February [2007] is paid by [Greg], his portion of the January [2007] day-care expenses shall be added and paid at that time, and likewise for every month.

¶ 39. Greg argues that his obligation under the second quoted provision was only to pay for daycare expenses actually incurred. Thus, he argues that he was obligated to pay only $200 per month once S.S. was no longer in daycare. However, the chancellor ruled that the plain language of the second provision required Greg to pay a minimum of $135 per month ($335 total) even if no daycare expenses were incurred.

¶ 40. We hold that the chancellor correctly interpreted the parties' agreement. The plain language of the second provision states that Greg "shall pay one-half of day-care for [S.S.] per month or $135.00, whichever is greater ." (emphasis added). Thus, the provision unambiguously required Greg to pay an additional $135 per month even if S.S.'s daycare expenses were less than that amount or even $0. This provision was not conditioned on S.S.'s enrollment in daycare, nor did it limit Greg's additional support obligation to the amount of S.S.'s actual daycare expenses. Accordingly, Greg's argument on this issue is without merit. See In re Dissolution of Marriage of Hanlin , 164 So.3d 445, 448, 451 (¶¶ 7, 20) (Miss. 2015) (holding that a property settlement agreement is a contract and that it must be enforced as written if it is not ambiguous); Short v. Short , 131 So.3d 1149, 1152 (¶¶ 9-10) (Miss. 2014) (holding that parties may agree on the amount of child support and, provided the amount is sufficient to support the child, their agreement will be enforced).

¶ 41. Greg also argues that the chancellor erred by modifying his child support obligation prospectively because there was no proof of a material change of circumstances. Going forward, the chancellor ordered Greg to pay fourteen percent of his current adjusted gross income ($326 per month). The chancellor also ordered that Greg would pay only half that amount ($163 per month) in June and July of each year based on Greg's increased summer visitation. Greg's challenge to the modification is premised on his belief that the chancellor increased his support obligation. However, as discussed just above, the parties' original agreement required Greg to pay a minimum of $335 per month. Thus, the chancellor's ruling actually reduced Greg's support obligation. Because Greg is not aggrieved by the reduction of his support obligation, he lacks standing to raise the issue on appeal. See Patrick v. Boyd , 198 So.3d 436, 445-46 (¶¶ 32-33) (Miss. Ct. App. 2016).

IV. Contempt

¶ 42. Next, Greg contends that the chancellor erred by holding him in contempt for failing to return S.S. from summer visitation in July 2013 and by not holding Hope in contempt for denying him visitation in November 2015. We find no error in the chancellor's rulings.

¶ 43. "Whether a party is in contempt is a question of fact to be decided on a case-by-case basis. A chancellor has substantial discretion in deciding contempt matters because of the chancellor's 'temporal and visual proximity' to the litigants." Gilliland v. Gilliland , 984 So.2d 364, 369-70 (¶ 19) (Miss. Ct. App. 2008).

¶ 44. Greg did not deny that he deliberately refused to return S.S. from visitation in July 2013, and the GAL and Chancellor Littlejohn found no merit in Greg's claim that S.S. would be harmed if he was returned to Hope's custody. Therefore, the chancellor did not err in finding that Greg had violated the custody provisions of the divorce decree and was in contempt.

¶ 45. Hope testified that she denied Greg visitation the weekend before Thanksgiving in 2015 because she thought that Greg's Thanksgiving holiday visitation "supersede[d]" his regular weekend visitation. Chancellor Moffett declined to find Hope in contempt, noting that Chancellor Littlejohn previously had ordered the parties to confer and make adjustments to their holiday visitation schedules, which left the issue somewhat unsettled. On these facts, we cannot say that Chancellor Moffett clearly erred or abused his discretion.

V. GAL Fees

¶ 46. Finally, Greg argues that the chancellor erred by ordering him to pay the GAL's final bill because his initial allegation of abuse was supported by Williams's testimony. However, we find no error in the chancellor's apportionment of the GAL fees.

¶ 47. "Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party." McCraw v. Buchanan , 10 So.3d 979, 985 (¶ 20) (Miss. Ct. App. 2009) (quoting Miss. Dep't of Human Servs. v. Murr , 797 So.2d 818, 821 (¶ 9) (Miss. 2000) ); see M.R.C.P. 17(d). "This Court has held that chancellors possess large discretion in apportioning costs," including the costs of the GAL. Darby v. Combs , 229 So.3d 136, 146 (¶ 35) (Miss. Ct. App. 2016) (citing McCraw , 10 So.3d at 985 (¶ 35) ), aff'd , 229 So.3d 108 (Miss. 2017). "If upon review this Court finds that 'the decree apportioning the costs [of the GAL] works a manifest injustice on any of the parties, the decree will be reversed.' " Id. (quoting McCraw , 10 So.3d at 985 (¶ 21) ).

¶ 48. We find no abuse of discretion or manifest injustice in the chancellor's ruling on the GAL's fees. Greg requested the appointment of a GAL and specifically alleged that Hope, Kenny, and S.S.'s step-siblings had abused S.S. Hope denied Greg's allegations and also denied that a GAL was necessary. The GAL found no evidence of abuse, and Williams agreed that there was no evidence of physical abuse. Although Williams opined that some of Hope's alleged conduct constituted "emotional maltreatment," even Williams was unwilling to use the term "abuse." Moreover, the chancellor ultimately found that Greg failed to meet his burden of proving even a material change in circumstances. On these facts, Greg has not shown that the chancellor's ruling "works a manifest injustice." See Darby , 229 So.3d at 146 (¶ 35). Therefore, we cannot say that the chancellor abused his "large discretion" by requiring Greg to pay the GAL's final bill. Id.

CONCLUSION

¶ 49. We find no error in the chancellor's rulings on custody, child support, contempt, and payment of the fees of the GAL.

¶ 50. AFFIRMED.

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

      We use the minor child's initials because the case involves allegations of abuse, albeit unproven allegations.

