author: BARNES, J.,

text:
    Phyllis MINTER, Appellant, v. John C. MINTER, Appellee.
    No. 2008-CA-01114-COA.
    Court of Appeals of Mississippi.
    Oct. 13, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 11, 2010.

      Leonard Brown Melvin, Hattiesburg, attorney for appellant.
    Alexander Ignatiev, attorney for appel-lee.

      Before MYERS, P.J., IRVING, and BARNES, JJ.
   BARNES, J.,

for the court.

¶ 1. John Minter filed a petition in the Lamar County Chancery Court seeking modification of the primary physical custody of his minor son, John Clayborn Minter (“Clay”), from his former wife, Phyllis Minter, to him. The chancery court issued an agreed order, whereby temporary physical custody of Clay was transferred to John, with Phyllis receiving standard visitation. After a hearing on the matter, custody was modified, with John receiving permanent physical custody of Clay. Finding no reversible error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Phyllis and John married in February 1998. One child, Clay, was born of the marriage in July 1999. The Chancery Court of Lamar County granted a judgment of divorce based on irreconcilable differences in August 2000. The parties agreed to share legal custody of Clay, with Phyllis having primary physical custody and John having standard visitation, which consisted of every other week from Thursday through Sunday. The court also ordered John to pay $200 per month in child support.

¶ 3. After the divorce, Phyllis was living in Opelousas, Louisiana, at her father’s house, and John was living in Hattiesburg, Mississippi. Once Clay began pre-kinder-garten, John testified that he would pick Clay up every other Friday and return him to Phyllis on Sunday. There were no problems with the custody arrangement until May 2005, when John petitioned the chancery court for modification of custody, mainly because Clay had to repeat kindergarten due to thirty-five absences in one year while under Phyllis’s custody. John also claimed Phyllis failed to provide Clay with suitable, stable living quarters; she used drugs; cohabited with men to whom she was not married; and did not cooperate with John about transporting the child between Mississippi and Louisiana for visitation.

¶ 4. In August 2005, the chancery court entered a temporary order, whereby the parties were ordered to submit to hair follicle and urinalysis drug tests. Also, the court appointed Dr. John Galloway, a licensed marriage and family counselor and social worker, to evaluate Clay’s health and well-being and make a recommendation to the court concerning Clay’s custody. In January 2006, temporary physical custody of Clay was transferred to John through an agreed order. Clay has remained in John’s custody since that time, with Phyllis maintaining standard visitation rights.

¶ 5. The chancery court held hearings in June and October 2007. Testimony showed both parties had lived in numerous locations and had held several jobs since the divorce. At the time of the divorce, Phyllis was living in Hattiesburg, but she later moved to Louisiana and stayed at her father’s house in Opelousas for approximately one year. She then moved to an apartment in Lafayette, Louisiana for eight months. Because her father was dying of cancer, Phyllis moved back to his house to care for him. During this time, Phyllis gave birth to her second child, Jacob, in December 2002. Phyllis had the child out of wedlock; she had dated the father of the child for six months. Phyllis testified Jacob’s father has no active participation in his son’s life.

¶ 6. Phyllis continued to live with her father for approximately two years until he died; then she, Clay, and Jacob moved in with her brother, who had a larger mobile home nearby, for approximately one year. Next, she moved in with her sister in Geismar, Louisiana for eight months, while she waited for an apartment in Baton Rouge to become available. Five people were staying in a three-bedroom residence: Clay and Jacob had one bedroom; Phyllis her own bedroom; and Phyllis’s sister and aunt slept in one room. Once the apartment became available, Phyllis moved to Baton Rouge for one year. Phyllis’s latest residence was a two-bedroom mobile home in Prairieville, Louisiana. She resides in one bedroom, with Jacob and Clay (when she has custody) sharing another bedroom. She has several relatives who live nearby.

¶ 7. As for employment, at the time of the divorce, Phyllis was working for H & R Block and for an attorney in Hatties-burg. She had also worked at a Cracker Barrel restaurant at some point since the divorce. She then worked at a seafood company, followed by Teche Electric in Lafayette for one year, where she was laid off. At this time she also became pregnant with Jacob; so, she did not work until she had him. Next, she worked at a T-shirt printing company for a few months until she moved to Baton Rouge, where she worked for a church daycare for about five months, and then another daycare for a year. At the time of the final judgment, Phyllis had woidced at Tonya’s Kids, another daycare, in Gonzalez, Louisiana, for more than two consecutive years.

¶ 8. John, too, has lived in various locations. At the time of the divorce, John was living in Hattiesburg. One month later, he moved to another location in Hat-tiesburg for fourteen months; then he lived with and assisted his grandmother for approximately three years. John moved to another address for approximately a year and one half, until he bought his current house in Petal, Mississippi, which is a three-bedroom home with a fenced-in backyard. He noted that he has only lived in two places since receiving custody of Clay.

¶ 9. Additionally, John has held numerous jobs since the divorce. At the time of the divorce, John worked for Deviney Construction for three months. To make more money, he left this job to work on a construction site in Baton Rouge. He worked at this job until the project was completed — approximately eight weeks. During this time, John still maintained a residence in Hattiesburg. In 2002, John collected unemployment. He then returned to Hattiesburg and worked for various contractors as a painter. At the time of the hearing, he was self-employed, and for the past three years, he has operated a paint-contracting company. He employs three to four individuals and has flexible hours.

¶ 10. Regarding Clay’s education, he attended numerous schools while in Phyllis’s custody. Clay started out in prekindergarten at a public school in Opelou-sas. Phyllis claimed that she was happy with the school, but John did not want Clay in public school; so they moved Clay to kindergarten at New Hope Christian Academy. John refutes this and claims Phyllis was the one who had complained about the public school. John paid the tuition at New Hope.

¶ 11. Testimony conflicted regarding the explanation of Clay’s thirty-five unexcused absences at the private school. John blamed Phyllis, and Phyllis blamed John. Phyllis and her sister claimed the absences were due to John’s picking Clay up every other Thursday morning pursuant to the visitation schedule in the chancellor’s final judgment, which was entered before Clay started school, instead of waiting until Friday afternoon when school was over. John and his mother testified, however, that once Clay was in kindergarten, John did not pick Clay up until school let out on Friday, and that John caused Clay to miss only one day of school. Phyllis admitted she never objected to or sought to have the visitation schedule changed, because John would verbally and physically threaten her if she disobeyed him. Phyllis also stated that the teachers at New Hope were of poor quality; they were not certified and were just hired “off the streets.” John claims that they both knew the teachers at the private school were not certified, and he agreed to the change in schools to make Phyllis happy.

¶ 12. After New Hope and while still in Phyllis’s custody, Clay attended Grand Prairie Elementary from August 2005 to October 2005. Records indicate he missed four days of school. Clay then attended Dutehtown Primary from October 2005 to December 2005, apparently because of Phyllis’s moving. John was then granted temporary custody in January 2006, and Clay attended Thames Elementary, where he was on the honor roll and was promoted to first grade. Then, John moved to Petal where Clay attended Petal Elementary and was, at the time of the hearing, making good grades and had no absences.

¶ 13. Also testifying at the hearing was Dr. Galloway, who has a Ph.D. in sociology. After voir-dire examination, Phyllis’s counsel objected to Dr. Galloway’s acceptance as an expert in the fields of counseling, sociology, and social work, but the chancellor overruled the objection. Dr. Galloway wrote an initial two-page report to the court in October 2005, after having met with John twice and Phyllis once; the report was entered into evidence at the June 2007 hearing. In it, Dr. Galloway explained that Phyllis came across as having had a “very difficult life.” He opined that Clay should be receiving better attention from Phyllis. As time passed, John and Clay were doing more activities together, with Clay’s becoming closer to his father. Dr. Galloway found no evidence of abuse or drug use on John’s part, as Phyllis had complained. By the time of the June 2007 hearing, Dr. Galloway had met with John five times (three of which Clay was present) and Phyllis once. He opined that Phyllis, through her affect, demeanor, presentation, and history, “demonstrated an inability to take care of herself, projects blame onto other people and prefers to rely on other people to handle things for her.” He concluded she was not a fit parent at that time.

¶ 14. Regarding his meetings with Clay, Dr. Galloway found him reluctant to talk at first, but eventually Clay became more outgoing and expressed a desire to be around his father. Dr. Galloway determined that John was a good role model for Clay, who enjoyed life with his father.

¶ 15. Additionally, for the first time at the hearing, Phyllis accused Dr. Galloway of being independently hired by John before being appointed by the court. John’s counsel denied this accusation; however, Phyllis’s counsel contended that Dr. Galloway had actually had a meeting with John in January 2005, seven months before he was appointed by the court. Dr. Galloway’s handwritten notes, which were admitted into evidence, did indicate a meeting in January 2005, but Dr. Galloway was unsure whether he first met with John in January 2005 or 2006; he explained that his notes might have had a scrivener’s error regarding the year. It was undisputed that John was responsible for paying all of Dr. Galloway’s fees for the evaluation pursuant to the court order, since Phyllis had limited funds.

