author: BARNES, J., GRIFFIS, J.,

text:
    Deborah WEEKS, Appellant, v. Roland WEEKS, Appellee.
    No. 2006-CA-01287-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.

      John Robert White, Pamela Guren Bach, Ridgeland, attorneys for appellant.
    Henry Laird, Gulfport, attorney for ap-pellee.
   BARNES, J.,

for the Court.

¶ 1. The motion for rehearing is granted. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. Roland Weeks and Deborah Weeks return for their second appeal of their marital dissolution. In the first appeal, this Court remanded the case to allow the chancellor to make findings regarding Deborah’s requests for periodic alimony, medical insurance, and attorney’s fees. Deborah now appeals from the chancellor’s judgment after remand.

¶ 3. Deborah contends that the chancellor erred (1) in finding that Roland was required to pay a fixed rate for Deborah’s health insurance, (2) in finding that Roland had complied with a court order requiring him to maintain a life insurance policy for Deborah, (3) in finding that Roland has complied with his child support obligations, (4) in refusing to order retroactive modification of child support, (5) in refusing to modify his award of alimony, and (6) in failing to award Deborah’s attorney’s fees for her appeal and the proceedings after remand.

¶ 4. Finding error, we affirm in part and reverse and remand in part.

FACTS

¶ 5. Deborah was granted a divorce from Roland on April 4, 2001. Since then, they have been in constant litigation over the financial aspects of their divorce. Deborah received her proceeds from the division of the marital estate in 2003.

¶ 6. In Weeks I, this Court upheld the chancellor’s division of assets and remanded the case for the chancellor to award periodic alimony to Deborah. Weeks I, 832 So.2d at 588(¶ 21). We also ordered the chancellor to consider whether Roland should be required to pay for Deborah’s medical insurance as part of alimony. Id. at 588(¶ 22). In addition, we instructed the chancellor to analyze the factors found in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) for a determination of whether Deborah was entitled to an award of attorney’s fees. Weeks I, 832 So.2d at 588(¶ 24).

¶ 7. After remand, the chancellor held a hearing on these issues and entered a judgment awarding Deborah three thousand dollars per month as periodic alimony. Roland was also ordered to pay $516 per month for Deborah’s health insurance premium. Further, Roland was ordered to maintain life insurance policies on himself in the amount of three hundred thousand dollars each, with Deborah and their daughter, Alex, named as irrevocable beneficiaries. The chancellor reviewed the McKee factors and held that Deborah should be awarded twenty-five thousand dollars in attorney’s fees from Roland, subject to a credit for seventy-five hundred dollars that Roland had previously paid. The attorney’s fees were intended to be only for the divorce proceedings, rather than for any of the proceedings after remand. The chancellor found that both Deborah and Roland possessed net assets worth over one million dollars after the division of the marital estate.

¶ 8. The chancellor’s judgment also addressed Deborah’s petition for modification of custody and child support, which was based on events that occurred following the first appeal. The parties agreed that they would have joint legal custody of Alex and that Deborah would have primary physical custody. The chancellor found that Roland’s monthly child support obligation by statute was $1,890 and that he would also be responsible for all of Alex’s college expenses, including any “sorority dues and fees, as well as her motor vehicle and insurance, health insurance, meal plan, and books.” Roland’s obligation to pay was premised upon Alex attending an instate college. The chancellor held that any difference in the amount between the $1,890 per month and the actual amount of money that Roland expends in a given month for Alex’s education should go directly to Alex to use for other college expenses. The chancellor also ordered that “[djuring the summer months, should Alex reside with [Deborah], then Roland will pay to [Deborah] as child support the pro rata share of $1,890 per month child support.”

¶ 9. Following the chancellor’s judgment after remand, numerous motions were filed by the parties. The chancellor held a five-day hearing on the pending motions and issued a final order on June 22, 2006. The chancellor denied Deborah’s petitions to modify Roland’s obligations for alimony and child support. The chancellor declined to award additional attorney’s fees to either party. The chancellor also denied Deborah’s petitions to hold Roland in contempt for failure to pay child support, health and life insurance premiums, and life and automobile insurance premiums for Alex.

¶ 10. Additional facts will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Health Insurance Premium Rate

¶11. Deborah argues that the chancellor’s order requiring Roland to pay a fixed amount of $516 per month for her health insurance is in error. Deborah contends that Roland should be responsible for payment of any increases in the amount of her premium, rather than for only the fixed amount of $516.

¶ 12. In Deborah’s first appeal to this Court, we held that payments for medical insurance could be awarded as a type of alimony and remanded the case for the chancellor to consider the issue of Deborah’s medical insurance. In the judgment after remand, the chancellor ruled: “[Deborah] currently has enrolled in the Mississippi Insurance Risk Pool at a monthly premium of $516.00. Roland will pay this for [Deborah] as a part of his alimony obligation in addition to those sums previously designated as periodic alimony.” The chancellor further held that Roland was not responsible for any deductibles or co-payments related to Deborah’s future medical treatment.

¶ 13. Following the judgment after remand, Deborah’s insurance premium increased to $639 per month, but Roland refused to pay anything above the $516 per month. Deborah challenged Roland’s interpretation of the judgment by filing a motion to clarify. In his response, Roland insisted that the judgment made clear he was required to pay only $516 per month and no more. On June 2, 2006, the chancellor entered a ruling from the bench regarding the health insurance premium: “The judgment on remand ordered that Roland pay a set amount which was based on what the premium was at that time. He was never ordered to pay the insurance premium, per se.” The chancellor’s final order held that Roland was “required only to pay $516.00.”

¶ 14. Deborah argues that the judgment after remand is ambiguous because it is unclear whether Roland is required to pay the exact amount of her monthly insurance premium or the fixed amount of $516. She now calls upon this Court to interpret the meaning of the chancellor’s orders. In doing so, we conduct a de novo review. This Court has held:

[When] the resolution must be reached via the interpretation of a divorce judgment, our task is to view the terms of the document, find their legal meaning, and adjudge their enforceability. Webster v. Webster, 566 So.2d 214, 216 (Miss.1990). The familiar manifest error/substantial evidence rules have no application to such questions of law. Id. Consequently, our review is de novo, provided only that we read the entire settlement agreement/divorce judgment and in the best light possible, attributing to its provisions the most coherent and reasonable scheme they may yield. Id. However, we remain cognizant that our authority is circumscribed in that we may not provide through the pretense of interpretation that not directly or impliedly a part of the text we interpret. Id.

Meek v. Warren, 726 So.2d 1292, 1293-94(¶ 3) (Miss.Ct.App.1998). We must look to the judgment as a whole to determine the intent of the chancellor, as we have explained before:

“When questions of meaning arise” as to a judgment, “answers are sought by the same rules of construction which appertain to other legal documents.” Estate of Stamper; Stamper v. Edwards, 607 So.2d 1141, 1145 (Miss.1992). “The determinative factor is the intent of the court ... as gathered ... from all parts of the judgment itself.” 46 Am.Jur.2d Judgments § 94 (1994). If the language of a judgment is unambiguous, construction is improper. Id.

Balius v. Gaines, 908 So.2d 791, 798(¶ 16) (Miss.Ct.App.2005).

¶ 15. One purpose for previously remanding this case was to allow the chancellor to consider the issue of medical insurance when determining the amount of Deborah’s periodic alimony. As noted above, the chancellor’s judgment after remand stated that “Roland will pay this [$516 monthly for insurance premiums] for [Deborah] as a part of his alimony obligation in addition to those sums previously designated as periodic alimony.” (Emphasis added). Reviewing the order de novo and looking to the order as a whole, we determine that the chancellor intended for Roland to pay Deborah $516 each month for her insurance premiums.

