author: ROBERTS J., for the Court. MYERS, P.J.,

text:
    George E. TRIM, Appellant, v. Lisa Mosley TRIM, Appellee.
    No. 2007-CA-01648-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Aug. 18, 2009.

      William Lee Colbert, Jackson, attorney for appellant.
    Randall Harris, Kimberly Pine Turner, attorneys for appellee.
   ROBERTS J., for the Court.

¶ 1. Lisa Trim (Lisa) filed a petition to set aside a final judgment of divorce and property settlement agreement. She asserted that her ex-husband, George Trim (George), had fraudulently understated the value of his assets in his Uniform Chancery Court Rule 8.05 statement during their divorce proceeding. The chancellor agreed and found that George had fraudulently listed the value of his company stock and awarded Lisa half of its value. George now appeals the chancellor’s ruling arguing that: (1) Lisa’s motion was untimely, and (2) he did not fraudulently list the value of his company stock. A thorough review of the record and applicable case law reveals that the chancellor erred when he failed to treat Lisa’s claim as untimely and when he treated her petition to set aside the final judgment of divorce and/or property settlement agreement as a motion to modify a property settlement agreement. Accordingly, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 16, 1990, George and Lisa were married in Hinds County, Mississippi. No children were born to the marriage. Over the course of their marriage, Lisa worked as a sales representative for the Berry Company selling yellow page advertisements, and George was self-employed in a computer networking and cabling business, Business Communications, Inc., (BCI). In 1993, George and Tony Bailey (Bailey) partnered to form (BCI), which is a closely-held subchapter S for profit corporation. Bailey owned fifty-one percent of the stock, with George owning a minority share of forty-nine percent.

¶ 3. George and Lisa continued to live as husband and wife until their separation in September 1999. Around the time of their separation, George and Lisa discussed their financial status. George thought that the value of his stock in BCI was worth $100,000, and Lisa owned a retirement account valued at $120,000. The equity in George and Lisa’s home was $30,000. George proposed that Lisa keep her retirement account; he keep his BCI stock and their home; and he pay Lisa $5,000 to make up the difference. In essence, the couple divided their marital assets equally. After this, on September 24, 1999, Lisa signed a property settlement agreement reflecting the couple’s decision.

¶ 4. George and Lisa did not file for divorce until seven months later. On April 10, 2000, George and Lisa filed a Joint Complaint and Consent to Divorce based on irreconcilable differences. They also attached the above property settlement agreement to their complaint. Pursuant to Uniform Chancery Court Rule 8.05 (hereinafter 8.05), each party submitted a financial statement of their assets and liabilities to the court. In his 8.05 statement, George again listed the value of his BCI stock at $100,000. On June 14, 2000, the Hinds County Chancery Court entered a final judgment granting a divorce to George and Lisa and ratified the property settlement agreement attached in the divorce complaint.

¶ 5. Following the divorce, in 2001, the business relationship between George and Bailey began to deteriorate. In July 2001, at a board of directors’ meeting, Bailey and a third director voted to fire George as president of the company and reduce his management responsibilities and salary. As a result of being “squeezed out” of the company, George filed suit against Bailey and BCI alleging breach of fiduciary duty and wrongful breach of minority rights. He sought to have the company dissolved. Pursuant to statutory requirements, the Madison County Chancery Court held a hearing to determine the value of George’s BCI stock, and the court determined that the better result, rather than to dissolve the company, was to have BCI pay George for his stock and for George to relinquish any rights in BCI. The stock valuations presented in that hearing spurred the present litigation between Lisa and George.

¶ 6. During the litigation between George and Bailey, each party presented expert testimony to determine the value of George’s stock, and the chancellor adopted George’s expert’s finding that the stock was worth $1,186,000 as of August 14, 2001. During the Trim v. Bailey litigation, the chancellor expressed dissatisfaction with the determined values because of the disparity of findings between the parties’ experts. However, due to the parties’ unwillingness to hire a third expert, he felt bound to choose one of the amounts, so he chose the higher value. It is clear that difficulty existed in placing a definitive monetary value on the stock. Rather, determinations were based on numerous factors that were not easily discernible and resulted in vastly different valuations.

¶ 7. Lisa waited until November 19, 2004, to file suit against George claiming that he had fraudulently misrepresented the value of his stock when they were discussing their property settlement agreement over five years earlier in September 1999. In the Trim v. Trim litigation, Lisa hired a third expert, which presented yet another opinion concerning the value of George’s stock. Lisa’s expert valued George’s stock at $694,000 at the time of George and Lisa’s divorce. The chancellor accepted this opinion and awarded Lisa 25% of this amount. In other words, Lisa received an additional $148,000 plus attorneys’ fees and costs. The judgment from that litigation is now the subject of this appeal.

STANDARD OF REVIEW

¶ 8. This Court has established:

The standard of review by this Court in domestic relations cases is well-settled. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard.

Pulliam v. Smith, 872 So.2d 790, 793(¶ 5) (Miss.Ct.App.2004) (internal citations omitted) (emphasis added).

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING GEORGE’S CONDUCT TO BE FRAUDULENT.

¶ 9. Although the chancellor believed that George had “wilfully, knowingly, and fraudulently undervalued his income and the value of 49% stock in Business Communications, Inc.,” the record does not fully support that determination. “Fraud is ‘a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.’ ” Mitchell v. Nelson, 830 So.2d 635, 639(¶13) (Miss.2002) (quoting Black’s Law Dictionary 670 (7th ed.1999)). “Additionally, the elements of fraud must be prove[n] by clear and convincing evidence.” Id. at 639(¶ 13). As the Mississippi Supreme Court has recited:

The elements of fraud, which must be proven by clear and convincing evidence, include: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity or ignorance of its truth; 5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; 6) the hearer’s ignorance of its falsity; 7) his reliance on its truth; 8) his right to rely thereon; and 9) his consequent and proximate injury.

In re Estate of Law, 869 So.2d 1027, 1029(¶ 4) (Miss.2004).

¶ 10. It is not entirely clear from the record that George knowingly misrepresented the truth to Lisa regarding the value of his stock, nor is it entirely clear that Lisa had a right to rely on George’s opinion. As stated, the record reveals that during the litigations following George and Lisa’s divorce, three different experts valued George’s stock with a low of $111,000 and a high of $1,186,000. There is no consensus concerning the value of George’s stock in BCI. In order to find that George fraudulently misled Lisa, it must be shown that he knew that his stated value of the stock was wrong, and that he intended for Lisa to rely on a false representation. Also, it must be shown that Lisa was ignorant of any misrepresentation by George. It is not evident from the record that the elements of fraud have been met. First, we will address George’s representation of his stock’s value, and second, we will address Lisa’s naivete, or the lack thereof, in her acceptance of George’s belief concerning the value of his BCI stock.

¶ 11. In determining that George had misrepresented the value of his stock, the chancellor seemed to place great emphasis on a 1999 financial statement that George signed prior to the divorce. The financial statement was prepared in order to maintain a revolving line of credit for the company, and the company submitted such financial statements for George and Bailey each year. On George’s financial statement, it was stated that the value of the stock was $1,100,000. Obviously, this amount is in stark contrast to George’s personal estimation given in his 8.05 financial statement. However, uncontradicted testimony by George reveals that the personal financial statement, which was presented to the bank, was not completed by him, but rather by BCI office personnel in order to renew BCI’s revolving line of credit; he simply signed it. George testified that he signed it even though he thought it was incorrect. There is no way to know for certain whether this account is accurate. However, when attempting to discern the veracity of George’s testimony, which was that he merely signed off on the forms prepared by others, it is relevant to note that George was relatively uneducated and quit school at the age of sixteen.

¶ 12. George also testified that he did not believe that the stock was worth what the 1999 financial statement stated when he and Lisa discussed the property settlement agreement and later when he completed his 8.05 financial statement. He thought it was only worth about $100,000 because of the significant changes that occurred within the company during 1998 and 1999. During that time, the company lost two of its owners, completed a major project for which it had not been paid, lost and hired employees including a new chief financial officer, and purchased a new software company. Considering that George only had “sweat equity” in the company and a limited education, it is quite conceivable that he was not systematically trying to defraud Lisa; rather, he merely left the financial workings of the company to his partner, Bailey, and other office personnel. George’s testimony about his belief regarding his stock’s value is not that farfetched considering that three different qualified experts assessed three distinct and widely divergent valuations ranging from $111,000 to $1,186,000. We are hard pressed to conclude that the evidence is convincing that there was an intentional fraudulent scheme perpetrated by George upon Lisa.

¶ 13. Second, we address Lisa’s naive reliance on George’s representation concerning his stock’s value. Lisa claimed that she simply depended on George’s opinion and that she was ignorant of the workings or intricacies of the business that she and George had been involved in since 1993, six years prior to the divorce. Lisa’s own testimony casts doubt upon this claim.

¶ 14. Lisa testified that she was involved in BCI by “signfing] financial documents, performance bonds, [and] helping [George] interview people.” Furthermore, she testified that she hosted parties for the company, traveled with him on business, and performed “walk-throughs” for jobs in Colorado and Las Vegas. When asked if she considered herself working for BCI, she distinctly stated that “[she] was there on work.” Lisa signed surety bonds for BCI and acknowledged that she was aware that by signing such bonds, she had the risk of “losfing] everything.” On one hand, she claimed to work at and be very involved with the company; while on the other hand, she claimed to barely know George’s partner or any details surrounding the closely-held company. It is unclear exactly where the truth lies. Although the extent of her involvement may be debatable, there are no facts in the record to support a belief that Lisa was denied access to BCI and the financial information related to George’s stock or that such information was hidden from her. Rather, she simply declined to pursue the information.