¶ 16. The chancellor noted that Phyllis’s counsel did not object prior to trial through a motion in limine to exclude Dr. Galloway as an expert witness. The chancellor also explained that, having observed Dr. Galloway for several years testifying in court, he was always objective and fair in his opinion regarding the best interest of the child. Therefore, the chancellor did not find any bias present, even if John may have met independently with Dr. Galloway one time.

¶ 17. Phyllis tendered Eliot Levin as an expert witness in the field of clinical social work and custody evaluation at the October 2007 hearing. Phyllis hired Levin to assist her and Clay in what Phyllis perceived as Clay’s emotional difficulties related to the custody and visitation situation. Phyllis also asked Levin to review Dr. Galloway’s two-page report. Levin testified that after meeting with Phyllis for approximately four hours and with Clay for approximately one hour, he determined that Dr. Galloway’s custody report was “garbage.” Levin claimed Dr. Galloway did not interview “peripheral resources” or Phyllis and Clay sufficiently. Additionally, he found Dr. Galloway’s report was too general. Levin claims Clay’s stuttering is treatable, but his condition is worsening due to the stress of the custody arrangement. Levin made his opinion under the presumption that both Phyllis and John were good parents; however, he never met with John and did not review Dr. Galloway’s trial testimony. Levin opined that Phyllis was a passive person for voluntarily signing the temporary order granting John custody; Levine contended that Phyllis was “bullied” into signing the temporary order by her attorney at that time.

¶ 18. John entered calendars into evidence showing the numerous dates he kept Clay before the child started school when Phyllis still had primary custody. John described his relationship with Clay as “real close,” with Clay being his number one priority. For the year and one half since John has had custody, he typically drives Clay to school, picks him up from school, helps with Clay’s homework, accompanies him to extracurricular activities after school (including karate, soccer, swimming lessons, and baseball) and generally provides a highly structured environment. John claims to have many family members near his residence. John also arranged for Clay to receive speech therapy from the Petal Public Schools twice per week. John admitted that the program may not have been as effective as possible, and he pledged to enroll Clay in a more specialized local speech-therapy program.

¶ 19. Phyllis testified that Clay’s speech difficulties had worsened since John received temporary custody of Clay. She had obtained placement for Clay in a speech-therapy program at Louisiana State University, approximately one hour from her home, if she got custody. Phyllis also admitted that her drivers’ license had been suspended since 2001 due to an unpaid traffic ticket. She claimed she “thought it was taken care of,” and presumably took care of it the week of the June 2007 hearing. Phyllis also admitted to pleading guilty and paying restitution on a bad check. Since the divorce, Phyllis said that she has not had any live-in relationships or extended stays with unrelated men. She stated Clay and Jacob’s relationship is “very close.” When she had custody of Clay, he engaged in T-ball, baseball camp, and Bible camp. Phyllis acknowledged she had been relying on food stamps for several years for her and Jacob in order to make ends meet. She admitted agreeing to grant John temporary custody of Clay in December 2005, but she claims her attorney at the time misinformed her on the law.

¶ 20. Clay’s first-grade teacher in Petal testified that Clay was doing very well in school under his father’s custody and that John appears to be involved and interested in Clay’s education. She stated Clay is one of the top students in his class, consistently completes all of his homework, and has been tested for the school’s gifted program. He also received an award from his teacher for “most cooperative” student.

¶ 21. Phyllis’s supervisor at her current employer, Tonya’s Child Care, testified that Phyllis has great rapport with the approximately eight children, who are between the ages of one year and sixteen months, under her care. The supervisor described Phyllis as being “one of our best employees.” The supervisor also testified she would be concerned with the quality of parenting if' a child had to repeat kindergarten because of thirty-five unexcused absences. At the time of the hearing, Phyllis worked from 7:00 a.m. until 6:00 p.m., five days a week, but her supervisor stated she could change her hours from 7:00 a.m. until 4:30 p.m. Phyllis further added that if granted custody, Clay could attend her daycare’s before-and-after-school programs.

¶ 22. Phyllis’s sister, Gloria Deville, testified that she and their brother, Chad Deville, live within five miles of Phyllis. Gloria maintained that once Clay started kindergarten, John kept the court-ordered visitation, picking Clay up on Thursday nights. Therefore, Clay was missing kindergarten on Thursday, Friday, and sometimes Monday; however, she was not certain this happened every time. For Phyllis’s visitation period, Gloria usually picked Clay up from John’s custody on Fridays because of Phyllis’s work hours.

¶ 23. John’s mother, Connie Chisholm, testified about John’s family and support network in the Hattiesburg area. She stated that John picked Clay up from Phyllis on Thursdays until Clay began kindergarten; then, John voluntarily limited his visitation to commence alternate Fridays, not Thursdays, so Clay would not miss school. Chisholm, who is the owner and director of a child-care center, stated she would keep Clay whenever John was working.

¶ 24. On May 29, 2008, the chancery coui’t entered a final judgment, granting John permanent physical custody of Clay. Phyllis now timely appeals, raising the following issues: (1) the chancellor erred in applying the Riley test for custody modification; (2) the chancellor erred in performing an Albright analysis as there was no material change in circumstances adverse to Clay; (3) the chancellor erred in finding the majority of the Albright factors favored John, not Phyllis; and (4) the chancery court erred in considering the expert testimony of Dr. Galloway.

STANDARD OF REVIEW

¶ 25. Our standard of review for child custody cases is very limited. Johnson v. Gray, 859 So.2d 1006, 1012(¶ 31) (Miss.2003). In order for this Court to reverse, the chancellor must be “manifestly wrong, clearly erroneous, or apply an erroneous legal standard.” Id. (citing Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003)). The chancellor’s findings of fact may not be set aside or disturbed on appeal if they are supported by substantial, credible evidence. Id. (citing Maras- calco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984)).

ANALYSIS

1. Material Change in Circumstances

¶ 26. The law on custody modification is well established. “[A] non-custodial party must prove [that]: (1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the [child’s] welfare; and (3) a change in custody is in the best interest of the child.” Johnson, 859 So.2d at 1013(¶ 33) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)). The totality of the circumstances must be considered in determining whether there was a material change in circumstances. Mabus, 847 So.2d at 818(¶ 8) (citing Bredemeier, 689 So.2d at 775). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Id. (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 27. In his final judgment modifying custody, the chancellor cited Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996), where custody was modified based on an improvement in the noncustodial parent’s living condition. Riley acknowledged that “a change in circumstances of the non-custodial parent does not, by itself, merit a modification of custody.” Id. (citing Duran v. Weaver, 495 So.2d 1355, 1357 (Miss.1986)). However, the Riley court went on to hold that, while not abandoning the material-change-in-eircumstanees standard, “when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent,” custody may be modified. Id.

¶ 28. Phyllis argues that the chancellor erred in applying Riley to find custody could be modified. Phyllis explains that Riley holds it still must first be shown that there is a material change in circumstances and that the custodial parent’s environment is adverse to the child’s best interest. She contends there are no such facts in the case at bar justifying such a finding. Thus, she concludes the custody modification was inappropriate.

¶ 29. First, we note that the chancellor did not rely on the test in Riley alone; in his opinion, he initially cited the traditional three-part test for modification — a material change has occurred which is adverse to the child, where a change is in the child’s best interest. See Johnson, 859 So.2d at 1013(¶ 33). He properly noted that in determining whether a material change in circumstances had occurred, the relocation of a parent, in and of itself, is insufficient. See Giannaris v. Giannaris, 960 So.2d 462, 468(¶ 11) (Miss.2007). The chancellor then cited to Riley, but he did not provide any analysis as to how the facts of this case applied to Riley’s holding. Therefore, we disagree with Phyllis’s contention that the chancellor improperly based his decision entirely on Riley.

¶ 30. Second, we agree with Phyllis that the alternative Riley test is not applicable in this case. In Riley, the supreme court affirmed a chancellor’s decision to transfer custody of a minor child from the mother to the father, even though the chancellor found the father had not met the traditional test for modification. Id. at 745. Testimony showed: the mother had moved several times; the child had attended several different schools due to the moves; the child had failed first grade; the mother was sporadically employed; her income was supplemented by food stamps and other government assistance; and she had lived with men prior to and subsequent to her current live-in boyfriend, who admitted he" occasionally smoked marijuana. Id. at 742. The chancellor in Riley reasoned that although he believed it was in the best interest of the child to live with her father due to the negative “totality of circumstances” surrounding the mother, he could not transfer custody because there had been no material change in circumstances since the original judgment and no measurable adverse affect on the child. However, the chancellor conditioned his ruling on both parents passing regular drug tests, and when the mother ultimately tested positive for marijuana use, the chancellor then transferred custody to the father. Id. The supreme court found it within the chancellor’s discretion to do so as the mother’s home had been the site of illegal drug use and other behavior adverse to the child’s welfare, and that the father’s circumstances had improved since the original decree. Id. at 745. The supreme court stressed “a chancellor is never obliged to ignore a child’s best interest in weighing custody change”; instead, the chancellor should consider it “above all else .... ‘we never depart from our polestar consideration: the best interest and welfare of the child.’ ” Id. at 744 (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)).