      "Although it is a phrase commonly used by lawyers and judges, there is actually no provision under the statute for 'primary' physical custody." Rush v. Rush , 932 So.2d 794, 796 (¶ 9) (Miss. 2006) (citing Miss. Code Ann. § 93-5-24 (Rev. 2004) ). "[W]ith regard to physical custody, [the statute] only provides for joint physical custody, and physical custody in one parent or another." McSwain v. McSwain , 943 So.2d 1288, 1290 n.2 (Miss. 2006). As in this case, the phrase "primary physical custody" is often meant to describe physical custody in one parent, with the other having specified visitation rights.

      See Jethrow v. Jethrow , 571 So.2d 270, 273-74 (Miss. 1990).

      Greg's testimony was interrupted on the first day of the hearing to allow Williams to testify out of order.

      "After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief." M.R.C.P. 41(b).

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

      We note that Chancellor Moffett similarly declined to find Greg in contempt for failing to pay the disputed $135 per month in child support. We also note that although he found Greg in contempt, the chancellor denied Hope's request for attorney's fees.

      Chancellor Littlejohn's August 2013 order denying Greg's emergency motion for temporary custody ordered each party to pay $1,500 to compensate the GAL for services rendered to that point in the case.


source: Caselaw Access Project

author: IRVING, P.J., for the Court:

license: Public Domain

text:
    Joel JONES a/k/a Joel Dudley Jones a/k/a "Blue", Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-01356-COA.
    Court of Appeals of Mississippi.
    June 21, 2016. Rehearing Denied Jan. 9, 2018. Certiorari Denied March 29, 2018.
    Office of State Public Defender by George T. Holmes Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Alicia Marie Ainsworth, attorney for appellee.
    Before IRVING, P.J., FAIR and WILSON, JJ.
   IRVING, P.J., for the Court:

¶ 1. Joel Jones appeals his convictions, by a jury in the Circuit Court of Lowndes County, of two counts of aggravated assault. Jones raises the following issues: (1) the State's jury instruction on accomplice liability was an impermissible constructive amendment of the indictment; (2) the State presented no evidence to support the accomplice-liability instruction; and (3) the trial court erred in giving the State's cautionary instruction concerning accomplice testimony. Finding no error, we affirm.

FACTS

¶ 2. On July 14, 2012, in Columbus, Mississippi, Jones was seen looking for an acquaintance, Alvin Johnson (Alvin), near Ash Street. The trial testimony showed that Jones was looking for Alvin because he owed Jones money. Later that same day, Jones was seen with two other individuals, Deandre Tillman and Taylor Conner. They arrived at the same portion of Ash Street, and a fistfight broke out between Alvin and Jones. Tillman and Conner joined the fight to help Jones, which prompted Zach Johnson (Zach) and Alson Glenn to join in to help Alvin. After the fight ended, Jones, Tillman, and Conner left. About twenty minutes later, they returned in Jones's car. Zach testified that Jones drove "up speeding and spinning tires," and that Jones pointed a shotgun out the window. Another witness, Vivian Hodges, the owner of the house where this took place, testified Jones stopped in front of the house and stated he was going to "shoot up in the crowd" and did not care whom he hit. Hodges told him to leave or she would call the police. He drove off.

¶ 3. Zach testified that later that evening, they again encountered Jones, Conner, and Tillman, as Zach, Alvin, Glenn, and two other individuals, Tomarcus Thomas and Demontrell Hodges, were walking to a nearby convenience store. Jones drove toward them in his blue car, in which Conner and Tillman were passengers. There is conflicting testimony as to who exited the car and whether Jones or Conner pulled out a shotgun, but, during the confrontation, Zach and Thomas were shot. Zach was shot in the face, leaving him permanently blinded. Thomas, who was standing behind Zach, suffered wounds to his face.

¶ 4. Both Zach and Thomas testified that Jones was the shooter. Also, Zach's friend Keith Brooks testified that he was nearby and saw Jones's car stop, the headlights turn off, and Jones exit the driver's seat with a shotgun. However, Glenn testified only Conner had a gun. Glenn stated that, although he did not see who fired the shot, he saw Conner with a shotgun seconds before the shooting took place, and that at no time did Conner set the gun down or give it to Jones. Tillman, who testified on Jones's behalf, stated that Conner was the shooter and that Zach also had a gun.

¶ 5. Jones was indicted on October 25, 2012, on two counts of aggravated assault and one count of intimidating a witness. The State's theory of the case was that Jones was the shooter and was aided by his co-defendants, Tillman and Conner. Although Jones was indicted as a principal, the State introduced a jury instruction as to accomplice liability and a cautionary instruction concerning accomplice testimony. Jones did not object to the accomplice instruction during the trial.

¶ 6. Jones was found guilty of both counts of aggravated assault. On Count I, he was sentenced to twenty years, with eight years suspended, and five years of post-release supervision, and ordered to pay a $1,000 fine. On Count II, he was sentenced to twenty years and ordered to pay a $1,000 fine. The sentences were ordered to run consecutively in the custody of the Mississippi Department of Corrections. This appeal followed.

DISCUSSION

I. Constructive Amendment of the Indictment

¶ 7. Jones argues that the State's instruction on accomplice liability constructively amended the indictment because it expanded the scope under which he could be found guilty. He argues that the jury instruction "gutted" his theory of defense that he was not the shooter and deprived him of his constitutional rights of notice and due process.

¶ 8. Jones was indicted on two counts of aggravated assault under Mississippi Code Annotated section 97-3-7(2)(a) (Supp.2015). Count I of the indictment charged that Jones "did unlawfully, willfully, feloniously, purposely[,] and knowingly cause bodily injury to Tomarcus Thomas ... with a deadly weapon, to-wit: a shotgun, by shooting the said Tomarcus Thomas with said shotgun; without authority of law and not in necessary self[-]defense [.]" Count II charged that Jones "did unlawfully, willfully, feloniously, purposely[,] and knowingly cause bodily injury to Zac[h] Johnson, a human being, with a deadly weapon, to-wit: a shotgun, by shooting the said Zac[h] Johnson in the face with said shotgun; without authority of law and not in necessary self-defense[.]" Jones argues the State's proof at trial was consistent with the indictment-that is, the State set out to show that Jones was the principal shooter, not an accomplice.