¶ 15. Considering these facts and the reality of Lisa’s involvement in the business, it is questionable that three of the nine elements of fraud are met. These are: the speaker’s knowledge of its falsity or ignorance of its truth; the hearer’s ignorance of its falsity; and the right to rely thereon. The record reveals that Lisa is a competent person with adequate business acumen. In addition to Lisa’s account of her involvement with BCI at the time of the divorce and subsequent litigation, she had been an employee of the Berry Company, which sells Yellow Page advertising, for nearly two decades. Due to her success, she achieved an income of nearly $100,000 per year. Furthermore, Lisa testified that when they were dissolving their marriage and determining who would keep the home and so forth, “[she and George] sat down and figured up [what] George’s stock was worth.” Lisa testified that the reason for this was “to go ahead and get the divorce.” George’s involvement with BCI was not hidden from Lisa, nor was she a stranger to those involved with the company. Before agreeing to the property settlement agreement and no fault divorce, if Lisa had any genuine doubts about George’s estimate of the value of his stock, she could have refused to execute the property settlement agreement or to get the divorce; she and George could have agreed to have the value of his stock determined by an appraiser or by the chancellor; she could have demanded financial records from BCI before deciding; or she could have taken other such appropriate action. She simply chose not to do so.

¶ 16. Although the facts place genuine doubt upon a legitimate fraud claim, we are not prepared to conclude, and do not find it necessary to decide, that the chancellor erred when he found fraud. Rather, the determinative issue is whether Lisa’s petition was timely under Rule 60(b), and whether the chancellor erred when he decided to consider Lisa’s petition to set aside the divorce and property settlement agreement as a motion to modify the property settlement agreement instead. The clear language of the rules and established case law mandate a finding that Lisa’s petition was time-barred; therefore, the chancellor was incorrect in his decision to modify the property settlement agreement.

II. WHETHER LISA’S MOTION TO SET ASIDE THE DIVORCE AND PROPERTY SETTLEMENT AGREEMENT WAS TIMELY FILED.

¶ 17. Rule 60(b) of the Mississippi Rules of Civil Procedure provides in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than six months after the judgment, order, or proceeding was entered or taken.”

M.R.C.P. 60(b) (emphasis added). Lisa’s petition, the chancellor’s opinion, and established case law all reveal that Lisa’s claim falls squarely under Rule 60(b)(1) and is, therefore, time-barred.

¶ 18. The chancellor stated in his order and opinion that Lisa learned of the different stock valuation in 2002 and that she sought legal counsel in the same year. However, she did not file her petition until November 2004. Lisa claims that she hired two attorneys who failed to take action against George before she finally found an attorney who filed suit nearly four and one-half years after the final judgment of the divorce. Consequently, she missed her six-month window of opportunity to file her claim for fraud pursuant to Rule 60(b)(1). As this Court stated in Tirouda v. State of Mississippi, 919 So.2d 211, 214(¶ 8) (Miss.Ct.App.2005), “[fjraud upon an adverse party falls under Rule 60(b)(1) which requires that motion be made in a reasonable time and not more than six months after the judgment, order, or proceeding was entered or taken.”

¶ 19. Because the chancellor found George’s conduct egregious, he utilized Rule 60(b)(6) to fashion a remedy for Lisa. Although Rule 60(b)(6) provides a “catch-all” provision, which may be granted in exceptional circumstances, it simply does not apply to the case at hand. First of all, an attorney’s failure to file a petition timely is insufficient to qualify as an extraordinary or compelling circumstance, and second, “[u]se of Rule 60(b)(6) must be based on some reason other than the first five enumerated clauses of the rule.” Mitchell, 830 So.2d at 639(¶ 9) (emphasis added). Clearly, Lisa’s fraud or misrepresentation claim falls squarely within Rule 60(b)(1). Therefore, Rule 60(b)(6) is not an available remedy for her.

¶ 20. In support of his decision, the chancellor relied on Kalman v. Kalman, 905 So.2d 760 (Miss.Ct.App.2004), but Kal-man is factually dissimilar to the instant appeal. In Kalman, neither the husband nor the wife had signed an 8.05 financial statement, and the undisclosed information related to the husband’s purchase of a lottery ticket and undisclosed winnings of $2,600,000 about a month prior to the couple filing for divorce and about four months prior to the final divorce decree being entered. Id. at 761(¶ 1). The instant matter does not deal with something as bizarre as a litigant winning the lottery one month prior to divorce and hiding his winnings from his spouse and the court. Rather, this case involves a business in which Lisa was actively involved with readily discoverable financial information. Lisa could have easily discovered the 1999 financial information, as well as any other financial documents related to BCI, prior to the divorce had she chosen to do so.

¶ 21. If George had perpetrated a fraud upon the court, there would be no limitation of time for the court to pursue a remedy, other than a reasonable one. See, Tirouda 919 So.2d at 214(¶ 8). In Tirouda, where the defendant employed numerous witnesses to deceive the court in order to acquire a fraudulent birth certificate, this Court stated that “fraud upon the court falls within the savings clause of [Rule] 60(b) and is not subject to time constraints.” Id. The instant case is distinguishable. Realizing that Lisa was outside the time limitations imposed by Rule 60(b), the chancellor accurately stated, “the issue I have got to decide is if [George] perpetrated fraud on the Court.” However, the chancellor, clearly found that George’s actions did not “rise to the level of ‘fraud upon the court.’ ” Despite this realization and the fact that the six-month time period had run on Lisa’s fraud claim, the chancellor decided to consider Lisa’s petition to set aside the divorce and property settlement agreement as a petition to modify the decree and gave her “less than ... [she] originally prayed for.” Obviously, the chancellor sought to achieve what he perceived as the “right” or “equitable” result, but that result was in contradiction to established law. The chancellor was manifestly wrong in this decision.

¶ 22. Although Rule 60(b) provides a chancellor with a “grand reservoir of equitable power to do justice in a particular case,” “a true and genuine property settlement agreement is no different than any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated into a divorce decree, does not change its character.” Lowrey v. Lowrey, 919 So.2d 1112, 1120(¶ 31) (Miss.Ct.App.2005) (quoting West v. West, 891 So.2d 203, 210(¶ 13) (Miss.2004)). Furthermore, the Mississippi Supreme Court has stated, “parties may upon dissolution of their marriage have a property settlement agreement incorporated in the divorce decree, and such property settlement agreement is not subject to modification.” Townsend v. Townsend, 859 So.2d 370, 376(¶ 21) (Miss.2003) (emphasis added).

¶ 23. As this Court has stated, “the law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the Agreement which the parties have made, absent any fraud [or] mistake.... ” Lowrey, 919 So.2d at 1120(¶ 30). To reiterate, even if there was fraud or misrepresentation on George’s part, case law and Rule 60(b) make it clear that any claim must be filed within six months. Although a chancellor has great equitable powers, it is not within his or her authority to circumvent the mandate of firmly established case law by merely calling a contract by another name or by trying to mold a claim so that it will fit within the parameters of different rule.

¶ 24. In a similar case in which an ex-wife claimed fraud or misrepresentation on financial statements, this Court held that “[m]ere perjury is not ground for a collateral attack on a judgment of divorce.” Brown v. Estate of Johnson, 822 So.2d 1072, 1073(¶ 4) (Miss.Ct.App.2002). As already stated, it is plausible that George simply did not know for sure what his stock was worth, but at worst, it was fraud or misrepresentation upon Lisa. Therefore, it is clearly governed by Rule 60(b)(1). This Court has previously recognized that Rule 60(b) may create a tension between equity and finality. The Brown Court reflected:

Rule 60(b) deal[s] with two concepts that tug in opposite directions.... that, human nature being what it is ... parties ... will misrepresent facts and swear falsely under circumstances, which will lead [their] actions to be difficult to discover contemporaneously with the event.... [But], at some point, there must be finality to litigation. Rule 60(b)(1) deals with these competing considerations by ... providing a window of opportunity in the post-judgment period, albeit a relatively narrow one, for a party to discover and act....

Brown, 822 So.2d at 1074(¶ 5).

¶ 25. The dissent fully illuminates this tension that Rule 60(b)(1) creates, and interprets our ruling as applauding fraudulent conduct by one spouse upon another. This could not be further from the truth. Certainly, we encourage full and honest disclosure by parties, especially within a marriage. However, we cannot dismiss our rules nor ignore the law because we perceive that a chancellor has a “grand reservoir of power” to permit such a ruling. It is incumbent upon parties in litigation to seek discovery when any doubt exists about the true facts. Additionally, at some point, litigation must end. The dissent correctly states, it is the chancellor who hears the testimonies of witnesses and observes their demeanor, but that does not equip him or her with the power to disregard clear rules based upon his or her own opinion or whim. The purpose of our laws is to provide guidance, order, and finality. A chancellor’s grand reservoir of power is not an infinite power. The dissent perceives our adherence to the rules as substituting our judgment for that of the chancellor, but, even with reservations, we have declined to find that the chancellor erred when he found that George had committed fraud upon Lisa. The chancellor’s ruling relating to Lisa’s fraud claim does not preempt Rule 60(b)(1). Rule 60(b)(1) clearly requires that any claim of fraud upon a party to litigation must be brought within six months after the judgment, and such a claim does not fall within the “catch-all” Rule 60(b)(6). As stated in Tirouda, “this Court is without authority where Rule 60(b)(1), (2), or (3) is the basis for an action and the motion is brought beyond the six-month limitation.” Tirouda, 919 So.2d at 214(¶ 8).