¶ 16. The order required Roland to pay for vehicle insurance and health insurance for his daughter, Alex. However, the chancellor did not set a specific amount per month for those premiums. Therefore, it is clear that Roland is to pay whatever those insurances cost — -including any increases in cost. Had the order been intended to do the same for Deborah’s medical insurance premiums, it logically would have simply stated that “Roland is required to pay for Deborah’s monthly insurance premiums.” Furthermore, the chancellor’s final order explicitly stated that Roland was to pay $516 monthly, rather than the fluctuating amount of Deborah’s actual premiums.

¶ 17. We also note that this is not a case where the parties entered into an agreement pursuant to an irreconcilable differences divorce. In such a case, the chancellor would have been called upon to interpret the meaning of a provision drafted by the parties themselves. In this case, the chancellor drafted the provision in dispute. Therefore, even if the provision were ambiguous, as the dissent finds, this Court knows of no one more competent to say what was meant by the provision than the chancellor who wrote it. Any ambiguity was resolved when the chancellor emphatically stated that he intended for Roland to pay only $516 per month for Deborah’s health insurance premiums.

¶ 18. Accordingly, we find that the chancellor’s original intent was to require Roland to pay the fixed amount of $516 per month. There is no merit to Deborah’s contention of error.

2. Compliance with Life Insurance Requirement

¶ 19. Deborah contends that Roland did not comply with the judgment after remand because he has not provided her with proof that he has maintained a life insurance policy in the amount of three hundred thousand dollars, with her as an irrevocable beneficiary. The chancellor ordered Roland to maintain the policy as a form of alimony, but he did not require Roland to regularly provide Deborah any evidence that the premiums were being paid.

¶ 20. On this issue and the remaining assignments of error in this appeal, the scope of our review is limited by the substantial evidence/manifest error rule. Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004). “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064(¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

¶ 21. In the chancellor’s judgment after remand, Roland was given the option of making Deborah a co-beneficiary of an existing Hartford policy along with Roland’s current wife, Sharon, or creating a separate policy for Deborah. The chancellor explained:

Roland reports ... that he has a $1,100,000.00 policy with Hartford naming Alex as beneficiary of $300,000.00, and Sharon as beneficiary of the remainder. The Court finds that Alex should be made the irrevocable beneficiary of that $300,000.00. Additionally, the Court finds that [Deborah] should be made the irrevocable beneficiary of an equal amount. Accordingly, the court finds that Roland should, and he hereby is, directed, as an additional item of alimony, to either obtain a life insurance policy on his life naming [Deborah] the irrevocable beneficiary thereof in the sum of not less than $300,000.00, or making [Deborah] an irrevocable beneficiary of the Hartford policy.

Roland testified that he named Deborah as a beneficiary of a three hundred thousand dollar policy in 2004 and that he has continued to make payments on the policy.

¶ 22. In a motion to reconsider, Deborah requested that the chancellor require Roland to give her proof of the life insurance policy. The chancellor declined to do so. The chancellor’s final order stated that Roland was not in contempt of any order requiring him to pay life insurance premiums for Deborah and Alex because there was unrebutted evidence that Roland paid the required life insurance premiums. Roland contends that the burden of proof was on Deborah to show that Roland did not maintain a life insurance policy with her as an irrevocable beneficiary.

¶ 23. A party can be held in contempt for noncompliance with a judgment issued by the chancellor. Miss.Code Ann. § 9-1-17 (Rev.2002). The failure of a pai'ty to comply with a divorce decree is prima facie evidence of contempt. Rainwater v. Rainwater, 236 Miss. 412, 421, 110 So.2d 608, 611 (1959). The burden of proof in a contempt action is on the mov-ant. Allred v. Allred, 735 So.2d 1064, 1068(¶ 15) (Miss.Ct.App.1999). Further, the contempt must be shown by clear and convincing evidence. Id. at 1067(¶ 10). When the moving party has shown that the respondent has failed to comply with the judgment, the burden shifts to the respondent to show that his “failure to comply with a court’s decree was not willful or intentional and without fault.” Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975).

¶ 24. The issue before us is whether the chancellor erred in finding that Roland had complied with the court’s previous order that mandated he maintain Deborah as an irrevocable beneficiary. Notably, it is undisputed that the order did not require that Roland provide proof of coverage to Deborah. It is impossible for Roland to be held in contempt for something he was never ordered to do in the first place. Furthermore, the Mississippi Rules of Civil Procedure allow Deborah to compel production of the requisite documents. To date, she has not done so.

¶ 25. Our rules provide Deborah with the necessary means to prove that Roland has not complied with the court’s order. Deborah has yet to provide any proof that Roland has not complied. As Deborah was the party seeking a finding of contempt, the burden was on her to prove Roland’s non-compliance. Therefore, the court did not err in declining to hold Roland in contempt, and this contention of error is without merit.

3. Child Stippoii Compliance

¶ 26. Deborah claims that Roland should have been held in contempt for failing to meet his child support obligations. Specifically, she argues that the child support obligation in the chancellor’s order does not clearly set out Roland’s responsibility and that, “to the extent that Roland’s child support obligations can be established from the chancellor’s orders, there is insufficient evidence in the record to support his finding that Roland exceeded his obligations....”

¶ 27. In the judgment after remand, the chancellor found that Roland’s statutory amount of child support equaled $1,890 per month. Because Roland’s income exceeded fifty thousand dollars per year, the chancellor also found that it was appropriate to deviate from the statutory amount and require Roland to pay for “100% of the college expenses of his child, based upon her attending an in-state institution, including sorority dues and fees, as well as her vehicle and insurance, health insurance, meal plan and books.”

¶ 28. However, the chancellor did not award these educational expenses in addition to the statutory amount but, instead, allowed Roland to subtract any amounts he expended for Alex’s education from the statutorily-required $1,890 per month. The chancellor found that:

Alex shall be responsible for providing her father with the necessary tuition and other college costs and expenses in a timely manner, and Roland shall have the option of paying the university directly or paying Alex. The difference, if any, between what Roland expends for Alex’s education and this $1,890.00, shall be paid to Alex to defray other college expenses. During the summer months, should Alex reside with [Deborah], then Roland will pay to [Deborah] as child support the pro rata share of $1,890.00 per month child support.

¶ 29. For the 2004-2005 school year, Roland made these educational payments directly to the university. During the 2005-2006 school year, pursuant to a motion to reconsider filed by Roland, the chancellor allowed Roland to make his child support payments in two semi-annual installments of $11,340 paid directly to Deborah, leaving Deborah responsible for any of Alex’s educational expenses above that amount. Deborah argues that the chancellor’s award of child support is ambiguous and allows Roland to dictate how much he pays her in child support.

¶ 30. When asked by his attorney whether he paid Deborah child support over the summer, Roland responded: “In the first year, I did. I paid her $303 a month for three months.” When asked how he arrived at that figure, Roland explained that he:

estimated the [annual cost of Alex’s school expenses] and told [Deborah] that [he] would adjust it up, if necessary, at the end of the year. [He] calculated what it would cost for these items that [he] was paying that was [sic] counted as child support, determined that left [after subtracting the total from $22, 680, the statutorily-required child support] would be $303 for three months, [and] paid [Deborah] that amount.

¶ 31. Deborah notes that even Roland’s attorney had a different interpretation of the chancellor’s order. Regarding the “pro rata” language of the judgment after remand, Roland’s attorney stated in a letter:

During the summer months when Alex is not in college, when she resides with [Deborah], then this $1,890 per month shall be paid to [Deborah] for each month that Alex stays with [Deborah], If Alex stays with [Deborah] for a portion of the month, then this sum shall be prorated based on the [fraction] of the month in which Alex stays with [Deborah].

Deborah argues that:

Roland’s interpretation ... merely involves subtracting the monthly child support owed from an estimated amount of money he expected to spend, without any reference to the time Alex actually stayed with her mother, giving him carte blanche to claim whatever expenditures he desired against the support payable to [Deborah] during the summer months as college expenses, just as he could during the months Alex was in school.

