author: RANDOLPH, PRESIDING JUSTICE, COLEMAN, JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Amanda M. COPELAND v. Gary Neal COPELAND, Jr.
    NO. 2015-CA-01527-SCT
    Supreme Court of Mississippi.
    08/31/2017

      ATTORNEY FOR APPELLANT: BYRON RUSSELL MOBLEY
    ATTORNEYS FOR APPELLEE: A. E. (RUSTY)' HARLOW, JR. KA.THI CRESTMAN WILSON
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Amanda Copeland appeals ¾ Tate County chancellor’s termination of Gary Copeland’s child-support obligation to his two minor children. We affirm the chancellor’s decision, as it is supported by the record before us.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. After their divorce, Gary and Amanda were awarded joint legal custody of their minor children, with physical custody awarded to'Amanda and visitation awarded to Gary. Gary subsequently filed a Petition for Citation of Contempt and For Modification and a Motion for Temporary Relief. Gary prayed the court would, inter alia, find that there had been a substantial and material change in circumstances entitling Gary to custody of his minor children and attendant child support, inter alia, and grant any general relief deemed proper by the court.

¶ 3. During the trial on Gary’s petition and motion, his seventeen-year-old daughter ■ and thirteen-year-old son testified. Based on the children’s unwavering testimony, including responses to questions by the chancellor and explicit exhibits, the chancellor found that they no longer loved their father and they wished to terminate any relationship with him. Each child acknowledged. sending hateful emails and texts, which included expressed desires either to. kill their father or see him dead. The numerous text messages and emails admitted into evidence were filled with vitriolic invectives, expressing deep-seated anger, resentment, and ill-will not only toward their father, but also toward his parents and sister, inter alia, supporting the chancellor’s factual finding.

¶'4. After reflecting on the testimony and evidence, the chancellor decreed that:

there had been a substantial and material change in circumstances which warranted an. analysis of the Albright factors, and that after such analysis, the court finds the Albright factors favor the Defendant [Amanda] retaining custody; therefore, any request for modification of custody is hereby denied.

As to the child-support obligation, the chancellor decreed:

the conduct of the minor children is so egregious that the Court is hereby terminating any legal obligation of the Plaintiff [Gary] to provide support for the minor children in any manner, including, but not limited to, child support, health insurance, and medical expenses not covered by insurance, and any other form of support previously ordered by this court.

The chancellor announced from the bench that “the relationship between father and children has deteriorated to a point unlike this court has seen.” Relying on Caldwell v. Caldwell, 579 So.2d 543 (Miss. 1991), and its progeny, the chancellor concluded that the children had severed and terminated any relationship they may have had with their father. The chancellor stated that “the only time in which the children’ had any physical contact or personal contact with their father since this divorce was when they wanted something by way of money or possessions.”. The chancellor found that the children’s conduct had severed the relationship to the point that Gary was relieved legally of any support of the children. The chancellor declared that he was “well aware that the case must be extreme in order to take this action, and I believe that it is.” Yet the .learned chancellor also left the door open for reconciliation and expressed his willingness to reconsider the resumption of child support. He found that'“[t]he issue of child support may be revisited in the future,' should the relationship between the Plaintiff and the minor children be amended.”

ANALYSIS

¶ 5. Amanda appealed, arguing that the chancellor’s order abating Gary’s support obligation was, in error because (1) the chancellor was manifestly wrong in granting relief that was not requested; (2) the children’s animosity towards their .father existed at the time of the divorce; and (3) the chancellor’s decision was not supported by the evidence. The standard of review in child-custody cases is well-settled:

This Court employs a limited standard of review in child-custody cases and will “affirm findings of fact by chancellors .., when they are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or,an erroneous legal standard was applied.” Borden v. Borden, 167 So.3d 238, 241 (Miss. 2014). Additionally, “findings of fact made by a chancellor may'not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence.” Marascalco v. Marascaleo, 445 So.2d 1380, 1382 (Miss.1984).

Carter v. Carter, 204 So.3d 747, 756 (Miss. 2016).

I. The chancellor did not err by . granting relief that was not specifically requested.

¶ 6, In his pleadings, Gary sought the following relief:

5. There has been a substantial and material change in ■ circumstances since the entry of the prior Order of this Court which adversely affects the minor children of the parties to wit: .,. specifically,-the prior Order should be modified to grant custody of the minor children to Plaintiff, and with regard to visitation, child support, and income tax exemptions.
7. The Plaintiff is entitled to such other, different, or general relief as the evidence shows proper, .. . ,

The pleadings raised the issue of financial support for the children, inter alia. See Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss. 1994) (When a party submits for the court’s consideration the issue of child support, he submits all issues pertaining to the subject of that support),

¶ 7. Additionally, Rule 54(c) of the Mississippi Rules of Civil Procedure reads in pertinent part that “... every final judgment shall grant the relief to. which the party in whose favor it is rendered, is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings....” M.R.C.P. 54(e) (emphasis added). Furthermore, in Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), this Court affirmed a chancellor’s decree and held that:

A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves tó aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute ■for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.

Redmond, 119 So. at 593 (quoting 21 C. J. 679, ¶ 858).

¶ 8. Whether we analyze this issue under the specific request concerning child support or, alternatively, under the general request for relief, Gary prevails. Accordingly, we find that the chancellor neither abused his discretion nor ápplied an erroneous legal standard. His judgment complies with our laws.

II. The chancellor did not err in determining the children’s conduct was an after-arising material change in circumstances.

¶ 9. Child-support changes are warranted “where there is a showing of an after-arising material change in circumstances regarding one or more of the interested parties, i.e., the father, mother, or child,” Setser v. Piazza, 644 So.2d 1211, 1215 (Miss. 1994) (citing Gregg v. Montgomery, 587 So.2d 928, 931 (Miss. 1991)). The change in circumstances “must have been unanticipated by the parties at the time the child-support judgment was entered.” Ravenstein v. Ravenstein, 167 So.3d 210, 218 (Miss. 2014) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss. 1994)). Upon review of the record, we cannot say that the chancellor committed manifest error in finding a material change in circumstances. Even if, as Amanda argues, the children were hostile to Gary before the divorce decree was entered, Gary presented substantial evidence of a fervid increase in the children’s hostility after the divorce. For these reasons, we find this issue to be without merit.

III. The chancellor’s termination of Gary’s child-support obligation was supported by the evidence.

¶ 10. The holdings in similar cases illustrate the Herculean balancing act which is required of our chancellors. The outcome in each of the similar cases rested upon the issues raised and joined by the parties and the specific facts presented at those trials. The varied holdings in like cases reveal that our chancellors astutely recognize the task before them before announcing their final judgments. Such balancing acts are part of the foundation upon which our deferential standard of review must lie. Our review of findings of facts is highly deferential to the chancellors, for only he or she has heard the live testimony and observed the witnesses firsthand. We then determine whether the findings of facts support the conclusions of law. In today’s case, they do.

¶ 11. In this case, the chancellor not only provided a sound legal basis for his ruling, but rendered detailed factual findings before he decreed that the children had forfeited their right to financial support from Gary based on their “clear and extreme” conduct and behavior. In his ruling from the trial bench, he stated:

The children through emails and text messages, as well as in-court testimony, have referenced their hatred and their unwillingness to have a relationship with them natural father. They have sent vicious, venomous, and hateful emails and texts directed especially to him over and over and over again expressing their distaste, lack of love, and, in fact, their hatred for him to the point that they wish that he, in fact, were dead, or under certain circumstances, that they would kill him.
The Court finds based upon the actions of the children in this case at bar, that under the parameters set forth in Caldwell v. Caldwell, they have taken the position as young as they may be, to completely terminate any relationship which they may have with their father and them. The Court is extremely cognizant that the right of visitation of a party is a very precious right to be protected and only in extreme cases— clear and extreme cases sufficient to constitute a forfeiture of child support should that remedy be invoked.
In this case based upon the evidence presented where the children who have been supplied with their own computers and their own cell phones and sufficiently encouraged or at least unencouraged by the mother have set forth that their relationship should not continue.

The chancellor reviewed numerous texts and emails from the children to their father, expressing an intense hatred of their father. Even then, the chancellor afforded the children an opportunity to repudiate the texts and emails during their live testimony. Each child rejected this invitation and confirmed his or her convictions as to how he or she felt about their father. The chancellor, being the only one to view the witnesses and observe their demeanor, is in the best position to determine if the actions and conduct of the minor children were convincingly clear and extreme, warranting a termination of child support.

¶ 12. This Court in Caldwell held that a minor child could “forfeit his support from a noncustodial parent,” if the child’s conduct was “clear and extreme.” Caldwell, 579 So.2d at 548. We find no error in the chancellor’s findings that the children’s clear and extreme conduct forfeited their right to support from their father.

¶ 13. We are ever-mindful of the sage advice restated by Justice Maxwell (then a Court of Appeals judge in a case addressing forfeiture). “When reviewing a chancellor’s decision to terminate a parent’s financial obligations to his or her child, we do not ask if the decision is the same one we would have made. Rather, we are instructed to give the chancellor deference and ask whether the decision was one the chancellor could have made.” Stasny v. Wages, 116 So.3d 195, 196 (Miss. Ct. App. 2013).