¶26. As harsh as it may seem, Lisa’s claim is time-barred according to Rule 60(b)(1). Accordingly, by allowing Lisa to succeed on an untimely claim, the chancellor applied an erroneous legal standard. Hence, our standard of review requires that we reverse the chancellor’s ruling and render judgment for George.

¶ 27. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, P.J., GRIFFIS, BARNES AND CARLTON, JJ., CONCUR. MYERS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J, IRVING AND ISHEE, JJ. MAXWELL, J., NOT PARTICIPATING.

MYERS, P.J.,

Dissenting.

¶ 28. I disagree with the majority’s decision to reverse and remand the chancellor’s judgment to modify the Trims’ property agreement. Given our standard of review and the equitable principles that are the basis of the chancery court’s decisions, I conclude that the record provides sufficient evidence to support the chancellor’s modification. The majority declines to take a stand on whether George committed fraud and completely disregards the equitable principles that are the cornerstone of the chancery court and its decisions. Therefore, I must dissent.

¶ 29. The majority cited the elements of fraud, which I firmly believe were met in the present action. During conversations regarding their property settlement agreement, George told Lisa that his BCI stock was worth only $100,000. He reaffirmed this assertion by valuing his BCI stock at $100,000 in his 8.05 statement.

¶ 30. Contrary to the value representation made to Lisa and in his 8.05 statement, George had valued his BCI stock over $1,000,000 on two separate occasions. BCI had a revolving line of credit at State Bank and Trust. Each year, State Bank required BCI to submit the personal financial statements of George Trim and Tony Bailey. On December 22, 1999, George submitted his yearly personal financial statement to State Bank. In it, he valued his BCI stock at $1,100,000. This is in stark contrast to the $100,000 he represented to Lisa three months prior. Again on December 31, 2000, George represented to State Bank that his BCI stock was worth more than a million dollars. This time he valued his BCI stock at $1,837,500. This was only five months after he submitted his 8.05 statement valuing his stock at $100,000. From these actions, George clearly knew his BCI stock was worth more than the $100,000 he represented to Lisa and the chancery court. The majority fails to assign any weight to these financial statements. In doing so, it disregards the long-standing principle in Mississippi contract law that “a person cannot avoid a written contract which he entered into on the ground that he did not read it or have it read to him.” Dunn v. Dunn, 786 So.2d 1045, 1050(¶ 17) (Miss.2001). Accordingly, George committed fraud either in his 8.05 statement or in his financial statement to State Bank.

¶31. During the B Cl/Trim case, George’s own expert valued George’s BCI stock near the amount given to State Bank. This finding leads me to concluded that the value given to State Bank was the correct value and that George knew that the $100,000 figure given to Lisa was false.

¶ 32. Lisa testified that during their marriage and separation George never indicated that his BCI stock was worth anything near $1,000,000. The couple discussed the stock value only during their property settlement talks. Lisa further testified that she did not have the means of definitively ascertaining the value of his stock because of her relationship with BCI employees. Given these facts, it is evident that Lisa had to rely on George’s statement regarding the value of his BCI stock, and he intended for her to do just that.

¶ 33. Lastly, Lisa would not have been deprived her right to an equitable distribution if George had honestly represented the value of his BCI stock. BCI was created during the Trims’ marriage and unquestionably is marital property. It can be assumed that neither Lisa nor the chancellor would have agreed to the terms the divorce as it stood if George would have correctly stated the value of his BCI stock. Lisa would have received a greater portion in distribution if George would not have falsely stated his stock’s value. Thus, Lisa was injured by George’s conduct.

¶ 34. It is clear from these facts that George’s conduct rose to the level of fraud. He knowingly and purposefully misrepresented the value of his BCI stock to Lisa with the intention of preventing her from receiving her equitable portion of his stock value. Lisa relied on these statements, causing her to receive less than her legal entitlement. Accordingly, I find more than sufficient evidence to conclude the chancellor find not err in finding that George committed fraud when he listed the value of his BCI stock.

¶ 35. The majority finds that the six-month limitation in Rule 60(b)(1) must be strictly complied with, regardless of the facts. I do not agree. The Mississippi Rules of Civil Procedure must be read in conjunction with the equitable principle of our chancery court. I find the most equitable result would be to allow Lisa to receive the value of BCI stock she is due, and thus, affirm the chancellor’s modification.

¶ 36. Mississippi Rule of Civil Procedure 60(b)(6) permits the court to relieve a party from a final judgment for any reason justifying relief from the judgment. It has been described as a “grand reservoir of equitable power to do justice in a particular case.” M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530(¶ 12) (Miss.2003) (quoting Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966(¶ 12) (Miss.1998)). “The broad language of clause (6) gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice.” Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir.1992). Relief under this rule “is reserved [only] for exceptional and compelling circumstances”. Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 893(¶ 14) (Miss.2006) (quoting Sartain v. White, 588 So.2d 204, 212 (Miss.1991)). A motion under Rule 60(b)(6) must be brought “within a reasonable time.”

¶ 37. Occasionally, we must look to the federal cases for guidance, since the Mississippi Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. White v. Stewman, 932 So.2d 27, 39(¶ 34) (Miss.2006). In Lowe v. McGraw-Hill Cos., 361 F.3d 335, 343 (7th Cir.2004), the court allowed the petitioner to proceed under Federal Rule 60(b)(6), even after the time limitation had expired, because the petitioner could not have reasonably discovered the mistaken default judgment and moved to set it aside within the time restriction. That court went on to state that in typical “extraordinary” cases, there is no way the movant could have discovered the ground for doing so within the time limitation provided. Id. at 342-43.

¶ 38. This case is synonymous to Lowe in that Lisa could not have discovered the value of George’s BCI stock within the time limitation provided in Rule 60(b)(1). The majority theorizes that Lisa could have “easily discovered” information that would have provided her with the value of BCI’s stock within six months after their divorce, which is contrary to the testimony given at the modification hearing. Lisa testified that it would have been very difficult for her to ascertain the value of George’s BCI stock during their divorce. The only people privy to that information were George, Bailey, and a secretary at BCI. Lisa testified that she did not have a cordial relationship with either Bailey or the secretary at the time of her divorce, which caused her to rely on George’s assessment of the value of his BCI stock. I feel the majority’s assessment is nothing more than a substitution of their judgment in place of the chancellor’s, which the supreme court has sternly warned against doing. See In re Extension & Enlarging of Boundaries of the City of Laurel, 922 So.2d 791, 796(¶ 9) (Miss.2006) (“We must resist the temptation to substitute our judgment for that of a Chancellor, even though we may have found otherwise, had any one of us been the trial judge”).

¶ 39. The combination of George’s conduct and Lisa’s relationship with BCI personnel prevented her from discovering the real value of George’s BCI stock for more than one year after their divorce, well outside the six-month limitation provided in Rule 60(b)(1). Because Lisa could not have discovered the value of George’s BCI stock within the time limitation provided, this is an “extraordinary situation” under the rule. Thus, Rule 60(b)(6) should be applied rather than Rule 60(b)(1). Accordingly, I feel the chancellor did not err in allowing Lisa to pursue her claim under Rule 60(b)(6), given that she filed her motion within a reasonable time.

¶ 40. Upon discovering the true value of George’s BCI stock, Lisa retained an attorney. However, this attorney failed to work on this case for six to eight months. She contacted a second attorney, who investigated the case for several months, then declined to accept it. Lisa is presently on her third attorney in this case. Given the dilatoriness of her previous attorneys and the time period in which she filed the motion, the chancellor could have found that Lisa brought the present action within a reasonable time. Therefore, because it is an extraordinary situation and Lisa brought her action within a reasonable time, she could have filed this action under Rule 60(b)(6).

¶ 41. It is my opinion that the majority is interpreting our Rules of Civil Procedure in a vacuum. Our supreme court has reminded us to “keep in mind the equitable purpose of Rule 60 as well as the spirit by which procedural rules must be interpreted.” Tirouda, 919 So.2d at 216(¶ 9) (Miss.Ct.App.2005) citing Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 59 (Miss.1988). “The primary purpose of our Rules of Civil Procedure is to ‘secure the just ... determination of every action’ and ‘promote the ends of justice.’ ” Id. It is unquestionable that George’s BCI stock was marital property because BCI was formed during the Trims’ marriage. In reversing and remanding the chancellor’s ruling, the majority would permit George to keep the full value of his BCI stock despite the fact that George knowingly misrepresented the value of his BCI stock to his wife in their property settlement agreement. In doing so, it would prevent Lisa from receiving the portion of BCI stock that she is legally entitled to receive in equitable distribution. The majority’s result applauds George’s fraudulent conduct and promotes less than full disclosure between spouses during their marriage and upon divorce. It encourages trickery and deceitfulness between spouses, as long as it can be hidden for six months after a final judgment of divorce is entered. How can this be fair and just?

¶ 42. The equitable result would be to allow Lisa to receive the portion of BCI stock she is legally entitled to, thus, affirming the chancellor’s ruling that “equity demands” the property settlement agreement be modified.