¶ 32. “In a contempt action involving unpaid child support, when the party entitled to receive support introduces evidence that the party required to pay the support has failed so to do, a prima facie case of contempt has been made.” Fancher v. Pell, 831 So.2d 1137, 1143(¶ 30) (Miss.2002) (citing Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989)). The burden then shifts to the paying party to prove a defense by clear and convincing evidence. Id. “Whether a party is in contempt is left to the chancellor’s substantial discretion.” Id. (citing Shelton v. Shelton, 653 So.2d 283, 286 (Miss.1995)).

¶ 33. The chancellor’s order in this case makes it virtually impossible for Roland to be held in contempt, even if Deborah were to receive no child support payments at all. According to Roland’s own testimony, he estimated what his costs for Alex’s education would be and gave Deborah what was left over during the summer months. Thus, Roland was able to determine how much he would spend on Alex’s education. The more he spent, the less he would have to pay Deborah as child support.

¶ 34. The Mississippi Supreme Court “has held that although ‘college expenses are not technically “child support,” a parent may be ordered by the court to pay them.’ ” Id. at 1141(1123) (quoting Lawrence v. Lawrence, 574 So.2d 1376, 1382 (Miss.1991)). However, payments toward education are seldom used to offset child support “as they do not diminish the child’s need for food, clothing and shelter.” Id. at 1142(¶ 23) (quoting Varner v. Varner, 588 So.2d 428, 435 (Miss.1991)). Here, the record shows that Alex lives with Deborah when she is home from school during the summer and various weekends throughout the school year. Thus, Deborah must maintain the family home so that it is available when Alex returns home from school. Throughout the year when Alex is not at school, and especially during the summer months, Deborah is responsible for food, clothing, and shelter for Alex.

¶ 35. The structure of the chancellor’s child support order allows Roland to pay Deborah far less than the statutory child support of $1,890 per month during the summer. We find this to be in error and reverse and remand this issue for the chancellor to reconsider the appropriate amount of child support that should be paid, consistent with the terms of this opinion.

U. Retroactive Modification of Child Support

¶ 36. Deborah next contends that the chancellor abused his discretion by denying a retroactive modification of child support. Specifically, she claims that the chancellor denied the request based on the fact that Alex had reached the age of twenty-one at the time of the hearing and that all court-ordered child support had thus ceased. Since Alex was under the age of twenty-one at the time Deborah filed for modification of child support, she argues that the chancellor’s denial was in error.

¶ 37. “To obtain a modification in child support payments, there must be a ‘substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.’ ” McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994) (quoting Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss.1992)). To determine whether a material change has occurred, courts examine the following factors: (1) increased needs of older children; (2) an increase in expenses; (3) inflation; (4) a child’s health and special medical or psychological needs; (5) the parties’ relative financial condition and earning capacity; (6) the health and special needs of the parents; (7) the payor’s necessary living expenses; (8) each party’s tax liability; (9) one party’s free use of a residence, furnishings, or automobile; and (10) any other relevant facts and circumstances. See Tedford v. Dempsey, 437 So.2d 410, 418-22 (Miss.1983).

¶ 38. In the chancellor’s final order, he found that:

There was no showing of a substantial and material change in circumstances to support a claim for increased child support or alimony. [Alex] is now over 21 years of age, and any further Court-ordered child support has terminated. What Mr. Weeks chooses to do regarding child support in the future is a matter for his sole discretion.

Deborah argues that the chancellor disregarded the evidence of Alex’s increased expenses and focused solely on the fact that Alex had already reached the age of twenty-one by the time of the hearing.

¶39. The order mentions that child support ended once Alex reached age twenty-one, but we do not find, as Deborah argues, that the chancellor disregarded the evidence before him and based his decision solely on Alex’s age. Furthermore, a chancellor is required to make specific findings only when he deviates from the statutory guidelines. See Miss.Code Ann. § 43-19-101(2) (Rev.2004); Knutson v. Knutson, 704 So.2d 1331, 1335 (¶¶ 25-27) (Miss.1997). The chancellor did not specifically list the factors he considered to determine whether a substantial change in circumstances existed, and his order does not state that the basis of that decision was Alex’s age at the time of the hearing. Additionally, Deborah did not request findings of fact and conclusions of law, as was her option under Rule 52 of the Mississippi Rules of Civil Procedure. See Crayton v. Burley, 952 So.2d 957, 959(¶ 9) (Miss.Ct.App.2006).

¶ 40. It was within the chancellor’s discretion to deny a retroactive increase in the child support payments. We do not find that the chancellor’s ruling constitutes manifest error or an abuse of his discretion. Therefore, this assertion of error is without merit.

5. Refusal to Modify Alimony

¶ 41. Deborah next claims that the chancellor erred when he refused to modify the previous award of three thousand dollars per month in alimony. Specifically, she claims that changes arising subsequent to the chancellor’s judgment after remand have made the award inadequate, thus creating a need for modification. However, the chancellor found that there was no substantial or material change in circumstances to require a modification. Deborah states that it was an abuse of the chancellor’s discretion to disregard changes that occurred after the hearing on remand and to not re-examine the factors found in Armstrong v. Armstwng, 618 So.2d 1278, 1280 (Miss.1993) before denying her petition to modify. She asserts that the chancellor’s denial was based on his incorrect factual determinations regarding her health, ability to work, and ability to make substantial withdrawals from a 401 (k) savings plan. In the interest of thoroughness, we address each of these areas below in detail.

a. Deborah’s Health

¶ 42. In Deborah’s first appeal to this Court, we found that the testimony concerning her poor health and large medical bills was uncontradicted. That was one of the reasons we remanded the case with instructions for the chancellor to award Deborah periodic alimony. At the hearing after remand, Deborah again testified about her numerous medical problems and about the cost of insurance and prescription medication. In the judgment after remand, the chancellor recognized the evidence regarding Deborah’s many medical expenses, but also found that Deborah “had no medical expenses that were not covered by insurance.”

¶ 43. Accordingly, the chancellor held that Roland should maintain Deborah’s medical insurance as part of alimony, but he did not award any medical expenses above the amount of the monthly insurance premium. The chancellor ruled:

[Deborah] has put on no proof of a need for future medical treatment that this Court finds convincing. To require Roland to pay for her deductibles and co-payments and other non-covered expenses would be opening a Pandora’s Box. To require [Deborah] to shoulder that responsibility out of her alimony would be the only way that a cap on such expenses could be maintained. The Court will not require Roland to make such payments.

Deborah then filed a petition to modify the alimony award. After the hearing, the chancellor found that there had been no substantial change in circumstances and denied the petition for modification.

¶ 44. The Mississippi Supreme Court has held:

To justify changing or modifying an original divorce decree, there must be a material or substantial change in the circumstances of the parties.... The material or substantial change is relative only to the after-arising circumstances of the parties to the original decree. This change, moreover, must also be one that could not have been anticipated, by the parties at the time of the original decree.

Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990) (citations omitted) (emphasis added).

¶ 45. At the time the judgment after remand was entered, Deborah’s extensive health problems were known by both parties. In fact, in the chancellor’s analysis of Deborah’s health under the Armstrong factors, he listed fifteen different ailments that Deborah claimed to suffer from at that time, and he also listed three of Deborah’s most recent surgical procedures. Deborah now argues that the progression of her existing health problems and the additional problems of asthma and the Epstein-Barr virus warrant modification of alimony and a re-examination of the Armstrong factors.

