author: KING, C.J.,

text:
    James Calvin WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01767-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.
    Rehearing Denied March 30, 2010.
    Hunter Nolan Aikens, attorney for appellant.

      Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. James Calvin Williams was convicted in the Circuit Court of Forrest County of possession of a firearm by a convicted felon and sentenced as a habitual offender to ten years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole, probation, or early release pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). Aggrieved, Williams appeals raising the following assignments of error: (1) the State failed to establish that Williams was a habitual offender under Mississippi Code Annotated section 99-19-81; (2) the trial court erred in overruling Williams’s motion to suppress; and (3) the trial court erred in allowing the State’s expert, Mark Mitchell, to testify as to his trace of the gun’s history of ownership. We affirm in part the judgment of the trial court as to the conviction and reverse in part as to that portion of the judgment which found Williams to be a habitual offender and remand for re-sentencing as a non-habitual offender.

FACTS

¶ 2. On August 30, 2007, at approximately 2:20 a.m., Williams was riding his bicycle on the sidewalk in the vicinity of Martin Luther King Street and Ashford Street in Hattiesburg, Mississippi when two officers with the Hattiesburg Police Department, Kyle Stuart and Brandon Jones, who were patrolling the area, attempted to stop him. Officer Stuart stated that once Williams noticed the officers, he pulled into the parking lot, and the officers followed. Officer Stuart claimed that once he exited his vehicle, Williams proceeded to ride his bicycle around his patrol car. Officer Stuart and Officer Jones testified that the reason for attempting to stop Williams was to conduct an investigative stop to determine where Williams was going that time of the morning in a high-crime area near an elementary school and to inform Williams that riding his bicycle without any reflectors and riding his bicycle on the sidewalk was in violation of city ordinances. When Williams did not stop, Officer Jones got out of his patrol car and gave Williams a verbal command to stop. Williams continued to cycle around the officers’ cars and then attempted to flee by riding south back up Martin Luther King Street. At that point, Officer Jones gave chase to stop Williams. Approximately 50 to 60 yards down the road, Williams wrecked his bicycle. Officer Jones and Officer Stuart approached Williams and tried to detain him. While Williams was resisting the officers’ efforts to detain him, a loaded handgun, which was identified as a black .380 Lorcin, fell from Williams’s waistband. Thereafter, Williams was restrained, and the officers conducted a pat-down search. During the pat-down search the officers also discovered a holster on Williams’s waistband. Once Williams was detained, the officers asked his identity and ran a background check. The check indicated that Williams was a convicted felon; Williams was arrested. Subsequently, Williams was indicted by a Forrest County grand jury for possession of a firearm by a convicted felon. On October 1, 2008, Williams was convicted of possession of a firearm by a convicted felon and sentenced as a habitual offender to ten years in the custody of the MDOC without eligibility for parole, probation, or early release. Williams filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. On October 16, 2008, Williams’s post-trial motion was denied. Williams appeals.

STANDARD OF REVIEW

¶ 8. In this case, the Court must use a separate standard of review for the issues raised by Williams on appeal. First, the applicable standard of review on appeal to determine whether reasonable suspicion for an investigatory stop and probable cause for an arrest exist is a de novo review. Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 11) (Miss.1999). “Second, ... the standard of review regarding admission [or exclusion] of evidence is abuse of discretion.” Id. at (¶ 12) (citation and internal quotations omitted). “Where error involves the admission or exclusion of evidence, the appellate court will not reverse unless the error adversely affects a substantial right of a party.” Id. (Internal quotations omitted).

ANALYSIS

I. Whether the State failed to establish that Williams was a habitual offender pursuant to Mississippi Code Annotated section 99-19-81.

¶ 4. Williams argues that the State failed to prove that he was a habitual offender pursuant to Mississippi Code Annotated section 99-19-81. Section 99-19-81 of the Mississippi Code Annotated, one of the state’s two habitual offender statutes, provides that:

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

¶ 5. Williams asserts that the State failed to prove that he had two prior felony offenses and had received a sentence of at least one year for each conviction. Williams asserts that his general acknowledgment of a 1992 conviction does not prove beyond a reasonable doubt that he was convicted of a felony in 1992 or sentenced to a term of one year.

¶ 6. The State argues that the indictment alleged that Williams had been previously convicted in 1988 of possession of a controlled substance and in 1992 of grand theft. The State asserts that during the guilt phase of the trial, it introduced into evidence a sentencing order regarding the 1988 conviction in Cause No. 13,227, which was admitted without an objection by the defense. During the sentencing hearing, the State indicated that it had a certified copy of a judgment of conviction for Cause No. 15,294 which occurred in 1992, which would be entered into evidence. The State also claims that Williams answered affirmatively to the existence of both convictions when the trial judge asked Williams whether he was the same James Calvin Williams who was convicted at least twice previously.

¶ 7. The State has the burden of proof as to all the essential elements of the crime charged. Vince v. State, 844 So.2d 510, 517(¶ 22) (Miss.2003). In this case, the record contains a certified copy of Williams’s sentencing order for the 1988 conviction for the possession of a controlled substance. In the 1988 case, Cause No. 13,227, Williams was sentenced to serve three years in the custody of the MDOC. However, the record before this Court does not contain the certified copy of the 1992 conviction, which the State had indicated was being introduced into evidence. The designation of the record required pursuant to Mississippi Rules of Appellate Procedure 10(b)(1) includes all papers on file with the Forrest County Circuit Clerk in this cause, certified copies of docket entries, pretrial motion transcripts, and exhibits, jury voir dire, jury instructions (given and refused), post-trial motion transcripts as well as all exhibits filed, taken, or offered. However, there is not found among the exhibits or the list of exhibits proof of a second felony conviction in which Williams was sentenced to a term of one year or more.

¶ 8. The State has acknowledged that the exhibits submitted to this Court do not include a copy, certified or non-eertified, of a 1992 felony conviction for Williams. While the primary responsibility for the designation of the record falls upon the appellant, under Mississippi Rules of Appellate Procedure 10(b)(5), the appellee also is tasked with reviewing the record to ascertain that it is both correct and complete. In the event that the record as designated by the appellant is either incorrect or incomplete, the appellee has an obligation to make written submissions to the clerk of the trial court identifying errors or omissions. The State has not suggested that it made such a submission to the clerk, nor does the record before this Court reflect or suggest any such submission.

THE DEFENDANT: Yes, sir.

¶ 9. Absent such proof, this Court must rely solely upon the matters properly contained in the record on appeal. That record does not include any proof of a 1992 felony conviction. While this Court has reviewed the question asked of by Williams during sentencing and his response to the question, which addresses prior convictions, they neither acknowledge a 1992 felony conviction nor the imposition of a sentence of at least one year of incarceration. Under these circumstances, this Court is compelled to find that the State failed to prove that Williams was a habitual offender within the purview of Mississippi Code Annotated section 99-19-81. Therefore, we reverse and remand for re-sentencing.