¶ 31. The situation in Riley is factually distinguishable from the instant case. While there are some similarities, such as Phyllis’s frequent moves and Clay’s attendance at numerous schools, her frequent job changes, Clay’s failing kindergarten, and Phyllis’s reliance on food stamps, there was no frequent and ongoing cohabitation with men or drug use here. Phyllis testified that she had not cohabited with men since the divorce, even after giving birth to a child out of wedlock, and there was no evidence of drug use by her or any individual living with her. Most importantly, however, we find that, unlike Riley, custody was modified based on the traditional test of custody modification.

¶ 32. Regarding the first prong of the traditional test, “[t]he burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.” Johnson, 859 So.2d at 1014(¶ 37) (quoting Mabus, 847 So.2d at 818(¶ 8)). Professor Deborah H. Bell, in her treatise on family law’-, notes that “[ejvents which would not, alone, be a sufficient material change may in combination provide a basis for modifying custody.” Deborah H. Bell, Bell on Mississippi Family Law § 5.11(5) (Supp.2008); see also Duke v. Elmore, 956 So.2d 244, 248(¶ 8) (Miss.Ct.App.2006) (cohabitation with a convicted felon for ten months in the presence of the child before marrying him, the mother’s sporadic employment, and her changing residences four times in two years since the divorce all constituted a material change); Hill v. Hill, 942 So.2d 207, 210—11(¶ 16) (Miss.Ct.App.2006) (in the totality of the circumstances, cohabitation with numerous men, inconsistent living situations, and “risk-taking” behavior were found to constitute sufficient material change in circumstances). As to the second prong, the material change must adversely affect the child. Johnson, 859 So.2d at 1013(¶ 33) (citing Bredemeier, 689 So.2d at 775). Again, custody may be modified when there is a combination of adverse circumstances. Bell on Mississippi Family Law § 5.11(5)(a) (2005); see also Brown v. White, 875 So.2d 1116, 1119(¶ 9) (Miss.Ct.App.2004) (adverse material changes included the custodial parent’s moving frequently, mother’s relationships with different men, the child’s failing first grade after having attended numerous schools, and the custodial parent’s job schedule interfering with the child’s care); Fletcher v. Shaw, 800 So.2d 1212, 1217(¶ 13) (Miss.Ct.App.2001) (custody modified under the traditional test because of material adverse changes of the custodial parent’s frequent moving, unemployment, leaving the child with friends for long periods of time, and having two children out of wedlock).

¶ 33. In the instant case, the chancellor found a material change in circumstances adverse to the child based on the following facts. While modification cannot be based on relocation alone, Phyllis had relocated several times. Additionally, Phyllis relies on others for support, including her parents and brother, and she was, at the time of the hearing, relying on welfare in the form of food stamps for herself and her other son. The chancellor also noted Phyllis had a suspended driver’s license since 2001, and it was only cured after the hearing in June 2007.

¶ 34. The chancellor also acknowledged the parents’ living conditions at the time of the hearing: Phyllis resided in a two-bedroom, one-bathroom mobile home with her living in one bedroom, and Jacob and Clay living in the other; while John resided alone in his own three-bedroom home in Petal, where Clay had resided since approximately six months after John received temporary custody of Clay in January 2006. As far as employment, the chancellor found both parents were currently gainfully employed: Phyllis had worked at the same daycare for over two years, although she still relied on food stamps; and John had been self-employed as a painting contractor for three years. Finally, the chancellor noted that Clay had been enrolled in Petal Elementary since under John’s custody in January 2006, was doing well academically, and participated in many extracurricular activities, including soccer and karate. John promised to obtain more aggressive therapy for Clay’s speech problems and enroll him in a specialized speech-therapy program.

¶ 35. The chancellor also took into account Dr. Galloway’s opinion, which concluded that Clay would be better off remaining in John’s custody. Notably, the chancellor cited Dr. Galloway’s comments that: Phyllis was insufficiently self-reliant to provide proper care for Clay; he observed her blaming others for the difficulties in her life; and she had an inability to make plans for the future. Further, Clay and John were bonding well as father and son.

¶ 36. While this case does not show the severe adverse material changes in circumstances found in some child custody modification cases, we find the chancellor’s determinations were proper. We are mindful of our standard of review: “[o]n appeal, we are limited to searching for an abuse of that discretion; otherwise, our duty is to affirm the chancellor.” Carter v. Carter, 735 So.2d 1109, 1114(1118) (Miss.Ct.App.1999) (citing Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994)). We cannot reweigh the evidence, but if we find substantial evidence to support the chancellor’s findings, we must affirm. Id. Further, any resolution of factual disputes is always a matter entrusted to the sound discretion of the chancellor. Id. at (¶ 19) (citing Murphy, 631 So.2d at 815). Because he was present in the courtroom, the chancellor was best equipped to listen to the witnesses, observe their demeanor, and determine their credibility. Id.

¶ 37. In examining the record, we note of particular significance Clay’s academic struggles while in the custody of his mother, which improved once custody was transferred to John. Although the chancellor did not make an on-the-record determination of whose fault the thirty-five absences from kindergarten were related to, Clay was in the custody of Phyllis when this occurred, and there was conflicting evidence of blame. Additionally, school records show Clay was not ready for kindergarten, regardless of the reason, as Clay performed very poorly on his “reading readiness” test. While there was no baseline of comparison for Clay’s academic ability, as he was not in school prior to the initial award of custody, his academic improvement once in the custody of his father is noteworthy. Additionally, we note Phyllis’s numerous moves caused Clay to attend two different schools in the fall of 2005 before John was granted temporary custody. Considering the totality of the circumstances, we cannot say the chancellor erred in finding a material change in circumstances adverse to the child’s best interest.

2. Application of the Albright Factors

¶ 38. After finding a material change in circumstances adverse to the child, the chancellor made a thorough analysis of the factors found in Albright in order to determine whether a change in custody was in the best interest of the child. See Albright, 437 So.2d at 1005. The chancellor found that Clay’s age, health and sex; the parents’ employments, parenting skills, physical and mental health, age, and moral fitness; and the emotional ties between the parents and the child were all neutral. Therefore, these factors did not weigh in favor of either John or Phyllis.

¶ 39. The chancellor found the remaining Albright factors all weighed in favor of John. Regarding continuity of care, during the time Phyllis had primary physical custody of Clay since the divorce, John had significant visitation. The chancellor noted John’s documentation that he had Clay a total of 501 days from 2001, the first year of divorce, until 2003, when Clay entered kindergarten. Clay has been in the temporary custody of his father since January 2006, or over two years as of the entry of the chancellor’s judgment on modification. Although the chancellor acknowledged that both parents expressed a willingness to care for Clay, John was deemed more capable of providing that care, as Phyllis relied on family and friends and was, at the time of the hearing, on food stamps. Also, the chancellor noted that John had been self-employed for three years and now owns a home. Clay’s home, school, and community record weighed in favor of John; since living with John, Clay was doing well in school and was involved in many extracurricular activities. The chancellor was primarily concerned with the stability issues in Phyllis’s life. He stated that while Phyllis had “made an effort to stabilize her life, and home environment, this seems to have been a long, drawn out process.” During the time she had primary custody of Clay, Phyllis moved to five different residences in four different towns; further, she had been “constantly living with and utilizing the assistance of relatives.” The chancellor noted John had only resided in and around Hattiesburg since the divorce, except for a brief period of time he worked in Louisiana; the chancellor found that John provided a regular, highly structured schedule for Clay while in his custody. The chancellor concluded that it was in Clay’s best interest for permanent physical care and custody to be awarded to John.

¶ 40. We acknowledge that the chancellor had a difficult decision to make, as the evidence showed both parents appear to be “good” parents and have a strong bond with Clay. However, the chancellor’s findings were supported by substantial evidence and based on the best interest of the child. Accordingly, we cannot conclude that the chancellor erred in modifying custody.

3. Dr. Galloway’s Testimony

¶ 41. Phyllis argues that the chancellor ei’red in admitting the expert testimony of Dr. Galloway at the modification hearing. She notes his observations that she was an unfit parent were made after a single thirty-minute visit; Dr. Galloway did not visit her home or interview her friends, relatives, or employers. She further criticizes him for allegedly basing his opinion on the fact she receives food stamps. Finally, Phyllis contends that Dr. Galloway’s testimony was not reliable, as John had employed him in January 2005, and had paid him “a considerable amount of money.”

¶ 42. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958(¶25) (Miss.2002)). Further, the admission of expert testimony is within the sound discretion of the trial judge; therefore, the trial judge’s decision will stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. (quoting Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999)).