¶ 43. As stated earlier, this Court has a very limited and deferential standard of review regarding a chancellor’s decision. Shelby, 802 So.2d at 92(¶ 11). “It is our solemn duty to afford due deference to a Chancellor, who sits as the fact finder.” In re Extension & Enlarging of Boundaries of the City of Laurel, 922 So.2d at 795(¶ 7). A chancellor, being the only one to hear the testimonies of witnesses and observe their demeanor, is in the best position to judge their credibility. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). In the present action, there is substantial, credible evidence throughout the record to support the chancellor’s ruling. It is clear that George fraudulently listed the value of his BCI stock in his 8.05 statement. Because Lisa could not have discovered the true value of George’s BCI stock within the six-month period provided in Rule 60(b)(1), it constitutes an extraordinary situation under Rule 60(b)(6), which provides Lisa a reasonable time to bring her action. I would find that Lisa did bring her action within a reasonable time under Rule 60(b)(6) due to previous attorneys’ dilatoriness. Accordingly, the chancellor did not err in allowing Lisa to bring her action more than six months after the final judgment in her divorce. Given the substantial, credible evidence to support the chancellor’s finding and our deferential standard toward his ruling, I find the chancellor did not err in modifying the Trims’ property settlement.

¶ 44. For these reasons, I respectfully dissent.

KING, C.J., IRVING AND ISHEE, JJ., JOIN IN THIS OPINION.

      . Trim v. Business Communications, Inc. and Tony Bailey, Civil Action No. 2001-695, was filed in the Chancery Court of Madison County, Mississippi. A final judgment was rendered on June 6, 2002.

        . Factors to be considered in valuing the stock in a closely-held corporation include the lack of marketability and lack of control discounts.

      . Trim v. Trim, Cause No. G2000-684 R/l, was filed in the Chancery Court of the First Judicial District of Hinds County, Mississippi. Final judgment was rendered on July 3, 2007.

      . The property settlement agreement does not reflect the value of George’s BCI stock, only the 8.05 financial statement does.

      . The dissent accuses the majority of excusing George because he is "relatively uneducated,” and opines that it “does not take an advanced educational degree to tell the difference between $100,000 and over $1,000,000.” This view minimizes the complexities involved in discerning a true valuation of stock in a closely-held corporation. It is not clear from the record that George knew conclusively that his stock was worth what was listed on the financial statements.

      . George also testified that between 1993 and 2000 that a secretary of BCI, Shirley Wilson, paid all of his payments because of his travel.

      . Lisa even admits that she and George conspired for her to distract an inspector at one of the job sites, so that the inspector would not notice subpar workmanship.

      . Lisa claims that she was not cordial with BCI personnel, and because of that, she was precluded from attaining any information from them. However, parties involved in litigation, whether a divorce or other type lawsuit, may obtain discovery from others with whom they are not cordial all the time. A lack of cordiality is not an excuse for a lack of diligence.

      .The record shows that Lisa married again about a month after her divorce from George.

      . There is nothing in the record that explains why the first two attorneys did not bring the suit, but perhaps it was because they recognized that the six-month window of opportunity had already closed and refused to accept Lisa's case because they believed pursuit of her claim would prove to be fruitless.

      . “Fraud on the court ... is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. It has been held that allegations of nondisclosure in pretrial discovery will not support an action for fraud on the court.” Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (citation omitted). A motion based upon fraud on the court must be brought within a reasonable time. Walton v. Snyder, 984 So.2d 343, 350-51 (¶¶ 21-23) (Miss.Ct. App.2007). Fraud on an adverse party is found where only one witness commits perjury. Tirouda, 919 So.2d at 216(¶ 12). Unlike fraud on the court, fraud on an adverse party is subject to the six-month time restraint.

      . See, Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966(¶ 12) (Miss.1998).

      . The majority also attempts to justify George listing his BCI stock at two different value by stating that George was "relatively uneducated.” I find this unpersuasive as it does not take an advanced educational degree to tell the difference between $100,000 and over $1,000,000.

      . This was in addition to Tony Bailey offering George $1,000,000 for his BCI stock in 2000, and another BCI board member offering George $1,500,000 in late 2000 for his BCI stock.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Cynthia AMACKER, Appellant, v. Patrick AMACKER, Appellee.
    No. 2008-CP-00332-COA.
    Court of Appeals of Mississippi.
    Sept. 29, 2009.
    Rehearing Denied Feb. 16, 2010.
    Certiorari Denied April 29, 2010.
    Bob Waller, Amy D. Saling, attorneys for appellant.
    Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J., for the Court.

¶ 1. The Pearl River County Chancery Court granted Cynthia Amacker (“Cindy”) a divorce from Patrick Amacker (“Patrick”) and divided their marital assets. Cindy appeals the chancellor’s findings and argues that: (1) the chancellor erred when he failed to award her an interest in the camp house that Patrick purchased after their separation; (2) the chancellor ignored her contributions toward the marital home; and (3) she should have been awarded alimony and an interest in Patrick’s retirement benefits.

FACTS

¶ 2. Cindy and Patrick were married on February 14, 1994. This was their second marriage to each other.

¶ 3. Cindy filed for divorce on August 11, 2005, based on the ground of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. A partial hearing was held on June 6, 2006, at which by stipulation, the parties agreed to a divorce based on irreconcilable differences and asked the chancellor: to distribute personal and real property, to calculate Cindy’s interest in Patrick’s retirement, and to determine whether attorney’s fees or alimony were appropriate. The court was unable to conclude the hearing at that time, and the case was continued.

¶ 4. However, on April 25, 2007 — before the hearing was concluded — the chancellor entered a judgment granting Cindy a divorce on the ground of habitual cruel and inhuman treatment. All other issues other than the grant of divorce were reserved for a final hearing. On January 22, 2008, the chancellor determined that: (1) Patrick’s interest in the marital home was $60,000; (2) Patrick purchased the camp house after the separation and awarded it solely to him; (3) alimony for Cindy was not appropriate; (4) Patrick was not entitled to any of Cindy’s workers’ compensation benefits; and (5) Cindy was not entitled to any of Patrick’s disability benefits or payments for injuries that occurred before their marriage.

¶ 5. Cindy proceeded pro se with her appeal, which was subsequently dismissed by the supreme court for failure to follow the Mississippi Rules of Appellate Procedure. Cindy failed to timely file a brief. After the dismissal, Cindy petitioned: to have her appeal reinstated, for time to retain counsel, and for time to file a supplemental brief. The supreme court granted Cindy’s request, and Cindy retained counsel who filed a supplemental brief. We address only the issues included by counsel in the timely filed supplemental brief.

STANDARD OF REVIEW

¶ 6. The standard of review employed by this Court in domestic relations cases is well settled. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284(¶ 11) (Miss.Ct.App.1998) (citing Bowers Window and Door Co., Inc. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989)).

ANALYSIS

1. Did the trial court err when it failed to award Cindy an interest in the camp house that Patrick purchased after the separation?

¶ 7. Cindy claims that she deserves credit for negotiations and time and money expended for the improvement and renovation of the camp house. According to Cindy, these efforts contributed to Patrick’s ability to purchase the camp house. Patrick claims that Cindy did not contribute to the purchase of the camp house.

¶ 8. On appeal, Cindy argues the chancellor did not analyze her interest in the camp house under the Ferguson factors. Ferguson v. Ferguson, 689 So.2d 921, 928 (Miss.1994). The Fergusm factors “aid chancellors in their adjudication of marital property division.” Id.

¶ 9. In his opinion, the chancellor listed each of the Ferguson factors and stated that he had taken them into consideration. The Ferguson factors are as follows:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
8. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Id.

¶ 10. We begin by addressing whether the camp house can be considered marital property since it was purchased after the separation. In her recent book, Professor Deborah H. Bell explained that “in the absence of a support order, marital property accumulation continues until divorce.” Deborah H. Bell, Miss. Family Law § 6.02[3][b] (2005). “Until the formality of the court order on temporary support or separate maintenance, the effect of each spouse’s earnings remains the same as if the couple were still physically and even happily residing in the marital home[.]” Pittman v. Pittman, 791 So.2d 857, 866(¶ 29) (Miss.Ct.App.2001).

¶ 11. Patrick purchased the camp house after he and Cindy separated, but no temporary support or separate maintenance order had been entered that would cut off the accumulation of marital property. Therefore, the camp house can be considered marital property. “However, the earning spouse may argue that the other contributed little to [the] assets acquired during separation and should be awarded a smaller share.” Bell, Miss. Family Law § 6.02[3][b],

¶ 12. Cindy testified that she had negotiated with the owner of the camp house, Dr. Norman McSwain, to purchase the camp house at a reduced price discounted for the work that she put into it to make it livable. Her position was that the purchase price of the camp house was “fifty something thousand dollars,” and she made a down payment of $15,000 through labor and improvements to the property. She claims that Patrick was able to purchase the camp house for $43,000 because he benefitted from this down payment. Cindy claimed that Patrick wanted nothing to do with buying the camp house until after they had separated.

¶ 13. To support her claim that she had an interest in the camp house, Cindy testified that she expended time and $100,000 of her money to renovate the camp house and the marital home. With respect to the camp house, she claimed that she cashed in a $10,000 certificate of deposit (“CD”) for “stuff’ for the camp house. She produced a summary of canceled checks that had been marked “home improvement.” Cindy claimed that during the month that she had lived at the camp house, she did labor intensive work to improve the property, i.e., scrubbing, cleaning, papering the cabinets, and replacing the kitchen stove and air conditioner.

¶ 14. In support of his claim that Cindy should not be awarded an interest in the camp house, Patrick denies that Cindy contributed labor or money to the cabin’s improvements. It was unclear which of the checks that Cindy submitted were for improvements made to the camp house and. which were for the improvements made to the marital home — if they were for improvements at all. Many of the checks were written to cash, Walmart, and Home Depot. Although home improvement had been written on the memo line of some of the checks, at least some of the notations were made after the checks had been cashed. Furthermore, the chancellor also noted that there was no proof that Cindy used the proceeds from her $10,000 CD toward making improvements to the camp house.