II. Whether the trial court erred in overruling Williams’s motion to suppress.

¶ 10. Williams filed a motion to preclude the entry into evidence of the gun that fell from his waistband. Williams contends that the actions of the officers in obtaining the gun were unlawful; therefore, it should be excluded as the result of an improper search and seizure. Williams argues that even if his detention was considered an investigatory stop, the conduct of the officers was unreasonable in that they possessed no specific facts upon which they could have reasonably believed that Williams was armed. Williams’s arguments are not persuasive.

¶ 11. At approximately 2:20 a.m., the officers observed an individual riding a bicycle on the sidewalk, without a headlight and reflectors, in what was described as a high-crime area. Riding a bicycle under these circumstances is atypical behavior. Under Terry v. Ohio, 392 U.S. 1, 22-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer is allowed to conduct a brief stop to seek clarity from what is an ambiguous set of circumstances. The officers testified that they attempted to stop Williams to clarify what was beyond question an ambiguous set of circumstances. When without provocation, Williams attempted to elude the officers that further heightened the ambiguity and the justification for the attempted stop. That justification also embraced the right to pursue and detain Williams to resolve that ambiguity. Id. at 29, 88 S.Ct. 1868.

¶ 12. When the officers reached Williams, they attempted to gain control of the situation and to protect themselves by placing him in handcuffs. As they did so, Williams struggled, and the gun fell out of the waistband of his pants. There is no indication that the gun was obtained as a result of any search of Williams’s person. The officers retrieved the gun after it fell to the ground.

¶ 13. When the gun was retrieved from the ground, it was not the product of an illegal search and seizure. Upon running a background check, the officers were informed that Williams was a convicted felon, and as such, he was prohibited from possessing a gun. Having made that determination, Williams was arrested and subsequently indicted.

¶ 14. In a factually similar case, police officers observed an individual at approximately 2:30 a.m., in an area where a recent crime had been committed. This Court ruled that these circumstances would warrant an investigatory stop. Carr v. State, 770 So.2d 1025, 1028(¶ 8) (Miss.Ct.App.2000). In Carr, we stated that:

Reviewing the evidence in that light, we note that it is largely beyond dispute that the officers had no probable cause to arrest [Gregory Paul] Carr at the time he was observed riding a bicycle on a public street. Nevertheless, it is apparent to this Court that police officers observing an individual at large at approximately 2:30 in the morning in an area where a recent crime had been committed would be entitled to undertake a brief investigatory stop to determine the circumstances of that individual’s presence in that area. The right to compel Carr to undergo such a brief investigatory stop was not diminished by the fact that Carr suddenly fled when commanded to stop, so that the officers were justified in pursuing and detaining him against his will, at least until the legitimacy of his presence under the circumstances could be resolved.

Id. (internal citations omitted). In arguing against Williams’s motion to suppress, the State gave as its primary reason for the

stop of Williams — the resolution of an ambiguity pursuant to Temj v. Ohio. But it also articulated a second reason during that argument. That second reason was that the riding of a bicycle on the sidewalk was in violation of Hattiesburg’s municipal ordinances. The State argued that the officers were entitled to stop Williams due to this alleged violation of municipal law. The ordinance which Williams is alleged to have violated was not made a part of the record on appeal. However, Williams’s appellate brief acknowledged that he “apparently violated this ordinance on the night in question.... ” This Court holds that this acknowledged violation of Hat-tiesburg’s municipal ordinances by Williams provided a proper basis upon which officers were entitled to stop and question Williams. This Court finds that this issue is without merit.

III. Whether the trial court erred in allowing Sergeant Mark Mitchell to testify to the gun’s history of ownership.

¶ 15. Williams claims that the trial court erred by allowing Officer Mitchell to testify to a trace of the gun’s history of ownership. Williams objected to the receipt of this testimony as being irrelevant. The trial court withheld ruling on the objection pending the development of the evidence. At the conclusion of Officer Mitchell’s testimony, the trial court ruled that the testimony was irrelevant and sustained Williams’s objection.

¶ 16. When instructing the jury prior to its deliberations, the trial judge included instruction C-l, the relevant portion of which informed the jury that it was to disregard and could not take into consideration any evidence which was excluded during the trial. That excluded evidence included the testimony of Officer Mitchell. In the absence of contrary indications, jurors are presumed to follow the instructions of the court. Shelton v. State, 728 So.2d 105, 112(¶ 30) (Miss.Ct.App.1998). There is nothing in the record before this Court to suggest that the jury deviated from the instructions given to it. Accordingly, this issue is without merit.

¶ 17. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON IS AFFIRMED. THAT PORTION OF THE JUDGMENT FINDING WILLIAMS TO BE A HABITUAL OFFENDER IS REVERSED, AND THIS CASE IS REMANDED FOR RE-SENTENCING AS A NON-HABITUAL OFFENDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Mississippi Rules of Appellate Procedure 10(b)(5) provides that:
      For fourteen (14) days after service of the clerk’s notice of completion under Rule 11(d)(2), the appellant shall have the use of the record for examination. On or before the expiration of that period, appellant's counsel shall deliver or mail the record to one firm or attorney representing the appel-lee, and shall append to the record (i) a written statement of any proposed corrections to the record, (ii) a certificate that the attorney has carefully examined the record and that with the proposed corrections, if any, it is correct and complete, and (iii) a certificate of service. Counsel for the ap-pellee shall examine the record and return it to the trial court clerk within fourteen (14) days after service, and shall append to the record (i) a written statement of any proposed corrections to the record, (ii) a certificate that the attorney has carefully examined the record and that with the proposed corrections, if any, it is correct and complete, and (iii) a certificate of service. Corrections as to which counsel for all parties agree in writing shall be deemed made by stipulation. If the parties propose corrections to the record but do not agree on the corrections, the trial court clerk shall forthwith deliver the record with proposed corrections to the trial judge. The trial judge shall promptly determine which corrections, if any, are proper, enter an order under Rule 10(e), and return the record to the court reporter or the trial court clerk who shall within seven (7) days make corrections directed by the order.

      . THE COURT: You acknowledge you are one and the same James Williams — James Calvin Williams that was convicted at least twice previously; is that correct?


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    In the Matter of the ADMINISTRATION OF the ESTATE OF Edward D. MAY, Deceased: Lavada Thomas, Administratrix, Appellant v. FIRST FEDERAL BANK FOR SAVINGS, Appellee.
    No. 2009-CA-00442-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      William L. Ducker, Purvis, attorney for appellant.
    Donovan 0. McComb, Columbia, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. In 2000, Edward D. May (Edward) bought certain real property located in Marion County for approximately $12,537. Edward executed and delivered a deed of trust to First Federal Bank for Savings (First Federal). In late January 2002, Edward died intestate. The loan secured by the deed of trust became in default, and First Federal began foreclosure proceedings.