¶ 14. While the Legislature through statutes has expanded the common-law obligation(s) to pay child support, the statutes singled out by the dissent are not the only or exclusive statutes addressing child support. See also Miss. Code Ann. §§ 93-5-23, 93-5-24, 93-5-34, 93-7-7, 93-9-35, 93-11-65, 93-11-69, and 93-11-71 (Rev. 2013). Nor is the full body of our law found in statutes. Courts must always be vigilant neither to read statutes to override the constitutional restrictions imposed on the various magistrates by Article 1, Sections 1 and 2 of the Mississippi Constitution, nor to interfere with the constitutional authority of chancellors found in Article 6, Section 159.

¶ 15. The dissent observes that the chancellor did not reference Sections 43-19-101 and 43-19-103 of the Mississippi Code in his ruling. We do not dispute that observation, but those sections have no relevance here. Once the chancellor determined that, based on the clear and extreme conduct of the children, child support was forfeited, computing an amount of child support using the formula provided by the guidelines is irrelevant. It is a non sequi-tur to require a chancellor to apply irrelevant guidelines effecting the amount of child- support, when the same chancellor has decreed the duty to pay child support no longer exists. All child support statutes clearly have purpose and should be consulted in all cases to determine an'appropriate amount of child support when child support is due. In this case, no child support is due.

¶ 16. The only issues presented to this Court by the parties were: ■ (1) was the chancellor manifestly wrong in granting relief that was not requested; (2) did the children’s animosity toward their father exist at the time of the divorce; and (3) was the chancellor’s decision supported by the evidence. Neither party requested that the chancellor apply Sections 43-19-101 or 43-19-103.

¶ 17. This issue was not presented to the trial court, nor was this issue raised in the original appellate briefs. “This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss; 1973). Following this Court’s well-established precedent, as these issues were not raised by the parties, we decline to further address them.

¶ 18. There is no question that a chancellor has the authority to terminate child support. In this case, the chancellor made clear findings on the record as to why the children had forfeited Gary’s financial support.

CONCLUSION

¶ 19. Thus, we find .that the chancellor did not abuse his discretion, was not manifestly wrong or clearly erroneous, and did not apply an erroneous legal standard. The chancellor’s findings of fact were supported by substantial and credible evidence. We affirm.

¶ 20. AFFIRMED.

WALLER, C.J., MAXWELL, BEAM AND CHAMBERLIN, JJ„ CONCUR. COLEMAN, J., CONCURS IN PART ’ AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, P.J., AND MAXWELL, J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.; COLEMAN, J., JOINS IN PART.

COLEMAN, JUSTICE,

CONCURRING IN PART AND IN RESULT:

¶ 21. I concur with the majority’s analysis of and, holdings as to the first two issues addressed in the majority opinion, ie., the granting of relief not specifically requested and finding that the attitudes of the children toward their father constitut.ed a material change in circumstances.

¶ 22. However, as to the third issue and the bone of contention between the majority and Presiding Justice Dickinson, I, on the one hand, agree with the dissent that the statutory scheme for child support has supplanted the common law.. I agree that the decisions to award, child support and to set the amount of support are both governed by Mississippi Code Sections 43-19-101 and -43-19-103. Accordingly, the majority is incorrect when it writes that the two code sections have no relevance. (Maj. Op. at ¶ 15). Moreover, the majority’s intimation that Sections 43-19-101 and 43-19-103 are unconstitutional encroachments upon 'the constitutional jurisdiction of the chancery courts is misplaced. (Maj. Op. at ¶ 14).

¶ 23, Nevertheless, .the’ trial court committed no reversible error. The chancellor issued an oral opinion from the bench and clearly stated that he relied oh Caldwell v. Caldwell, 579 So.2d 543 (Miss. 1991), when he ended Gary Copeland’s child support obligations. Amanda Copeland failed to argue at the time or on written motion for rehearing that the trial court had erred in doing so. Absent plain’ error, the court does not hold trial judges in error for issues not presented to them for decision or not raised by the aggrieved party in its brief.

¶ 24; Under the plain error doctrine, thq Court “retains the inherent authority to notice error to prevent the manifest miscarriage of justice, despite trial counsel’s failure to'preserve the error.” Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 727 (¶ 60) (Miss. 2001) (citing Johnson v. Fargo, 604 So.2d 306, 311 (Miss. 1992)). “For the plain-error doctrine to apply, there must have been an error that resulted in manifest- miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.” Johnson v. State, 155 So.3d 733, 738 (Miss. 2014) (quoting Burdette v. State, 110 So.3d 296, 303 (Miss. 2013)). Because the Court has not before today acknowledged the abrogation of the common law by Sections 43-19-101 and 43-19-103 and there is insufficient reason to believe the chancellor would have reached a different result had he considered the issue pursuant to, the statutes, the error does not arise to the level of plain error. Accordingly, I agree with the result reached by the majority and would affirm.

RANDOLPH, P.J., AND MAXWELL, J., JOIN THIS OPINION IN PART.

DICKINSON, PRESIDING JUSTICE,

DISSENTING:

¶25. When Mississippi established its current Constitution in 1890, it granted to the courts of chancery not only the-jurisdiction over matters controlled by principles of equity, but also jurisdiction over several areas controlled by law, including “[djivorce and alimony,” and “minor’s business.” Since its origin in England in 1576, the duty to support children has been, controlled by legal (“common law”) principles.

¶26. At common law, parents had an obligation to support their children. But when a child displayed a certain level of disrespect for a noncustodial parent, judges had the discretion to relieve that parent of the obligation to pay child support. And generally, we still apply common-law principles and doctrines to the issues before us.

¶ 27. But it is the Legislature—not this Court—that decides whether to leave common-law principles and doctrines in place or to supplant them with statutes; and when the Legislature, through its statutes, speaks on a matter of substantive law, the statutory law supplants the common law. So, if the case before us is to be decided properly, the first question is whether the Legislature has created a child-support obligation. Clearly it has. And statutes supplant the common law, so chancellors must look to statutes for their authority to award—or not to award—child support. And if their cases are to be decided properly, they must follow the law.

¶ 28. The majority correctly ¡ observes ■that statutory enactments may not take away from, constitutional mandates; but that observation has no .bearing here. Nothing in any constitutional provision cited by the majority creates a duty to pay child support. Thus, courts should look to the content of the statutes that control child support.

¶ 29. Section 43-19-101 seems quite clear to me.- It creates a rebuttable presumption that child support should be paid in a certain amount based on the number of children and the paying parent’s adjusted gross income. Under the statute, the “presumption applies -in all judicial or administrative .proceedings regarding the awarding or modifying of child support in this state.” And the presumption controls •the amount awarded unless

the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.”

¶ 30. The section following this mandate sets forth the criteria which may be considered to rebut the presumption:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child. ■
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obli-gee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obli-gee.
(j)Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

¶31. Through subsection (j)’s catchall provision, the Legislature has granted chancellors broad discretion to find that the statutory presumptions have been rebutted based on the demands of equity— broad enough, in my view, to encompass the clear and extreme conduct described in Caldwell v. Caldwell, which the chancellor found.

¶ 32. But the chancellor’s analysis should have began with the rebuttable presumption that Gary must pay child support in the amount set by statute, followed by specific findings as to how the presumption was rebutted. And this analysis should have been applied to Gary’s obligation to pay child support as to each child.

¶ 33. My colleague, Justice Coleman, unnecessarily worries that this issue was not presented to the trial court. Clearly, the chancellor decided the issue of whether Gary’s child-support obligation should be terminated. Amanda appealed that decision. So he and the majority are incorrect when they suggest I would hold the chancellor in error for an issue not presented to him. The issue—whether the child-support obligation should be terminated—was addressed and decided in the trial court. My resort to the statutes simply applies the correct law to determine whether the chancellor’s decision was correct.

¶ 34. Justice Coleman agrees that the common-law duty to pay child support has been supplanted by our statutes, but he finds no reversible error because “Amanda Copeland failed to argue at the time or on written motion for rehearing that the trial court erred in” relying on Caldwell, Justice Coleman points to no rule that requires an attorney to file a post-trial motion, and I will not find an issue unappealable because an attorney failed to do something he was not required to do—especially in a case dealing with child support and child custody, such as this one.

¶35. Because the chancellor failed to follow controlling statutory mandates before terminating child support, I would remand for a proper analysis under the applicable statutory provisions.

KITCHENS AND KING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN PART.

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

      . Gary requested the same relief again'in his prayer for relief:
      (e) That the Court modify the prior, Order(s) to grant custody of the minor children to Plaintiff, and with regard to visitation, child support, and income tax exemptions;

      (g) That the Court should grant Plaintiff such further, different, or general relief as the Court finds proper upon the evidence when this cause comes on to be heard; ...

      . The Court of Appeals affirmed the chancellor's findings that the child’s actions were clear and extreme to a degree to justify forfeiting parental support. Stasny, 116 So.3d at 198.

      . The applicability of these same sections has not been raised in a single case before this Court or the Court of Appeals addressing termination of child support. See Dep't of Human Servs. v. Marshall, 859 So.2d 387 (Miss. 2003); Caldwell, 579 So.2d 543; Stasny, 116 So.3d 195; Dykes v. McMurry, 938 So.2d 330 (Miss. Ct, App. 2006); Roberts v. Brown, 805 So.2d 649 (Miss. Ct. App. 2002).

      . Miss. Const, art. 6, § 159.