¶ 15. Cindy was unable to produce written documentation of any agreement between her and Dr. McSwain for the purchase of the camp house. This Court cannot, on the facts presented at trial, understand how the alleged improvements to the camp house constituted a down payment. We fail to see the benefit to Dr. McSwain.

¶ 16. The chancellor did not make a specific finding about Cindy’s contribution toward the camp house when he analyzed the Ferguson factors, but he did make a finding on this issue immediately before the analysis of the Ferguson factors. The chancellor noted the conflicting testimony about Cindy’s contribution and found that her contribution toward the camp house was small when compared to Patrick’s contribution. Accordingly, we cannot find that the chancellor neglected to consider Cindy’s contribution when he awarded the camp house to Patrick. On the contrary, he considered Cindy’s contribution but did not find it substantial when compared to Patrick’s contribution. This issue has no merit.

2. Did the chancellor ignore Cindy’s contributions toward the marital home?

¶ 17. Within her argument concerning her interest in the camp house, Cindy makes several claims that she was not given credit for renovations she made to the marital home. When Patrick and Cindy married, Patrick owned a home (the marital home), which he and Cindy shared until they moved to the camp house one month or two months before their separation on August 9, 2005. The marital home was deeded jointly to Patrick and Cindy after their marriage and was marital property. Accordingly, the renovations and improvements to the marital home became marital property.

¶ 18. Patrick disputed Cindy’s claim that she put $90,000 into renovating the marital home and estimated that the renovations totaled $30,000. The chancellor faced the same credibility issue with the checks and receipts for renovations to the marital home as the camp house. The testimony showed that Cindy and Patrick had both contributed to the marital home financially and through their labor.

¶ 19. The chancellor equitably divided the home, valued at $130,000, by awarding Cindy the home and requiring her to pay Patrick $60,000 for his interest in the home. Ultimately, Cindy’s interest in the home was $70,000. Both parties had contributed to the home, and any improvements to the home were marital property. The chancellor did not abuse his discretion when he determined the parties’ interest in this property. This issue lacks merit.

3. Should Cindy have been awarded alimony or an interest in Patrick’s retirement benefits?

¶ 20. Cindy argues that the chancellor misapplied three of the ten Armstrong factors when he considered whether alimony was appropriate. Cindy further argues that she is entitled to a portion of Patrick’s retirement, but there was no evidence of Patrick’s retirement before the chancellor.

¶ 21. “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). (citations omitted).

¶ 22. The chancellor listed the Armstrong factors and found that: (1) Patrick’s monthly income was $2,400, and Cindy’s monthly income was $1,600; (2) Patrick was permanently disabled, and Cindy was disabled, although the chancellor did not now how long Cindy’s disability would last; (3) they both had needs; (4) it was a midterm marriage, bordering on a long-term marriage; and (5) they had agreed to an irreconcilable differences divorce.

¶ 23. Cindy claims that the parties’ health and earning capacity, length of the marriage, and fault all weighed in her favor. See id.

A. Health and Earning Capacity

¶ 24. Cindy argues that the chancellor erred when he analyzed the parties’ health and earning capacity, because he speculated that she might go back to work. Cindy is a registered nurse, but she is currently temporarily totally disabled and collecting workers’ compensation benefits. Cindy testified that she did not know when she would be able to return to work. Patrick receives disability and an annuity payment from the settlement of an offshore injury that occurred prior to the marriage.

¶ 25. Patrick’s income is $800 per month more than Cindy’s; however, the chancellor found that if and when Cindy returns to work as a registered nurse, her income could be substantially more than Patrick’s. Cindy argues that it is mere speculation that she will go back to work as a nurse. Cindy testified that her doctor has labeled her temporarily totally disabled. The very nature of a temporary disability means it is not expected to be permanent. We find that the chancellor did not abuse his discretion when he considered that Cindy’s disability was temporary and that she would have substantially more income when her disability ended.

B. Length of the Marriage

¶ 26. The parties were married for eleven years. The chancellor stated this was a mid-term marriage that bordered on being a long-term marriage. While this factor weighs slightly in favor of Cindy, we find that the chancellor’s decision to deny alimony after eleven years of marriage does not amount to an abuse of his discretion.

C. Fault

¶27. Cindy filed for a divorce based upon habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. The parties had agreed to an irreconcilable differences divorce, but the chancellor entered a judgment granting Cindy a divorce on grounds of habitual cruel and inhuman treatment. When the chancellor made findings about the Armstrong factors, he stated that there was no evidence of fault and that the parties had agreed to an irreconcilable differences divorce. Cindy claims that the chancellor’s findings were incorrect and were egregiously erroneous.

f 28. Cindy failed to raise any issue about the grounds for granting the divorce with the chancellor when he made his findings. “Failure to make a contemporaneous objection constitutes [a] waiver of the objection and cannot be raised for the first time on appeal because the trial court is denied the opportunity to consider the issue and possibly remedy the situation.” Copeland v. Copeland, 904 So.2d 1066, 1073 (Miss.2004).

¶ 29. Even if Cindy had not waived this issue, we find that the chancellor’s finding was correct. We acknowledge that the chancellor granted Cindy a divorce based on habitual cruel and inhuman treatment — as alleged in her complaint — during the time period between the first and second hearing. However, he did so without any evidence of fault. Cindy never put forth any evidence of Patrick’s habitual cruel and inhuman treatment, and neither party challenges the order granting the divorce on appeal. Accordingly, we do not address it. The chancellor’s finding on this factor was correct.

¶ 30. This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id. Accordingly, we affirm the chancellor’s decision to deny alimony.

¶ 31. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J., for the Court.

text:
    Tyronne Lekeith WADE a/k/a Tyronne Lakeith Wade, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01098-COA.
    Court of Appeals of Mississippi.
    Sept. 29, 2009.
    Rehearing Denied April 27, 2010.

      Alvin Chase, Biloxi, attorney for appellant.

      Office of The Attorney General, by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.

      . Exhibit S-12, a report from the Mississippi Crime Laboratory, indicated that the bundled packages found inside luggage in Wade’s rental car contained 31.4 kilograms of marijuana.

   ROBERTS, J., for the Court.

¶ 1. Tyronne Lekeith Wade was found guilty of possession of more than one kilogram of marijuana with the intent to transfer or distribute. The Harrison County Circuit Court sentenced Wade to twenty years in the custody of the Mississippi Department of Corrections (MDOC) with ten years to serve and five years of “supervised” post-release supervision followed by five years of “unsupervised” post-release supervision. Wade appeals and claims the circuit court erred when it denied his pretrial motion to suppress the evidence against him. Wade claims the circuit court should have suppressed the evidence against him because he was illegally detained during a traffic stop. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of November 13, 2006, Wade was driving a rental car through Harrison County, Mississippi. The rental car did not have a traditional metal license plate displayed in the commonly-accepted location. Instead, there was a paper Alabama license displayed in the rear window. Deputy William Sense-ney with the Harrison County Sheriffs Department did not see the paper Alabama license in the rear window of Wade’s rental car, because it was displayed from the inside of the heavily-tinted rear window of the rental car and the window was covered by a layer of dirt and dust. Because Deputy Senseney did not see any license plate when he encountered Wade, he pulled Wade over at approximately 10:13 a.m.

¶ 3. As Deputy Senseney approached Wade’s rental car, Deputy Senseney noticed the Alabama paper license in the rear window of the car. Deputy Senseney then went to the passenger side of Wade’s rental car and asked Wade for his driver’s license and his proof of insurance. Wade presented his North Carolina driver’s license and informed Deputy Senseney that the rental car was insured through the rental agreement.

¶ 4. Deputy Senseney noticed that Wade appeared nervous. According to Deputy Senseney, Wade’s hands were shaking when he provided his driver’s license and the rental agreement. Deputy Senseney asked Wade “where he was coming from.” Deputy Senseney reported that Wade told him “that he was just coming from seeing his uncle who was dying of cancer in Beaumont, Texas.” However, Deputy Sense-ney later repeated his question to Wade. Wade’s later response indicated that he could not remember what he had said to Deputy Senseney. According to Deputy Senseney, Wade “hesitated for a while, and he then said [’jwhere did I tell you I was coming from?[’]” Deputy Senseney responded, “1 don’t know ... [yjou tell me.” Wade then said, “well, you know where I was coming from.” Deputy Sense-ney then asked Wade how his uncle was doing. As mentioned, Wade first told Deputy Senseney that his uncle was dying. However, when asked about his uncle a second time, Wade replied, “[o]h, he’s fine. I just went out there to visit him.”

¶ 5. According to Deputy Senseney, the placement of certain items in Wade’s rental car further aroused his suspicions. Deputy Senseney smelled an unusually strong odor of air fresheners from the car, and he noticed that there were large air fresheners attached to each of the rental car’s air conditioning vents. Wade had a small Bible in the open console of the rental car, and he had hung a set of rosary beads from the dashboard. Additionally, Wade had hung a set of military identification tags, commonly referred to as “dog tags,” from the rear-view mirror. Deputy Senseney articulated that, under the totality of the circumstances, he became suspicious that the air fresheners could be intended to mask the smell of narcotics, and the religious and military articles could be intended to convey a message that Wade was a “good person” who would not warrant further attention.