¶ 2. Edward’s daughter, Nettie May (Nettie), made several payments on the loan; however, the loan was continually in default. The notice of foreclosure was published as required by law, and the land was sold on February 23, 2004, to David Hobgood.

¶3. On February 6, 2007, Lavada May (May), as representative of the Estate of Edward May, filed a complaint in the Marion County Chancery Court to set aside the foreclosure due to improper notice to Edward’s heirs. First Federal filed a motion for summary judgment. At the hearing, Hobgood was dismissed from the suit without notice as a bona fide purchaser for value. May was allowed to amend the complaint to add a claim for damages resulting from improper notice to Edward’s heirs. We note that the original complaint is not included in the record, only the amended complaint.

¶ 4. First Federal filed another motion for summary judgment. After a hearing, the chancellor granted First Federal’s motion for summary judgment. May now appeals, asserting two issues: (1) the chancellor erred in granting First Federal’s motion for summary judgment, and (2) the chancellor erred in overruling the jurisdictional question. Finding no error, we affirm.

DISCUSSION

I. SUMMARY JUDGMENT

¶5. In her first issue on appeal, May argues that the chancellor erred in granting First Federal’s motion for summary judgment. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). All of the evidence before the trial court must be examined in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss. 1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

¶ 6. May contends that First Federal was required to give notice of the foreclosure to Edward’s heirs. However, Mississippi law does not require the trustee to notify the mortgagor of the foreclosure. Mississippi Code Annotated section 89-1-55 (Rev.1999) only requires the posting and publication of the notice of sale. See Leininger v. Merchs. & Farmers Bank, Macon, 481 So.2d 1086, 1090 (Miss. 1986) (section 89-1-55 held to be constitutional). This procedure was properly followed, a fact which May admits. May insists that First Federal should have gone beyond its statutory requirements and notified Edward’s heirs of the foreclosure sale. May fails to support this assertion with legal authority. First Federal did not have an obligation to determine who Edward’s heirs were. Edward’s heirs did not open an estate until four months after the foreclosure sale. We note that First Federal did send Edward, although deceased by this time, notice of the delinquency prior to the foreclosure sale.

¶7. An affidavit from Jack B. Ezelle, First Federal’s senior vice-president/chief credit officer, stated that Ezelle had spoken with Nettie and with George May, Edward’s son, concerning the delinquency. Ezelle’s affidavit stated that George brought a copy of the foreclosure notice with him to their meeting and that George stated he would be present at the foreclosure sale. Regardless, First Federal followed the proper statutory notice procedures. Thus, summary judgment granted in favor of First Federal was proper.

II. JURISDICTION

¶ 8. In her second issue on appeal, May argues that the chancellor erred in overruling her objections regarding jurisdiction. May first brought up the question of jurisdiction in the amended complaint, after Hobgood was dismissed. May stated that the “Plaintiff has no problem proceeding in [cjhancery [court],” but she wanted the chancellor to determine whether jurisdiction was proper “in order to prevent a question ... by the Defendants on appeal in the event of an adverse judgment.” The chancellor determined that the case concerned questions of foreclosure; thus, jurisdiction was proper.

¶ 9. The foreclosure of deeds of trust or mortgages has been held to be a matter in equity. Smith v. Cleveland Steam Laundry, 131 Miss. 254, 95 So. 433, 434 (1923); Robertson v. F. Krauss & Soils, 129 Miss. 310, 92 So. 74, 75 (1922). Additionally, even if we were to find jurisdiction problematic, “once a chancery court makes a final judgment on the merits of the case, [the appellate court] may not reverse that finding without finding an error in addition to lack of subject matter jurisdiction.” U.S. Fid,. & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 47 (¶ 23) (Miss.2002); Miss. Const, art. 6, § 147. We find no merit to this issue.

If 10. THE JUDGMENT OF THE MARION COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Yamenia WILSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2009-CC-00358-COA.
    Court of Appeals of Mississippi.
    April 20, 2010.
    Glenda F. Funchess, Hattiesburg, attorney for appellant.
    Leanne F. Brady, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court:

¶ 1. After being terminated by her employer, Walmart #2717, Yamenia Wilson filed for unemployment benefits. A claims examiner found that Wilson was eligible for benefits. Thereafter, Walmart appealed the claims examiner’s decision. An administrative law judge (ALJ) then reversed the claims examiner’s decision, and that decision was affirmed by the Mississippi Department of Employment Security’s (MDES) Board of Review and subsequently by the Forrest County Circuit Court. Feeling aggrieved, Wilson appeals and asserts that: (1) Walmart’s appeal of the claims examiner’s decision was not timely filed; (2) the circuit court erred in finding that substantial evidence supported a reversal of the claims examiner’s decision; and (3) the circuit court erred in not remanding Wilson’s case to the ALJ for a full hearing.

¶ 2. We agree that Walmart’s appeal of the claims examiner’s decision was not timely filed. Therefore, we reverse and render the judgment of the circuit court and remand this case to the MDES for the awarding of unemployment benefits to Wilson.

FACTS

¶ 3. On May 31 or June 1, 2007, Wilson was terminated by Walmart #2717 in Hattiesburg, Mississippi, from her position as a customer greeter. Shortly thereafter, on June 3, 2007, Wilson filed for unemployment compensation. On June 14, 2007, the claims examiner found that Wilson was eligible for unemployment benefits. This finding was made pursuant to a hearing that Walmart declined to attend. Walmart had fourteen days from June 14, 2007, to file an appeal of the decision of the claims examiner. Miss.Code Ann. § 71-5-517 (Supp.2009). Walmart mailed a notice of appeal to MDES on June 28, 2007, but the appeal was not stamped received by MDES until July 2, 2007.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. The fourteen days in which an employer must appeal an initial determination of unemployment benefits begins to run on the date the claims examiner’s decision was mailed to the employer. Miss. Employment Sec. Comm’n v. Manon County Sheriff’s Dep’t, 865 So.2d 1153, 1156 (¶ 8) (Miss.2004) (citing Wilkerson, v. Miss. Employment Sec. Comm’n, 630 So.2d 1000, 1002 (Miss.1994)). In Marion County, our supreme court affirmed its finding in Wilkerson that “the fourteen[-]day time period as set by statute is to be strictly construed.” Id. (citing Wilkerson, 630 So.2d at 1002).

¶ 6. A brief filed below by MDES stated that: “It is the standard business practice of MDES to look to the post-mark date in determining the timeliness of an appeal.” No written regulation or other document codifying this practice was presented. In the absence of any evidence that MDES is authorized to accept appeals after the fourteen-day statutory period has expired, we must reverse and render the judgment of the circuit court. As our supreme court stated in Wilkerson and Marion County, we are bound to strictly construe the time periods contained in the statutes governing appeals to MDES.