¶ 9. Jury instruction S-5 on accomplice liability reads:

The [c]ourt instructs the jury that the guilt of a[d]efendant in a criminal case may be established without proof that the [d]efendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the [d]efendant or if the [d]efendant joins another person and performs acts with the intent to commit a crime, then the law holds the [d]efendant responsible for the acts and conduct of such other persons just as though the [d]efendant had committed the acts or engaged in such conduct.
Before the [d]efendant may be held criminally responsible for the acts of others[,] it is necessary that the [d]efendant deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that the [d]efendant either directed or aided and abetted the crime, unless you find beyond a reasonable doubt that the [d]efendant was a participant and not merely a knowing spectator.
In other words, you may not find the [d]efendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the [d]efendant voluntarily participated in its commission with the intent to violate the law.

¶ 10. Jones failed to object to instruction S-5 at trial. Our supreme court has repeatedly held "that an offended party's failure to object to jury instructions at trial procedurally bars the issue on appeal." Neal v. State, 15 So.3d 388, 397 (¶ 13) (Miss.2009) (quoting Smith v. State, 835 So.2d 927, 939 (¶ 34) (Miss.2002) ). Therefore, this issue is procedurally barred.

¶ 11. Notwithstanding the procedural bar, we find this issue is without merit. As explained by the supreme court:

A constructive amendment of an indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. A constructive amendment of an indictment is reversible per se. Reversal is automatic because the defendant may have been convicted on a ground not charged in the indictment.

Graham v. State, 185 So.3d 992, 1001 (¶ 25) (Miss.2016) (citations omitted). However, "[n]ot all variances between the indictment and instructions constitute a constructive amendment." Id. Rather, the court on appeal must consider "whether the variance is such as to substantially alter the elements of proof necessary for a conviction." Id. This Court has specifically found, under facts similar to the present case, that if the evidence supports an accomplice-liability jury instruction, the instruction is permissible and does not constructively amend the indictment. Johnson v. State, 956 So.2d 358, 362-66 (¶¶ 7-18) (Miss.Ct.App.2007).

¶ 12. In Johnson, James Johnson, similarly to Jones, argued "that the trial judge erred by [giv]ing a jury instruction which ... enlarged his liability by allowing the jury to convict him of capital murder even if the jury did not believe that Johnson was the actual triggerman." Id. at 362 (¶ 9). Johnson asserted that the accomplice-liability instruction was improper because "neither the indictment, which charged [him] as a principal, nor the State's theory of liability during its case-in-chief gave him notice that he may be found guilty based on an accomplice theory of guilt." Id. This Court found no merit to Johnson's claim, since under the statutory language of Mississippi Code Annotated section 97-1-3 (Rev.2006), "an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such[.]" Johnson, 956 So.2d at 363 (¶ 12) (quoting Miss.Code Ann. § 97-1-3 ). We held that "[t]he clear language of section 97-1-3, as well as the holdings of both this Court and the Mississippi Supreme Court interpreting and applying that provision, provide[s] sufficient notice to felony defendants that although they may be indicted as a principal, a jury instruction based on accomplice liability is proper, provided that 'the evidence presented supports the instruction given.' " Johnson, 956 So.2d at 363 (¶ 12) (quoting Pratt v. State, 870 So.2d 1241, 1250 (¶ 28) (Miss.Ct.App.2004) ).

¶ 13. Based on our established caselaw, an accomplice instruction is not prohibited simply because accomplice liability is not charged in the indictment. When the given jury "instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Williams v. State, 803 So.2d 1159, 1161 (¶ 7) (Miss.2001). Because our law states that an accomplice to a felony before the fact is liable as a principal, we find that the indictment was not constructively amended by the accomplice-liability jury instruction and that Jones was not deprived of notice or due process.

¶ 14. We find Jones's argument that the accomplice-liability instruction constructively amended the indictment is procedurally barred and, alternatively, without merit. However, before we decide whether the jury instruction was properly given, we must first determine whether the evidence presented at trial supported the instruction.

II. Evidence Supporting the Accomplice-Liability Jury Instruction

¶ 15. "Jury instructions are within the discretion of the trial court[,] and the settled standard of review is abuse of discretion." Campbell v. State, 125 So.3d 46, 55 (¶ 25) (Miss.2013). In reviewing challenges to jury instructions, the instructions must be read as a whole. Id. "When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Williams, 803 So.2d at 1161 (¶ 7). The trial court may refuse an instruction if it is "without foundation in the evidence." Johnson, 956 So.2d at 362 (¶ 7).

¶ 16. Jones asserts the accomplice-liability instruction was not supported by the evidence, as the State's case-in-chief centered on its theory that Jones was the shooter. Again, Jones did not object to the jury instruction and is now procedurally barred from doing so. See Neal, 15 So.3d at 397 (¶ 13). Notwithstanding, we find Jones's assertion is without merit.

Conflicting testimony was presented as to who carried out the assaults on Zach and Thomas. Both Zach and Thomas testified that Jones was the shooter. However, Glenn and Tillman testified Conner was the only one with a weapon. Further, Jones's defense at trial was that Conner was the shooter and that this was supported by the state crime lab's report, which indicated the presence of gunshot residue on Conner's hands, but not Jones's.

¶ 17. Given the conflicting testimony and Jones's own theory of defense, there was evidence to support the accomplice-liability jury instruction. "[A]ny person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an 'aider and abettor' and is equally guilty with the principal offender." Hooker v. State, 716 So.2d 1104, 1110 (¶ 19) (Miss.1998). There was no dispute that Jones was present at the scene of the shooting. There was also no dispute that Jones was involved in the altercation earlier in the day and was the driver of the car that approached and fled from the scene of the shooting. Further, Jones, Conner, and Tillman were found together in Jones's car shortly after the shooting and arrested. It was for the jury to determine whether Jones acted as an accomplice or principal to the shootings. See Flynt v. State, 183 So.3d 1, 10 (¶ 20) (Miss.2015) ("Factual disputes are properly resolved by a jury[.]"). As the evidence presented supported the accomplice-liability jury instruction, we cannot find the trial court abused its discretion in giving the instruction. This issue is without merit.