¶ 6. Deputy Senseney asked Wade to join him in his patrol car while he wrote out what he described as a “courtesy citation” for what he characterized as Wade’s “improperly displayed tag.” Wade complied and sat in the front passenger seat of the patrol car. Meanwhile, Deputy Sense-ney “noticed that ... [Wade’s] breathing seemed to be heavier than what [he] would think would be a normal person’s breathing patterns, and he continued to fidget with the leg on his pants and just ... appeared to be nervous.”

¶ 7. Deputy Senseney requested a criminal background check on Wade. While they waited, Deputy Senseney reviewed Wade’s rental agreement. Deputy Senseney noticed what he considered to be another inconsistency in Wade’s story. Although Wade told Deputy Senseney that he was coming from Beaumont, Texas, the rental agreement reflected that Wade had rented the car in Harlingen, Texas. According to Deputy Senseney, “Beaumont is basically on one side of Texas; Harlingen is down on the opposite end of Texas down by the border in the valley area.” When the criminal background check on Wade was completed, Deputy Senseney discovered that Wade “had several ... prior drug-related arrests, with the latest one being in June of [20]06 in Louisiana.” However, there were no outstanding warrants for Wade’s arrest.

¶ 8. Deputy Senseney filled out a consent-to-search form and explained that, if Wade signed it, he would allow Deputy Senseney to search the car. Deputy Senseney also explained that Wade had the right to refuse to consent to a search of his car. Wade refused to sign the form and refused to consent to a search of his rental car. However, after Wade refused to consent to a search of his rental car, Deputy Senseney requested that an officer with a drug-detecting dog report to the scene of the traffic stop. According to Deputy Senseney, he made that request at 10:27 a.m.

¶ 9. The record refleets that Deputy Timothy Huguet arrived at the scene of the traffic stop in just three minutes. Deputy Senseney testified that when Wade realized that Deputy Huguet was walking around his rental car with a dog, Wade “hopped out of the [patrol] car and ... started hollering [’]whoa, you’ve got to stop, you’ve got to stop[’] and all this stuff.” Despite protesting the dog’s presence, Wade did not interfere with Deputy Huguet as he walked around the rental car with the dog.

¶ 10. Deputy Huguet’s dog “alerted” at the right and left rear quarterpanels of the rental ear and indicated that it had smelled narcotics in the rental car. Deputy Sense-ney and Deputy Huguet then searched Wade’s rental car. They found approximately sixty pounds of what they suspected to be bundled and packaged marijuana concealed within three suitcases: two in the back cargo area of the rental car, and one on the passenger side of the back seat.

¶ 11. Wade was arrested at the scene. On June 11, 2007, he was indicted and charged with possession of more than one kilogram of marijuana with the intent to transfer or distribute. Wade pled not guilty. On March 26, 2008, Wade filed a motion to suppress the marijuana and dismiss the indictment against him. According to Wade, Deputy Senseney unlawfully detained him until Deputy Huguet could respond with his dog.

¶ 12. On April 1, 2008, the circuit court conducted a hearing on Wade’s motion to suppress the evidence against him. Deputy Senseney and Deputy Huguet testified during that hearing. After each side presented its argument, the circuit court announced that it would take Wade’s motion under advisement. The circuit court allowed Wade and the prosecution to submit letter briefs on the issue of whether the evidence against Wade should be suppressed. Each side submitted a letter brief. On April 23, 2008, the circuit court denied Wade’s motion to suppress the evidence against him.

¶ 13. On May 1, 2008, Wade went to trial. Wade waived his right to a jury trial and chose to have a bench trial. Deputies Senseney and Huguet testified during the trial. Agent Ian Estorffe of the Mississippi Bureau of Narcotics also testified for the prosecution. Agent Estorffe testified that he took custody of the packaged substance suspected to be marijuana and transported it to the Mississippi Crime Laboratory. According to Agent Estorffe, the bundles actually contained sixty-six pounds, 29,937 grams, of marijuana.

¶ 14. The prosecution rested its case-in-chief after Agent Estorffe testified. Wade did not testify. He rested without calling any witnesses or presenting any evidence. The circuit court did not render a verdict at the end of the trial. Instead, the circuit court took the matter under advisement. On May 27, 2008, the circuit court entered its judgment finding Wade guilty. The circuit court sentenced Wade to twenty years in the custody of the MDOC. The circuit court suspended ten years of Wade’s sentence with ten years to serve followed by five years of post-release supervision.

¶ 15. Wade filed a motion for reconsideration. Wade’s attorney stated that he “was, perhaps mistakenly, under the impression [that] the [e]ourt had previously] stated a willingness to defer sentencing for a period of time to allow [Wade’s] family to be present and to address the [c]ourt” prior to sentencing Wade. On June 23, 2008, the circuit court conducted a hearing and allowed Wade’s attorney, Wade’s mother, and Wade’s aunt to address the circuit court judge and request that he be lenient in sentencing Wade. Afterward, the circuit court amended its previous sentence. The circuit court stated that “under state law, I’m not allowed to suspend any part of a sentence.” Accordingly, the circuit court sentenced Wade to twenty years in the custody of the MDOC with ten years to serve followed by five years of “supervised” or “reporting” post-release supervision and then five years of “unsupervised” or “non-reporting” post-release supervision.

¶ 16. Wade appeals. He raises one issue on appeal. According to Wade, the circuit court erred when it denied his motion to suppress the marijuana.

STANDARD OF REVIEW

¶ 17. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Lattimer v. State, 962 So.2d 206, 215(¶ 24) (Miss.Ct.App.2006). “Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense.” Id.

¶ 18. We further note that, as part of his overall argument, Wade claims that there were no “specific and articulable facts” from which a “reasonable suspicion” of a traffic offense or other crime could be gleaned to support and justify Deputy Senseney’s traffic stop. The Mississippi Supreme Court has clarified the appropriate standard of review in the event of such arguments, stating that:

The principal components of a determination of [whether there was] reasonable suspicion or probable cause [justifying a traffic stop] will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

Gonzalez v. State, 963 So.2d 1138, 1141(¶ 10) (Miss.2007) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). “[T]he ‘first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact.’ ” Id. “Thus, historical facts are reviewed only for clear error, while determinations of reasonable suspicion are reviewed de novo.” Id. (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657) (footnote omitted).

ANALYSIS

¶ 19. Wade claims the circuit court erred when it denied his motion to suppress the evidence. According to Wade, Deputy Senseney had no legal right to stop him. Wade also claims Deputy Senseney had no right to detain him after Deputy Senseney determined that he had a valid temporary license plate.

¶ 20. The Fourth Amendment to the United States Constitution and Article 3 Section 23 of the Mississippi Constitution provide that an individual has the right to be free from unreasonable searches and seizures. Dies v. State, 926 So.2d 910, 917-18(¶ 21) (Miss.2006). “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed2d 89 (1996) (citations omitted). Evidence, however relevant and trustworthy, obtained from an illegal arrest or detention is inadmissible at trial. Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Mississippi Supreme Court has held that:

Unless the marijuana was discovered during a legal search, it may not be seized. If it was illegally seized, it may not be admitted into evidence. It is therefore important to examine the legality of the particular intrusions which enabled the police to see this marijuana to determine if these intrusions were outside the legitimate scope of the police’s authority.

Gonzalez, 963 So.2d at 1140(¶ 9) (quoting Carney v. State, 525 So.2d 776, 785 (Miss.1988)).

¶ 21. There are several exceptions to the Fourth Amendment’s general prohibition of warrantless searches. Gonzalez, 963 So.2d at 1141(¶ 12). The exception central to this case is the exception for non-custodial investigatory stops, also known as Teny stops. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The United States Supreme Court has noted that swift and necessary actions by officers ‘must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.’ ” Gonzalez, 963 So.2d at 1141(¶ 13) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). “To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Id. (citation omitted). “[I]t is imperative that the facts be judged against [the following] objective standard: Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. at 1141-42. (citations and internal quotations omitted).

¶ 22. There is a two-fold test to determine whether a law enforcement officer’s search and seizure were reasonable: “(1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 1142(¶ 14) (citation omitted). “[T]o satisfy the first prong, the law enforcement officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. (citation and internal quotations omitted).

I. DEPUTY SENSENEY’S RIGHT TO STOP WADE

¶ 23. The facts in this case are strikingly similar to the underlying facts in Gonzalez. In Gonzalez, a Mississippi State Highway Patrol Trooper stopped a rental car because the trooper could not see a temporary license tag that was displayed from the inside of windows that were described as “very dark” and “very tinted.” Gonzalez, 963 So.2d at 1142(¶ 16). The Mississippi Supreme Court noted that “vehicles operated on Mississippi’s highways must have tags ‘conspicuously displayed on the vehicle being operated in such a manner that it may be easily read.’ ” Id. at 1143(¶ 20) (quoting Miss. Code Ann. § 27-19-323 (Rev.2006)). The supreme court went on to hold that “[i]n light of this clear statutory language, it is not enough that the vehicle actually had a tag. If the tag was not ‘conspicuously displayed’ and ‘easily read,’ [the trooper] was fully justified in making the stop.” Id.

¶ 24. Deputy Senseney’s decision to stop Wade was not unreasonable. Deputy Senseney was not able to see Wade’s license plate because it was displayed inside the heavily-tinted rear "window of Wade’s rental car, and the tag was further obscured by a significant amount of dirt and dust. Having viewed the picture introduced in evidence that depicted Wade’s rental car and the visible conditions of the rear window, it was reasonable that Deputy Senseney could not see Wade’s tag. Even from a close viewpoint in daylight, it is impossible to determine that the rectangular object in the window is a valid temporary license tag.