      . Act For Setting of the Poor on Work, and for the Avoiding of Idleness, 18 Elizabeth 1, C. 3 (1576).

      . See e.g. DeSoto Cty. v. T.D., 160 So.3d 1154, 1156-58 (Miss. 2015) ("Others, including Mississippi, have supplanted the common law with statutes that have established the-legislative branch’s views of the appropriate limits and protections of sovereign immunity. .. .Were we applying common-law immunity, we would be free to limit that immunity. .But the Legislature removed our discretion with the Mississippi Tort Claims Act.”).

      . Miss. Code Ann. § 43-19-101 (Rev. 2015).

      . Miss, Code Ann. § 43-19-101(1) (Rev. 2015) (emphasis added).

      . Miss. Code Ann. § 43-19-101(2) (Rev. 2015).

      . Miss. Code Ann. § 43-19-103 (Rev. 2015).

      . Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss. 1991).

      . See Chesney v. Chesney, 910 So.2d 1057, 1061 (Miss. 2005) (citing McEachern v. McEachern, 605 So.2d 809, 814 (Miss. 1992)) ("However, for this Court to affirm an award which deviates from the guideline of Section 43-19-101(1), the chancellor must overcome the rebuttable presumption that the statutory award is the appropriate measure of child support by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.”).

      . Coleman Op. at ¶ 22.

      . Coleman Op. at ¶ 23.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Lavern Jeffrey MORAN a/k/a Lavern J. Moran, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00188-COA
    Court of Appeals of Mississippi.
    03/14/2017
    Rehearing Denied July 25, 2017
    Certiorari Denied December 14, 2017

      MICHAEL W. CROSBY, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR'THE COURT:

¶ 1. Lavern Jeffrey Moran appeals from the denial of his petition for post-conviction relief. He argues that he should not have been sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Under, clear Mississippi Supreme Court precedent, Moran qualified as a habitual offender. Accordingly, we affirm.

-FACTS

¶ 2. On May 18, 2015, Moran pled guilty to two counts of burglary of a dwelling and was sentenced' to ten years on each count, with the sentences to run concurrently. The sentencing order recited that Moran pled guilty “as a habitual offender,” and the court found that his prior convictions met the requirements of section 99-19-81. The court ordered that Moran’s “total” sentence of ten years “as a habitual offender” would “be served day for day in accordance with [section] 99-19-81 said, sentence being without hope of parole or probation.”

¶ 3. Eleven days later, Moran filed a petition for post-conviction relief alleging that the court erred by sentencing him as a habitual offender. Moran’s only argument in his petition and on appeal is that his prior felony convictions for robbery and uttering a forgery do not meet th¿ requirements of section 99-19-81 because both convictions were entered on the same day, although the offenses were committed on different days and indicted separately.

¶4. Section 99-19-81 provides as follows: ,

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony-or federal crime upon- charge's separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. ^ .

¶ 5. Moran argues that his predicate felonies were not “separately brought” within the meaning of the statute even though the offenses were committed on different days and indicted separately. Moran acknowledges that his argument is squarely foreclosed by Mississippi Supreme Court precedent. See, e,g,, Kolb v. State, 568 So.2d 288, 289 (Miss. 1990) (holding that two prior convictions entered on the same day satisfied the statute because, even though the offenses were charged as separate counts. of a single indictment, they were committed on different days and at different places); Rushing v. State, 461. So.2d 710, 713 (Miss. 1984) (“In the case sub judice, though both -¡of appellant’s [prior] convictions occurred on the same day, they arose out of ,.. separate incident[s] occurring at different times. Therefore; the trial court correctly sentenced the appellant under [section] 99-19-81.”). But he argues that Kolb and Rushing “are very old,” “are wrong,” and should be overruled.

¶ 6. “This Court, .sitting as an intermediate appellate court, is obligated to follow precedent established by the Mississippi Supreme Court.” Kennedy v. State, 766 So.2d 64, 65 (¶ 3) (Miss. Ct. App, 2000). “[W]e.... do not have the authority to overrule a decision of our [S]upreme [C]ourt,” Miles v. State, 864 So.2d 963, 965-66 (¶ 8) (Miss. Ct. App. 2003). Accordingly, we affirm the denial of Moran’s peti-' tion for post-conviction relief.

¶ 7. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Although Moran's sentence provides that he shall not be eligible for parole or probation as a habitual offender, section 99-19-81 further required the circuit court to impose the maximum term of imprisonment for burglary of a dwelling, which is twenty-five years, not ten. Miss. Code Ann. § 97-17-23 (Rev. 2014); Garner v. State, 864 So.2d 100S, 1008 (¶ 8) (Miss. Ct. App. 2004), The circuit court judge accepted the State’s sentencing recommendation of concurrent terms of ten years, even while acknowledging that the recommended sentence did not comply with the law. See Harris v. State, 527 So.2d 647, 651 (Miss. 1988) ("Sentencing under [section 99-19-81] is not discretionary. If a defendant is a repeat offender falling within the provisions of [section 99-19-81,] the trial judge has no alternative but to sentence him under said statute.”); Lamar v. State, 983 So.2d 364, 371 (¶ 27) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) (Section 99-19-81 provides that a habitual offender "shall be sentenced to the maximum term of imprisonment prescribed" for his present offense, so "the circuit court [is] required to-sentence [the defendant] to the maximum sentence for each of his convictions.”). Thus, Moran's petition for post-conviction relief and appeal attack a sentence that is less than half the mandatory sentence that he should have received under the law.


author: BARNES, J.,

text:
    Kappi Saget JEFFERS, Appellant v. Korri SAGET, Appellee
    NO. 2015-CA-01280-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEY FOR APPELLANT: DAVID M. SESSUMS
    ATTORNEY FOR APPELLEE: WREN CARROLL WAY
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Kappi Saget Jeffers contested the validity of her late mother’s will and the conveyance of assets related to investment-fund accounts. The will contest, before a jury, ended in a mistrial, but the chancellor, as finder of fact, denied Jef-fers’s petition and counterclaim to recover assets, specifically the investment accounts. On appeal, we find that the chancellor’s entry of judgment regarding the investment accounts was not a final, ap-pealable judgment under Mississippi Rule of Civil Procedure 54(b). Therefore, we must dismiss the appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rae Saget died on January 6, 2014, survived by two daughters, Jeffers and Korri Saget. Prior to her death, Rae had executed three wills. In a 2004 will, she left a diamond ring to Saget, a ruby ring to Jeffers, and her remaining property to be equally distributed between Saget and Jef-fers. In 2008, Rae executed a second will, again leaving the bulk of her estate to be divided equally between her daughters. However, Rae’s most recent will, executed on August 23, 2012, bequeathed all her property to Saget, except for one diamond ring, which she bequeathed to Jeffers.

¶ 3. Rae also had investment accounts with Morgan Stanley. From 2006 to 2012, both daughters were designated as equal beneficiaries of the accounts. However, on August 22, 2012, Rae appeared alone at the Morgan Stanley offices and signed forms making Saget the sole beneficiary of the accounts.

¶ 4. After Rae’s death, Jeffers filed a Caveat Against Probate (Cause No. 2014-008-PR) on February 7, 2014, arguing that Rae’s August 23, 2012 last mil and testament was a product of undue influence and should be declared void. On February 18, 2014, Saget filed a petition to open the estate and for appointment of an executrix (Cause No. 2014-010-PR). An order opening the estate was entered, and Saget was appointed as executrix. Jeffers subsequently filed a motion to set aside the order and consolidate the causes and a motion to freeze assets.

¶5. On March 11, 2014, Jeffers filed a petition for letters of administration and for the recovery/collection of estate assets in Cause No. 2014-008-PR. The petition specifically referenced the Morgan Stanley investment accounts and argued that Rae lacked capacity to put Saget’s name on the account. The chancery court consolidated the two cases into Cause No. 2014-008-PR, appointed both Jeffers and Saget as co-adminstratrixes, and granted Jeffers’s motion to freeze the assets. Then, on March 31, 2014, Jeffers filed an answer to the petition to probate the will and a counterclaim to contest the will and set aside the conveyance of personal property and to recover assets. In the petition, she argued that the most recent will, and the document changing the beneficiary of the Morgan Stanley accounts, were void.

¶ 6. On May 27-30, 2015, jury proceedings were held in chancery court regarding the will contest. The proceedings ended in a mistrial. Although the claim regarding the Morgan Stanley accounts was not submitted to the jury, the chancellor discussed whether to enter an order regarding the accounts. As both attorneys had-no additional evidence to present, they agreed to the entry of an order, although Jeffers’s attorney did express concern as to whether the entry of such an order could result in “inconsistent” holdings. The chancellor entered a “Final Judgment” on August 4, 2015, denying Jeffers’s petition for the recovery/collection of assets and the counterclaim to set aside the conveyance of personal property and for recovery of assets. The order noted that the'issue of the will’s validity was still pending.

¶ 7. Because the judgment was not certified pursuant to Rule 54(b), we find that the chancery court judgment was not a final, appealable judgment, and this Court lacks jurisdiction to consider Jeffers’s appeal.