III. Cautionary Jury Instruction on Accomplice Testimony

¶ 18. Jones argues that the cautionary instruction requested by the State and given by the trial court on Tillman's accomplice testimony was impermissible. Jones argues that the instruction was improper and unnecessary because Tillman's testimony was corroborated. He further argues that the instruction was unwarranted because Tillman had nothing to gain from testifying.

¶ 19. "[T]he jury is to regard the testimony of co-conspirators with great caution and suspicion." Williams v. State, 32 So.3d 486, 490 (¶ 12) (Miss.2010). The decision whether to give a cautionary instruction is within the trial judge's discretion. Id. However, "such an instruction is required when the accomplice's testimony is the sole basis for the conviction, and the defendant's guilt is not clearly proven." Id.

¶ 20. The S-6 cautionary instruction concerning accomplice testimony, which was objected to by Jones, states:

The [c]ourt instructs the [j]ury that [Tillman] is an alleged accomplice in this case. The [c]ourt has already instructed you that you, as jurors, are the sole judges of the weight and credit to be assigned the testimony and supporting evidence of each witness who has testified in this case. However, since [Tillman] is an alleged accomplice in this case, any testimony of [Tillman] which you find to be uncorroborated by other evidence should be viewed with great caution and suspicion if you find such uncorroborated testimony to be unreasonable, self[-]contradictory[,] or substantially impeached.

¶ 21. Tillman's testimony that Conner, not Jones, was holding the shotgun at the time of the shooting was corroborated by Glenn's testimony. Glenn testified consistently that only Conner had a gun. Jones argues that because Tillman's testimony regarding the shooting was corroborated, the cautionary instruction should have been refused. He further argues that it is usually the defendant, not the State, who seeks a cautionary instruction to protect against wrongful conviction, and that it is inappropriate for the State to request and be given such an instruction, given that the State can scrutinize accomplice testimony through cross-examination.

¶ 22. We cannot find the trial court was prohibited from giving the cautionary instruction because Tillman's testimony regarding the shooter was corroborated or because the instruction was requested by the State. While our caselaw states that a cautionary instruction must be given when the accomplice testimony is uncorroborated, there is no authority for the proposition that such an instruction must be refused if the testimony happens to be corroborated. Rather, this Court has held that "if the accomplice's testimony is corroborated, whether to give the cautionary instruction is within the trial judge's discretion." Stribling v. State, 81 So.3d 1155, 1161 (¶ 25) (Miss.Ct.App.2011).

¶ 23. Regardless, the language of the jury instruction focused on any part of Tillman's testimony that the jury may have found to be uncorroborated, stating, "any testimony of [Tillman] which you find to be uncorroborated by other evidence should be viewed with great caution and suspicion[.]" Further, although Jones argues that Tillman had nothing to gain from his testimony, the State contends that he may have gained reciprocal testimony from Jones, which could have served as his motivation to testify. Therefore, the State asserts that his testimony should be given the same scrutiny as if he were testifying for the State against Jones. We cannot find that the trial judge abused his discretion in giving the cautionary instruction as to Tillman's accomplice testimony. This issue is without merit. Accordingly, we affirm.

¶ 24. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH EIGHT YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $1,000 FINE; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS AND TO PAY A $1,000 FINE, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      Jones was acquitted of intimidating a witness; therefore, this appeal focuses on his two aggravated-assault convictions.

      This instruction tracks the United States Fifth Circuit Court of Appeals' pattern jury instruction on aiding and abetting, which our supreme court adopted in Milano v. State, 790 So.2d 179, 185 (¶ 21) (Miss.2001).


author: PARKER, Justice.

text:
    EX PARTE CITY OF GUNTERSVILLE
    (In re: Margaret Hulgan v. City of Guntersville)
    1151214
    Supreme Court of Alabama.
    May 26, 2017
    George W. Royer, Jr., of Lanier Ford Shaver & Payne P.C., Huntsville, for petitioner.
    Brent L. Parker of Parker Law Firm, LLC, Grant, for respondent.
    Brad Cornett of Ford Howard & Cornett, PC, Gadsden, for amici curiae City of Attalla, City of Gadsden, City of Glencoe, and City of Rainbow City, in support of the petitioner; and Terry A. Sides of Hale Sides LLC, Birmingham, for amici curiae City of Springville, and City of Haleyville, in support of the petitioner.
    Andrew J. Rutens and Lawrence M. Wettermark, of Galloway, Wettermark Everest & Rutens, LLP, Mobile, for amici curiae City of Saraland, City of Atmore, City of Orange Beach, City of Gulf Shores, City of Foley, and Town of Dauphin Island, in support of the petitioner.
    James W. Porter II and Richard Warren Kinney III of Porter, Porter & Hassinger, Birmingham, for amici curiae City of Moody and City of Gardendale, in support of the petitioner.
    Ed R. Haden and Michael Taunton of Balch & Bingham LLP, Birmingham, for amicus curiae Alabama Power Company, in support of the petitioner.
   PARKER, Justice.

The City of Guntersville ("the City") petitions this Court for a writ of mandamus ordering the Marshall Circuit Court ("the circuit court") to vacate its order denying the City's motion for a summary judgment and to enter a summary judgment in favor of the City in an action filed by Margaret Hulgan against the City.

Facts and Procedural History

The City owns and operates a municipal park, known as Civitan Park. The deed conveying the property on which the park is located to the City specified that the property being conveyed was "for public recreation for the benefit of all members of the general public without distinction or discrimination and in accordance with generally recognized standards of development and operation of such lands for public parks or for areas providing public access to the waters of public lakes." The affidavit testimony of Cecil Conerly III, the director of the department of parks and recreation for the City, states that the City "does not charge any fee or other expense to the general public for the use of ... Civitan Park." Conerly's affidavit further states that Civitan Park "is open for use by members of the general public without cost" and that the City "neither obtains nor derives any financial benefit, directly or indirectly, from the use of ... Civitan Park."