¶ 46. We do not find this argument convincing. With the extensive testimony concerning Deborah’s medical problems and the state of her health before the judgment after remand was entered, we cannot say that the increased expenses due to the progression of these problems was in any way unforeseeable by the parties. Further, the addition of asthma and the Epstein-Barr virus to a long list of other ailments was not unforeseeable. We have limited review of the chancellor’s finding that there was no substantial change in circumstances, and we do not find that his decision constitutes manifest error or an abuse of discretion. This contention of error is without merit.

b. Deborah’s Ability to Work

¶ 47. Deborah contends that the chancellor abused his discretion by finding that she failed to prove her inability to work. She argues that the chancellor’s reliance on a finding by the Social Security Administration that she was not disabled was an abuse of discretion.

¶ 48. In the chancellor’s final order denying Deborah’s petition to modify alimony, the chancellor found that:

Mrs. Weeks claimed that her medical condition kept her from working, yet she introduced no medical proof of her inability to work. Mrs. Weeks introduced documentary evidence from the Social Security Administration showing she had been denied disability benefits for two reasons: she teas not medically disabled; and she did not have enough years of employment.

(Emphasis added). Deborah argues that this finding ignores the undisputed testimony about her health and medical expenses and misconstrues the evidence regarding social security disability benefits.

¶ 49. Deborah is correct that the chancellor misconstrued the evidence regarding her social security claim. The evidence shows only that the Social Security Administration determined Deborah was not disabled under its rules as of December 31, 1984. The statement had no bearing on her ability to work at the time of the chancellor’s order.

¶ 50. However, this does not change the chancellor’s finding that Deborah did not produce any proof of her inability to work. She produced evidence of the various medical problems that she has experienced, but she did not show proof that those problems had created an inability to work. This finding of fact by the chancellor was not clearly erroneous; thus, this issue has no merit.

c. Deborah’s Ability to Make Withdrawals from the Jf01(k) Savings Plan

¶ 51. Deborah further argues that the chancellor abused his discretion in finding that Deborah had the ability to make substantial monthly withdrawals from the 401 (k) savings plan. She claims to have new evidence that proves she cannot make the withdrawals contemplated by the chancellor in his judgment after remand. Thus, Deborah contends that there has been a material change in circumstance that would allow the chancellor to modify his alimony award.

¶ 52. The chancellor analyzed the Ann-strong factors in his judgment after remand. Under the factor titled “income and expenses of the parties,” the chancellor found that Deborah received a 401 (k) worth approximately three hundred eighty-two thousand dollars in the property settlement following the divorce. The chancellor also found that, even though Deborah wished to save the money in the 401 (k) for retirement, testimony proved that she could withdraw $6,366.67 per month from the account without penalty.

¶ 53. Following the judgment on remand, Deborah learned that the withdrawal mentioned in the order is not an option for her because she is not an active employee with the company. She notified the chancellor of this information in her motion to clarify and also testified to this during the hearing.

¶ 54. The chancellor does not mention this new evidence in his final order. The order simply denies Deborah’s motion to modify alimony based on his finding that there was no showing of a substantial and material change in circumstances. To qualify as a substantial change, this new information must have not been anticipated by the parties at the time of the judgment after remand. Tingle, 573 So.2d at 1391.

¶ 55. Deborah states in her brief that, after the judgment after remand, she “made further inquiry and subsequently learned that the option to make substantial withdrawals as contemplated by the chancellor was not available to her since she was not an active Knight-Ridder employee.” There is no evidence presented as to why she did not inquire about her ability to withdraw the money before the entry of the judgment after remand. Indeed, she filed her motion to clarify just ten months later when she realized that she could not make the withdrawals. It is not clear to this Court that this information is a result of circumstances which occurred after the judgment after remand, or whether it is a fact that should have been reasonably anticipated by the parties at the time the judgment was entered. See Morris v. Morris, 541 So.2d 1040, 1043 (Miss.1989). Therefore, we do not find that the chancellor’s ruling that there had been no substantial change in circumstances was clearly erroneous or an abuse of his discretion. This issue is without merit.

6. Attorney’s Fees

¶ 56. Lastly, Deborah argues that the chancellor abused his discretion by denying her request for attorney’s fees for her appeal and the other proceedings following the remand of this case. She specifically contends that the chancellor’s finding that she had sufficient assets to pay her attorney’s fees was contrary to the evidence. Additionally, Deborah argues that it is contrary to the law to require her to borrow from her retirement funds to pay her attorney’s fees.

¶ 57. The chancellor made the following ruling regarding Deborah’s request for attorney’s fees:

The request for attorney[’s] fees for the appeal and for the post[-]appeal matters filed by [Deborah] Weeks is denied. She has a pot full of money. She has chosen not to touch her funds, but she has the funds available.

It is unclear from the chancellor’s ruling exactly to which funds he refers. Deborah has no assets other than those received in the distribution of the marital property— $382,564.01 from a 401 (k) plan and $681,140.75 from a retirement plan. She also has about $500,000 in insurance proceeds set aside to rebuild the family home destroyed by Hurricane Katrina.

¶ 58. The supreme court has held that an award of attorney’s fees is proper when a party otherwise will be forced to liquidate a portion of a retirement plan causing tax consequences and penalties for the early withdrawal. Wells v. Wells, 800 So.2d 1239, 1246 (¶¶ 16-18) (Miss.Ct.App.2001). The supreme court has also found that a wife need not liquidate her savings account to pay her attorney’s fees. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Disregarding Deborah’s retirement savings and the insurance proceeds saved to rebuild her home, the only funds remaining with which to pay her attorney’s fees are her alimony and a small annuity. However, we have held that an award of attorney’s fees is appropriate, after examination of the McKee factors, when “the only liquid asset is the alimony award and the party seeking fees has otherwise demonstrated an inability to pay the fees.” Wells, 800 So.2d at 1246(¶ 17) (quoting East v. East, 775 So.2d 741, 747(¶ 16) (Miss.Ct.App.2000)).

¶ 59. Just as the chancellor failed to apply the McKee factors in Weeks I, here, the chancellor did not analyze the McKee factors before determining that Deborah was capable of paying her own attorney’s fees. Deborah has shown that the majority of her assets are comprised of retirement investments, and she has presented case law that refutes Roland’s argument that she should be required to liquidate her savings before an award of attorney’s fees may be granted. Accordingly, we will reverse the chancellor’s denial of attorney’s fees and remand this issue for an application of the McKee factors to determine whether Deborah is entitled to an award of attorney’s fees.

¶ 60. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TWO-THIRDS TO THE APPELLANT AND ONE-THIRD TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., AND ROBERTS, J., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J. ISHEE AND MAXWELL, JJ., NOT PARTICIPATING.

GRIFFIS, J.,

Concurring in Part, Dissenting in Part.

¶ 61. For the reasons stated below, I must respectfully dissent from the majority’s ruling as to issues one and two. I concur with the majority as to the remaining issues.

I. Whether the chancellor erred in finding that Roland was required to pay health insurance premiums at a fixed rate and not at a rate commensurate with annual increases set by the insurer.

¶ 62. In his judgment after remand, the chancellor required Roland Weeks to pay Deborah Weeks’s insurance premium as part of his alimony obligation:

[Deborah] currently has enrolled in the Mississippi Insurance Risk Pool at a monthly premium of $516.00. Roland will pay this for [Deborah] as a part of his alimony obligation in addition to those sums previously designated as periodic alimony.

Following this ruling, Deborah’s insurance premium soon increased to $639 per month, but Roland refused to pay anything above the $516 per month. Upon Deborah’s motion to clarify this provision, the chancellor interpreted his judgment after remand as merely requiring Roland to pay $516 per month.

¶ 63. I agree with Deborah’s argument that the judgment after remand is ambiguous on this issue. It is unclear whether Roland is required to pay the exact amount of her monthly insurance premium or the fixed amount of $516. As a result of that ambiguity, this Court must interpret the meaning of the chancellor’s order.