¶ 43. Rule 702 of the Mississippi Rules of Evidence governs the admissibility of expert testimony. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

M.R.E. 702. The trial court must first determine if the expert’s testimony is relevant; that is, does the testimony assist the trier of fact. McLemore, 863 So.2d at 38(¶ 16) (citing Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir.2002)). Then, the trial court must determine if the proffered testimony is reliable. Giannaris, 960 So.2d at 470(¶ 14) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)). “[T]he trial court has ‘considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.’ ” McLemore, 863 So.2d at 37(¶ 13) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). Factors the trial court may consider pertaining to reliability include:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular' technique, there is a high known or potential rate of error; whether there are standards controlling the techniques of operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

¶ 44. First, we note John did not address this issue in his brief. Regardless, we find Phyllis’s contentions are without merit. John tendered Dr. Galloway as an expert in counseling, sociology, and social work. After voir-dire examination, Phyllis’s objection to Dr. Galloway’s admission as an expert was overruled. In voir dire, Dr. Galloway testified that he was a professional counselor and social worker. He holds licenses in Louisiana in marriage and family counseling and vocational rehabilitation and counseling. He admitted he was not a licensed professional counselor as he did not think it was necessary because of the licenses he already holds. He has bachelors’ degrees in psychology and sociology, a master’s degree in social work, and a Ph.D. in sociology. His past work includes private practice in psychiatric settings (both inpatient and outpatient), teaching, and more recently doing custody and mediation work in the court system. Having been accepted as an expert in Mississippi and Louisiana, he stated that he had testified at forty cases in one year. He testified that no court had ever rejected him as an expert. He stated that the methods he utilized were appropriate to the information he was provided by the court. He utilized interviewing techniques and behavioral diagnostic procedures to come to an opinion. Dr. Galloway had also recently attended three seminars with specific training in custody evaluations.

¶ 45. We find Dr. Galloway’s testimony was both relevant and reliable. A qualified third-party’s evaluation of the situation is useful to the fact-finder. Custody evaluation experts are often called to testify in modification matters, and Phyllis hired her own expert, Levin, for the same purpose. Dr. Galloway’s credentials show he has the skill, experience, and education to assist the trier of fact in this determination. The interviews were an appropriate, reliable method of gathering this information, and the chancellor was aware of Dr. Galloway’s limited time with Phyllis, which was in part due to Phyllis’s transience.

¶ 46. Dr. Galloway made his custody recommendation in October 2005 after having met with John twice and Phyllis once. All of these visits were in his office. Dr. Galloway explained in his October 2005 letter that he attempted to visit Phyllis at home, but she was temporarily moving to Baton Rouge at the time. By the June 2007 hearing, where Dr. Galloway opined she was “unfit,” Dr. Galloway had met with John three more times. Clay was present for three of the meetings. Dr. Galloway made no mention of Phyllis being on food stamps in his written report, and he expressly denied blaming her “unfitness” solely on receiving this assistance. Moreover, while the chancellor considered Dr. Galloway’s opinion, there is no indication that the chancellor agreed with his determination that Phyllis was an “unfit” parent. However, the chancellor did agree with Dr. Galloway’s determination that Phyllis was too reliant on others for support and lacked stability.

¶ 47. Additionally, we find no merit to Phyllis’s contention that Dr. Galloway was biased toward John because he was hired by John individually before the court appointed him. From the record, it is unclear if Dr. Galloway met with John in January 2005 or January 2006. The court appointed Dr. Galloway on August 15, 2005. John maintains he did not hire Dr. Galloway independently. Dr. Galloway testified his notes were unclear on the matter. It was undisputed that Dr. Galloway was paid by John pursuant to the court order, as Phyllis had limited funds. At the June 2007 hearing, the chancellor found that he had observed Dr. Galloway as an expert witness for several years and found him always to have the best interest of the child in mind, and he was never biased toward a specific parent. Further, Phyllis had not filed a motion in limine to exclude Dr. Galloway’s testimony before trial; the first time she raised the issue was at the hearing. Accordingly, we find the chancellor did not abuse his discretion in admitting Dr. Galloway’s testimony regarding Clay’s custody.

CONCLUSION

¶ 48. We find that the chancellor applied the correct legal standard, and his decision to modify custody from Phyllis to John is based upon substantial, credible evidence. Accordingly, we affirm.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND IN THE RESULT. CARLTON, J., CONCURS IN RESULT ONLY.

      . John's drug tests were negative. Phyllis’s urinalysis drug test came back negative. She submitted to a hair follicle drug test in November 2005, but due to an error by the testing company, the lab would not release the results.

      . John had Clay for 149 days in 2001; 196 days in 2002; and 156 days in 2003, for a total of 501 days.

      . In Carter v. Carter, 735 So.2d 1109 (Miss.Ct.App.1999), this Court affirmed the application of the Riley test over the traditional test for custody modification. In Carter, there was no material change in circumstance because the stay-at-home mother's neglect of her two children had been continual since the original custody decree. Id. at 1113(1111). In Hoggall v. Hoggatt, 796 So.2d 273 (Miss.Ct.App.2001), it was unclear whether the chancellor based his decision on Riley or the traditional test, but this Court upheld the modification while questioning whether there was indeed a material change in circumstances. As in Carter, evidence in Hoggatt showed a pattern of neglect by the mother, and the chancellor found that the child’s current situation with his mother was detrimental to his physical and emotional health, while the father had improved his living situation since the time of the original decree. Id. at 275(117). This Court stated it favored a narrow application of Riley, where the existing custody arrangement is detrimental to the child and the noncustodial parent demonstrates a living environment that is beneficial to the child and which was not present at the time of the original custody determination. Id. at (¶ 9).

      . We note several cases that found academic struggles, in the totality of the circumstances, to be a material change in circumstances adverse to the child's best interest. See Powell v. Powell, 976 So.2d 358, 362(11 17) (Miss.Ct.App.2008) (denial of custody modification reversed for reconsideration of whether there was a material change in circumstances where one minor child was two years behind in school, other child had speech impediment, and evidence was present of their difficulties adjusting to constant change in their edu-calional environments); Brown, 875 So.2d at 1119(¶9) (modification based on a material change in circumstances adversely affecting the child, including child doing poorly academically and failing the first grade); Cooper v. Ingram, 814 So.2d 166, 168(113) (Miss.Ct.App.2002) (custody modification upheld based on chancellor’s finding that for a child with learning disability, the child’s academic struggles without timely intervention by tire custodial parent constituted an adverse material change in circumstances).

      . However, we note that Phyllis did not include this issue in her "statement of the issues” section of her brief, but only in her argument section.


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    HAAS TRUCKING, INC., Appellant v. HANCOCK COUNTY SOLID WASTE AUTHORITY and Hancock County Board of Supervisors, Appellees.
    No. 2009-CA-00373-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      R. Hayes Johnson Jr., attorney for appellant.
    Ronald J. Artigues Jr., Patrick W. Kirby, Gulfport, attorneys for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J„

for the Court:

¶ 1. This appeal arises out of the Hancock County Solid Waste Authority's (the Authority) decision to revise a proposed amendment to the Hancock County Solid Waste Management Plan. The original proposal included a site owned by Haas Trucking, Inc., but the site was not included in the revised proposal. Feeling aggrieved, Haas Tracking appeals and asserts that the Hancock County Circuit Court erred in finding that the Authority’s revised proposal is legitimate.

¶ 2. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 3. In February 2006, the Authority put out a public notice, seeking applications “from developers and operators for Class I rubbish sites in Hancock County, Mississippi.” The notice stated that the Authority would “review all requests and make a determination of need as to whether additional sites are needed and/or will be included in the application process for a plan amendment.” Haas Trucking submitted a request seeking inclusion of their site in the amendment. Where the application requested a “brief description of the need for the proposed facility,” Haas Trucking stated that their site was a “[g]ood location for possible future landfill services in the buffer zone.” Haas Trucking was included as a Class I rubbish site in the proposed plan amendment; an engineering firm that helped the Authority select the sites stated that the Haas Trucking site would “provide the citizens of Hancock County a conveniently located landfill that will reduce transportation cost[s].” Boudin Environmental also requested, and was granted, inclusion as a site in the proposed amendment.

¶ 4. In November 2006, the Authority ratified its proposed amendment. On December 21, 2006, the Authority submitted the ratified proposal to the Mississippi Department of Environmental Quality (MDEQ). As submitted, the proposed amendment suggested the establishment of eight additional waste-disposal sites, including the sites owned by Haas Trucking and Boudin Environmental. At the time of the proposal, one Class I rubbish site was already in operation in Hancock County-

¶ 5. According to Mississippi Code Annotated section 17-17-227(6) (Supp.2009), the MDEQ must either accept or reject a proposal, by means of an order, within one hundred and eighty days of the proposal’s submission. However, instead of issuing an order accepting or rejecting the proposal, the MDEQ sent a letter, dated February 26, 2007, to the Authority expressing concerns over the number of sites included in the proposal. The MDEQ further offered the support and aid of an engineering firm, Neel-Schaffer Engineers. The record indicates that the Authority chose to accept the aid of Neel-Schaffer.

¶ 6. On June 21, 2007, Neel-Schaffer presented the Authority with a recommendation of three sites that the firm believed would meet Hancock County’s waste-management needs. On August 21, 2007, after reviewing Neel-Schaffer’s recommendations, the Authority ratified a revised plan amendment to propose to the MDEQ. Instead of the eight sites that were originally proposed, the revised proposal contained only one additional Class I rubbish site, the “King site.” Neel-Schaffer had recommended the King site, as well as two other sites, for a number of reasons. None of the three sites recommended by Neel-Schaffer were owned by Haas Trucking or Boudin Environmental.