¶ 7. In Mississippi Employment Security Commission v. Parker, 903 So.2d 42, 43-45 (¶¶ 4-11) (Miss.2005), the Mississippi Supreme Court reversed this Court’s opinion, wherein we had affirmed MDES’s policy of allowing a claimant an additional three days to appeal, beyond the fourteen days allowed for appeal. The position that MDES urges this Court to adopt in the present case would have the same effect as our decision in Parker, which was reversed and rendered by the Mississippi Supreme Court.

¶ 8. As Walmart’s appeal from the claims examiner’s decision was not timely filed, all the decisions made thereafter are reversed and rendered. Therefore, we reinstate the decision of the claims examiner, who held that Wilson is entitled to unemployment benefits due to her termination from Walmart’s employ. We remand to the MDES for an award of benefits.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY.

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

      . Apparently, MDES does not mark a notice of appeal filed.


author: MYERS, P.J.,

text:
    Timothy Sean CRAFT, Appellant, v. Donna Gayle Cooper CRAFT, Appellee.
    No. 2009-CA-00204-COA.
    Court of Appeals of Mississippi.
    April 20, 2010.

      Terry L. Caves, Laurel, attorney for appellant.
    Donna Gayle Cooper Craft, Appellee, pro se.
    Harry Ray Lane, attorneys for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Timothy Craft (Tim) appeals a final judgment entered by the Jones County Chancery Court on January 6, 2009, which awarded his former wife, Donna Craft, primary custody of their three minor children, allowing Tim supervised visitation with the children at the Department of Human Services (DHS) in Jones County each Friday from 3:30 p.m. until 5:00 p.m. The judgment further ordered, inter alia, that Tim pay Donna $243 per month in child support, $100 per month in permanent periodic alimony, and $17,859 in attorney’s fees in addition to the $4,438 in attorney’s fees previously ordered by the chancery court on March 7, 2008. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Tim and Donna were married in 1991. Three children were born of this marriage — Sean, born in 1993; Alayna, born in 1994; and Lance, born in 1997. Tim and Donna separated in January 2005, and Donna filed for divorce in the Chancery Court of Forrest County on February 11, 2005, alleging habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. Tim filed for divorce in Jones County, Mississippi, on February 22, 2005, alleging habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. Donna’s complaint was dismissed for lack of subject-matter jurisdiction. She then timely filed an answer to Tim’s complaint, and she counterclaimed for divorce and filed a motion for temporary relief, alleging the same grounds asserted in her initial complaint.

¶ 3. During this time frame, the record is unclear exactly when, Tim was fired from his job at Delphi, where he worked in management as an industrial engineer. Also fired from Delphi, was Tim’s co-worker, Lola Hulsey. According to the record, Tim had been having an adulterous affair with Lola since the year 2000. Donna testified that she had suspected that Tim was having an affair with someone, but she was not positive. Donna said her suspicions were confirmed by law enforcement and a photograph of Tim and Lola together. Shortly after Tim was terminated from Delphi, Tim was arrested by the Jones County Sheriffs Department and charged with four counts of child exploitation in violation of Mississippi Code Annotated section 97-5-33 (Supp.2009). Lola also was arrested and similarly charged. The chancery court thereafter issued a temporary order granting Donna temporary custody of the children, which allowed Tim only supervised visitation at DHS for one hour, every other week. The order required Tim to pay Donna $352 per month in child support.

¶ 4. In June 2005, Tim filed a motion to enlarge visitation, in which he requested that he be granted standard visitation with his children and that he be granted “makeup time.” Following his termination from Delphi, Tim, who was a United States Navy reservist at the time, went on active duty and traveled the country as a Naval instructor. According to Tim, his travel schedule and DHS’s holiday schedule caused him to lose visitation time with his children.

¶ 5. Donna thereafter requested and was granted a continuance, and the case was set for trial to begin in August 2005. On July 22, 2005, Tim’s legal counsel filed a motion to withdraw from the matter after Tim informed her that she was responsible for the loss of his “parental involvement.” The motion was granted, and Tim was given time to hire new counsel. Tim’s current counsel filed an entry of appearance in September 2005 and immediately filed a motion to modify the temporary order issued by the court in April 2005, with the motion to enlarge visitation still pending.

¶ 6. In December 2005, an agreed order was entered (consolidated with a petition to establish grandparent visitation — a copy of which is not included in the record) establishing visitation for Tim at his parents’ home under their supervision. The order instructed, inter alia, that the children were not to be exposed to any immoral or illegal conduct or any negative comments by any party against the other.

¶ 7. In May 2006, Tim filed a motion for review of that order, in which he requested the removal of all restrictions on his visitation. The chancery court issued a temporary order in June 2006, granting Tim and Donna joint legal custody of their three minor children. Tim was awarded standard unsupervised visitation with the ehil-dren. The order allowed Tim to supply the children a cell phone, so Tim and his parents could have reasonable telephone contact with the children.

¶ 8. A trial on the merits was held on August 22, September 6, and October 11, 2006. Tim did not contest Donna’s allegations of adultery, and the parties stipulated to a division of the marital property. The proceedings dealt primarily with the issue of custody, and the parties presented an extensive amount of testimonial and documentary evidence to the chancery court for its evaluation of the Albright factors. On October 31, 2006, the chancery court entered a final judgment, granting Donna a divorce on the ground of adultery, with all other matters (custody and visitation, child support, alimony, and attorney’s fees) to be taken under advisement.

¶ 9. In November 2006, Tim filed an emergency motion alleging that Donna was interfering with both his visitation and phone contact with the children. The chancery court issued an order establishing holiday visitation for Tim with the children. In January 2007, Tim filed a motion to reopen evidence, which again included allegations of Donna’s interference with visitation. He also requested that he be allowed to claim the children as dependants for income-tax purposes. A hearing was held on the matter, and the chancery court thereafter issued an order granting Tim’s motion to reopen evidence. The court also designated a specific time period for phone visitation and established spring-break visitation for Tim with the children; the court found that there was insufficient evidence to find Donna in contempt.

¶ 10. On October 5, 2007, Tim was arrested by the Lamar County Sheriffs Department and charged with four counts of child exploitation, including sexual battery of a minor child in violation of Mississippi Code Annotated sections 97-5-38 and 97-3-95 (Rev.2006). According to the record, Tim had entered into an immunity agreement with the district attorney’s office in Jones County in March 2006, with the consent of the district attorney’s office in Lamar County. In exchange for Tim’s cooperation in the State’s investigation of Lola, the district attorney agreed to dismiss the child-exploitation charges, which Tim had been arrested for in 2005. Under the terms set forth in the agreement, Tim was to turn over certain video and/or photographic evidence to the district attorney’s office, either in his possession or which may come into his possession, “which may contain child pornography or any representation thereof including but not limited to preservations containing images of Lola Marie Hulsey and any minor child regardless of where the images were made or how [Tim] came into possession of same.” Tim also agreed to testify against Lola if the matter went to trial.