DISCUSSION

¶ 8. As noted, the chancellor entered a final judgment and order, denying Jeffers’s petition for the recovery/collection of assets and the countercomplaint to set aside the conveyance of personal property and for recovery of assets. However, regarding the issue of whether the August 23, 2012 will was void, the chancery court simply stated: “The question of the validity of the last will was submitted to a jury which resulted in a mistrial. It is not an issue presently before the court.” Although the parties have not raised the issue, “this Court is required to note its own lack of jurisdiction.” Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss. Ct. App. 2007) (citing Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995)). Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated!!,] which adjudicates fewer than all of the claims -or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties!,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). “A final, appealable judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the [chancery] court.” Walters, 956 So.2d at 1053 (¶8) (citation omitted). Without a Rule 54(b) certification, an interlocutory order “is only ap-péalable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure; this Court has no jurisdiction to hear it otherwise.” Hoffman v. Hoffman, 200 So.3d 465, 468 (¶ 12) (Miss. Ct. App. 2016) (quoting Jackson v. Lowe, 65 So.3d 879, 881-82 (¶ 7) (Miss. Ct. App. 2011)).

¶ 9. Jeffers acknowledges in her appellant’s brief that the issue of the will contest “remains pending on the trial docket of the lower.court.” At trial, during the discussion as to whether the chancellor should enter an order addressing the Morgan Stanley accounts, the chancellor asserted that the claims were separate and the burden of proof was different. But Saget’s counsel noted that the claims were both asserted in the pleadings, and stated: “Well, they made an issue of it so the issue is joined.” Eventually, both attorneys agreed that they wanted the chancery court to rule on the issue.

¶ 10. However, the chancery court did not certify the judgment under Rule 54(b). “For a judgment adjudicating fewer than all of the claims to be made final and appealable under Rule 54(b), the trial court must make an expressed direction for the entry of final judgment and an expressed determination that there is no just reason for delay.” Walters, 956 So.2d at 1054 (¶ 12). Here, while the chancellor directed the entry of a final judgment, satisfying the first requirement, nowhere in the order does the chancellor state that there is no reason for delay, Therefore, we find the judgment was not a final, appeal-able order.

¶ 11. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: FAIR, J.,

text:
    Deveaux CARTER, Appellant/Cross-Appellee v. Allen DAVIS, Appellee/Cross-Appellant
    NO. 2015-CA-00173-COA
    Court of Appeals of Mississippi.
    04/04/2017
    Rehearing Denied August 8, 2017

      ATTORNEY FOR APPELLANT: WENDY WALKER BORRIES
    ATTORNEY FOR APPELLEE: DAVID C. FRAZIER
    BEFORE GRIFFIS, P.J., BARNES, FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Allen Davis and Deveaux Carter, married on September 22, 1984, were divorced on February 18, 1993, on grounds of irreconcilable differences and with all issues resolved in an agreement for custody, support, and property settlement.

¶2. By their agreement, approved by. the court as “fair, equitable, adequate and sufficient,” Deveaux received custody of the parties’ two minor children: Annie, born in 1986, and Amy, born in 1991. Allen was ordered to pay child support, medical expenses, extracurricular activity fees, college expenses, and medical insurance.

¶ 3. Five years later, in February 1998, they returned to court and, by agreed order, monthly support was set at $400 and a judgment for $22,544.81 was entered for an arrearage of Allen’s financial obligations under the original divorce judgment. Allen was ordered to pay no less than $800 per month toward the judgment, together with interest on the judgment and any other future arrearages at 8% per annum. At a scheduled review on April 17, 1998, the arrearage judgment was amended to $23,182.66, and $500 in attorney’s fees was ordered to be paid by Allen to Deveaux. An order for Allen to be incarcerated was suspended provided he paid $4,000 on or before June 17, 1998. The required monthly payment toward the ar-rearage was reduced from $800 to $400.

¶4. Fifteen years later, shortly after their last child became emancipated, on February 25, 2013, Deveaux filed for contempt against Allen for a second time, alleging an arrearage of $23,682.66, accrued interest of $35,599.55, an arrearage of $66,390 for Annie’s college expenses and $22,274.55 for Amy’s college expenses, medical expenses of $8,588.13 for Annie and $5,115.72 for Amy, half of the cost of the vehicles for each child, attorney’s fees, and costs of court.

¶ 5. The trial began on October 14, 2014, with the parties stipulating Amy’s college costs to be $30,000 and Allen’s obligation for medical expenses for both children to be $10,000.

¶ 6. The court determined the remainder of Allen’s financial obligations under prior orders of the court to be $201,187.66. Allen was given credit for direct payments to the children as well as amounts given both to Deveaux and the children (even after their emancipation) and the payments from his mother, Isabella Mann. The amount totaled $197,911, leaving an ar-rearage of $3,276.66, for which a judgment was rendered in favor of Deveaux. Allen was also taxed with $7,500 in attorney’s fees and costs by the chancellor. ■

¶ 7. Deveaux appeals, arguing she is entitled to- more than awarded her by the chancellor. She objects to credit having been allowed to Allen for direct payments to the children both by him and Mann, some of which were post-emancipation.

¶ 8. Allen cross-appeals, arguing that though adjudicated to be in contempt, he was determined by the chancellor not to be in “willful and intentional” contempt and thus not obligated to pay fees to Deveaux for pursuing his arrearages in payment of support.

¶9, Neither Deveaux nor Allen questions the chancellor’s mathematical determinations in adjudicating Allen’s arrear-age.

STANDARD OF REVIEW

¶ 10. Our review in domestic-relations cases is limited. In re Dissolution of Marriage of Wood, 35 So,3d 507, 512 (¶ 8) (Miss. 2010). “An appellate court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard[.]” Ladner v. Ladner, 49 So.3d 669, 671 (¶7) (Miss. Ct. App. 2010) (quoting Wood, 35 So.3d at 512 (¶ 8)). We review questions of law de novo. Scott v. Scott, 115 So.3d 847, 849 (¶ 6) (Miss. Ct. App. 2012).

DISCUSSION

1. Mann’s Payments

¶ 11. Deveaux first argues that the chancellor erred in including Mann’s payments as part of Allen’s paid child support. More specifically,’ she relies on Mizell v. Mizell, 708 So.2d 55 (Miss. 1998), arguing that a grandparent’s payments should not offset a noncustodial parent’s payments. In Mizell, the paternal grandfather made payments to the minor child out of a joint depository account that named them both as account holders. Mizell, 708 So.2d at 60. Our supreme court found that those payments could not be credited as child support; But, as this Court explained two years later, Mizell was “fact specific” and does not broadly prohibit grandparents from making child support contributions and having those contributions count toward arrearages. See Johnston v. Parham, 758 So.2d 443, 446 (¶ 7) (Miss. Ct. App. 2000). Rather, the money in Mizell already belonged to the minor child and could not be considered child support. Id, Here, the grandparent contributed her own money to the children.

¶ 12. Deveaux also claims that Mann restricted her payments to dance lessons—a separate arrangement not included m Allen’s child support. At trial, Deveaux testified to the same effect. Mann testified, however, that she would not have contributed the money if Allen had been able to do so himself. She made these payments in lieu of Allen’s child support. The chancellor ultimately found that Mann’s payments were for unrestricted use. “Whether or not a non-custodial parent should be given credit against his/her child support obligation is a matter left to the sound discretion of the chancellor.” Deckard v. Deckard, 165 So.3d 533, 536 (¶ 10) (Miss. Ct. App. 2015) (quoting Strack v. Sticklin, 959 So.2d 1, 5 (¶ 14) (Miss. Ct. App. 2006)). After review of the record, we find no abuse of discretion in. the chancellor’s decision to include Mann’s payments as paid toward Allen’s child support obligations.

2. Allen’s Direct Payments to Children

¶13. Deveaux next argues that the chancellor committed reversible error by crediting Allen with payments made-directly by him to the children while they were attending college. Again, whether certain payments should be credited against child support arrearage remains within, the chancellor’s discretion. See Crow v. Craw, 622 So.2d 1226, 1231 (Miss. 1993). A noncustodial parent may “receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” Id. (quotation omitted). This principle only applies when the father proves by a preponderance of the evidence that he has paid the support to the child under circumstances contemplated by the support order, such as shelter, food, clothing, and other necessities for the child. Nichols v. Tedder, 547 So.2d 766, 769 (Miss. 1989).

¶ 14. The chancellor found that Allen and his mother had paid for everything. He further determined that Allen made these payments directly to the' children as child support. The chancellor also found that Deveaux would be unjustly enriched if Allen was required to make payments directly to her. We find no abuse of discretion in these determinations.

3. Contempt and Attorney’s Fees

¶ 15, On cross-appeal, Allen argues that the chancellor erroneously ordered him to pay attorney’s fees because the chancellor failed to find him in “willful” contempt. “To be found in contempt, a party has to willfully and deliberately vio-

late a court order.” McKnight v. Jenkins, 155 So.3d 730, 732 (¶ 7) (Miss. 2013) (citing R.K. v. J.K., 946 So.2d 764, 778 (¶41) (Miss. 2007)). Here, the chancellor held that Deveaux was entitled .to attorney’s fees because she was forced to initiate proceedings. However, he also stated that Allen was not in willful contempt, since he was credited for payments made since 1998. The chancellor’s finding is supported by the record. Because Allen was not found to be- in willful contempt, we reverse and render the award of attorney’s fees of $7,500 to Deveaux.