¶ 7. On August 30, 2007, Haas Trucking filed a notice of appeal in the circuit court, giving notice of its “intent to appeal [the] decision of the Hancock County Solid Waste Authority, dated Aug[ust] 21, 2007.... The contested decision involved Appellant’s request to have Hancock County’s Solid Waste Management Plan amended to designate Appellant’s property as a Class I landfill.” On November 19, 2008, Boudin Environmental filed a motion in the circuit court to intervene in Haas Trucking’s appeal. At a hearing the following day, the circuit court denied Boudin Environmental’s motion but allowed it to file an amicus curiae brief.

¶ 8. On February 9, 2009, the circuit court issued an order affirming the decision of the Authority. The circuit court found that the Authority’s decision to adopt the King site as the only proposed site to add to the waste-management plan “clearly lays out the reasons and evidence support [sic] the Authority’s decision to select the King Site as a Class I rubbish site, to the exclusion of other applicants.” It is from that order that Haas Trucking appeals.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Our supreme court has explained the standard of review that applies when dealing with the decision or order of an administrative agency:

[An appellate court] will reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right. Hinds County Sch. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B., 10 So.3d 387, 394-95 [(¶ 17)] (Miss.2008). An agency may not adopt rules and regulations which are contrary to statutory provisions or which exceed or conflict with the authority granted by statute. Miss. Pub. Serv. Comm’n v. Miss. Power & Light Co., 593 So.2d 997, 1000, 1004 (Miss.1991). “[A]n agency’s rule-making power does not extend to the adoption of regulations which are inconsistent with actual statutes.” Tillmon v. Miss. State Dep’t of Health, 749 So.2d 1017, 1023 [(1124)] (Miss.1999) (citing State ex rel. Pittman v. Miss. Public Serv. Comm’n, 538 So.2d 367, 373 (Miss.1989)).
An agency’s interpretation of a rule or statute governing the agency’s operation is a matter of law that is reviewed de novo, but with great deference to the agency’s interpretation. Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 [(¶ 10)] (Miss.2006) (quoting McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 118 [(¶ 9)] (Miss.1999)). This “duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate.” Gill v. Miss. Dep’t of Wildlife Consenation, 574 So.2d 586, 593 (Miss.1990). However, if an agency’s interpretation is contrary to the unambiguous terms or best reading of a statute, no deference is due. Siena Club, 943 So.2d at 679 [(¶ 17)].

Miss. Methodist Hosp. & Rehab. Ctr, Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 606-07 (¶¶ 14-15) (Miss.2009).

¶ 10. The sole question in this appeal is whether the Authority’s 2007 proposed amendment of its twenty-year waste-disposal plan was appropriate. Haas Trucking and Boudin Environmental assert a number of arguments as to why the Authority was without authority to reject or revise its 2006 proposed amendment.

¶ 11. The contention that underlies most of Hass Trucking’s arguments is that the existence of the Authority’s 2006 proposed amendment, which was never offi-dally rejected by the MDEQ, somehow necessitates a finding that the 2007 proposal is invalid. Notably, Haas Trucking contends (1) that the proper procedures were not followed in regard to the 2006 proposal, (2) that the letter sent from the MDEQ finding fault with the 2006 proposal was “an unauthorized exercise of administrative decision-making authority,” and (3) that the doctrine of res judicata bars the 2007 proposal.

¶ 12. Mississippi Code Annotated section 17-17-227(6) states, in pertinent part, that:

Upon ratification of the plan, the governing body of the county, authority or district shall submit it to the commission for review and approval.... The commission shall, by order, approve or disapprove the plan within one hundred eighty (180) days after its submission. The commission shall include with an order disapproving a plan a statement outlining the deficiencies in the plan and directing the governing body of the county, authority or district to submit, within one hundred twenty (120) days after issuance of the order, a revised plan that remedies those deficiencies.

(Emphasis added). Therefore, after the Authority submitted its proposed amendment in 2006, the MDEQ had one hundred and eighty days in which to respond to the proposal with an order either rejecting or accepting the proposal. However, no such order was ever issued by the MDEQ. Haas Trucking contends that the non-existence of such an order means that the 2006 proposal is still viable and, in fact, prohibits the Authority from submitting a different proposal.

¶ 13. While the MDEQ should have issued an order denying or approving the 2006 proposal, we cannot find that the failure to do so means that the MDEQ implicitly accepted the 2006 proposal. No statute states that a faitee of the MDEQ to respond in accordance with the statutory guidelines constitutes an acceptance of a submitted proposal. In the absence of some statutory impetus, we will not find that the absence of an order regarding a proposal constitutes an acceptance of that proposal. The same statute that states that the MDEQ’s rejection of a proposal must be done by means of an order also states exactly the same regarding the MDEQ’s acceptance of a proposal. In the absence of an order accepting the 2006 proposal, we find that it remained merely a proposal, subject to revision or alteration by the Authority, taking into account any discussion or guidelines offered by the MDEQ.

¶ 14. Thus, we find no merit to any contention that the 2007 proposal was invalidated by the 2006 proposed amendment. Haas Trucking and Boudin Environmental also argue, however, that the Authority’s decision not to include them in the 2007 proposed amendment was arbitrary and capricious. We find no merit to this contention, either.

¶ 15. In its report to the Authority, Neel-Schaffer noted the following about the King site:

The King Site is located in the southern part of the [cjounty near the centers of waste generation. The site works well in tandem with the [existing disposal] site since the site is located south of I-10. Recently traffic congestion issues along Highway 43 through Kiln created transportation problems for rubbish disposal at the [existing site]. Even though the Mississippi Department of Transportation has plans to upgrade the corridor, the location of the King Site gives an advantage with regard to traffic congestion. Being located near the centers of waste generation gives the Site an advantage to serve with good factors considering transportation economics.

A “Rubbish Site Evaluation Matrix” prepared in June 2007, presumably by Neel-Schaffer, showed that the Haas Trucking site had been rated as having a “good” condition for siting only in regard to expandability. Every other consideration in the matrix, such as accessibility, capacity, and transportation economics was rated only as “fair.” The King site, by contrast, was rated as “excellent” regarding expandability and as “good” in every category except capacity, in which it received a rating of “fair.” The Boudin Environmental site received a rating of “good” in three categories, a “fair” rating as to capacity, and was found to be “poor” in regard to expandability and coordination with other solid-waste activities. Of all of the sites evaluated, the King site received the best overall ratings.

¶ 16. It was not only Neel-Schaffer that provided positive data regarding the King site; the 2006 report that was prepared by a different engineering firm found that the King site had the second-greatest potential annual waste capacity and a facility life of forty-five years. Although Haas Trucking’s site was rated as having fifty years of facility life, its estimated annual waste capacity was one-half to one-quarter that of the estimate for the King site. In other words, even the 2006 engineering report fomid that the King site would provide far better long-term capacity than either the Haas Trucking site or the Boudin Environmental site.

¶ 17. The minutes from the Authority’s August 2007 meeting, wherein the Authority voted to include the King Site in its 2007 amendment, state that the Authority considered the following in choosing the King site: (1) its accessibility “from major transportation corridors”; (2) its location in southern Hancock County; (3) the convenience of the site; (4) the large amount of land area possessed by the King site; and (5) the lessening impact that the King site would have on traffic congestion. The minutes also state that the “action [was] further based upon all of the factors included in the written report of Neel-Schaf-fer,” as well as oral presentations by Neel-Schaffer and comments made at Authority meetings.

¶ 18. In its amicus brief, Boudin Environmental contends that the Authority “essentially turned over to a private engineering firm the selection of the previously Happroved Class I sites to be removed from the Plan. This amounted to an unlawful delegation of a governmental function to a private entity.” We find this contention is wholly without merit. It is clear that the Authority considered several sources of information; furthermore, it is logical that an agency such as the Authority will rely on the expertise of engineering firms in making such decisions when confronted with a problem beyond the Authority’s scope of expertise. We find that the Authority did no more than that in this case. In fact, the Authority could not reach a unanimous decision as to whether to accept Neel-Schaffer’s recommendations in them entirety.

¶ 19. It is clear from the Authority’s minutes that it considered multiple factors in selecting the King site over other sites. Furthermore, the engineering reports, both from Neel-Schaffer and from the 2006 firm, show that there are substantial advantages to the King site over either Haas Trucking’s or Boudin Environmental's site. On the basis of the above, we conclude that the Authority’s decision was not arbitrary and capricious and was supported by substantial evidence.

¶ 20. This contention of error is without merit. Accordingly, the judgment of the circuit coui’t is affirmed.

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

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

      . Boudin's Environmental Services, LLC, another company whose site was removed from the revised proposal, has filed an amicus curiae brief in this matter.

      . Haas Trucking asserts four contentions of error, all of which we consider under the single conclusive issue of whether the revised proposal was valid.

      . The Authority debated whether to adopt Neel-Schaffer’s recommendations completely but could not reach a consensus regarding whether to do so.