¶ 11. Despite the gravity of the situation, Tim and Lola continued to see each other romantically. In July 2006, after having been hired as a truck driver in March of that year by BJ Services out of Columbia, Mississippi, Tim was sent to Willowbrook, Texas by BJ Services for engineering training. In violation of her bond agreement, Lola rode a bus out to Texas. Tim picked her up at the bus station, and the two of them spent approximately four days together at the La Quin-ta Inn where Tim was staying. Sometime during this period, Tim wrote out several statements on hotel stationary, which he signed and dated, describing in explicit detail sexual acts committed by him with Lola’s six-year-old daughter. In one of the notes, Tim proclaimed Lola’s innocence of the criminal charges she was facing in Jones County and Lamar County. Tim later admitted to writing the statements, but he vehemently denied their truth. According to Tim’s testimony in chancery court, he wrote the statements at the behest of Lola, and he was intoxicated and under the influence of approximately a dozen Dramamine pills when he wrote them. Tim stated that Lola had taken his knife from him and was scraping the skin on his arms, “to wake [him] back up so that [he] could write” the statements. Tim claimed that he ripped up the notes the following morning after he awoke and came to his senses. The notes, however, eventually were turned over to authorities in Mississippi.

¶ 12. Following Tim’s arrest, Donna filed a motion to reopen evidence on October 22, 2007. A hearing was held in the chancery court on November 6, 2007, at which time Tim presented a motion requesting that Donna be held in contempt for interfering with visitation, and he requested that the court modify its temporary order. The chancery court issued an order rescheduling the matter for a hearing on the prior motions. The court also ordered that Tim’s and his parents’ visitations with the children be supervised at DHS every other Friday from 3:30 p.m. until 5:00 p.m.

¶ 13. A hearing was held in March 2008. Additional evidence was presented to the chancery court for its determination on the remaining undecided issues. On April 11, 2008, the chancery court issued an order finding Tim to be a less-than-credible witness, and that the allegations pending against him were very serious. Accordingly, the court ordered that the supervised visitations set forth in the court’s previous order were to remain in effect. The chancery court ordered Tim to pay Donna $359 per month in child support, and the court awarded Donna $4,437 in attorney’s fees. The court also found Donna not to be in contempt.

¶ 14. In May 2008, Tim filed a motion for modification of the April 11 order, requesting the children’s attendance at his wedding to his current wife and that his child-support obligation be reduced because of his termination from B J Services. Tim also filed a motion for the court to make specific findings of fact and conclusions of law and to enter a final judgment in the matter. The chancery court issued an order stating that a final judgment with specific findings of fact and conclusions of law was forthcoming. The court also modified its previous order to allow the children to attend Tim’s wedding, and it ordered Tim to provide proof of his current income.

¶ 15. The chancery court issued a final judgment on January 8, 2009. The court granted Donna primary physical custody of the minor children. The court ordered that Tim shall continue to have supervised visitation with the children at DHS in Jones County each Friday from 3:30 p.m. until 5:00 p.m. The court ordered Tim to pay Donna $243 per month in child support and one-half of all health-related expenses. Donna was awarded $100 per month in permanent periodic alimony and $17,859 in attorney’s fees, in addition to the $4,438 amount previously ordered in attorney’s fees.

¶ 16. Feeling aggrieved, Tim argues that the chancery court erred by (1) restricting his visitation to one day per week for one-and-a half hours; (2) awarding Donna alimony; (3) refusing to find Donna in contempt of court for her willful and malicious interference with his visitation with their children; and (4) awarding Donna attorney’s fees.

STANDARD OF REVIEW

¶ 17. Appellate review of domestic-relation matters is limited. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 9) (Miss.1999). We will not reverse the judgment of a chancellor unless the chancellor abused his discretion, was manifestly in error, or applied an erroneous legal standard. Id. (citation omitted). This is especially true when dealing with areas of divorce, alimony, and child support. Sumrall v. Munguia, 757 So.2d 279, 282 (¶ 12) (Miss.2000).

DISCUSSION

I. Restricted Visitation

¶ 18. Tim submits that the chancery court’s imposition of a visitation period restricted to one day a week for one-and-a half hours was manifest error and an abuse of discretion. Tim contends that the highly-restricted visitation was ordered despite undisputed testimony that he is a good father and has never created any apprehension of harm toward his children. Citing to Cox v. Moulds, 490 So.2d 866, 868 (Miss.1986), Tim points out that “the visitation rights of the non-custodial parent should be tantamount to custody with respect to the place and manner of exercise of same, except in the most unusual circumstances[,]” that is — “something approaching actual danger or other substantial detriment to the children.... ”

¶ 19. In domestic-relation matters, as with other issues concerning children, our chancellors enjoy considerable discretion with visitation issues. Harrell v. Harrell, 231 So.2d 793, 797 (Miss.1970). When determining visitation, the best interest of the child is the main concern, “keeping in mind the rights of the noncustodial parent and the objective that parent and child should have as close and loving a[sic] relationship as possible, despite the fact that they may not live in the same house.” White v. Thompson, 569 So.2d 1181, 1185 (Miss.1990) (citing Cox, 490 So.2d at 870). Accordingly, this Court affords great deference to a chancellor’s decision regarding visitation. Id.

¶ 20. We find no indication in the record that Tim and Donna’s three minor children have ever been subjected to physical harm while in Tim’s care. Sean and Alayna, the two oldest children, testified extensively in this case, on multiple occasions. Both children, who were aware of Tim’s legal troubles, expressed their love and affection for both parents, and they consistently stated that neither parent had ever abused them. Both stated, however, that they preferred to live with Tim. This is because, in their opinion, Tim is a better role model than Donna, and he is someone they can look up to. According to the children, Tim is more outgoing than Donna; he is more open-minded than Donna; and, he is more “intelligent” than Donna.