4.Deveaux’s Request for Attorney’s Fees on Appeal

¶ 16. At the end of her brief, De-veaux requests that her attorney’s fees be paid on appeal, under Mississippi Rule of Appellate Procedure 38. Rule 38 states that “[i]n a civil case if the Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee.” M.R.A.P. 38. As the appellant, Deveaux’s reliance on Rule 38 is unfounded.

¶ 17. Deveaux alternatively.asks that she be awarded $4,783—one half of the amount awarded in the lower court, plus costs. “This Court has generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court.” Lauro v. Lauro, 924 So.2d 584, 592 (¶33) (Miss. Ct. App. 2006). Because we reverse the chancellor’s award of attorney’s fees at trial, we deny Deveaux’s request for attorney’s fees on appeal.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

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

      . We use fictitious names to protect the identity of minors.

      . The amount included $3,120 for insurance on the children, $3,000 toward Amy’s car, Annie’s college expense of $49,810, interest of $11,175, and the most recent prior judgment for arrearages in the amount of $23,682.66.

      . In the 1993 judgment, Deveaux and Allen agreed to share any future expenses for lessons.


text:
    William Ray PARKS a/k/a Bill Parks a/k/a William Parks, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01462-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied September 26, 2017
    Certiorari Denied February 1, 2018

      ATTORNEYS FOR APPELLANT: MATTHEW ALLEN BALDRIDGE, BENJAMIN FREEMAN ROBINSON'
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. William Parks claimed that he shot and killed Joshua Tarver in self-defense, but a Copiah County jury convicted him of heat-of-passion manslaughter. The circuit court sentenced Parks to twenty years in the custody of the Mississippi Department of Corrections, with two years suspended and two years of post-release supervision. On appeal, Parks argues that the jury should not have been instructed on heat-of-passion manslaughter, that the deputy medical examiner was not qualified: or competent to testify as to Tarver’s cause of death or about Tarver’s autopsy, that there was insufficient evidence to support his conviction, and that his conviction is against the overwhelming weight of the evidence. We find no reversible error; therefore, we affirm Parks’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Parks lived and operated an auto repair and restoration business in a rural area of Copiah County near Crystal Springs. Parks lived with his mother, Mary, near the entrance to the property, and his business was located farther back on the land. There were also two trailers on the property. In 2014, Parks hired twenty-three-year-old Tarver to assist him at his shop. Parks also allowed Tarver to live in one of the trailers on the property.

¶ 3. Parks was also employed by á contractor in the offshore drilling industry. Parks went to work offshore on November 13, 2014, and did not return home until November 27, 2014. While Parks was gone, around November 20, 2014, his shop was burglarized. Tarver notified the Copiah County Sheriffs Department of the burglary, and Deputy Alvin Starkey responded and met with Tarver and Mary. Starkey asked for a list of the missing property, but he never received it. On November 22, 2014, Starkey returned to Parks’s property and met with Mary. Tarver was gone, and the trailer in which he had been living-was empty. Starkey attempted to call Tarver to follow up, but Tarver never returned his calls. Parks met with Starkey on November 28, 2014, after he returned home from his work offshore.

¶4. On Saturday, December 6, 2014, Parks'was working hr his shop. The shop was not open for business, so Parks had all of its doors closed as he worked. Prom inside the shop, Parks heard a noise from the back of the property that sounded as though a vehicle was stuck in the mud. Parks took a .45-caliber handgun and went to investigate. Outside the shop, Parks met Mary, and Mary told him that Tarver was on the property. Parks had not seen Tar-ver since he returned home and learned of the burglary. Parks told Mary to call 911.

¶ 5. Parks testified in his own defense at trial. He testified that as he walked toward the noise, he saw a truck with a trailer stuck in the mud. He did not recognize the truck, but he saw tools in the trailer that he believed had been stolen from his shop. As Parks emerged from a wooded area, he began firing at the truck. Parks testified that -he was shooting at the truck’s fires because he wanted to-prevent it from leaving his property before law enforcement arrived. As he fired at the truck, Parks saw someone in his “side vision” running toward him. He turned and recognized that it was Tarver. Tarver announced, “Don’t shoot! It’s Josh.” Parks testified that he acknowledged Tarver and told him to “stop.” Park claims that he “shot at the ground -in front of [Tarver’s] feet to stop him.” Parks then turned back toward the truck and resumed shooting at the truck.

¶ 6. Parks claims that Tarver continued toward him, so he “turned around and looked-at [Tarver] dead in the eye” and fired another warning shot near Tarver. Parks testified that he sensed that the truck was about to get unstuck from the mud, so he turned and again resumed shooting at the truck. Parks claims that Tarver then continued running toward him, knocked him off his feet, and grabbed for the gun. Parks testified that while they “were tussling with each other ... on the ground,” the gun “went off.” Tarver was shot in the arm, and the bullet traveled through Tarver’s arm into his torso. Tar-ver fell to the ground.

¶7. Parks then stood up and fired the rest of his bullets at the truck as it left his property. He testified that he did not notice that Tarver had been shot until after the truck was gone. He then walked back to his house to check on his mother and to confirm that she had called 911. He returned to check on Tarver, who was dead, and then sat and waited for law enforcement to arrive.

¶8., When law enforcement arrived, Parks told them that he had shot Tarver. Officers looked for shell casings in the area but did not find any. They did find Tar-ver’s cell phone, which showed that Tarver had called Parks that day. Parks claimed that cell phone reception was spotty in his shop, and he denied that he had received Tarver’s calls. Judy Evans, the deputy medical examiner for Copiah County, arrived and found Tarver’s body face-down in the mud, She turned over the body to photograph it and declared Tarver dead at the scene.

¶ 9. Parks was indicted for first-degree murder. At trial, Deputy Michael Stogner of the Copiah County Sheriffs Department testified that dispatch received a call from Mary at 1:08 p.m. to report that Parks was shooting at Tarver, who, according to Mary, “wasn’t supposed to be on [Parks’s] land.” At 1:14 p.m., dispatch received a call from April Cline, who had been, in the truck. April reported that Tarver had been shot.

¶ 10. April and two others who had been in the truck—Bradley Cline (April’s son) and Matthew Tate—testified at trial. Bradley testified that, on December 5, 2014, Tarver asked him to help him move “some tools” the next day. Bradley knew that the tools were at Curtis McManus’s house, but he did not know where or why Tarver wanted to move them. On December 6, 2014, Bradley, April, Tate, Destiny Cline, and Blake Griffin all met Tarver at Mc-Manus’s house with April’s truck and trailer, and they loaded the tools into the trailer.

¶ 11. Tarver then drove the truck to Parks’s house. The others did not know Parks. Tarver spoke to Mary near the entrance to the property, and she said that Parks was working somewhere farther -back on the property. Tarver also tried to call Parks, but there is no evidence that Parks answered. Tarver drove the truck farther onto the property, and the truck and trailer became stuck in some mud. Tarver, Bradley, and Tate then got out of the truck and unhooked the trailer. They had just managed to get the truck unstuck and reconnect it to the- trailer when Parks emerged from a wooded area. Parks immediately began shooting at them. Bradley, April, and Tate all testified that Tarver ran toward Parks, identified himself, and pled with Parks to stop shooting. They did not see Parks shoot Tarver, but they saw Tarver lying on the ground after he was shot. April testified that Tarver “push[ed]” Parks just before he was shot. While Parks was shooting, Tate jumped into the truck and- began trying to drive away. Parks continued firing at them as they left the property.

¶ 12. Evans testified—over Parks’s objection—that the manner of death > was “homicide” and that “[t]he cause of death was [a] gunshot wound through the left arm [that] penetrated the torso.” Evans witnessed Tarver’s autopsy, which was performed by Dr. Erin Barnhart, a forensic pathologist. She testified that during the autopsy, Dr-. Barnhart showed her the wounds and the path of the bullet. On cross-examination, Parks’s counsel asked Evans how she could “tell the jury for a fact ... that ... Tarver did not die from a heart attack.” Evans answered that, at the crime scene, Parks himself had told her that he had shot Tarver, and she was “[a]lmost certain that nothing else killed [Tarver], a young man at 23.”

¶ 13. As noted above, Parks testified in his own defense at trial. He acknowledged firing “warning” shots in the direction of the truck and at Tarver, but he denied that he intended to shoot Tarver. Parks testified that the gun “went off’ as he and Tarver struggled, after Tarver reached for the gun. He also claimed that he knew that Tarver generally carried a .40-caliber handgun; however, neither Tarver nor anyone else in the truck was armed, displayed a weapon, or returned fire on Parks at any point during the encounter.

¶ 14. The jury found Parks guilty of manslaughter. The circuit court sentenced him to twenty years’ imprisonment, with eighteen to serve, two years suspended, and two years of post-release supervision. Parks filed a motion for a judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.

ANALYSIS

¶15. Parks raises three issues on appeal. He argues that the circuit court erred by granting the State’s jury instruction on heat-of-passion manslaughter. He also argues that Evans was not qualified or competent to testify about the cause of death or Dr. Barnhart’s autopsy findings. Finally, Parks claims that there is insufficient evidence to support the jury’s verdict or, in the alternative, that the verdict is against the overwhelming weight of the evidence. We find no reversible error and therefore affirm Parks’s conviction and sentence.