      . The site with the greatest annual capacity was owned by DK Aggregate and was one of the three sites recommended by Neel-Schaf-fer in 2007. Testimony at the circuit court hearing indicated that the Authority was still considering using the DK Aggregate site as a regional facility. In any case, DK Aggregate has not joined the present appeal in any capacity.

      . Boudin Environmental’s site was estimated to have half the annual waste capacity as the King site and a facility life of only fifteen to twenly years.


author: LEE, P.J.,

text:
    Ottis J. CUMMINGS, Jr. a/k/a Ottis Junior Cummings a/k/a Otis Cummings, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00317-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On February 18, 2009, a jury in the Choctaw County Circuit Court found Ottis J. Cummings, Jr., guilty of felony driving under the influence (DUI). After a separate sentencing hearing, Cummings was found to be a habitual offender and sentenced to life without eligibility for parole or probation in the custody of the Mississippi Department of Corrections. Cummings filed post-trial motions, which were denied. Cummings now appeals, asserting the following issues: (1) his sentence is disproportionate to the crime and constitutes cruel and unusual punishment; and (2) the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. John Marolt, a Mississippi State Highway Patrol officer, was running radar on Highway 15 in Choctaw County, Mississippi. At approximately 9:30 p.m., Officer Marolt clocked a van driving at a speed of eighty miles per hour in a fifty-five mile-per-hour zone. Officer Marolt turned on his lights and pursued the van for approximately two miles, reaching a speed in excess of one hundred miles per hour. Officer Marolt testified that the van swerved off the right side of the road, then crossed back over the road before coming to rest in a driveway. Officer Marolt approached the vehicle and noticed the driver, Cummings, slumped over the wheel with his forehead resting on the steering wheel. Officer Marolt testified that he immediately smelled alcohol. As Officer Marolt began to question Cummings, he noticed that Cummings’s speech was slurred, his pupils were dilated, and his eyes were red. Cummings told Officer Marolt that he had been drinking, but he had only had approximately one-fourth of a thirty-two ounce beer. This unfinished beer was located in Cummings’s van on the driver’s side floorboard. Officer Marolt asked Cummings to step out of the van. Officer Marolt testified that Cummings stumbled as he exited the van. Officer Marolt grabbed Cummings’s arm to offer support and then placed Cummings in custody. Officer Marolt testified that Cummings was uncooperative and argumentative during this process. Cummings was taken to jail, where he refused to take the Intoxi-lyzer test.

¶ 3. Cummings testified that he had been working on a car from four that afternoon until ten o’clock that night. Cummings stated that grit had fallen in his eyes, making them irritated, and that he started to drink the beer on his way home, but he decided not to finish it. Cummings also stated that he took approximately forty-five medications because he was HIV positive. Cummings testified that Officer Marolt jerked him out of the van and placed him in handcuffs. Cummings said he was only driving sixty miles per hour.

DISCUSSION

I. SENTENCE

¶ 4. In his first issue on appeal, Cummings asserts that his sentence was disproportionate to the crime and constitutes cruel and unusual punishment. As a general rule, a sentence that does not exceed the maximum period of time allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). A sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds applying the proportionality test from Solan v. Helm, 463 U.S. 277, 290-91, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); but see Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (the Solem test should only apply when a comparison of the crime to the sentence leads to an inference of gross dispropor-tionality).

¶ 5. Cummings’s life sentence complies with Mississippi Code Annotated section 99-19-83 (Rev.2007), which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Our supreme court has consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment. Huntley v. State, 524 So.2d 572, 575 (Miss.1988); Jackson v. State, 483 So.2d 1353, 1355 (Miss.1986); Baker v. State, 394 So.2d 1376, 1378-79 (Miss.1981).

¶ 6. The indictment charging Cummings as a habitual offender listed previous convictions of burglary of a dwelling, aggravated assault, and felony DUI. During the sentencing hearing, the trial judge was notified that Cummings had other convictions, including one for a jail escape and two other felony DUIs. One of these felony DUIs included three counts on that particular charge. In total, Cummings had been convicted of five prior felony DUIs. In light of the gravity of Cummings’s current offense and his prior offenses, the trial judge’s imposition of a life sentence does not give rise to an inference of gross dis-proportionality; thus, we do not proceed with an Eighth Amendment proportionality analysis. This issue is without merit.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 7. In his other issue on appeal, Cummings argues that his conviction is against the overwhelming weight of the evidence. “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.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). When reviewing the weight of the evidence, this Court sits as a “thirteenth juror.” Id.

¶ 8. Cummings cites to the following in support of his argument: only one, almost full beer can was found in his car; the number of pills he was taking could have caused an effect similar to that of being under the influence; and there was no proof, other than Officer Marolt’s testimony, that he had been drinking.

¶ 9. Although Cummings refused to take the Intoxilyzer, we find that there was evidence to support the guilty verdict. Officer Marolt testified to the following: he witnessed a van speed past his position; the van swerved across the highway; the driver was slumped over the wheel, with his forehead resting on the steering wheel; he immediately smelled alcohol; Cummings’s speech was slurred; Cummings’s pupils were dilated, and his eyes were red; Cummings admitted that he had been drinking; Cummings stumbled while exiting the van; Cummings refused the Intoxi-lyzer test; and Cummings’s demeanor was uncooperative and argumentative. We are also unpersuaded by Cummings’s assertion that his pills could have affected him similarly. Even Cummings admitted that the effect of the pills on him was unknown.

¶ 10. Sitting as a “thirteenth juror,” we find that the verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. This issue is without merit.

¶11. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.


author: ISHEE, J.,

text:
    Glenn “Trey” MARTIN III, Appellant v. FRANKLIN COUNTY, Mississippi, Appellee.
    No. 2008-CA-01581-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      James Kevin Rundlett, attorney for appellant.
    Edward J. Currie, Jr., Jackson, Lane B. Reed, Meadville, Jeremy Tristan Hutto, Jackson, attorneys for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Following an all-terrain vehicle (ATV) accident on a bridge located on Garden City Road in Franklin County, Mississippi, Glenn “Trey” Martin sustained head and other injuries. Pursuant to the Mississippi Tort Claims Act, Martin filed a complaint in the Franklin County Circuit Court alleging that Franklin County (the County) was negligent in failing to proper-Iy maintain Garden City Road and the bridge, in failing to warn of the conditions, and by negligently constructing the dirt embankments that were placed before the entrance to the bridge. The County subsequently filed a motion to dismiss Martin’s complaint. The trial court found in favor of the County and dismissed Martin’s case with prejudice. Feeling aggrieved, Martin now appeals that judgment and asserts the following allegations of error:

I. The trial court erred by finding that Franklin County adequately warned the plaintiff of the extremely dangerous condition of the bridge at issue.
II. The trial court erred in ruling that the sole proximate cause of Martin’s injuries was Martin and the other individuals’ decisions to proceed past the dirt piles.
III. The trial court erred in failing to levy sanctions on defense counsel after learning of extreme unethical conduct during trial.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 29, 2004 Martin was riding as a passenger on an ATV on Garden City Road in Franklin County. According to Martin, Jennifer Allen was the driver of the ATV. The ATV fell off of an embankment on Garden City Road near the Wells Creek Bridge (the bridge) when the bridge abutment collapsed. The bridge was constructed and maintained by the County.

¶ 3. In February 2004, the County issued an emergency order to close the bridge due to heavy rains which were causing severe bank erosion. According to testimony at trial, the County placed two warning signs on Garden City Road to . warn traffic that the bridge was closed. One sign was located approximately 1,500 feet away from the bridge, and a “Bridge Out” sign was located approximately thirty to forty feet before the entrance to the bridge. The warning signs were placed by Franklin County officials on the Adams County side of the bridge which was the direction from which Martin and Allen had approached the bridge. Additionally, the County erected two large dirt berms approximately four feet in height which stretched the entire -width of the roadway. As further warning, the County placed orange reflective ribbon in front of the first dirt berm. The County also routinely visited the bridge to ensure that the warning signs and reflective tape were still in place.

¶ 4. On the evening of the accident, Martin, Allen, Martin’s friend David Hetzinger, and the children of Martin and Allen arrived at a deer camp in Franklin County and unloaded their gear and ATVs. Sometime after midnight, Martin; Allen; Het-zinger; and Martin’s step-son Jon Michael Eschete, decided to go for a ride on the ATVs. Martin said he and Allen rode together on one ATV, with Allen driving. Hetzinger and Eschete each drove separate ATVs. The group rode north on Garden City Road and approached the bridge.

¶ 5. According to Hetzinger’s testimony, he crossed the bridge first with no problem. Hetzinger testified that he saw a small hump of dirt in front of the bridge, but he did not see any warning signs. Allen crossed over the dirt hump next, and as she did so, the ground connecting the road and the bridge collapsed. Martin and Allen fell approximately thirty feet and crashed into the bed of the creek. Allen died as a result of the accident, and Martin suffered head and other injuries.