¶ 21. According to the record, Tim sent Sean well over a hundred e-mails pertaining to the divorce case. Though Sean denied ever reading the e-mails, he admitted that his father did indeed send them. While on cross-examination, Tim testified as follows:

Q. Did you send — ever say that Donna doesn’t deserve the children in an e-mail that you sent?
A. It’s my opinion she doesn’t. So if I sent that e-mail, that’s exactly what I said.
Q. Did you say that Donna was a petty, bitter prune in an e-mail you sent to Sean?
A. I don’t know if I said that in an email, but that’s very descriptive.
Q. Did you talk to Sean about moving out of state in an e-mail that you sent to him?
A. I have no recollection of that either, ma’am. I’m sorry.
Q. Did you ever refer to Donna as an idiot in an e-mail you sent?
A. Ma’am, I’m — again, I’m sorry. I don’t know every e-mail I’ve ever forwarded. I’m an extremely busy man trying to recover my life.
Q. Did you ever say that Donna deserted the family?
A. She did desert the family.
Q. And that she will be hated by the children forever?
A. She’s hated by the children now.
Q. Did you say that Donna’s [hatred] for you has turned the children against her?
A. That’s a common saying between me and the children, ma’am. I don’t know if I said it or not.
Q. Did you ever ask the children to find out who Donna sees?
A. I wouldn’t say that I asked the children. We’d had discussions in our visitations about, you know, why she would leave a loving home that was excellent for everybody involved except for her selfishness, and we tried to figure that out.
Q. Did you ever ask the children to see what medication she was on after the separation?
A. I received a doctor’s consultation at my [P.O. Box] ... referring Donna to psychiatric help.
Q. Did you ask the children to find out what medications Donna was on?
A. No, ma’am, I don’t believe I did. And if I do [sic], I don’t recall. We talked about her being on medication.
Q. All right. Then you can — if you want to still explain your answer, you may do so.
A. I had — like I said, a letter had come to the P.O. Box that we shared after she left us[,] and it referred her to psychiatric counseling. And I was concerned about my children. If she was on some medicine that I felt to be dangerous to the children, I felt I had a reason to know that.
THE COURT: The answer is, yes, you did discuss it with the children?
A. Yes, sir.
Q. How did you foster the idea in the children that their mother is not intelligent?
A. The children have told me that their mother can’t help them with their math homework. I have fostered the idea that she’s not good in math, yes. As far as not being intelligent, I wouldn’t go that far. She’s not very good at math. Q. And that’s the reason you should have custody of them?
A. No, ma’am. That’s one of several reasons.

¶ 22. The aforementioned is illustrative of one of the themes permeating throughout the record before this Court, which— politely — can best be described as “the best defense is a flailing offense.” As noted in the facts, coinciding with this case, was a serious criminal matter in which Tim, to whatever extent, was involved. Mindful of the potentiality of Tim having to defend himself in a criminal proceeding, the chancellor exercised caution throughout this case to ensure that Tim’s constitutional rights were safe guarded, while simultaneously carrying out the responsibilities ascribed to him and his court. For various reasons, we are without a full picture of the facts surrounding the criminal matter. Not surprisingly, Tim often refused to answer questions touching on the subject. We certainly notice, however, the numerous innuendos that Tim still managed to get into the record, despite his Fifth Amendment invocations, obviously, for the purpose of insinuating that his troubles in the criminal matter were the result of some sort of scheme orchestrated by Donna. The chancellor did not believe any of it, and the record fully supports the chancellor’s conclusion. What clearly caused concern for the chancellor, however, was the likelihood of Tim having involved the children — wittingly or not — in his transparent case against Donna.

¶ 23. At a subsequent hearing, Sean was again called to testify on behalf of Tim; the record discloses the following testimony by Sean outside the presence of his parents:

Q. All right. What — since October— [sic] your mother have a computer at her house?
A. Yes, she does.
Q. What have you found on that computer?
A. Actually, I found a — it was a child pornography picture. It was of — I could identify the person as Lola Holsey [sic], because my mother had once shown me a picture of her in the newspaper. I couldn’t identify the ... man, but there was also a child’s foot up in the — I believe it was the top right-hand corner.
Q. Did you say something to your mother about that picture being on the computer?
A. I didn’t tell her about that. It surprised me. I wasn’t expecting it on her computer.

¶ 24. On cross-examination, Sean testified as follows:

Q. I would like to know what were you doing running across anything on your mother’s computer.
A. Actually, I was just placing on the— I think it’s a web site creator, because I’m — I guess I love computers[,] and it asked me for an insert, like a picture onto my file, and naturally I just accepted it. I went through the list looking at pictures I could choose[,] and one of them had the file name oasis and that appealed to me because it just [sic] it sounded like a code name, so I clicked on it[,] and it brought up that picture. It was actually just [sic] coincidence that I ran across it.
Q. And that was the picture of Lola Holsey [sic]?
A. Yes, ma’am.
Q. And she was naked?
A. Yes, ma’am.
Q. And do you believe that your mother put that on the computer?
A. Yes, ma’am.
Q. Do you know who Lola Holsey [sic] is?
A. My mother actually showed me a picture of her in the newspaper. So, yes, I do.
Q. And who is she?
A. She’s a person that my father had [sic] cheated with.
Q. Right.
A. Yeah.
Q. And do you know what she’s charged with?
A. I couldn’t state that.
Q. She’s charged with sexual exploitation of a minor child. She’s in jail in Lamar County.
A. Okay.
Q. And you’re not trying to tell the Court that your mother put that picture on the computer? •
A. Yes, that’s what [sic] I don’t know who else could have.
Q. But you don’t have any knowledge that she put it on there.
A. She’s the only one that has access to it. And I certainly didn’t do it.
THE COURT: Was there a computer in your home while your parents were living together?
A. Yes, sir.
THE COURT: That answers the question.

¶ 25. After Sean testified, Tim took the stand. The following discussion occurred during direct examination:

Q. Tim, we filed a motion to reopen the evidence to allow the Court to hear what’s occurred since October 11, 2006. What other information do you have to show the court?
A. Well, there’s — you know, in addition to the stonewalling that I’m getting, the fact that I was told my life would be hell and [Donna’s] doing everything to make my life hell. We — Sean came to me with a CD ROM that he’d taken a picture [sic] from her computer that was pornographic. He wasn’t happy to be exposed to it. He wanted to know what he should do about it, and I didn’t know.
THE COURT: Let me ask you a question. Who took that picture?
A. I have no idea. I have no idea, Your Honor. And I haven’t seen that picture before.
THE COURT: Your son has testified that it was your ex-lover.
A. It’s quite possible.
THE COURT: Did you not admit that you have taken photographs of your ex-lover?
A. I have. I also know for a fact that other people [sic] she’s been a model since she was seventeen.
THE COURT: All right.
A. But that picture, I did not [sic],
THE COURT: Are you suggesting to the Court that your ex-wife put that photograph on her computer?
A. I have suggested to the Court that my ex-wife has put those pictures everywhere. They act [sic] including her father’s house on his home computer.
THE COURT: Well, apparently you’ve still got some of them buried out on the farm in Sandy Hook too.
A. I have a CD ROM of Donna that I will provide to the Navy, yes, sir.
THE COURT: Okay. I think I’ve heard enough about all this pornography-

¶ 26. Another concerning factor for the chancellor, was a note entered into evidence, written by Tim’s mother, Ms. Cecile Craft, to Alayna. It reads, in part, as follows:

“Sweetheart, I miss you all so much and I’m so sorry we are unable to visit here. It should not be this way. But remember the old saying, what goes around comes around. God gives the revenge and He can deal.”