On July 4, 2012, the City hosted its annual fireworks show at Civitan Park, which Hulgan attended. Hulgan's deposition testimony indicates that, on July 4, 2012, Leroy Windsor drove Hulgan to Civitan Park and that the two of them arrived at Civitan Park at 10:00 a.m. Windsor parked his vehicle in a parking lot in Civitan Park. Conerly's affidavit includes the following description of the parking lot in which Windsor parked his vehicle:

"There are a series of vertical poles located at the edge of the parking lot to Civitan Park and the grassy area of the Park. The poles have holes in the top which allow for steel cabling to be run horizontally through the poles to prevent vehicles from entering the grassy area of the Park. Several of the poles are supported by a diagonal crossbar."

It is undisputed that, on July 4, 2012, there was no steel cabling running horizontally between the poles. After parking his vehicle, Windsor and Hulgan exited the parking lot and went to a pavilion in Civitan Park. Hulgan's deposition testimony indicates that, in walking to the pavilion, she walked directly past the pole and diagonal crossbar she would, later that evening, trip over, resulting in her fall. Hulgan's deposition testimony indicates that she did not pay any attention to the pole and diagonal crossbar as she walked past them going to the pavilion. Hulgan also stated in her deposition testimony that "[i]f [she] looked over at [the pole and diagonal crossbar she] probably would've seen [them]." Hulgan and Windsor remained near the pavilion until the fireworks show concluded at approximately 9:30 p.m.

After the fireworks show, Hulgan and Windsor, along with friends and members of Hulgan's family, walked back to the parking lot where Windsor had parked his vehicle. Hulgan's deposition testimony indicates that, although there were security lights illuminating the parking lot, the lighting "was very poor." Hulgan's deposition testimony also indicates that there was enough light to see that she was walking toward Windsor's truck. The parties also presented competing expert affidavit testimony concerning the visibility of the diagonal crossbar and the danger presented by it. Hulgan's deposition testimony indicates that, as she was walking, she tripped over a diagonal crossbar supporting one of the poles at the edge of the parking lot and fell to the ground. Hulgan's deposition testimony states that she landed on her "right shoulder area." Hulgan incurred various injuries to the area of her right shoulder as a result of the fall.

Hulgan's deposition testimony indicates that she had attended each of the City's annual fireworks shows at Civitan Park "[e]ver since [the City] started shooting fireworks" and that she had watched the fireworks shows from Civitan Park "for several years"; she could not recall an exact number of years. Hulgan's deposition testimony also states that she had watched the annual fireworks show from the pavilion every year, if the pavilion was unoccupied when she arrived at Civitan Park.

Hulgan presented the affidavit testimony of Thomas E. Cooper, a professional engineer. Cooper's affidavit testimony indicates that he inspected the diagonal crossbar over which Hulgan allegedly tripped and the area surrounding the crossbar "at [or] about the time Ms. Hulgan fell." Cooper's affidavit testimony further states that, in his opinion, "the light in question and route of ingress/egress (including the pole and [diagonal crossbar] ) were unreasonably dangerous at the time of Ms. Hulgan's fall."

David Wood, the supervisor of maintenance for the City's department of parks and recreation, provided affidavit testimony indicating that the diagonal crossbar over which Hulgan allegedly tripped had been installed at Civitan Park more than 19 years before Hulgan's fall. Wood's affidavit testimony also indicates that, before Hulgan's incident, the City "had no knowledge that there was any potential of a nighttime trip hazard presented by the crossbar upon which [Hulgan] contends she tripped and fell in this case." Wood's affidavit testimony indicates that, "[d]uring the entire time of [Wood's] employment as [s]upervisor for [m]aintenance," the City had not received a complaint that the diagonal crossbar over which Hulgan alleges she tripped presented a dangerous condition.

On June 30, 2014, Hulgan sued the City, alleging negligence. Hulgan specifically alleged that the City "owed a duty to ... Hulgan not to create, cause, and/or allow unreasonably dangerous conditions to exist at or on [the] City['s] ... property." Hulgan also alleged that the City "recklessly and with knowledge of the potential consequences of its actions, breached its duty to ... Hulgan ...." Hulgan also alleged that the diagonal crossbar over which she says she tripped was a hidden danger; thus, Hulgan alleged that the City is not entitled to immunity under §§ 35-15-1 et seq. and 35-15-20 et seq., Ala. Code 1975 (hereinafter referred to collectively as "the recreational-use statutes"). On July 16, 2014, the City filed an answer to Hulgan's complaint alleging, among other things, that it was entitled to immunity under the recreational-use statutes and under § 11-47-190, Ala. Code 1975.

On June 14, 2016, the City filed a motion for a summary judgment. The City argued that it was entitled to immunity from Hulgan's action under the recreational-use statutes and under § 11-47-190. On August 22, 2016, Hulgan filed a response to the City's summary-judgment motion. On August 24, 2016, the circuit court entered an order denying the City's summary-judgment motion. The City then filed in this Court a petition for a writ of mandamus ordering the circuit court to vacate its order denying the City's summary-judgment motion and to enter a summary judgment in its favor.

Standard of Review

We apply the following standard of review to a mandamus proceeding challenging the denial of a motion for a summary judgment based on a claim of immunity:

" 'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). This Court has stated that the recreational-use statutes provide immunity to qualifying landowners. See Tuders v. Kell, 739 So.2d 1069, 1072 (Ala. 1999), and Owens v. Grant, 569 So.2d 707, 710-12 (Ala. 1990).