¶ 64. Upon a de novo review of the order as a whole, it is my determination that the chancellor initially intended for Roland to provide for Deborah’s monthly insurance premium as a part of his periodic alimony payments. The order required Roland to pay for vehicle insurance and health insurance premiums for his daughter, Alex, and did not set a specific or limited amount per month but required Roland to pay the entire premiums. Additionally, Deborah testified that, at the time, her premium was $502, but it would increase at the first of the year to $516. It was obvious that the chancellor included this increase in his order. Deborah correctly ai-gues that it would be inconsistent with the judgment as a whole to require Roland to pay $516 per month if Deborah’s insurance premium were to decrease.

¶ 65. Accordingly, I find that the chancellor’s original intent was to require Roland to pay the actual amount of her monthly health insurance premium and not the fixed amount of $516 per month. Therefore, it was error for the chancellor to rule in the final order that Roland was only required to pay $516 per month for Deborah’s medical insurance. I would reverse and render judgment on this issue.

II. Whether the chancellor erred in finding that Roland had complied with the order requiring him to maintain Deborah as an irrevocable beneficiary on an insitrance policy on his life.

¶ 66. In the chancellor’s judgment after remand, Roland was given the option of making Deborah an irrevocable beneficiary of an existing Hartford policy along with Roland’s current wife, Sharon, or creating a separate policy with Deborah as the irrevocable beneficiary. The record shows that Roland named Deborah as a beneficiary of a $300,000 policy in July 2004; however, there is no evidence that Deborah is in fact the irrevocable beneficiary or that Roland has continued to make the premium payments on the policy.

¶ 67. In his ruling on Deborah’s motion to reconsider, the chancellor declined to require Roland to provide Deborah with proof of the life insurance policy, despite the fact that he required Roland to provide Deborah with proof of coverage for the life insurance policy with Alex named as an irrevocable beneficiary and proof of other policies for car and health insurance. The chancellor’s final order did not find Roland in contempt for failure to maintain a life insurance policy as required by the judgment after remand. The chancellor failed to address the issue of whether Deborah was designated as an irrevocable beneficiary.

11 68. Here, the chancellor’s judgment after remand was clear that Roland must maintain a life insurance policy naming Deborah as the irrevocable beneficiary. Nevertheless, the evidence was insufficient to show that Deborah was in fact a beneficiary let alone an irrevocable beneficiary.

¶ 69. Logie and common sense dictate that where a chancellor orders one party to take a certain action then the chancellor should also require that party to provide proof that the action was taken to the other party for whose benefit the action was taken. Based on the record before us and the chancellor’s order, it is impossible for this Court to determine whether Roland is in contempt for not maintaining a policy with Deborah as the irrevocable beneficiary. Indeed, the only evidence that can establish Roland’s compliance could and should be documentary support provided by Roland showing his compliance with the chancellor’s order.

¶ 70. I find that the chancellor’s order is ambiguous as to how Roland is to coin-ply with the order. Because of this ambiguity, there is no possible way, short of further litigation, for Deborah to ever know whether she is in fact a beneficiary or to prove contempt because Roland is the holder of the policy and has the information necessary to determine whether Deborah is an irrevocable beneficiary. The majority’s ruling encourages Deborah to commence another action to obtain discovery of this issue. I do not believe this Court should encourage litigation. The better and more principled course of action is to require a party to provide proof that he or she has complied with the requirement rather than require the other party to commence further litigation in order to discover whether the other party has done that which was ordered. Roland should have the burden to prove that he has indeed complied with this provision.

¶ 71. I would reverse and remand this issue for the chancellor to require that Roland provide Deborah and the chancery court proof that she is indeed an irrevocable beneficiary and proof of the premium payment on a yearly basis, just as he has done for the life insurance policy for Alex. I would also encourage chancellors to fashion their judgments to encourage the voluntary submission of proof of compliance rather than encourage secrecy and further litigation, as the majority does here.

CARLTON, J., JOINS THIS OPINION.

      . Weeks v. Weeks, 832 So.2d 583 (Miss.Ct.App.2002) (Weeks I).

      . In his response to Deborah's motion requesting proof of her status, Roland agreed to provide Deborah with proof of her status on his life insurance policy. However, the court declined to order Roland to do so in its order. Despite Roland’s acquiescence, this Court is bound by the chancellor's decision.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Bill STANLEY, Appellant v. BOYD TUNICA, INC. d/b/a Sam’s Town Hotel and Gambling Hall, Appellee.
    No. 2009-CA-00281-COA.
    Court of Appeals of Mississippi.
    Feb. 2, 2010.

      Dana J. Swan, Clarksdale, attorney for appellant.
    Richard C. Williams, Jr., attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The Tunica County Circuit Court granted summary judgment to Boyd Tuni-ca, Inc. d/b/a Sam’s Town Hotel and Gambling Hall (Boyd) in this premises-liability case. The lawsuit was filed after Bill Stanley, a hotel guest at Sam’s Town Casino, slipped on the hotel shower mat. Stanley appeals claiming summary judgment was improper and asserts a genuine issue of material fact exists regarding Boyd’s notice of a dangerous condition in the bathroom. Finding no genuine issue of material fact, we affirm.

FACTS

¶ 2. On June 9, 2002, Bill and Joann Stanley visited Sam’s Town Casino in Rob-insonville, Mississippi. After checking into their room, the couple spent most of the night in the casino. The next afternoon, Joann awoke and showered. She claims she noticed the shower was slippery but did not lose her balance or have to use the rubber bathmat.

¶ 3. Stanley decided to shower before dinner. He claims he stepped on the rubber shower mat in the bathtub, and that the mat twisted or slipped, causing him to fall. He received treatment for his injuries, and Boyd investigated the incident. At Stanley’s direction, Joann completed and signed a “Guest Accident Report.”

¶ 4. Stanley filed suit on May 31, 2005, alleging he had suffered injuries to his arm and head caused by Boyd’s negligence. Boyd admitted Stanley was a business invitee of the hotel but denied breaching any duty owed to Stanley. Boyd moved for summary judgment, which was granted by the circuit court.

STANDARD OF REVIEW

¶ 5. We review the circuit court’s granting of summary judgment de novo. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 464 (¶ 3) (Miss.Ct.App.2003) (citing Young v. Wendy’s Int’l, Inc., 840 So.2d 782, 783 (¶ 3) (Miss.Ct.App.2003)). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 464-65 (¶ 3) (quoting Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725 (¶ 9) (Miss.Ct.App.2001)); M.R.C.P. 56(c). We view the evidence in the light most favorable to the non-movant. Byrne, 877 So.2d at 465 (¶ 3) (citing Young, 840 So.2d at 784 (¶ 7)).

¶ 6. “To survive summary judgment, the non-moving party must offer ‘significant probative evidence demonstrating the existence of a triable issue of fact.’ ” Id. (quoting Young, 840 So.2d at 784 (¶ 5)). When a motion for summary judgment is made and supported, “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 7. Stanley claims the circuit court erred by granting summary judgment in Boyd’s favor. He contends a material issue of fact exists regarding Boyd’s notice of an alleged dangerous condition in the bathroom. Stanley argues he is not required to prove notice because Boyd was in exclusive control of the room.

A. Premises Liability — Business Invitee

¶ 8. In Mississippi, business owners have a duty to invitees to exercise reasonable care to keep the business premises in a “reasonably safe condition.” Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). However, “[sjtrict liability is not imposed on [business owners] in premises[-]liability cases.” Martin v. Rankin Circle Apartments, 941 So.2d 854, 864 (¶ 45) (Miss.Ct.App.2006) (citing Corley v. Evans, 835 So.2d 30, 41 (¶¶ 32-33) (Miss.2003)). And business operators are not insurers against all injuries. Jacox, 908 So.2d at 184 (¶ 7) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). Furthermore, mere proof “of the occurrence of a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor.” Byrne, 877 So.2d at 465 (¶ 6) (quoting Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)).