¶ 6. Doreen Norris, an EMT with Franklin Ambulance Service, was one of the first responders to arrive on the scene of the accident. Norris testified that she arrived at the scene, on the Franklin County side of the bridge. Norris testified that once she arrived at the scene, she walked around piles of dirt and saw a “Bridge Out” sign on the Adams County side of the bridge — the same side from which Martin and the group had approached the bridge prior to the accident. As a part of her job, Norris spoke with Martin at the accident scene. She testified that Martin appeared lucid following the accident, but there was a very strong odor of alcohol coming from him. Norris also testified that Hetzinger told her that the group had been out on Garden City Road “all night jumping the berm.” Norris testified that Hetzinger told her that the group knew the bridge was out and that they had to build the dirt up to jump the berms. Franklin County Sheriff James Newman testified that Hetzinger told the investigating officers at the accident scene that he saw a dirt mound or berm across the bridge entry and that Martin told him how to drive around it and then traverse a narrow dirt pathway onto the bridge.

¶ 7. Dr. Frederick Carlton was offered as a toxicology expert. He reviewed the toxicology reports on Martin and Allen following the accident. According to the toxicology report, Allen’s blood-alcohol level (BAL) was taken at 7:05 a.m. the morning following the accident. Her BAL at that time was .112. Based on his review of the reports, Dr. Carlton concluded that at the time of the accident, Allen’s BAL was .19. Martin’s BAL following the accident was .13. Dr. Carlton concluded that both Allen and Martin were legally intoxicated at the time of the accident and that legal intoxication can lead a person to have a “reduced perception of danger as well as a reduced reaction time and impaired judgment.”

STANDARD OF REVIEW

¶ 8. A case brought under the Mississippi Tort Claims Act is tried without a jury. Miss.Code Ann. § 11-46-13(1) (Rev.2002). A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003). However, questions of law are reviewed de novo. Id. “The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413(¶ 10) (Miss.Ct.App.2003) (quoting City of Newton v. Lofton, 840 So.2d 833, 835-36(¶ 6) (Miss.App.2003)).

DISCUSSION

I. Adequate Warning

¶ 9. First, Martin takes issue with the trial court finding that Franklin County adequately warned him of the extremely dangerous condition of the Wells Creek Bridge. Martin contends that although the County placed piles of dirt in front of the bridge in an attempt to stop traffic from crossing the bridge, that measure did not work. Martin argues that the County was aware that the bridge was in a dangerous condition and that the piles of dirt were not stopping the public from using the bridge. He further argues that there were no signs present on the date the bridge abutment caved in and he was injured. Martin concludes that the County had a duty to warn the public of the bridge’s dangerous condition and that it failed to do so.

¶ 10. Pursuant to Mississippi Code Annotated section 11-46-9(1)0) (Supp.2009), “[A] governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.” According to testimony from EMT Norris, she saw a “Bridge Out” sign on the Adams County side of the bridge, which was on the same side from which Martin and the group had approached the bridge prior to the accident. Evidence from the toxicology reports presented to the trial court showed that both Martin and Allen were legally intoxicated at the time of the accident. In addition, the offense report presented during trial provides that Martin and the group were ramping their ATVs over the dirt embankments that were erected by the County to prevent crossing of the bridge.

¶ 11. Several Franklin County officials testified that prior to the accident, several warning signs were placed by them on Garden City Road at the approach to the bridge. County supervisor Woodrow Wilson testified that he and his road foreman continually checked to make sure the warning signs and dirt embankments remained in place.

¶ 12. Martin contends that if warning signs were placed on Garden City Road, those warning signs were temporary and were commonly Imown to be stolen or removed. However, the Mississippi Supreme Court has held that “[sectionjll-46-9(l)(w) does not require a governmental entity to actively patrol areas containing warning signs to see if a third party has removed the signs. The statute exempts the governmental entity from liability for the removal of warning signs ‘unless the absence, condition, malfunction or removal is not cometed by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.’ Mitchell v. City of Greenville, 846 So.2d 1028, 1031(1113) (Miss.2003). Wilson testified that the area was checked for the warning signs at least twice per week. Martin’s argument would require that the County actively monitor the warning signs to ensure there were in place every minute of every day. This standard is not required under Mississippi law. Thus, we find that the County did provide adequate warning that the bridge was out.

II. Proximate Cause

¶ 13. Second, Martin takes issue with the trial court’s ruling that the sole proximate cause of Martin’s injuries was Martin and the other individuals’ decisions to proceed past the dirt piles. Martin contends that the sole proximate cause of his injuries was the County’s failure to adequately warn of a dangerous condition about which the County knew. Martin argues that even if he is partially at fault, he was only contributorily negligent. Martin further contends that whether he or Allen were intoxicated is wholly irrelevant because the bridge could have collapsed if a child were walking over the abutment.

¶ 14. The trial court was presented with evidence that Martin knew or should have known that the bridge was out prior to the accident. According to testimony from Norris, Newman, and Wilson, substantial warnings were in place to alert Martin and other members of the public that the bridge was out, including a “Bridge Out” sign that was placed in front of the first two dirt embankments.

¶ 15. While Martin and Allen’s legal intoxication is a substantial factor in regard to their negligence, it was not the only basis upon which the trial court found for the County. The trial court pointed out that in addition to being under the influence of alcohol, Martin and Allen were both adults who “knew the bridge was out prior to that date, and knowingly proceeded past warning signs and dirt barriers.”

¶ 16. The Mississippi Supreme Court has held that liability will not be placed on a governmental entity when “the facts present a situation of an open and obvious condition which is required for immunity pursuant to Mississippi] Code Ann[otated] [seetion]ll-46-9(l)(v).” City of Clinton v. Smith, 861 So.2d 323, 328(¶19) (Miss.2003). Accordingly, Martin’s argument that he should have been found only partially at fault is unsupported by the facts and without merit.

III. Sanctions

¶ 17. Lastly, Martin takes issue with the trial court’s decision not to cite Franklin County Attorney Lane Reed for highly unethical conduct during the trial on this matter. During the first day of trial, Martin announced to the trial court that the next witness would be John Smith, Assistant State Traffic Engineer for the Mississippi Department of Transportation (MDOT). When Smith’s name was called, he did not respond. However, Smith was contacted and told to return to the courtroom.

¶ 18. The trial judge conducted a hearing to determine why Smith was not present when he his name was called although he had been seen at the courthouse earlier that day. Reed explained that he had contacted the Attorney General’s Office to determine whether or not a trial subpoena had been served upon Smith because Reed stated that he had found no return of service in the trial court’s file. Reed stated that it was his understanding that an assistant attorney general had informed Smith that because he was not under subpoena, he could do whatever he wished.

¶ 19. There is no evidence that the trial court abused its discretion in refusing to levy sanctions upon Reed. This is especially true as Smith testified, and the documents Smith authenticated were admitted into evidence. The trial judge heard from the parties and Smith and decided that sanctions were not warranted. Thus, this issue is also without merit.

¶ 20. The trial court correctly ruled in favor of the County. The trial court was provided with substantial and credible evidence that the County provided substantial warnings to Martin that the bridge was out at the time of the accident.

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

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

      . Evidence from the record shows that the group left for their ATV ride shortly after midnight and that the accident happened around 3:00 a.m. The accident scene was only approximately a mile away; however, Martin testified that the group went directly to the bridge and made no stops along the way.

      . In 2004 under Mississippi law, the legal blood-alcohol limit was .08.


author: MURDOCK, Justice.

text:
    Samuel Anthony BROWN et al. v. Jennie M. MELTON et al.
    1061325.
    Supreme Court of Alabama.
    Aug. 28, 2009.
    John W. Kelly III of Kelly & Kelly, Selma; and Charles H. Sims III, Selma, for appellants.
    Robert H. Turner, Sr., Marion, for ap-pellees.
   MURDOCK, Justice.

Samuel Anthony Brown and other heirs of Carnell Melton Brown (“the Brown heirs”) appeal from a judgment in favor of Jennie M. Melton and certain other heirs of Melvin Melton and Lula Melton (“the Melton heirs”). The judgment concerns a complaint the Melton heirs filed seeking the partition of real property pursuant to § 35-6-20, Ala.Code 1975; the Brown heirs and the Melton hems both own interests in the property. For the reasons discussed below, we dismiss the appeal.

During them lifetime, Melvin Melton and Lula Melton acquired 223.5 acres of property in Perry County. The couple had eight children — including Jennie M. Melton (“Jennie”) and Carnell Melton Brown (“Carnell”). Upon the deaths of Melvin and Lula, their eight children inherited the property as tenants in common. On August 15, 1977, the children conveyed to Jennie by quitclaim deed 18 acres of the property, including part of the property on which Jennie had lived since she was 10 years old. On January 9, 1995, the children conveyed to Carnell and her husband, Henry Brown, 20 acres of the property. The 223.5 acres less the parcels conveyed to Jennie and Carnell and her husband are hereinafter referred to as “the subject property.”