Discussion

The City first argues that it has a clear legal right to immunity from Hulgan's claims against it under the recreational-use statutes. In Ex parte City of Geneva, 707 So.2d 626 (Ala. 1997), this Court set forth the following applicable law concerning the recreational-use statutes:

" Sections 35-15-1 through -5[, Ala. Code 1975,] of the recreational use statutes, appearing in Article 1 of Chapter 15, define and limit the duties of an owner of recreational land in relation to a person using the land for recreational purposes. Under these sections, '[a]n owner, whether public or private, owes no duty to users of the premises except for injury caused by a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.' Poole v. City of Gadsden, 541 So.2d 510 (Ala. 1989) ; § 35-15-3, Ala. Code 1975.
"Unlike Article 1, Article 2, consisting of §§ 35-15-20 through -28, [Ala. Code 1975,] applies specifically to owners of noncommercial public recreational land, such as the City here. These sections 'provide such landowners with even greater protections than §§ 35-15-1 through -5.' Poole, at 513. See also Grice v. City of Dothan, 670 F.Supp. 318, 321 (M.D. Ala. 1987) ('[Article 2] further limits the liability of owners of land'); Clark v. Tennessee Valley Authority, 606 F.Supp. 130 (N.D. Ala. 1985) ('[Article 2] provides [landowners] even tighter limitations than [Article 1]'). The recreational use statutes appearing in Article 2 provide the following limitations on landowner duty and liability:
" '§ 35-15-22[, Ala. Code 1975 ].
" 'Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition, use, structure, or activity on such land to persons entering for such purposes.'
" '§ 35-15-23[, Ala. Code 1975 ].
" 'Except as expressly provided in this article, an owner of outdoor recreational land who either invites or permits non-commercial public recreational use of such land does not by invitation or permission thereby:
" '(1) Extend any assurance that the outdoor recreational land is safe for any purpose;
" '(2) Assume responsibility for or incur legal liability for any injury to the person or property owned or controlled by a person as a result of the entry on or use of such land by such person for any recreational purpose; or
" '(3) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.' "

707 So.2d at 628-29.

Hulgan did not argue below and does not argue in her response before this Court that the recreational-use statutes do not apply in this case. Instead, Hulgan argued below and argues before this Court that she presented substantial evidence indicating that the conditions of § 35-15-24, Ala. Code 1975, which "carves out an exception to the liability limitations provided in §§ 35-15-22 and -23," Ex parte City of Geneva, 707 So.2d at 629, were satisfied, allowing her to maintain her action against the City. Section 35-15-24 states, in pertinent part:

"(a) Nothing in this article limits in any way legal liability which otherwise might exist when such owner has actual knowledge:
"(1) That the outdoor recreational land is being used for non-commercial recreational purposes;
"(2) That a condition, use, structure, or activity exists which involves an unreasonable risk of death or serious bodily harm;
"(3) That the condition, use, structure, or activity is not apparent to the person or persons using the outdoor recreational land; and
"(4) That having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.
"(b) The test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability and does not create a duty to inspect the outdoor recreational land."

Initially, we note that Hulgan has the burden of proving by substantial evidence that the exception of § 35-15-24 applies. See Ex parte City of Geneva, 707 So.2d at 629 (agreeing with the noncommercial landowner's argument that the plaintiff "failed to meet her burden of proving [by substantial evidence] that the exception of § 35-15-24 applies"). Given the use of the conjunctive conjunction "and" in the list in § 35-15-24(a)(1)-(4), Ala. Code 1975, Hulgan must present substantial evidence of each element to prove that the exception of § 35-15-24 applies. See, e.g., Payne v. State, 791 So.2d 383, 398 (Ala. Crim. App. 1999) (stating that use "of the conjunctive 'and' between" subparts of a rule required the satisfaction of all the subparts of the rule); see also Michael L. Roberts, Alabama Tort Law § 8.07 (6th ed. 2015)("[P]laintiff must show that the [landowner], with actual knowledge of each of the elements [set forth in § 35-15-24(a)(1)-(3) ], chose not to guard or warn against the danger." (emphasis added)).

The City argues in its petition before this Court, as it did below, that Hulgan failed to meet her burden in proving that the exception of § 35-15-24 applies. Essentially, the City argues that Hulgan failed to present substantial evidence indicating that the City had the actual knowledge contemplated in § 35-15-24(a)(2). The City argues that it "had no actual notice as required by Ala. Code [1975,] § 35-15-24(b) that the alleged defect giving rise to [Hulgan's] injuries in this case constituted an unreasonable risk of death or serious bodily harm." The City does not deny that it had actual knowledge of the existence of the diagonal crossbar over which Hulgan allegedly tripped. Instead, the City argues that Hulgan failed to present substantial evidence that the City had actual knowledge that the diagonal crossbar presented a "condition, use, structure, or activity ... which involves an unreasonable risk of death or serious bodily harm." In support of its argument, the City relies on Wood's affidavit testimony. As summarized above, Wood's affidavit testimony indicates that, despite the diagonal crossbar having been in place for nearly 20 years before Hulgan allegedly tripped on it, the City had not received a complaint indicating that the crossbar presented a dangerous condition. Further, Wood's affidavit testimony states that the City "had no knowledge that there was any potential of a nighttime trip hazard presented by the crossbar upon which [Hulgan] contends she tripped and fell in this case."

In response, Hulgan argues that the City did have actual knowledge that the diagonal crossbar over which Hulgan allegedly tripped presented a "condition, use, structure, or activity ... which involves an unreasonable risk of death or serious bodily harm." In support of her argument, Hulgan relies on Cooper's affidavit testimony. As summarized above, Cooper concluded "that the light in question and route of ingress/egress (including the pole and [diagonal crossbar] ) were unreasonably dangerous." However, Cooper's affidavit is merely an opinion on the danger allegedly presented by the diagonal crossbar. Although such evidence may be relevant to a showing that the City had constructive knowledge of "a condition, use, structure, or activity ... which involves an unreasonable risk of death or serious bodily harm," § 35-15-24(b) specifically states that "[t]he test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability...." (Emphasis added.) Nothing in Cooper's affidavit testimony rebuts Wood's affidavit testimony indicating that the City did not have actual knowledge that the diagonal crossbar presented "a condition, use, structure, or activity ... which involves an unreasonable risk of death or serious bodily harm." Accordingly, we must conclude that Hulgan has failed to present substantial evidence in support of § 35-15-24(a)(2) and, thus, has not demonstrated that she is entitled to maintain her action against the City.