¶ 9. Rather, in order to succeed on his premises-liability claim, Stanley must show either: “(1) a negligent act by the defendant caused the plaintiffs injury; or, (2)[the] defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant.” Id. at (¶ 5) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995)).

¶ 10. All three types of premises-liability claims require a showing of a dangerous condition. In other words, a “property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists.” Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (¶ 5) (Miss.Ct.App.2006).

¶ 11. In granting summary judgment on behalf of Boyd, the circuit judge found Stanley presented no evidence of a dangerous condition or that Boyd had any knowledge of a dangerous condition in the hotel bathroom. The circuit judge also found Stanley presented no evidence of other falls of this nature in the hotel and that Boyd was not in exclusive control of the shower mat. He also held that the doctrine of res ipsa loquitur was inapplicable.

¶ 12. After reviewing the record, we agree with the circuit court that Stanley offered no proof of a negligent act on the part of Boyd or that Boyd had actual knowledge of a dangerous condition. Further, because Stanley fails to offer any scintilla of evidence of a dangerous condition, he is unable to prove constructive notice based upon the amount of time the alleged condition existed. See Jacox, 908 So.2d at 185 (¶ 8).

B. Res Ipsa Loquitur

¶ 13. The circuit judge also correctly pointed out that Boyd was not in exclusive control of the bathroom. The Stanleys had control of the room immediately prior to the fall, and Joann admitted using the shower only a short time before Stanley. Thus, the doctrine of res ipsa loquitur is inapplicable as a matter of law. See id. at 184 (¶ 7) (citing Sears, 185 So.2d at 917) (Mere proof “of a fall on a floor within a business is insufficient to show negligence on the part of the proprietor ... and the doctrine of res ipsa loquitur is inapplicable in cases of this kind.”).

¶ 14. Stanley bore the burden to show Boyd’s negligence, or failure to warn, caused his injury. Though Stanley presented no evidence to support his allegations, Boyd responded with proof of the bathmat’s quality as well as the i-esults from tests that showed the bathmat was in good condition with no abnormalities.

¶ 15. Taking all evidence in the light most favorable to Stanley, we find no genuine issue of material fact in dispute. Accordingly, we affirm the circuit court’s grant of summary judgment in Boyd’s favor.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: CARLTON, J„

text:
    George G. MORRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CA-01361-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Joseph Patrick Frascogna, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J„

for the'Court:

¶ 1. This case comes before this Court on appeal from the Hinds County Circuit Court’s denial of George G. Morris’s motion for post-conviction relief. Aggrieved with the circuit court’s judgment, Morris appeals, raising the issue of whether the circuit court erred in not finding that Morris was denied effective assistance of counsel. Morris asserts that the circuit court erred in not allowing him to present relevant and material evidence at his sentencing hearing, and also erred in finding that Morris’s guilty pleas were freely and voluntarily given. Finding no error, we affirm.

FACTS

¶ 2. On October 14, 2004, a grand jury in Hinds County indicted Morris on thirteen counts of gratification of lust and sexual battery in violation of Mississippi Code Annotated sections 97-5-23(2) (Rev.2006) and 97-3-95(2) (Rev.2006), respectively. Morris pled guilty on September 12, 2005, in the Hinds County Circuit Court to Count II gratification of lust and Count IV sexual battery, with Counts I, III, and V through XIII remanded to the files.

¶ 3. On September 26, 2005, Morris was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections (MDOC): ten years on Count II and twenty years, with ten years suspended, on Count IV. Morris subsequently filed a motion for post-conviction relief on May 7, 2007, and his motion was denied on December 13, 2007. This appeal followed.

STANDARD OF REVIEW

¶ 4. This Court will not disturb a circuit court’s decision to deny a motion for post-conviction relief unless the circuit court’s findings are clearly erroneous. Boyd v. State, 926 So.2d 233, 234 (¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

DISCUSSION

Ineffective Assistance of Counsel

¶ 5. Morris argues that he was denied effective assistance of counsel at his sentencing hearing. Specifically, Morris claims that his counsel was ineffective in presenting evidence on his behalf. Morris also claims that his counsel failed to object when the circuit court denied Morris the right to call two witnesses who were present at the sentencing hearing. Morris alleges that his counsel also misinformed and misled him and others about the length of the total sentence Morris would receive if he pled guilty.

¶ 6. An inmate asserting a claim of ineffective assistance of counsel is required to “allege with specificity and detail” the facts that show: (1) the attorney’s performance was deficient and (2) that the inmate suffered prejudice caused as a result of the deficient performance. Kinney v. State, 737 So.2d 1038, 1041 (¶8) (Miss.Ct.App.1999) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)); see also Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-prong test set forth in Strickland to determine whether the defendant has received ineffective assistance of counsel applies to challenges to guilty pleas as well. Kinney, 737 So.2d at 1041 (¶ 8) (quoting Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). If the petitioner pled guilty on the advice of his trial counsel, he must prove that his trial counsel committed “unprofessional errors of substantial gravity,” without which he would not have pled guilty. Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006). Furthermore, “[t]here is a strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Kinney, 737 So.2d at 1041 (¶ 8) (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Additionally, we presume that counsel’s decisions are strategic. Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985) (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984)).

A. Presentation of Relevant and Material Evidence at Sentencing

¶ 7. Morris asserts that his counsel erred by not objecting when the circuit court did not allow Morris to present two additional witnesses on his behalf during his sentencing, which he claims is a violation of his constitutional rights. Morris states that four witnesses were present and ready to testify on his behalf at his sentencing, and the trial court did not allow two of these witnesses, his son and his minister, to testify.

¶ 8. Morris cites Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), asserting that exclusion of testimony in the sentencing phase denies him of his right to have a compulsory process for obtaining witnesses in his favor. Morris claims that the circuit court’s refusal to let his son and minister testify falls within the scope of the plain-error rule. Morris points to Davis v. State, 891 So.2d 256, 259 (¶ 10) (Miss.Ct.App.2004), where this Court stated that under the plain-error rule, “nothing precludes a court from taking notice of plain errors affecting the substantial rights of a defendant, even though they were not brought to the attention of the trial court.” The court, upon appeal, may invoke the plain-error rule if the party convinces the court of the “substantial injustice that would occur if the rule were not invoked ... [otherwise, a contemporaneous objection is required in order to preserve an error for appellate review.” Id. (internal citations omitted).

¶ 9. In the present case, during sentencing, the circuit court heard statements from Morris, his daughter, and his sister-in-law. The court also heard statements from the victim and her mother, both of whom requested that Morris receive the maximum sentence possible — fifteen years for gratification of lust and thirty years for sexual battery. In addition, the court read letters written on Morris’s behalf by friends, as well as a pre-sentence investí-gative report prior to sentencing. However, Morris claims that by not also allowing his son and his minister to speak on his behalf at the sentencing hearing, the judge unfaiiiy limited the number of witnesses and testimony that Morris was allowed to present.

¶ 10. Morris bears the burden of proof to show evidence of alleged ineffective assistance of counsel. Leatherwood, 473 So.2d at 968. After reviewing the record, we find no evidence to suggest that two additional witnesses speaking on Morris’s behalf would have changed the outcome of his sentencing hearing. Morris has not shown that his son or minister would have offered any additional mitigating testimony that had not already been offered by his daughter or sister-in-law. Further, we note that the circuit court sentenced Morris to serve only ten years in the custody of the MDOC, as opposed to the maximum sentence he could have received. As a result, we find that no substantial injustice occurred by not allowing the testimony of Morris’s son and minister. Therefore, Morris failed to satisfy the first prong of the Strickland test by failing to present evidence of his counsel’s deficient performance.