I. Manslaughter Instruction

¶ 16. At trial, Parks argued that the jury should be instructed on first-degree (deliberate design) murder only, not heat-of-passion manslaughter or second-degree (depraved heart) murder. However, the trial court ruled that there was evidence from which the jury could have returned a guilty verdict on those lesser offenses and, therefore, granted the State’s request for jury instructions covering them. On appeal, Parks argues that there was no evidence to support an instruction on heat-of-passion manslaughter and that “the jury may well have arrived at a compromise verdict.”

¶ 17. We review the denial of jury instructions for abuse of discretion only. Quinn v. State, 191 So.3d 1227, 1231-32 (¶ 18) (Miss. 2016). Our standard of review “is well-established”:

Jury instructions must be read as a whole to determine if the instructions were proper. Jury instructions must fairly announce the law of the case and not create an injustice against the defendant. This rule is summed up as follows: In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Davis v. State, 18 So.3d 842, 847 (¶14) (Miss. 2009) (citations, quotation marks omitted).

¶ 18. “[A]s a matter of trial strategy, defense counsel may wish to have the case put to the jury on an all or nothing basis, the jury’s alternatives being to find the defendant guilty [of murder] as charged in the indictment or acquitted.” Harveston v. State, 493 So.2d 365, 375 (Miss. 1986). However, under Mississippi law, the prosecution has the same ability as the defendant to request and obtain an instruction on manslaughter. Id. “The test for whether such an instruction should be granted is the same [regardless of who requests it]: is it warranted by the evidence?” Id. “Where the answer is affirmative, the defendant has no right to complain of the circuit court’s submission to the jury of a properly phrased [manslaughter] instruction.” Id. In addition, the Mississippi Supreme Court has held “in a number of cases and in a wide variety of contexts that, where there is in the record evidence legally sufficient to support a jury finding of guilty of murder, had the jury so found, the defendant will not be heard to complain that a manslaughter instruction was given.” Jackson v. State, 551 So.2d 132, 146 (Miss. 1989) (collecting cases).

¶ 19. As we explain below, there was sufficient evidence to support the jury’s verdict finding Parks guilty of manslaughter. That determination necessarily disposes of any claim that there was insufficient evidence to submit the issue to the jury. Parks’s primary argument is that there was no evidence of “[p]assion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time.” Jones v. State, 39 So.3d 860, 866 (¶ 36) (Miss. 2010) (quoting Mullins v. State, 493 So.2d 971, 974 (Miss. 1986)). However, there was evidence from which the jury could have found that Parks became angry and shot Tarver because he perceived that Tarver had brazenly returned to his property despite having previously stolen his tools. Although Parks claimed that he acted in self-defense, the evidence also supported an inference that he acted in the heat of passion. “[T]he question of whether the defendant has committed murder or manslaughter is ordinarily a question to be resolved by the jury.” Strahan v. State, 729 So.2d 800, 806 (¶24) (Miss. 1998). In this case, the issue was properly submitted to the jury.

II. Deputy Medical Examiner’s Testimony

¶ 20. At trial, Parks objected when the State asked Evans: “[Ajfter visiting the scene and making the observations that you made and witnessing the autopsy, were you able to determine the manner and cause of death?” He argued that the question “call[ed] for an expert opinion” and that Evans was “not qualified as an expert.” The court overruled the objection and allowed Evans to answer because it concluded that she was not testifying as an expert. On appeal, Parks argues that the ruling violated Mississippi Rule of Evidence 702 and his constitutional right “to be confronted with the witnesses against him.” We address these arguments in turn.

A. Rule 702

¶ 21. We begin by emphasizing that although it is the State’s burden to prove that “death resulted from a criminal' agency,” “[i]t is well established ... that proof of the cause of death in homicide cases may be by lay testimony.” Neal v. State, 386 So.2d 718, 719-20 (Miss. 1980). As our Supreme Court has explained, “[t]he criminal agency or cause of death is usually shown by witnesses who saw the homicide, or by circumstances sufficient to establish the crime to the- exclusion of every other reasonable hypothesis.” Gibson v. State, 503 So.2d 230, 233 (Miss. 1987) (quoting King v. State, 251 Miss. 161, 176, 168 So.2d 637, 643 (1964)). In such cases, neither an autopsy nor expert medical opinion is necessary. Id. The evidence concerning the circumstances of the death in this case was, like many homicide cases, sufficient to establish the-cause of death without expert testimony. Parks admitted that he shot Tarver, and Tarver was found dead at the scene with significant- blood loss from obvious bullet wounds in his arm and torso. !

¶ 22. Nonetheless, Parks timely objected to Evans’s testimony concerning the manner and cause of death. Evans was appointed deputy medical examiner by the county coroner. She is not a medical doctor but has an associate’s degree in medical laboratory technology, has completed forty hours of training in basic death investigation, and is required to complete twenty-four hours of continuing education each year. Parks argues that her opinion as to the manner and cause of death was improper expert testimony that should have been excluded under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which our Supreme Court adopted in Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss. 2003). In response, both during trial and on appeal, the State has agreed that Evans was not tendered or qualified as an expert. Thus, the issue really boils down to whether Evans’s testimony was permissible lay opinion testimony. See M.R.E. 701; Jones v. State, 678 So.2d 707, 710 (Miss. 1996).

¶ 23. Evans testified on direct examination that her opinions as to the manner and cause of death were based on her own observations of'Tarver’s body at-the scene and during the autopsy. We review the trial court’s decision to admit such lay opinion testimony for an abuse of discretion. See Davis v. State, 904 So.2d 1212, 1215 (¶ 7) (Miss. Ct. App. 2004). And although we question whether such non-expert testimony as to the cause of death is truly “helpful” to the trier of fact, M.R.E. 701(b), in a previous case this Court held that a trial court did not abuse, its discretion by allowing a coroner to give similar-opinion testimony that a homicide victim died of a- gunshot wound. See Tillis v. State, 176 So.3d 37, 47-48 (¶¶ 22-26) (Miss. Ct. App. 2014); see also Neal, 386 So.2d at 720 (pre-Rules case holding that a trial court did not err by allowing a funeral director/embalmer to testify “that he assumed (but did not positively know) that [the victim] died from the gunshot’ wound.”). Given our ruling in Tillis, wé hold that the trial judge in this case did not 'abuse his discretion by overruling Parks’s objection to the State’s question to Evans.

¶ 24. In addition, even if we thought that the ruling was an abuse of discretion, any error would have been harmless. Evans was clearly competent to testify, inter alia, that Tarver was found dead, having bled profusely from obvious gunshot wounds, and that Parks told her -that he shot Tar-ver. Parks’s only, objection is-, that she should not have been able to say that she determined that the cause of death was a gunshot wound. However, the evidence at trial was overwhelming that Tarver died from the gunshot wound inflicted by Parks.

B. Confrontation Clause

¶ 25. Parks also argues that his rights under the Confrontation Clause were violated because Evans testified about Dr. Barnhart’s autopsy finding as to the cause' of death. However, Parks did not preserve an objection on this ground. In fact, the testimony about which Parks now complains was elicited on cross-examination by his own attorney. Parks’s attorney specifically questioned Evans about Dr. Barnhart’s findings, and he did not mention the Confrontation Clause or move to strike Evans’s testimony about the autopsy. See Logan v, State, 773 So.2d 338, 346 (¶ 29) (Miss. 2000) (holding that objections on other grounds are not sufficient to preserve an alleged violation of the Confrontation Cláuse); Fleming v. State, 604 So.2d 280, 289 (Miss. 1992) (“It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial.”). “[A] criminal defendant who fails to object to evidence introduced by the State may still have the'issue reviewed on appeal for plain error. However, a criminal defendant who affirmatively introduces evidence himself may not then complain on appeal that he introduced that evidence.” Pascagoula-Gautier Sch. Dist. v. Bd. of Supervisors of Jackson Cty., No. 2014-CA-01774-SCT, 212 So.3d 742, 750 n.9, 2016 WL 6125423, at *6 n.9 (Miss. Oct. 20, 2016) (emphasis added; citation omitted). Accordingly, the issue is procedurally barred.

¶ 26. Procedural bar aside, the’testimony at issue would riot have risen to the level of plain error; rather, any error would have been harmless. As noted above, the evidence that Tarver died of a gunshot wound inflicted by Parks was overwhelming. See Burdette v. State, 110 So.3d 296, 304-05 (¶¶ 25-26) (Miss. 2013) (holding that- admission of a crime lab ballistics report in violation of the Confrontation Clause was not prejudicial because the evidence was clear that the defendant shot the victim with the gun in question). "

III. Sufficiency and Weight of the Evidence

¶27. In his final issue on appeal, Parks argues that he is entitled to a judgment of acquittal because there was insufficient evidence to support the jury’s verdict. In the alternative, he argues that he is entitled to a new trial because the verdict was against the overwhelming weight of the evidence.

¶ 28. When we address a challenge to the sufficiency of the evidence, “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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed,2d 560 (1979)). The issue is not whether we would have found Parks guilty based on the evidence at trial; rather, his conviction must be affirmed if there was enough evidence for “any rational trier of fact” to have returned a guilty verdict. Id. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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.” Id. at 844 (¶ 18). The evidence must be “[vjiewed in the light most favorable to the verdict,” and we will affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial.” Id. at (¶ 19).