We note that Hulgan also appears to argue that she presented substantial evidence in support of § 35-15-24(a)(4), Ala. Code 1975, which requires her to present substantial evidence that the City chose "not to guard or warn, in disregard of the possible consequences," against the "unreasonable risk of death or serious bodily harm" allegedly presented by the diagonal crossbar over which Hulgan says she tripped. Hulgan argues in her response that she presented substantial evidence that the City "made a conscious cho[ic]e to remove the [steel] cable which prevented individuals from walking between the [poles] of the fence as [Hulgan] did." Hulgan further argues that the City had actual knowledge "of the fact the [steel] cable was gone and there were no warnings regarding the [crossbar] upon which [Hulgan] fell."

Assuming for the sake of argument that Hulgan is correct in her assertion that she presented evidence sufficient to satisfy the requirement in § 35-15-24(a)(4), Hulgan has not explained how this relates to her evidentiary burden of proving that the City had the actual knowledge contemplated in § 35-15-24(a)(2). As discussed above, Hulgan has not directed this Court's attention to any evidence indicating that the City had actual knowledge that the diagonal crossbar over which Hulgan allegedly tripped presented "a condition, use, structure, or activity ... which involve[d] an unreasonable risk of death or serious bodily harm."

Based on the foregoing, we conclude that the City has demonstrated that it has a clear legal right to immunity under the recreational-use statutes from Hulgan's claim against it. The City has demonstrated that Hulgan failed to present substantial evidence in support of each of the elements set forth in § 35-15-24. Our conclusion pretermits discussion of the City's other arguments.

Conclusion

We grant the City's petition and direct the circuit court to vacate its order denying the City's summary-judgment motion and to enter a summary judgment for the City.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur.

      In Hale v. Kroger Ltd. Partnership I, 28 So.3d 772, 779 (Ala. Civ. App. 2009), the Court of Civil Appeals, citing S.H. Kress & Co. v. Thompson, 267 Ala. 566, 569, 103 So.2d 171, 174 (1957), provided the following explanation of constructive knowledge: "A [premises owner] is charged with knowledge of a hazard if the evidence shows that the hazard has existed on the premises for such a length of time that a reasonably prudent [premises owner] would have discovered and removed it."

      The City disputes whether Hulgan presented evidence sufficient to demonstrate that the City chose "not to guard [against] or warn [of], in disregard of the possible consequences," the danger allegedly presented by the pole and diagonal crossbar over which Hulgan allegedly tripped. Specifically, the City notes that there is "no evidence whatsoever ... either (1) that any cable was ever installed at any time prior to plaintiff's fall, or that if it was, (2) it was the City that removed the cable." The City's reply brief, at p. 2 n. 1.


author: MOORE, Judge.

text:
    Lenita MERRIDA v. CREDIT ACCEPTANCE CORPORATION
    Samantha Nettles v. Credit Acceptance Corporation
    2160188 2160189
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Farahbin Majid of Legal Services Alabama, Inc., Huntsville; and Sara Zampierin of Southern Poverty Law Center, Montgomery, for appellants.
    Naomi A. Cohen Ivker and Michael D. Beach of Zarzaur & Schwartz, P.C., Birmingham, for appellee.
    Adam P. Plant of Battle & Winn LLP, Birmingham, for amicus curiae Alabama Citizen and Community Groups, in support of the appellants.
   MOORE, Judge.

In appeal number 2160188, Lenita Merrida appeals from a judgment entered by the Mobile Circuit Court ("the circuit court") in case number CV-11-963 to the extent that it limited her constitutional wage exemption, see Ala. Const. 1901 (Off. Recomp.), Art. X, § 204, to the first $1,000 in wages that she earns. In appeal number 2160189, Samantha Nettles appeals from a judgment entered by the circuit court in case number CV-16-59 to the extent that it also limited her constitutional wage exemption to the first $1,000 in wages that she earns. We have consolidated the appeals for the purpose of issuing one opinion.

Procedural History

Appeal Number 2160188

On June 18, 2013, a judgment was entered by the circuit court in favor of Credit Acceptance Corporation ("Credit Acceptance") and against Merrida in the amount of $10,469.89, plus costs. Credit Acceptance subsequently filed an application for a writ of garnishment seeking to garnish Merrida's wages. On January 20, 2016, Merrida filed a verified declaration and claim of exemptions stating, in pertinent part:

"Pursuant to Ala. Const. Art. X, § 204, I claim as exempt from garnishment or any other legal process for the collection of debts, all of my wages from my employment with the garnishee. After my employer took out taxes, social security, and any other garnishment, my net biweekly wages per paycheck average $500. I use all of my income per paycheck as I get it to pay current expenses necessary to maintain myself and my family. I do not have any accumulation of wages from paycheck to paycheck."

After a hearing, the circuit court entered a judgment on August 12, 2016, stating, in pertinent part:

"It is ORDERED that the garnishment directed to [Merrida's employer] is STAYED temporarily from this date until such time as [Merrida] has earned $1,000.00 in gross wages. Upon ... Merrida's gross wages reaching the exemption maximum of $1,000.00, the Garnishee ... shall reinstate the garnishment, withhold the requested sums, and forward same to the Clerk of Court until the judgment in this matter is satisfied.

On September 10, 2016, Merrida filed a "motion to reconsider"; that motion was denied on October 31, 2016. Merrida filed her notice of appeal on December 9, 2016.

Appeal Number 2160189

On May 18, 2011, the Mobile District Court ("the district court") entered a judgment in favor of Credit Acceptance and against Nettles for $13,529.53, plus court costs. Credit Acceptance subsequently filed an application for a writ of garnishment seeking to garnish Nettles's wages. Nettles filed a verified declaration and claim of exemptions stating, in pertinent part:

"After my employer took out taxes, social security, and any other garnishment, my net biweekly wages per paycheck averaged [$]424.00. I am currently on maternity leave until mid Feb 2016 and my earnings are 0. I use all of my income per paycheck as I get it to pay current expenses necessary to maintain myself and my family. I do not have any accumulation of wages from paycheck to paycheck."

On March 7, 2016, the district court entered a judgment stating, in pertinent part:

"It is further ORDERED that the garnishment is hereby STAYED temporarily from this date until such time as [Nettles] earns $1,000.00 in gross wages. Upon [Nettles's] gross wages reaching the exemptions maximum of $1,000.00, [Nettles's employer] shall reinstate the garnishment, withhold the requested sums and forward same to the Clerk of Court until the judgment in this matter is satisfied."