¶ 25. Failure to conspicuously display a tag in such a manner that it may easily be read is an offense under Mississippi Code Annotated section 27-19-323 (Rev.2006). Additionally, Mississippi Code Annotated section 27-19-40 (Rev.2006) regulates “special in-transit tags” like the tag presently at issue, and requires that such a tag be “properly displayed” and “displayed in plain view.” Miss. Code Ann. § 27-19-40(l)(c) and (4) (Rev.2006). Deputy Sense-ney personally observed that Wade did not have a license plate that was “conspicuously displayed” on his rental car. Additionally, because Deputy Senseney could not see any license plate on Wade’s rental car, Deputy Senseney had probable cause to believe that Wade did not have a license plate. It follows that Deputy Senseney had probable cause to believe that Wade had committed a traffic violation. A law enforcement officer may stop a vehicle when there is probable cause to believe that a traffic violation has occurred. Walker v. State, 962 So.2d 39, 42(¶ 6) (Miss.Ct.App.2006) (citing Whren, 517 U.S. at 810, 116 S.Ct. 1769). Consequently, we cannot find that the circuit court erred when it concluded that Deputy Senseney acted within his authority when he stopped Wade.

¶ 26. Wade stopped his car, and as Deputy Senseney approached Wade, Deputy Senseney realized that Wade had a temporary Alabama license plate. However, having stopped Wade, Deputy Sense-ney also had the responsibility to ensure that Wade’s temporary license plate was valid and that Wade had liability insurance. See Miss.Code Ann. § 63-15-4(3) (Rev.2004) (stating that “[u]pon stopping a motor vehicle for any other statutory violation, a law enforcement officer, who is authorized to issue traffic citations, shall verify that the insurance card required by this section is in the motor vehicle.” (emphasis added)).

II. DEPUTY SENSENEY’S RIGHT TO DETAIN WADE

¶ 27. Although Wade had a valid temporary license plate, it is not enough that one simply have a valid tag, “but also that the tag be displayed in plain view.” Gonzalez, 963 So.2d. at 1144(1124). Deputy Senseney wrote a “courtesy citation” for Wade’s failure to display his temporary tag in plain view. During the stop, Deputy Senseney observed certain aspects of Wade’s behavior that aroused his suspicions. There was a heavy air freshener odor. There were air fresheners clipped to the air conditioning vents. There was a Bible in the center console and rosary beads hanging from the dashboard. There were what appeared to be military “dog tags” hanging from the rear-view mirror. Those features, alone, would not create reasonable suspicion that one might be smuggling contraband, but there were other matters that aroused Deputy Sense-ney’s suspicions, and Deputy Senseney articulated those matters during the hearing on Wade’s motion to suppress the evidence against him.

¶ 28. Deputy Senseney noted that, although Wade told him that his trip originated from Beaumont, Texas, Wade had rented his car in Harlingen, Texas. However, when Deputy Senseney later asked Wade again where he was coming from, it appeared to Deputy Senseney that Wade could not remember where he had begun his trip. Deputy Senseney also testified he was suspicious due to the fact that Beaumont, Texas is a considerable distance from Harlingen, Texas, and that Harlingen was significantly out of the path of Wade’s trip from Beaumont, Texas to North Carolina. Deputy Senseney testified that Wade initially told him that he was traveling from Beaumont, Texas because he had been visiting an uncle who was terminally ill. However, Wade later told Deputy Senseney that his uncle was “fine.”

¶ 29. Deputy Senseney testified that Wade was behaving nervously during the traffic stop. Deputy Senseney also articulated Wade’s nervous behavior. According to Deputy Senseney, Wade’s hands were shaking when he gave Deputy Senseney his driver’s license and his car rental agreement. While Wade was in the front seat of Deputy Senseney’s patrol car, Wade was breathing heavier than normal and he was fidgeting with his clothing. Finally, Deputy Senseney requested a criminal background check on Wade. That background check indicated that Wade had multiple prior drug-related convictions.

¶ 30. Wade’s prior criminal history, display of religious items, display of military “dog tags,” and the presence of air fresheners may not, on their own or taken together, give rise to further detention of Wade. However, when viewed alongside Wade’s nervous behavior and inconsistent statements about his trip, it is not unreasonable to suspect that the “dog tags,” religious items, and heavy odor of air fresheners could be intended to conceal or distract from criminal behavior. Consequently, we cannot find that the circuit court erred when it determined that those circumstances, in conjunction with the inconsistencies in Wade’s responses and his articulable nervous behavior, warranted Deputy Senseney’s further investigation. Deputy Senseney clearly articulated that the heavy odor of air fresheners could be an attempt to mask the smell of narcotics. Deputy Senseney also stated that the Bible, rosary beads, and military identification tags could have been placed intentionally to send a message that the driver is a “good person” who was unlikely to be someone that might smuggle contraband items.

¶ 31. If, during a traffic stop, a law enforcement officer develops reasonable, articulable suspicion of criminal activity other than what was originally suspected, the scope of the officer’s stop expands and includes the investigation of the newly-suspected criminal activity. Tate v. State, 946 So.2d 376, 382(¶ 18) (Miss.Ct.App.2006). Based on the matters discussed above, Deputy Senseney developed reasonable, articulable suspicion that Wade was engaged in smuggling narcotics. It follows that Deputy Senseney had a legal basis to detain Wade until Deputy Huguet could resolve his reasonable suspicion through the dog’s sniff test of Wade’s car. The record reflects that it took just three minutes for Deputy Huguet to respond ■with a dog. Deputy Huguet’s dog “alerted” and indicated that it smelled contraband. Those positive alerts created probable cause for Deputy Senseney and Deputy Huguet to search Wade’s car. McNeal v. State, 617 So.2d 999, 1006 (Miss.1993). Accordingly, pursuant to our standard of review, we can find no error in the circuit court’s decision to deny Wade’s motion to suppress the evidence seized as a result of Deputy Senseney’s traffic stop.

¶ 32. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH THE INTENT TO DISTRIBUTE OR TRANSFER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE FOLLOWED BY FIVE YEARS OF SUPERVISED POST-RELEASE SUPERVISION AND FIVE YEARS OF UNSUPERVISED POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . During the sentencing hearing, Wade’s attorney stated that Wade “had a couple of prior convictions.’’ Wade’s attorney went on to state that, in 1991, Wade had been convicted for a “drug-related charge” in North Carolina. Wade's attorney indicated that Wade had been sentenced to twelve years and that the sentence "was suspended for probation.” Wade's attorney said Wade "did in fact do about [fourteen] months of probation. He got revoked, I think, for a dirty urine at that time, and he did some time, but it was not the twelve years.” Additionally, Wade’s attorney stated that, in 1999, Wade was charged with "possession of a gun after having a felony conviction” for which Wade was sentenced to "eight to ten months of probation.” Consequently, the most likely reasoning for the circuit court judge's indication that he could not suspend any portion of Wade's sentence was the circuit court judge's interpretation of the provision in Mississippi Code Annotated section 47-7-33(1) (Rev.2004) that a circuit court may not suspend a portion of a sentence and place a defendant on probation if that defendant "[has] been convicted of a felony on a previous occasion in any court or courts of the United States." However, Mississippi Code Annotated section 47-7-34 (Rev.2004) addresses the circuit court's authority to suspend a sentence and place a defendant on post-release supervision. The Mississippi Supreme Court has held that section 47-7-34 "does not prohibit the imposition of post[-]release supervision upon a prior[-]convicted felon.” Johnson v. State, 925 So.2d 86, 105(¶ 39) (Miss.2006).

      . " 'Unsupervised' post-release supervision is also known as 'non-reporting' post-release supervision." Johnson, 925 So.2d at 102 n. 12.

      . During the suppression hearing, Wade's attorney introduced a printout of a map demonstrating that Harlingen, Texas is located at the extreme southern tip of Texas's border with Mexico. Beaumont, Texas is approximately 415 miles northeast of Harlingen. One could conclude that if Wade had been visiting his uncle in Beaumont, and Wade was traveling from Beaumont to his home in North Carolina, it defies logic to travel 415 miles in the opposite direction of his destination, adding a total of approximately fourteen hours to his trip, for the purposes of renting a car.


author: KING, C.J., for the Court.

text:
    Christopher Keon DRUMMOND, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KP-00313-COA.
    Court of Appeals of Mississippi.
    Oct. 27, 2009.
    Rehearing Denied April 13, 2010.

      Christopher Keon Drummond, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   KING, C.J., for the Court.

¶ 1. Christopher Drummond was convicted in the Circuit Court of Harrison County of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). The trial court denied Drummond’s motion for a new trial or, alternatively, for a judgment notwithstanding the verdict (JNOV). On appeal, Drummond argues the following issues: (1) the jury verdict is against the overwhelming weight of the evidence; (2) the trial court erred in allowing a "witness to testify to hearsay information; (3) he was denied effective assistance of counsel; (4) he was denied his constitutional and statutory rights to a speedy trial; and (5) he suffered cumulative error. Finding no error, we affirm.

FACTS

¶ 2. On or about May 28, 2006, Doris Duckworth agreed to move some furniture and clean and varnish the floors at Melissa Durr’s home. Duckworth asked her friends, Larry Moffett and Anthony Henderson, to help her with the job. The following day, Drummond, approached Duckworth and asked the whereabouts of Moffett because Moffett had allegedly stolen his drugs (i.e. Ecstasy pills) while they were cleaning Durr’s home. Drummond, who is Durr’s brother, was allegedly asleep at Durr’s home during the time Duck-worth, Henderson, and Moffett were cleaning.