¶29. Parks claims that the evidence does not support the verdict because there was no evidence to show that he shot Tarver in the heat of passion. He argues that his version of events was uncontrar dieted at trial and supported an acquittal on all charges because the shooting was in self-defense. We disagree. As discussed above, the evidence presented at trial supported a, jury instruction on heat-of-passion manslaughter, and .it was also sufficient to support the jury’s verdict. .

¶ 30. The evidence indicated that Parks believed that Tarver had burglarized his shop and then absconded with his tools, and Parks had not seen Tarver since the burglary. On December 6, Parks’s mother told him that Tarver was on his property looking for him. When Parks saw a truck stuck in the mud, he immediately opened fire. He then fired upon Tarver, even though he recognized him. Moreover, he continued shooting at Tarver even after Tarver identified himself and begged him to stop shooting. Parks claims that he acted in self-defense or shot Tarver by accident when the gun “went off’ during their scuffle, and the jury .was given appropriate instructions on the law of self-defense. However, the jury could have found otherwise based on the evidence presented.

¶ 31. Viewed in the light most favorable to the State, there was sufficient evidence to sustain the verdict. A rational trier of fact could have concluded that Parks believed Tarver had burglarized his shop and that Tarver’s return to the scene of the suspected1 crime aroused Parks’s anger and led him to kill Tarver. Accordingly, Parks is not entitled to a judgment of acquittal. In addition, Parks’s testimony did not clearly overwhelm the evidence supporting the jury’s guilty verdict; thus, it does not “sanction an unconscionable injustice” to allow the verdict to stand, Bush, 895 So.2d at 844 (¶ 18). Therefore, we cannot say that the circuit court abused its discretion by denying Parks’s motion for a new trial.

CONCLUSION

¶ 32. We affirm Parks’s conviction and sentence. The evidence was sufficient to support an instruction and conviction on the offense of manslaughter, and the verdict was not against the overwhelming weight of the evidence. In addition, under this Court’s precedent, the trial judge did not abuse his discretion by allowing the deputy medical examiner to testify as to the cause of death, and Parks waived any Confrontation Clause objection by failing to raise the issue at trial and by eliciting the testimony about which he now complains. Furthermore, even if the deputy medical examiner’s testimony should have been limited in some fashion, any error was harmless because the evidence was overwhelming that Tarver died from a gunshot wound inflicted by Parks.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED AND TWO YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Destiny is Bradley’s sister and Tate’s girlfriend. She and Tate were both eighteen years old at the time of trial. Blake is Bradley’s friend and was sixteen years old at the time of trial. Destiny and Blake were in the truck when Tarver was killed but did not testify.

      . McManus testified that about a week earlier, Tarver came' to stay with him for a few days and asked him to help pick up the tools at a house in Brookhaven. They drove to Brookhaven and loaded the tools into Mc-Manus’s covered trailer, where they remained until Tarver et al. moved them on December 6. McManus did not know who owned the house in Brookhaven, and he did not accompany Tarver et al. to Parks’s house on-December 6.


author: GRIFFIS, P.J.,

text:
    In the MATTER OF the ESTATE OF James J. CHANEY, Jr., Deceased: Lillian Hunt Chaney, Individually and as Executrix, and Alice Ann Chaney a/k/a Alice Ann Chaney McCleod, Appellants v. Josephine Chaney, Appellee
    NO. 2015-CA-01613-COA
    Court of Appeals of Mississippi.
    05/16/2017
    Rehearing Denied October 24, 2017
    Certiorari Denied January 25, 2018

      ATTORNEYS FOR APPELLANTS: J. WALKER SIMS FRED M. RIDOLPHI JR.
    ATTORNEY FOR APPELLEE: DANIEL OWEN LOFTON
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. This appeal comes from the probate of the estate of James J. Chaney Jr. During probate proceedings, a dispute arose as to whether James’s last will and testament had been revoked by a subsequent divorce and property-settlement agreement. In the dispute, James’s ex-wife and daughter claimed rights to real property located in Tennessee. James’s widow moved the court to transfer the real property out of the testate estate. The chancellor determined that the will had been revoked by implication and granted the motion for transfer, which led to- the real property’s distribution under the laws of intestacy. We find no error and affirm.

FACTS AND, PROCEDURAL HISTORY

¶2. James executed his last will and testament on June 5,1962. At that time, he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney.

¶ 3. James and Lillian were divorced on May 5,1969. They executed a joint property-settlement agreement, and in it, they agreed that Lillian would “relinquish any right ór claim "to the farm in Crockett [County]', Tennessee.”

¶ 4. On December 13, 1971, James married Josephine Chaney. James and Josephine moved from Memphis, Tennessee, to Olive Branch, Mississippi, where they lived until James’s death on September 2, 2011, No children were born of this marriage, and James had only one child—Alice.

¶ 5. On June 22, 2012, Lillian filed a petition to admit James’s purported will to probate in the Chancery Court of DeSoto County, Mississippi. Josephine contested the validity of the will and moved to transfer the farmland out of the testate estate. After a hearing on the' motion, the chancellor issued an opinion, where he applied the factors of Rasco v. Estate of Rasco, 501 So.2d 421 (Miss. 1987), and found that the will was revoked by implication.

¶ 6. Lillian and Alice filed a posttrial motion to amend the judgment, to amend findings of fact, and for reconsideration or a new trial. The motion was denied. Lillian and Alice then filed their notice of appeal, and this case was deflected to this Court. This appeal considers two issues—whether the Chancery Court of DeSoto County lacked subject-matter jurisdiction over the real .property, and whether the chancellor erred when he ruled the will was revoked by implication.

STANDARD OF REVIEW

¶7. “Subject matter jurisdiction is a question of law subject to de novo review.” Wiggins v. Perry, 989 So.2d 419, 428 (¶ 1) (Miss. Ct. App. 2008). “In those instances where there is a conflict in the evidence, it is the chancellor’s duty, sitting as [the fact-finder], to assess the evidence and determine what weight and worth to give it.” Hinders v. Hinders, 828 So.2d 1235, 1244 , (¶ 28) (Miss. 2002) (citation omitted), “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this court may not intercede simply to substitute our collective opinion for that of the chancellor.” Id,, (citing Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss. 2000)).

ANALYSIS

I. Subject-Matter Jurisdiction

¶ 8. Lillian and Alice argue that the Chancery Court of DeSoto County lacked subject-matter jurisdiction to grant Josephine’s motion to remove the real property, located in Crockett County, Tennessee, from the testate estate. They claim that Mississippi courts have no jurisdiction over the subject matter of a suit where ■title to land in another state is contested. They also contend that there was an ancillary probate of James’s will pending in the Chancery Court of Crockett County, Tennessee. Lillian and Alice urge this Court to vacate the chancellor’s order for lack of subject-matter jurisdiction over the Tennessee real property.

¶ 9. The Mississippi Supreme Court has defined subject-matter jurisdiction as “the power of the court to hear and determine cases in the general class to which the particular case belongs.” In re Will of Case, 246 Miss. 750, 150 So.2d 148 (1963). Under Mississippi law,. “[t]he chancery court [has] full jurisdiction in ... testamentary [matters].” Miss. Const, art. 6, § 159(c). Moreover, a chancellor has discretion “to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” M.R.C.P. 57(b)(3)(C).

¶ 10. Lillian invoked the subject-matter jurisdiction of the Chancery Court of De-Soto County when she sought the admission of James’s will to probate. It appears that Lillian’s ownership interest in the Crockett County, Tennessee property would stand only if the will was accepted into probate, determined to be the valid last will and testament of James, and enforced as such. Otherwise, Lillian has no claim to the Tennessee property.

¶ 11. At his death, James was a resident of DeSoto County. Lillian offered his will for probate as the last will and testament of a Mississippi resident. There was no issue over James’s domicile. We find that the chancellor' had jurisdiction over this testamentary matter.

¶ 12. In addition, Josephine’s motion to. sever the property from the testate estate was brought before the court as a request for a declaratory judgment. Pursuant to Rule 57 of the Mississippi Rules of Civil Procedure, “[t]he court may refuse to render or enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” M.R.C.P. 57(a) (emphasis added). Here, the chancellor, in his discretion, granted Josephine’s motion for a declaratory judgment and rendered a .finding that the will was revoked by implication.

¶ 13. The chancellor’s simultaneous grant of a declaratory judgment on the motion and entry of a final judgment, as to the validity of James’s will, terminated the controversy surrounding James’s • estate. After a-hearing on the merits, a thorough review of the facts, and an application of the Basco factors; the chancellor issuedhis opinion that James intended to revoke his predivorce will. The chancellor entered a final judgment based on his opinion. Upon review, we find there was substantial evidence to support the chancellor’s decision. This Court cannot find reversible error based on this challenge to the DeSoto County Chancery Court’s subject-matter jurisdiction. Therefore, we find subject-matter jurisdiction was proper.

II. Revocation of the Will by Implication

¶ 14. Lillian and Alice next argue that the chancellor erred when he found that James’s will was revpked by implica-tipn. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear .and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.

¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator .... destroying, canceling, or obliterating the [will], or causing it. to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing .... ” Miss. Code Aim. § 91-5-3 (Rev. 2013). In Rasco, the supreme court recognized that a will may be -revoked by various circumstances, not specified within the statute. Rasco, 501 So,2d at, 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a predivorce will and.a subsequent property-settlement agreement are in conflict. Hinders, 828 So.2d at 1235 (¶ 1). Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So.2d at 423.