The following discussion transpired between the chancellor and Ms. Craft, with regard to the note:

THE COURT: Explain to me what this — what the old saying [sic] “what goes around comes around” means.
A. Well, it’s an old saying I’ve heard all my life. And when something goes bad, ... it’s usually a cycle and it just comes around.”
THE COURT: — first one that started it. And that would be her mother. Is that who you were referring to?
A. I suppose it is; yes, sir.
THE COURT: Okay. You’re basically saying, well, child, your mother’s going to get hers. Because it’s going to come back around to her. All right. Then it goes on and it says, “God gives the revenge and he can deal.”
A. Uh-huh.
THE COURT: Now, who’s going to God [sic] give revenge to? Who is God going to take revenge on?
A. Well, we don’t — we don’t take revenge, God does—
THE COURT: Well, who is God going to take that revenge out on that you’re writing your granddaughter about?
A. Well, who had — I—I can’t say that, sir.
THE COURT: Well, is it her mother? Is that who God is going to take revenge on?
A. If — if she — if she’s deserving, it probably does mean that.
THE COURT: Okay. All right. So, you were talking about this child’s mother in this letter to her.
A. Well, Donna has hurt us so much. And I — I do have kind of ill feelings toward her. But I have to let God do the judging and revenging.
THE COURT: Well, apparently you’re inviting your granddaughter to participate in—
A. Oh, no. I didn’t mean to insinuate that.
THE COURT: Well, that’s—
A. No, sir.
THE COURT: — that’s the way it reads.
A. I did not mean that.
THE COURT: You’re not suggesting in this letter that this child’s mother had anything to do with your son having these charges filed against him, are you?
A. No, sir.
THE COURT: Because you refer to them as bogus, bogus charges.
A. Yes, sir.
THE COURT: But you’re not suggesting that his ex-wife had anything to do with that, are you?
A. With the last charges?
THE COURT: Yes, ma’am.
A. The way that Tim was arrested, I think she had some — something to do with it, sir.

¶ 27. At the close of the case, the chancellor issued a ruling from the bench. The following summation, in pertinent part, explains the reasoning behind the chancellor’s decision to restrict Tim’s visitation:

[Donna] has the primary physical custody of these children, and has had that custody since the inception of this case, and that will remain so.
It is extremely disturbing to the Court to read the handwriting of [Tim] as depicted ... [in Exhibit No. 2].
He gets up here in court and admits that he wrote each and everyone of these documents enumerated one through seven. And what he sets forth in here is not worthy of the Court reading into the record. It is so disgusting that I’m not going to read any part of it in the record.
And he gets up here and he gives this story about being in Texas with Lola, the mother of this child.... [Lola] comes out to Texas in violation of her bond on a Greyhound bus, [and] spends three to five days with him. And he gives this story about getting drunk and taking Dramamine and her having a knife and prodding him into writing out all of these things and that he didn’t remember it.... Of course, he prefaced that testimony by saying that he didn’t drink much ..., that he didn’t know what he was doing.
And it may not be true what he wrote down, but he wrote it down. And for somebody to do something like that, there’s got to be a problem with you, [Tim], I don’t know what it is and I’m not up here to try to figure it out, but you’ve got problems, serious problems.
Now, on another matter that I see here, not only from your testimony in this hearing, but from the testimony from the prior hearings in this case, ... it’s my belief that [Tim] takes every opportunity that he can with these children to talk about their mother, talk their mother down, encourage them not to like their mother, encourage them to disrespect their mother.... He even got on this witness stand in earlier hearings and testified that, if something happened to him, he would want to see his children raised by his parents rather than their own mother because she was stupid.
I’m going to leave the visitation just like it is until I find out what [the] [circuit [c]ourt is going to do. And even then, if they say ... you’re footloose and fancy free because of immunity ..., the only way the Court is going to consider unrestricted visitation with you is it’s going to have to be supervised, not at DHS, but by some other means until I’m satisfied you’ve got your act together.
You claim to be a wonderful father and all of that, but to see what kind of mess you’ve got yourself into and what kind of situation you’ve put your children into ... losing your job. You can’t get a job. You can’t pay support. Well, I can understand why you’re in the kind of legal trouble you’re in and why your money goes somewhere else. But apparently you are getting help from your parents.
And I’m also disturbed about the tone of this letter, Exhibit No. 7, that was sent to this child talking about God taking revenge on somebody. Something bad is going to happen. What goes around comes around. Her having the belief now, as she said from the witness stand today, that [Donna] over here had something to do with her son’s arrest by the Lamar County Sheriffs Department.
Folks, y’all are going to have to get real. You’ve got to get in the real world. You’re in a heap of trouble.
And ma’am, your son is in a heap of trouble. And you need to be worried about what’s going to happen in that regard. I’m going to wait and see what the circuit court does.

¶ 28. The record before this Court fully supports the chancellor’s findings, and we find no error with his decision to restrict Tim’s visitation to one day a week for one-and-a half hours at DHS. The chancellor properly took into consideration the children’s best interests in his decision, leaving open the possibility that Tim may be granted some form of unsupervised visitation with his children in the future.

¶29. Lastly, according to Tim, since the filing of this appeal, the State apparently has made a decision with regard to the criminal matter, which Tim submits weighs in his favor. This information must first be presented to the chancery court; we do not consider new evidence on appeal. Williams v. J.E. Walton & Son, 202 Miss. 641, 648, 32 So.2d 566, 568 (1947).

¶ 30. This assignment of error is without merit.

II. Alimony

¶ 31. Tim argues that the chancellor failed to include a proper analysis of the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), in the findings-of-facts and conclusions-of-law portion of his final judgment. Tim submits that this was manifest error because he is unable to determine how the chancellor arrived at an alimony award of $100 per month.

¶ 32. We disagree. In Roberson v. Robersan, 949 So.2d 866, 868-69 (¶ 6) (Miss. Ct.App.2007), this Court explained as follows:

When considering an award of alimony, the chancellor is to consider the following factors: income and expenses of the parties; health and earning capacities of the parties; needs of each party; obligations and assets of each party; length of the marriage; presence or absence of minor children in the home; age of the parties; standard of living of the parties during the marriage and at support determination; tax consequences of the spousal support order; fault or misconduct; wasteful dissipation of assets by either party; and any other equitable factors. Holley v. Holley, 892 So.2d 183, 185 (¶ 6) (Miss.2004)( [citation omitted]). When an award of alimony is appealed, we presume the chancellor considered all factors in making his decision. Holcombe v. Holcombe, 813 So.2d 700, 704 (¶ 12) (Miss.2002). When the chancellor fails to address all factors on-the-record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made. Id. Thus, a lack of an on-the-record consideration of the Armstrong factors by a chancellor in making his determination of the appropriateness of an alimony award will only be reversed if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error. See Godwin v. Godwin, 758 So.2d 384, 387 (¶ 11) (Miss. 1999) (quoting Selman v. Selman, 722 So.2d 547, 554 (¶30) (Miss.1998)); see also Thompson v. Thompson, 816 So.2d 417, 420 (¶ 9) (Miss.Ct.App.2002).