On January 7, 2003, the Melton heirs, who included Jennie, and many of the other heirs at law of Melvin and Lula and Betty Melton (“Betty”), who owned a one-sixteenth interest in the subject property, filed a complaint against Carnell for a partition of the subject property pursuant to § 35-6-20, Ala.Code 1975. The Melton heirs alleged that the subject property could be equitably divided in kind among the cotenants without a sale of the property. The original defendant, Carnell, answered the complaint and contended that the subject property could not be equitably divided, and she moved for a sale of the subject property and a division of the proceeds pursuant to § 35-6-100, Ala.Code 1975. Subsequently, Betty asked to be aligned with Carnell as a defendant, and the trial court granted her request.

Pending trial, several of the original Melton heirs and Carnell died. Them respective heirs were substituted as parties to the action. Among Carnell’s heirs, i.e., the Brown heirs, is Carolyn Brown (“Carolyn”), who lives on the 20-acre parcel that was deeded to Carnell and her husband in 1995.

On July 19, 2004, the Melton heirs filed a notice of joint election of moieties, requesting that their several moieties be considered one moiety, thereby having their portion of the subject property set apart as one undivided fractional share of the whole for all the Melton heirs.

A trial commenced on September 19, 2005. Jennie testified on behalf of the plaintiffs concerning the nature and topography of the subject property. She stated that she had lived on the property adjoining the subject property since she was 10 years old and that she was very familiar with the subject property. Jennie generally described the subject property as follows;

“It’s livable for anybody that wants to live there. It’s a wooded area, some parts of it, and some parts of it isn’t. There are hills in some areas, creeks in some areas. And some there are none.”

Jennie also described several portions of the subject property in detail. She averred that she believed the 20-acre parcel adjoining the subject property that was deeded to Carnell and her husband (i.e., the parcel then owned by the Brown heirs) to be “the most valuable property,” but that in general no one parcel of the remaining property is “substantially more valuable” than any other. Jennie testified that she had consulted each of the plaintiffs and that it was them desire that their portion of the subject property be allotted as an undivided whole to all the Melton heirs.

Regarding partitioning the property, Jennie testified as follows:

“Q Now you have filed a petition in court asking the court to divide your father’s property.
“A Right.
“Q Do you feel that this property can be equitably divided?
“A It can. It can. And all we are asking for is justice, that each family, each sibling or the sibling’s heirs have their share and them be satisfied. All we want is justice.
“Q Now Ms. Melton, in your contact with all the herns that you have testified about, is it the desire of the plaintiff[s] as far as dividing the property is concerned that the Court leave all of your interests together in one pot?
“A Yes.
“Q And if the Court does that, then the Court will only have to divide an interest out to the Browns, right, and Ms. Betty Melton?
“A Correct.
“Q And the Court will only have to make provisions for a seven-acre plot for Ms. Brown [ — ] for the Browns?
“A Right.
“Q And a 13-acre plot for Ms. Betty Melton?
“A Right.” “[hjilly or gully.” Regarding partitioning the property, Carolyn testified as follows:

Carolyn was the first of two witnesses for the defendants. She testified that she is unemployed and that she stays at home taking care of her house and the land on which it is located. She averred that she has been living on a portion of the 20 acres belonging to the Brown heirs since 2000 and that she has personally seen most of the subject property. She claimed that the 18-acre parcel belonging to Jennie “is completely flat” and that Jennie “has the best of the land.” Carolyn stated that there exists approximately 12 acres of flatland scattered in various places on the subject property and that the rest is

“Q Is there any way on earth that that [property] can be equitably divided between eight people?
“A There is no way, no way eight people can get equally — somebody is going to get slighted.
“Q Is there any way it can be split in half?
“A No way.
“Q Is there any way it can be split two-thirds?
“A No way, no way.
“Q And you want this land to remain intact where either your family or they can buy the other one out?
“A That’s all right.”

On cross-examination, Carolyn was asked about her testimony that most of the land consists of hills and gullies.

“Q Hills and gullies have very little value, would you think?
“A That’s what I’m told.
“Q And so if it’s all hills and gullies, it all has very little value?
“A That’s what I’m told.
“Q And if everybody got hills and gullies, everybody would be getting the same thing, wouldn’t they?
“A Who wants gullies and hills? You know, they want something that’s going to be of value. You have got to be able to fill that in to even get a house on it.
“Q But that’s all there is, is there not?
“A Well, you have got some flat land. No, my aunt [Jennie] has got the best of it. She got 18 acres or 20 acres there of flat land, straight flat land all around. That’s the best property.”

The second witness for the defense was Stan Kennie, who stated that he was qualified to speak about the subject property because he had hunted on it since 1991. Regarding partitioning the property, Ken-nie testified as follows:

“Q ... In your judgment is there any way that this land can be split up eight ways and be fan1 to the eight people?
“A Sure, it can be split.
“Q And be fair?
“Q Is there any way that all of this land, the flat and the gullies and the hills could be split and be fan1, everybody fair with it? It can’t be equitably split up and be fair, can it?
“A Anything can be split. But whether it can be fair, that’s a different story. You can’t use none of that.
“Q It would be hard as heck to split that up, wouldn’t it?
“A It would be very hard.”

On July 21, 2006, based on the testimony of the witnesses and certain photographs that had been introduced at trial, the trial court entered its judgment. The trial court determined that the children of Melvin Melton and Lula Melton had intended the 18 acres they deeded to Jennie in 1977 and the 20 acres they deeded to Carnell and her husband “would be a credit against the one-eighth share of the Grantees’ inheritance of 27 acres, more or less.” Consequently, it concluded that of the original 223.5 acres, 185.5 were the subject of the dispute — after the 18 acres deeded to Jennie and the 20 acres deeded to Car-nell and her husband were excluded. Concerning whether the subject property could be equitably divided, the trial court’s order stated:

“13. The Court finds from the testimony that those hems who wish to have the property sold are Betty Melton (l/16th interest or 13 acres, more or less), wife of Andrew Melton, deceased, and the 12 surviving children of Carnell Melton Brown and Henry Brown (l/96th interest or 7 acres, more or less) having previously deeded 20 acres.

“Therefore, the Court finds that the property can be equitably divided.” (Emphasis omitted.) The trial court then ordered as follows:

“1. That Betty Melton receive 13 acres, more or less[,] of the remaining 185 acres, more or less, and the surviving heirs of Carnell Melton Brown and Henry Brown receive 7 acres, more or less, of the remaining 185 acres, more or less.
“2. The recipients may choose the acreage of their choice so long as the same is contiguous.”

The Brown heirs filed a motion for a judgment as a matter of law or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R. Civ. P. In accordance with Rule 59.1, Ala. R. Civ. P., the parties filed a written consent to extend the time for the trial court to rule on the post-judgment motion. Subsequently, the Melton heirs filed a purported withdrawal of their consent to extend the time for the trial court’s ruling on the Brown heirs’ postjudgment motion. Within 42 days from the date of the purported withdrawal of consent by the Melton heirs, the Brown hems filed a notice of appeal to the Court of Civil Appeals. The Court of Civil Appeals transferred the appeal to this Court.

Thereafter, this Court issued an order informing the trial court and the parties that the Melton heirs’ purported withdrawal of their consent to extend the time for the trial court to rule on the Brown heirs’ postjudgment motion was not effective because Rule 59.1, Ala. R. Civ. P., does not provide for such a maneuver. Accordingly, pursuant to Rule 4(a)(5), Ala. R.App. P., this Court held the Brown heirs’ appeal in abeyance pending a ruling by the trial court on the Brown heirs’ postjudgment motion. On March 11, 2009, the trial court entered an order denying the Brown heirs’ motion for a judgment as a matter of law or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R. Civ. P.

Notwithstanding the foregoing, we must dismiss the present appeal as being from a nonfinal judgment. In McGill v. McGill, 888 So.2d 502 (Ala.Civ.App.2004), a divorce case in which the judgment provided, as to the property division, that “ ‘[tjhe [wife] shall make 2 lists and the [husband] shall pick which list he wants,’ ” 888 So.2d at 503, the Court of Civil Appeals explained:

“The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).
‘A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.’
“Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976). Accordingly, this court, in Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala.Civ.App.1998), held that a divorce judgment was not final where the distribution of the personal property had not yet been completed by the trial court and that this court therefore could not ‘know all the circumstances’ of that particular case.”

McGill, 888 So.2d at 504.

The complaint in the present case sought a partition of the subject property. As of yet, a final order of partition has not been entered. As was true in McGill, “[t]here must be some final disposition of the ... property by the trial court before its judgment is final.” 888 So.2d at 505. See also Ala.Code 1975, § 85-6-22 (stating in regard to an action for partition in the circuit court that “[t]he court shall ascertain and declare the rights, titles and interests of all the parties to such action ... and shall give judgment according to the rights of the parties”).

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . The Mellon heirs own over a two-thirds interest in the subject property.

      . Section 35-6-20 provides:
      “The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil [Pjrocedure and, where necessary, allow service of process by publication as prescribed therein.”

      . Section 35-6-100 provides;
      “Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

      . Carnell’s husband also passed away.

      . Jennie denied that her parcel is mostly flat.

      . Neither the Brown heirs nor the Melton heirs dispute this finding.

      . The Brown heirs are the only appellants in this action; Betty Mellon did not appeal the ruling of the trial court.