¶ 11. We further note that Morris failed to contemporaneously object to the circuit court’s decision to hear from only two of his witnesses, in addition to Morris himself, at the sentencing hearing. In Willie v. State, 585 So.2d 660, 677 (Miss.1991) (overruled on other grounds), the Mississippi Supreme Court found no reversible error in limiting the number of witnesses who testified at the sentencing phase of a trial. The supreme court held that by failing to make a contemporaneous objection as to the number of witnesses allowed to testify, the defendant himself, and not the judge, “did the actual limiting.” Id. Similarly, we find Morris, and not the circuit court judge, responsible for limiting the number of witnesses testifying at his sentencing hearing. As stated above, no evidence in the record suggests that the testimony from these witnesses would provide additional mitigating evidence that would not have been cumulative or that the additional testimony would have led to a different outcome in Morris’s sentencing healing. Hence, Morris failed to show any evidence of prejudice in the limitation of witnesses at his sentencing hearing; accordingly, Morris has failed to satisfy the second prong of the Strickland test. This issue is without merit.

B. Acceptance of Guilty Pleas

¶ 12. Morris also argues that his guilty pleas were based on misrepresentations from his counsel regarding the length of his total sentence. As a result, he alleges that his guilty pleas were not freely and voluntarily given; thus, the circuit court erred by accepting his pleas. Morris claims that he did not understand the effect of his pleas, nor did he understand the possible sentence he might receive as a result of pleading guilty.

¶ 13. “A guilty plea must be voluntarily, intelligently, and knowingly entered in order to be binding upon a criminal defendant.” Owens v. State, 996 So.2d 85, 94 (¶ 31) (Miss.Ct.App.2008). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). Specifically, a defendant must be advised of the maximum and minimum sentences that may be imposed and “that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination.” Id. (citation omitted). The petitioner carries the burden of proving that his plea was not voluntary, intelligently, and knowingly given. Owens, 996 So.2d at 94 (¶ 31).

¶ 14. In Mills v. State, 986 So.2d 345, 347 (¶ 7) (Miss.Ct.App.2008), Billy Mills, Jr. alleged ineffective assistance of counsel, claiming that his counsel promised him a substantially lighter sentence than the one he had received. Diming the plea hearing, Mills affirmed under oath that he understood he could receive the maximum sentence on each count to which he pled guilty. Id. at 347-48 (¶ 9). This Court affirmed the circuit court’s order dismissing Mills’s motion for post-conviction relief, holding that based on the plea transcript, it was clear that prior to pleading guilty, Mills knew that the judge could sentence him to the maximum sentence, despite what he might have been told to the contrary. Id. at 349 (¶ 10). Further, we noted that even if such a promise of a lighter sentence had been made, the circuit court made it clear during the plea hearing that the court would not be bound by the promise. Id. at 350 (¶ 14).

¶ 15. The record before us contains the transcript from Morris’s plea hearing. While under oath, Morris stated that he understood that by taking an open plea, the court could sentence him to the maximum term or sentence on each of the two counts against him. Morris also testified that no one told him that the judge would be more lenient in sentencing him if he pled guilty rather than proceeding to trial. This statement under oath contradicts his affidavit, submitted herein in support of his motion for post-conviction relief, in which Morris alleges that his attorney led him to believe that if he agreed to an open plea of guilty, he would more than likely receive a total sentence of a year or less. A post-conviction-relief motion supported by the affidavit of the accused alone fails to meet the pleading requirements of Mississippi Code Annotated section 99-39-9 (Supp.2009); therefore, it “is deficient on its face and properly dismissed without an evidentiary hearing.” Edwards v. Slate, 995 So.2d 824, 826-27 (¶ 11) (Miss.Ct.App.2008). We note that Morris also provided affidavits from his sister, Deborah Morris-Kern, and brother-in-law, Glen Kern, who stated that Morris’s counsel also separately explained to them by telephone that once Morris entered his guilty plea, the circuit court would consider the one year Morris had already served in jail as sufficient punishment and give Morris “time served,” thus allowing him to be released on the day he was sentenced. However, any miscommunication or misunderstanding between Morris’s sister, brother-in-law, and Morris’s attorney fails to impact the validity of Morris’s pleas, since Morris himself testified under oath as to fully understanding his pleas and the maximum and minimum sentences.

¶ 16. Morris also argues that at his sentencing hearing, the circuit court did not verbally state the maximum and minimum sentences for the charges against him. However, the record reflects that in Morris’s petition to enter a plea of guilty, he acknowledged that his counsel had informed him of the maximum and minimum punishment he could receive for his crimes. We also note that Morris filled in the blanks in the plea petition with the maximum years that he could be sentenced to for both gratification of lust and sexual battery and stated that there was no minimum. In Dennis v. State, 873 So.2d 1045, 1047-48 (¶¶ 6-7) (Miss.Ct.App.2004), this Court held that a trial judge’s failure to verbally state the maximum and minimum penalties during a plea hearing was harmless error where the plea petition stated the maximum and minimum sentences for the offenses charged.

¶ 17. In the present case, the circuit court stated in its order denying relief that:

The court finds that defendant, was competently represented by counsel, and did willingly, intelligently, knowingly and voluntarily plead guilty to the charges of gratification [of lust] and sexual battery, after being thoroughly advised by the court on his waiver of constitutional rights. Defendant also advised that he was satisfied with the representation provided by counsel.

The record reflects that Morris acknowledged to the circuit court that he understood that by pleading guilty, he was waiving his constitutional rights. Morris further admitted that he was in fact guilty of the charges of sexual battery and gratification of lust. At his plea colloquy, Morris also stated under oath that he had not been promised a more lenient sentence to either charge should he plead guilty. Moreover, Morris affirmed under oath that he was satisfied with his representation by his counsel.

¶ 18. We find that Morris has failed to carry his burden of proof to show that his guilty pleas were not voluntarily, intelligently, and knowingly given. This issue is, therefore, without merit. We affirm the circuit court’s denial of Morris’s petition for post-conviction relief.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J, NOT PARTICIPATING.


author: MYERS, P.J.,

text:
    BROADWAY INN EXPRESS, LLC and Mahammad Moeini, Appellants v. ADVANCED CONSTRUCTION TECHNOLOGIES LIMITED, Appellee.
    No. 2009-CA-00069-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      George W. Healy IV, Cassidy Lee Anderson, Gulfport, attorneys for appellants.
    Roderick Mark Alexander, Jr., Jonathan Paul Dyal, Gulfport, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Advanced Construction Technologies Limited (ACT) brought suit against Broadway Inn Express, LLC, and Mohammad Moeini, its operator and owner. ACT alleged that Moeini had failed to pay approximately $87,700 due on a construction contract. Moeini counterclaimed, alleging that ACT had damaged his property and had produced incomplete, untimely, and poor quality work. Following a bench trial, the circuit court awarded ACT damages in the amount of $37,667.51, plus interest and attorneys’ fees. Moeini appeals.

FACTS

¶ 2. Broadway Inn Express operated a hotel of the same name in Biloxi, Mississippi. On August 29, 2005, Broadway Inn was severely damaged by Hurricane Katrina, including the complete loss of two of its three hotel structures. The surviving structure was damaged when it was inundated with approximately three feet of water. The hotel building also lost approximately eighty percent of its roof.

¶ 3. In late January 2006, James Davis of ACT submitted a proposal for repairs to be performed on the surviving structure. Based upon the proposals submitted in January 2006, the parties entered into two contracts on February 10, 2006. One of the contracts pertained to the exterior of the hotel, the other to the interior. The tentative aggregate price of the two contracts totaled $200,000. On March 6, 2006, the parties entered- into another contract which provided a total contract price of $193,000. This contract contained the same terms as the prior contract, but the $7,000 difference in contract price represented materials already purchased by Moeini. Work under the contract began in February 2006 and was concluded by June 2006.