¶ 16. When presented with this issue, a chancellor should “question ... whether the testator intended ... [the] settlement [to] operate as ... an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further, “[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[Generally a divorce accompanied by a property settlement agreement^] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’ ” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).

¶ 17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So.2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.

¶ 18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predi-vorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.

¶ 19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.

¶ 20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James' intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property-settlement agreement speaks for itself, and James’s intentions are clear.

¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the. parties severed ties many years before this action.

¶ 22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So.2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So.2d at 1240 (¶ 15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.

¶ 23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.

¶ 24. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, P.J.,

text:
    Susan HARRIS, Appellant v. Thomas L. HARRIS, Appellee
    NO. 2016-CA-00532-COA
    Court of Appeals of Mississippi.
    05/16/2017
    Rehearing Denied August 22, 2017

      ATTORNEY FOR APPELLANT: THOMAS L. TULLOS
    ATTORNEYS FOR APPELLEE; WILLIAM B. JACOB JOSEPH A. KIER-ONSKI JR. DANIEL P, SELF JR.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Thomas L. Harris (“Leon”)—alleging that a material change in circumstances had occurred since the judgment of divorce from his former spouse, Susan Harris—filed a complaint against Susan, seeking a reduction or termination of his alimony obligation that he agreed to in the property-settlement agreement (Agreement) that was approved in the judgment of divorce. Rather than reducing or terminating Leon’s alimony obligation, the chancellor held that Susan’s Social Security benefits that were derivative of Leon’s Social Security earning credits would be credited against Leon’s monthly alimony obligation. Susan now appeals, and argues that the chancellor erred when he credited the Social Security payments' against Leon’s alimony obligation and modified the Agreement without requiring Leon to prove that a material change in circumstances had occurred. We find that the chancellor did not err as to either issue; consequently, we affirm.

FACTS

¶2. Susan and Leon were married on July 14, 1979. They sought an irreconcilable-difference divorce, and entered into an Agreement, wherein Leon agreed to pay $2,755 per month to Susan as periodic alimony. The Agreement was incorporated into the divorce, which became final on February 25, 2011. The Agreement did not address any contingency with respect to the alimony other than that it would end at Susan’s remarriage or death.

¶3. After the divorce, Susan filed for and obtained derivative Social Security retirement benefits in the amount of $1,035 per month based on Leon’s earnings record with the Social Security Administration. On January 21, 2015, Susan filed a complaint to review the health provision of the Agreement. On March-5, 2015, Leon filed his answer, which contained a motion to dismiss and a counterclaim to reduce or terminate his alimony payments in light of the fact that Susan had begun drawing Social Security benefits off of his earnings record. ,

¶4. On March 8, 2016, the chancellor granted Leon’s Rule 12(b)(6) motion and held a hearing on his counterclaim. The parties stipulated that Susan was receiving $1,035 per month in Social Security benefits that were derivative of Leon’s work history. Leon argued that he should be given credit for the $1,035 being paid to Susan by the Social Security Administration. Leon maintained that he should be required to pay Susan only an additional $1,720 per month, since she was already drawing $1,035 per month from Social Security as a result of his earnings record. The chancellor agreed and entered judgment in his favor. Susan now appeals.

DISCUSSION

¶ 5. This Court in Russell acknowledged that the standard of review in domestic-relations matters is “extremely limited”:

We will not disturb a chancellor’s findings unless the findings were manifestly wrong or clearly erroneous or unless the chahcellor applied an erroneous legal standard. Id. Where the record contains substantial evidence to support the chancellor’s findings of fact, we will not reverse his decision. Id.

Russell v. Russell, 148 So.3d 1052, 1053 (¶ 4) (Miss. Ct. App. 2014) (quoting Phillips v. Phillips, 45 So.3d 684, 692 (¶23) (Miss. Ct. App. 2010)).

¶ 6. Susan asserts that the chancellor erred in modifying the Agreement before requiring Leon to show a material change in circumstancés. Susan asserts that the Agreement is a binding contract that is devoid of fraud, unconscionability, or any other factors1 which would render it an invalid contract; thus, the chancellor erred by disturbing the Agreement’s terms. She cites Peebles, in which this Court -held that -a property-settlement agreement—like any other contract—is “an agreement made between the parties [and] should ordinarily be enforced, and the court should take a dim view of efforts to modify or reform the parties’ settlement agreement.” Peebles v. Peebles, 153 So.3d 728, 732 (¶ 17) (Miss. Ct. App. 2014) (quoting McFarland v. McFarland, 105 So.3d 1111, 1119 (¶23) (Miss. 2013)). Susan also cites Lestrade,-in which this Court held that property-settlement agreements “entered into by divorcing parties and incorporated into the' divorce decree are not subject to modification, except in limited situations." Lestrade v. Lestrade, 49 So.3d 639, 642 (¶ 10) (Miss. Ct. App. 2010).

¶ 7. In support of her argument that the chancellor erred when he granted Leon credit for the Social Security benefits that she was receiving without first requiring Leon to show that a material change in circumstances had occurred since entering into the Agreement, Susan cites this Court’s decision in Cockrell, which provides;

A payor spouse’s alimony obligation may be modified or. even terminated if the spouse is able to show a material change of circumstances has occurred since the original divorce decree. West v. West, 891 So.2d 203, 212 (¶21) (Miss. 2004) (citation omitted). However, “the material change must be one that was not reasonably anticipated -at the time of the original decree.” Clower v. Clower, 988 So.2d 441, 444 (¶ 7) (Miss. Ct. App. 2008) (citing Holcombe v. Holcombe, 813 So.2d 700, 703 (¶ 11) (Miss. 2002)). A material change in the income and expenses of both parties should be considered in determining any modification of periodic alimony. Austin v. Austin, 766 So.2d 86, 90 (¶ 19) (Miss. Ct. App. 2000) (citing Armstrong [v. Armstrong ], 618 So.2d [1278,] 1280 [ (Miss. 1993) ]).

Cockrell v. Cockrell, 139 So.3d 766, 770 (¶ 12) (Miss. Ct. App. 2014). Susan contends that Leon cannot show a material change in circumstances, as his health status has not changed, and he is still working as a bank president like he was at the time of the divorce. Susan argues that even if her receipt of Social Security benefits constitutes a material change, Leon should have reasonably anticipated at the time of the divorce that she would begin collecting Social Security benefits in a few years, since Leon was sixty-one years old and Susan was sixty years old at that time. She also points out that at the time the two entered into the Agreement, Leon could have reasonably anticipated the need for a clause addressing Susan’s probable receipt of Social Security benefits in a few years.

¶ 8. In response, Leon submits that neither Peebles nor Lestrade is proper authority for this issue because both cases address modification of ■property division, not modification of alimony. Leon references this Court’s decision in Clower, which provides that “[p]eriodic alimony can be modified by increasing, decreasing, or terminating the award due to a material change in circumstances.” Clower, 988 So.2d at 444 (¶7). Leon asserts that he was not required to show a material change in circumstances because he was not attempting to modify his alimony payment; rather, he maintains that he was only seeking clarification from the court as to how to make his alimony payment, because the Agreement is devoid of language specifying from which source those payments may be derived.

¶ 9. Leon ' cites Spalding v. Spalding, 691 So.2d 435, 439 (Miss. 1997), in support of his argument that the chancellor was correct in finding that he should be credited for Susan’s receipt of the Social Security benefits derived from his work record. The facts of Spalding are similar to those in the matter at hand. In Spalding, the appellant insisted that “the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to [the appellant],” and asserted that “[the appellee] failed to meet his burden of proof regarding a material change in circumstances.” Id. The chancellor, in considering whether derivative Social Security benefits could be credited against alimony, relied on the Mississippi Supreme Court’s decision in Mooneyham v. Mooneyham, 420 So.2d 1072, 1073-74 (Miss. 1982), wherein the court held that Social Security payments derivative from the child-support payor should be credited against the payor’s child-support obligation. Spalding, 691 So.2d at 438 (citing Mooneyham, 420 So.2d at 1073-74). The Mississippi Supreme Court in Spalding affirmed the chancellor’s application of Mooneyham, finding that, in light of Moo-neyham’s holding that “Social Security payments derivative from the child[-]support payor should be credited against the child support,” it could not “fathom any valid reason or reasonable logic” as to why the rule of law would be any different with respect to periodic alimony rather than child support. Spalding, 691 So.2d at 439 (citations omitted).

¶ 10. We agree with Leon that Spalding is dispositive of the issue presented. Therefore, we affirm the decision of the chancellor. The Agreement between Leon and Susan did not specify or qualify the source of income for payment of the alimony obligation. It simply required that Leon pay the amount to Susan. Crediting Social Security payments derivative from Leon against his alimony obligation, as set forth in the Agreement, is not a breach of the terms of that Agreement. As Leon points out, Susan is receiving the same amount of alimony that she is entitled to under the Agreement, and she would not be receiving the Social Security payments unhinged from Leon’s Social Security earnings record. Thus, we find that the chancellor did not abuse his discretion in failing to require Leon to show a material change in circumstances because Leon’s obligation to pay alimony in the amount set forth in the Agreement remains the same.

¶11. THE JUDGMENT OF THE NEWTON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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