On March 10, 2016, Nettles appealed from the district court to the circuit court.

On August 22, 2016, the circuit court entered a judgment stating, in pertinent part:

"[I]t is ORDERED that the garnishment directed to [Nettles's employer] is STAYED temporarily from this date until such time as ... Nettles has earned $1,000.00 in gross wages. Upon [Nettles's] gross wages reaching the exemption maximum of $1,000.00, [Nettles's employer] ... shall reinstate the garnishment, withhold the requested sums, and forward same to the Clerk of Court until the judgment in this matter is satisfied."

On September 21, 2016, Nettles filed a "motion to reconsider" the circuit court's judgment. That motion was denied on October 31, 2016. On December 9, 2016, Nettles filed her notice of appeal.

Discussion

On appeal, Merrida and Nettles both argue that the circuit court erred in limiting their constitutional wage exemption to the first $1,000 in wages that each of them earn. According to Merrida and Nettles, because they expend the entirety of their wages for the support of their respective families and because they do not ever have an accumulation of $1,000 in wages, they should be able to claim the entirety of their wages as exempt under Ala. Const. 1901 (Off. Recomp.), Art. X, § 204.

Section 204 provides, in pertinent part, that "[t]he personal property of any resident of this state to the value of one thousand dollars, to be selected by such resident, shall be exempt from sale or execution, or other process of any court, issued for the collection of any debt contracted ...."

Although "Act No. 2015-484, Ala. Acts 2015, enacted on June 11, 2015, and codified, in pertinent part, at § 6-10-6.1, Ala. Code 1975, excludes wages from the personal-property exemption under Ala. Const. 1901, Art. X, § 204," Alabama Telco Credit Union v. Gibbons, 195 So.3d 1012, 1015 (Ala. Civ. App. 2015), "[b]ecause [Merrida's and Nettles's respective] debt[s were] incurred before Act No. 2015-484 was enacted on June 11, 2015, [Merrida and Nettles were] allowed to select [their] wages as personal property for exemption under Ala. Const. 1901, Art. X, § 204." Id. at 1016.

In Walker v. Williams & Bouler Construction Co., 46 Ala.App. 337, 341, 241 So.2d 896, 900 (Civ. 1970), this court addressed the issue whether, "after having had the benefit of the full thousand dollar exemption from withheld wages, the employee can claim the same over and over again"; this court explained:

" 'When the exemption has once been claimed, the property selected by the debtor, and allotted to him, so long as he retains it, and it is undiminished in value, he is without right to a further exemption; otherwise double exemptions could be claimed and the whole of his property exhausted, to the prejudice of his creditors. But if the property allotted to him has been taken from him without fault on his part, or it has been consumed in maintaining himself or family, a subsequent exemption may be claimed. It is his right to have and hold, at all times, an exemption of personal property of the value of one thousand dollars, of his own selection, free from liability to debts. When the property which he had selected has been lost to him, or has deteriorated in value, without fault on his part, or has been consumed in the maintenance of himself or family, or applied by him to the payment of debts, the right secured to him would be impaired, if he could not select and retain property, notwithstanding the former claim of exemption. The rights of creditors are not impaired, so long as the debtor is not permitted to hold property exceeding in value one thousand dollars.' "

Id. (quoting Weis v. Levy, 69 Ala. 209, 211 (1881), citing in turn Alabama Conference v. Vaughan, 54 Ala. 443 (1875) ) (emphasis added).

Furthermore, our supreme court has recognized: "The purpose of the exemption laws is to protect the debtor and his [or her] family from being deprived of the items necessary for subsistence, and possibly to prevent them from becoming a burden upon the public." Ex parte Avery, 514 So.2d 1380, 1382 (Ala. 1987). Therefore, "exemption laws must be liberally construed." Id. Applying that construction, our supreme court held that "future wages can be claimed as exempt." Id.

In Pruett v. Worldwide Asset Purchasing, LLC, 140 So.3d 481, 484 (Ala. Civ. App. 2013), this court held that, "[b]ecause Pruett's claimed exemption of the entirety of her wages does not exceed the $1,000 exemption provided in § 204," Pruett was entitled to an exemption of the entirety of her wages. Subsequently, in Alabama Telco Credit Union v. Gibbons, this court limited the holding in Pruett, stating that "[a]ny accumulation of wages exceeding $1,000 is not exempt under Ala. Const. 1901, Art. X, § 204, from the process of garnishment," 195 So.3d at 1017, because it would "result[ ] in an exemption amount exceeding $1,000." Id. at 1018.

In the present cases, Merrida and Nettles averred that their respective wages are less than $1,000 per pay period, that they spend the entirety of their wages for the maintenance of themselves and their families, and that they do not have an accumulation of wages over $1,000. The prohibition in Gibbons of an "accumulation" of wages in excess of $1,000 is inapplicable here. Instead, we find the reasoning in Walker to be controlling in these cases. Because Merrida's and Nettles's wages are " 'consumed in the maintenance of [them] or [their] famil[ies], ... the right secured to [them] would be impaired, if [they] could not select and retain property, notwithstanding the former claim of exemption. The rights of [Credit Acceptance] are not impaired, so long as [Merrida and Nettles] [are] not permitted to hold property exceeding in value one thousand dollars.' " Walker, 46 Ala.App. at 341, 241 So.2d at 900 (quoting Weis, 69 Ala. at 211 ). Because Merrida and Nettles both averred that they do not accumulate more than $1,000 in wages, they are entitled to claim the entirety of their wages each pay period "over and over again," Walker, 46 Ala.App. at 341, 241 So.2d at 900, until such time as they accumulate more than $1,000.

Based on the foregoing, we conclude that the circuit court erred in limiting Merrida's and Nettles's constitutional exemptions to the first $1,000 in wages that they earn. Therefore, we reverse the circuit court's judgments and remand each of these causes for the entry of a judgment in accordance with this opinion.

2160188-REVERSED AND REMANDED WITH INSTRUCTIONS.

2160189-REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.