¶ 4. On November 9, 2006, ACT filed suit, alleging that Moeini had failed to completely satisfy ACT’s initial invoices, and had entirely failed to pay the final invoice. In total, ACT alleged that Moeini had paid only $160,000 of the final amount due under the final contract, approximately $197,000. Moeini counterclaimed, arguing that ACT breached the contract and caused him damages by failing to complete the repairs in a satisfactory manner. The trial court ruled in ACT’s favor, and this appeal followed.

STANDARD OF REVIEW

¶ 5. An appellate court affords a circuit court judge sitting without a jury the same deference as a chancellor. City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)). That is, after reviewing the entire record, we will affirm if the judge’s findings of fact are supported by substantial, credible evidence and are not manifestly wrong or clearly erroneous. Id. Errors of law are reviewed de novo. Id. (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

DISCUSSION

1. Testimony Regarding an Additional $10,000 Payment

¶ 6. ACT alleged that it submitted a total of four invoices to Moeini for the costs of the repairs. The first invoice was for $45,670.10, of which Moeini paid $45,000. The second invoice was for $53,706.39, of which Moeini paid $50,000. The third invoice was for $65,451.81, of which Moeini paid $65,000. A final invoice, for the balance of the contract, was not paid.

¶ 7. At trial, Moeini acknowledged that he had not paid the full balance of the first three invoices. He also admitted that he had not paid the final invoice. Moeini alleged, however, that he had made an additional $10,000 payment, and that he had therefore paid $170,000 on the invoices. The trial court disagreed, finding that only $160,000 had been paid.

¶ 8. On appeal, Moeini argues that his testimony regarding the additional payment was uncontradicted, and that the trial court therefore erred in disregarding it in computing the amount paid under the contract. Moeini cites to our decision in Day v. Ocean Springs Hospital System, 923 So.2d 246 (Miss.Ct.App.2006). There, we stated:

In Hulitt [v. Jones, 220 Miss. 827, 72 So.2d 204 (1954) ], the supreme court stated that “the testimony of a witness which is not contradicted, either by direct evidence or by circumstances, must be taken as true.” Id. at 833, 72 So.2d at 207. The court stated that a chancellor or a jury does not have an arbitrary right to disregard undisputed testimony that is not inherently improbable, incredible, or unreasonable. Id. Such testimony must be accepted as true even if the witness is a party or is interested in the case. A & F Prop., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282 (¶ 17) (Miss.Ct.App.2000) (quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So.2d 69, 75 (1951)).

Id. at 250 (¶ 15). Moeini also cites to the testimony of Davis, who stated on cross-examination by Moeini’s attorney that he “[couldn’t] remember” receiving a $10,000 check from Moeini on a certain date.

¶ 9. In reviewing the record, we do not find Moeini’s testimony was uncontrovert-ed. While it is true that Davis did not expressly deny receiving a $10,000 check, he did testily that ACT had only been paid a total of $160,000 — not $170,000, as Moeini alleges — on the contract. This issue is without merit.

2. Exclusion from Evidence of a $10,000 Cancelled Check

¶ 10. At trial, Moeini attempted to introduce into evidence a $10,000 cancelled check that he alleged documented an additional payment on the contract balance. The trial court excluded the check because Moeini had failed to produce it in response to ACT’s discovery requests.

¶ 11. On appeal, Moeini argues that the trial court erred in excluding the check, but he cites no authority in support of this proposition. Failure to cite relevant authority to support a party’s arguments precludes this Court from considering an issue. Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶ 24) (Miss.2008). This issue is therefore procedurally barred from our review.

3. Specific Findings of Fact Regarding Moeini’s Counterclaims

¶ 12. At trial, Moeini counterclaimed, alleging that he suffered damages as a result of ACT’s poor work under the contract. Specifically, he alleged that ACT produced “unworkmanlike drywall finishing on the walls and ceilings,” “shoddy painting which did not adequately cover the painted surface,” “doors which did not shut flush with door jams,” and that ACT had not properly installed toilets. He also alleged that ACT “broke several mirrors and marble counters for which they only reimbursed Mr. Moeini for approximately fifteen to twenty percent of the replacement costs,” and that ACT cut holes in marble countertops that were too large for the tissue dispensers that were intended to be placed in them. On appeal, Moeini alleges that the trial court failed to address his counterclaims in its judgment.

¶ 13. Mississippi Rule of Civil Procedure 52(a) states that in bench trials, “the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” In Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987), the supreme court stated:

Ordinarily this Court will not reverse findings of fact made by a trial court sitting without a jury where those findings are supported by substantial credible evidence in the record. This is as true of ultimate facts as of evidentiary facts.
Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court be manifestly wrong.
But what do we do when no findings of fact have been made? One vehicle developed over the years is that we imply findings of fact, for we are required by our prior decisions and by sound institutional considerations to proceed on the assumption that the chancellor resolved all such fact issues in favor of the appel-lee. Further, when there are no specific findings of fact, we sometimes assume the trial judge made determinations of fact sufficient to support the judgment.

(Citations and internal quotations omitted). In a case that “is hotly contested and the facts greatly in dispute and where there is any complexity involved therein,” an appellate court may find the trial court’s failure to issue findings of fact and conclusions of law is an abuse of discretion. Id. at 239. However, where the case is not “terribly complex from a factual standpoint” and the final judgment gives this court an adequate record to review, we will not find an abuse of discretion. Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So.2d 67, 74-75 (¶ 18) (Miss.2003).

¶ 14. In reviewing the record, we do not find an abuse of discretion in the trial court’s failure to make findings of fact regarding its denial of Moeini’s counterclaims. This was not a complicated case. Only one witness testified for each side at trial, and Moeini’s allegations were unspecific and uncorroborated. They were also affirmatively denied by Davis. Moeini acknowledged that he had never made a written demand or complaint regarding the work prior to filing his counterclaim. He also offered no documentation regarding the cost of repairs — if any were undertaken — or an estimate of the lost value of his property. Additionally, it was uncontroverted that Broadway Inn reopened and began renting all of its rooms immediately after ACT completed its work on June 18, 2006. In short, we find that the chancellor’s findings were supported by substantial evidence and that the testimony regarding the counterclaim was not so complex as to require specific findings of fact. This issue is without merit.

4. Inclusion in Judgment of Furniture Installation Costs

¶ 15. The trial court included a $4,992.69 charge for the installation of hotel furniture in its judgment against Moeini. At trial, Moeini acknowledged that he had instructed ACT to install the furniture and that this work was not included in calculating the original contract price. ACT produced an itemized invoice detailing its charges for labor and materials relating to the furniture installation.

¶ 16. On appeal, Moeini argues that the damages assessed by the trial court were “nothing other than speculation or conjecture” because ACT offered an insufficient explanation of how it determined the charges assessed on the invoice. He also appears to argue that ACT may not recover because he does not agree with the charges assessed.

¶ 17. We find this issue procedural^ barred because Moeini has again failed to cite authority in support of his arguments. Ruff, 989 So.2d at 372 (¶ 24).

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The contracts were "unit price,” meaning that the final amount due would be based on work actually completed and materials actually purchased. Estimates of the unit costs of labor and materials were attached to the contracts. Furthermore, the parties agreed that labor or materials could be added or subtracted from the contract by subsequent agreement.

      . The final invoice reflected numerous unit adjustments to the original contract price.

      . The fourth invoice was for $32,667.51. It stated that $165,000 had been paid to date. At trial, however, Davis, the owner of ACT, testified that only $160,000 had been paid, and that the invoice reflected a computational error. The trial court agreed and expressly found that $160,000 had been paid under the contract.

      . For example, the invoice assesses charges of $12.50 each for the assembly of twenty-seven bed frames and $20 each for the installation of twenty-four mirrors.