¶ 3. Duckworth testified that after talking with Drummond, she went to Henderson’s home and told him about Drummond’s quest to locate and kill Mof-fett for stealing his drugs. Henderson testified that because Moffett was his former roommate, Drummond came to his home after Duckworth had left, inquiring of Moffett’s whereabouts and making threats to kill Moffett for stealing his drugs.

¶ 4. On the evening of May 30, 2006, Duckworth went to Henderson’s home a second time to warn Moffett about Drum-mond’s threats. Duckworth testified that when she left Henderson’s home, she noticed a van following her. Duckworth tried to elude the van. Thinking that she had eluded the driver of the van, Duck-worth went to Moffett’s sister’s home, where Moffett now resided. When Duck-worth arrived at Moffett’s current residence, Duckworth blew her horn to summon Moffett. Moffett came out of the house to talk with Duckworth, who was sitting in her car. While Moffett was talking with Duckworth, Drummond got out of the van that had been following Duck-worth, held a brief conversation with the female passenger in Duckworth’s car, and then went behind Duckworth’s car to the driver’s side and confronted Moffett about taking his “stuff’ (i.e. drugs). Moffett testified that he told Drummond that he did not know anything about Drummond’s missing “stuff.” Moffett stated that before he could respond any further, Drummond shot him. As a result of the gunshot wound, Moffett is left permanently disabled.

¶ 5. Drummond was indicted for aggravated assault by a Harrison County grand jury during the March 2007 term. Drum-mond’s trial was set for October 15, 2007. However, on September 12, 2007, the trial court on its own motion cancelled the docket for the week of October 15, 2007, and continued those cases, including Drum-mond’s. The trial was rescheduled for December 10, 2007. On December 10, 2007, Drummond filed a motion in limine to prohibit the introduction of evidence of any other crime or alleged crime of which he had been convicted or accused. The record does not indicate that a ruling was made by the trial judge on the motion in limine.

¶ 6. On December 13, 2007, Drummond was found guilty of aggravated assault and sentenced to twenty years in the custody of the MDOC. Drummond’s post-trial motions were denied, and this appeal followed.

ANALYSIS

I. Weight of the Evidence

¶ 7. Drummond argues that the trial court erred by denying his motion for a new trial. Drummond asserts that there is no evidence that he shot Moffett. Drummond claims that Moffett never identified him as the shooter and that any knowledge Moffett had of the shooter was based on Duckworth’s misidentification. Drummond also asserts that the State’s case against him was built on the testimony of Duckworth, a drug user whose motive was to acquire the missing drugs.

¶ 8. “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). “The jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused.” Moss v. State, 977 So.2d 1201, 1215(¶ 36) (Miss. Ct.App.2007).

¶ 9. In this case, the jury’s verdict is consistent with the weight of the evidence. Henderson and Duckworth testified that Drummond approached them prior to the shooting inquiring as to Moffett’s whereabouts and threatening to kill Moffett because he allegedly had taken Drummond’s drugs. Duckworth testified that she recalled Drummond getting out of the van that had been following her and going to the passenger side of the car she was driving. Duckworth stated that Drum-mond then came to the driver’s side of the car, asked Moffett the whereabouts of his pills, and when Moffett could or would not answer, Drummond shot him. Although Moffett could not initially identify Drum-mond as the man who had shot him, Mof-fett did testify that before the gunman shot him, the man stated that Moffett had taken his “stuff.” Lt. Robert Curry of the Gulfport Police Department testified that when he questioned Moffett at the hospital regarding the identity of the man who had shot him, Moffett was not able to give him the name of the man, but Moffett stated that it was a black man wearing a white shirt who lived on Stewart Avenue at the north end, the second house from the right, which was the location of Durr’s home. Detective Chris Lagenbach testified that he showed Duckworth a photographic lineup that had been constructed by Detective Lynette Garriga, and Duck-worth identified Drummond as the shooter. Despite the testimony of several of the State’s witnesses as to Drummond’s guilt, Drummond’s theory of defense was that he was innocent. However, Drum-mond rested without calling any witnesses or presenting any evidence.

¶ 10. In this case, the jury considered the evidence and returned a verdict of guilty. Reviewing the record, we find that allowing the verdict to stand will not sanction an unconscionable injustice; therefore, we find that this issue is without merit.

II. Hearsay Testimony

¶ 11. Drummond argues that the trial court erred in allowing Moffett to present hearsay testimony. Drummond asserts that Moffett testified that he could not identify the shooter by name, but Mof-fett was allowed to testify that Duckworth told him who had shot him. “The standard of review for [either] the admission or exclusion of evidence is abuse of discretion.” Walls v. State, 928 So.2d 922, 927(¶ 12) (Miss.Ct.App.2006).

¶ 12. The testimony, which Drummond alleges to be hearsay, occurred during the State’s case-in-chief. That dialogue is as follows:

Q. If you recall, Mr. Moffett. If you don’t recall, that’s okay.
A. No, I don’t recall.
Q. You don’t remember?
A. What was the question again, sir?
Q. I was asking you if you remember telling the policeman anything about where the person responsible for your shooting you had lived, where he stayed.
A. I think I said something about he stayed on Stewart Avenue I think.
Q. Did you know the person that shot you?
A. I’ve heard of his name, you know, but, no, I’ve never seen the boy before in my life.
Q. As far as at the time you got shot—
A. Did I know who did it?
Q. Yes, sir.
A. No, I couldn’t tell.
Q. Today if you saw any faces, would you know who the person was?
A. Right now, sir, I couldn’t even tell you, you know what I mean, to be honest with you, I couldn’t tell you who it was, you know, because she said who shot me. But I never [seen] the boy before in my life.
Q. I want to ask if your answers just reflect what you know from your own observations and not what anybody else has told you. As of today, you don’t know the actual person who shot you, do you?
A. No, sir.

¶ 18. This issue is procedurally barred on appeal as Drummond failed to object. “This Court has repeatedly held that if no contemporaneous objection is made, the error, if any, is waived.” Morris v. State, 963 So.2d 1170, 1177(¶ 26) (Miss.Ct.App.2007) (citations and internal quotations omitted). “The contemporaneous-objection rule is in place to enable the trial court to correct an error with proper instructions to the jury whenever possible.” Id. Because it was not raised at the trial level, we find that this issue is procedurally barred from our appellate review.

III. Ineffective Assistance of Counsel

¶ 14. Drummond contends that defense counsel’s failure to object when the State was attempting to elicit hearsay testimony from the victim amounted to ineffective assistance of counsel. Drummond also argues that defense counsel was ineffective because counsel never attempted to impeach Moffett with his prior testimony. This Court does not generally consider an ineffective-assistance-of-counsel claim on direct appeal.

¶ 15. The Mississippi Supreme Court has stated that:

It is unusual for this [c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim. The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. This Court will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (internal citations and quotations omitted). The record does not affirmatively indicate that Drummond suffered denial of effective assistance of counsel of constitutional dimensions, and the parties have not stipulated that the record was adequate to allow the appellate court to make a finding without considering the finding of facts by the trial judge. Thus, we decline to address this issue without prejudice to Drummond’s right to seek post-conviction relief, if he so chooses.

IV. Constitutional and Statutory Rights to a Speedy Trial

¶ 16. For the first time on appeal, Drummond contends that his constitutional and statutory rights to a speedy trial were violated. “A trial judge will not be found in error on a matter not presented to him for decision.” Ude v. State, 992 So.2d 1213, 1218(¶ 20) (Miss.Ct.App.2008) (quoting Smiley v. State, 798 So.2d 584, 587(¶ 7) (Miss.Ct.App.2001)). Because Drummond failed to raise these issues at trial or in his post-trial motions, he is procedurally barred from arguing them on appeal.

V. Cumulative Error

¶ 17. Drummond asserts that the cumulative effect of each error acted to deprive him of his constitutional right to a fair trial. Having found no merit to any of the specific errors alleged by Drummond, this Court, accordingly, finds no cumulative error.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . Drummond was represented at trial by Harrison County Public Defender, Glenn F. Rish-el, Jr. Rishel perfected Drummond's appeal and filed a motion which allowed Drummond to appeal as an indigent. Rishel then filed a motion to withdraw as appellate counsel and asked this Court to substitute the Office of Indigent Appeals (OIA) as appellate counsel. By order dated July 2, 2008, we allowed Rish-el to withdraw and directed that Attorney George T. Holmes of the OIA be substituted as counsel for Drummond. OIA Director Leslie S. Lee also filed an appearance form on behalf of Drummond. Holmes filed a brief on Drummond’s behalf. However, Drummond wanted no part of being represented by his appointed appellate counsel. On July 17, 2008, he filed a motion to strike the Appellant’s brief filed on his behalf by OIA, staling that he wanted to proceed pro se and that he was never consulted about the appointment of Holmes as his attorney. Further, he stated that Holmes did not consult with him in preparing the brief and that the brief filed by OIA did not raise the issues he wanted to raise on appeal. He asked this Court to allow him to proceed pro se and to strike the OIA brief of the Appellant. By order dated July 30, 2008, this Court granted Drummond's motion and allowed him to proceed pro se, allowed Lee and Holmes to withdraw as counsel, struck the OIA brief, and ordered the clerk of the court to set a new briefing schedule in order for Drummond to file his pro se brief of the Appellant, which he did October 24, 2008.