¶ 33. As Donna points out, during the trial on the merits, she and Tim stipulated to a division of marital property thereby precluding the chancery court from having to make a determination of the status and value of property and precluding the court from having to divide equitably such property pursuant to Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Still, there was evidence presented which gave the chancellor sufficient available information necessary to perform an evaluation of the Armstrong factors.

¶ 34. According to the record, the family had a reasonably comfortable middle-class standard of living during the course of the fifteen-year marriage, with Tim making upwards of $87,000 per year as an industrial engineer. The parties bought a house, and Donna was able to be a stay-at-home mother. Both parties were in good health — Tim, in his early forties, and Donna, in her mid-thirties. Tim has a bachelor of science degree in mechanical engineering and technology, with two years of graduate-school studies. Donna has three years of college experience, with no degree. As he reiterated throughout the case, Tim has much more earning capacity than Donna, who has been struggling to pay bills and to feed their three children. Donna now works as an administrative assistant and makes approximately $1,400 per month. The record reflects that both parties have significant debts, with no significant assets. As the chancellor noted, Donna has had to depend on assistance from her church to make ends meet. She also has had to obtain loans to pay her bills and attorney’s fees. Through no one’s fault but his own, Tim was terminated from BJ Services, and he is now working as a truck driver, with a net monthly pay of $1,000 per month. Tim says that he is working on securing a higher-paying job. Since being ordered to pay $359 per month in child support, the chancellor has granted Tim a downward adjustment in his support obligations. Tim is currently having to pay only $243 per month in child support, and Donna continues to struggle. Accordingly, we find that there was no abuse of discretion in the chancellor’s decision to award Donna $100 per month in permanent periodic alimony. This issue is without merit.

III. Contempt

¶ 35. “Contempt matters are committed to the sound discretion of the trial court, and this Court will not reverse where the chancellor’s findings are supported by substantial credible evidence.” Weston v. Mounts, 789 So.2d 822, 826 (¶ 17) (Miss.Ct.App.2001) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss. 1991)). “A citation for contempt is proper only when the contemner has willfully and deliberately ignored the order or the court.” Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997).

¶ 36. Tim makes a number of assertions in his brief that Donna interfered with his visitation rights. But, the only evidence contained in the record corroborating Tim’s claims is his testimony, which the chancellor found to be less than credible. In each of Tim’s contempt claims, the chancellor determined that Donna had not deliberately ignored the court’s order. The record supports the chancellor’s findings. Accordingly, this point of error is without merit.

IV. Attorney’s Fees

¶ 37. Tim argues that the chancellor erred in awarding Donna, $22,297 ($4,438 + $17,859) in attorney’s fees. He contends that he was not given sufficient time to examine the itemized-fees statement submitted by her attorney, which was not submitted until prior to the third day of trial. Thus, he had inadequate time in which to prepare for cross-examination of Donna’s attorney. Tim further contends that the evidence submitted reflects that Donna has already paid $12,202, which clearly illustrates her ability to pay.

¶ 38. In divorce matters, the decision whether to award attorney’s fees is generally entrusted to the sound discretion of the chancellor. Tynes v. Tynes, 860 So.2d 325, 331 (¶22) (Miss.Ct.App. 2003). Unless the chancellor abuses his or her discretion, the decision will generally be upheld. Ladner v. Ladner, 436 So.2d 1366, 1375 (Miss.1983). Factors to be considered in an award of attorney’s fees include the relative financial ability of the parties; the skill and standing of the attorney employed; the nature of the case and novelty and difficulty of the questions at issue; the degree of responsibility involved in the management of the cause; the time and labor required; the usual customary charge in the community; and, the preclusion of other employment by the attorney due to the acceptance of the case. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 39. According to the record, counsel for both parties discussed an order for attorney’s fees at the conclusion of the hearing held on March 4, 2008. The court offered Tim’s counsel additional time to review the itemized-fees statement submitted by Donna’s counsel; however, Tim’s counsel said it would not be necessary because he had already reviewed it, and he offered no objection.

¶ 40. This case has spanned more than four years. Even though the divorce claim itself was resolved in short order, the custody matter was both lengthy and trying. The amount charged per hour was standard, and the time put in was justified. While Tim currently claims to be in “dire financial straights,” he has nonetheless found the means necessary to force Donna into court to defend herself against a number of meritless contempt motions. And although Donna has already paid more than half of the fees, she has had to borrow the funds to do so. Accordingly, we find no abuse of discretion in the chancellor’s decision to award Donna attorney’s fees in the amount so ordered. This issue is without merit.

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

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

      . Donna is also a Navy reservist.

      . See Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983) (outlining the relevant factors to be considered in child-custody considerations).

      . According to the record, Lola has since pleaded guilty to child molestation and is serving a twelve-year sentence in the custody of the Mississippi Department of Corrections.

      . But see, e.g., Wallace v. Jones, 572 So.2d 371, 377-78 (Miss.1990) ("[MJembers of the bar should be warned that when you allow your client to testify on material matters involved in a case[,] ... opposing counsel has a right or even a duty to cross-examine the witness.”).


author: MURDOCK, Justice.

text:
    Carlos IVY v. Robert CARRAWAY, M.D.
    1051539.
    Supreme Court of Alabama.
    Sept. 18, 2009.
    R. Andrew McKinney of Hayes, Jackson, Weaver & McKinney, PC, Birmingham, for appellant.

      Joseph S. Miller and J. Wilson Axon, Jr., of Starnes & Atchison LLP, Birmingham, for appellee.
   MURDOCK, Justice.

Carlos Ivy appeals from a judgment as a matter of law entered by the Jefferson Circuit Court in favor of Robert Carraway, M.D., on Ivy’s medical-malpractice claim. We affirm.

I. Facts and Procedural History

On October 13, 2002, Ivy was struck by a motor vehicle and sustained a severe injury to his right thigh. Ivy sought treatment for his injury at the emergency room at Carraway Methodist Medical Center (“the hospital”). After a physical examination and X-rays, Ivy was diagnosed with a large contusion to his right thigh. He was given prescription medications and was discharged.

Ivy returned to the hospital’s emergency room on October 30, 2002, because he had experienced increased swelling and pain from the injury following his discharge. A CT scan revealed a large collection of fluid on the front middle portion of the right thigh. Ivy was diagnosed with an infected hematoma and necrotic cellulitis. Because of the severity of the infection, Ivy was admitted to the hospital and antibiotics were administered. The night of Ivy’s admission, Dr. Robert Stinson performed an irrigation and debridement procedure during which he made an incision into the wound, drained fluid from it, and removed dead skin tissue in order to reduce the swelling and clean the infected area.

Following the procedure, the open cavity of the wound was packed with rolls of Kerlix gauze. Kerlix gauze is a clean dressing commonly used to “pack,” i.e., to plug and absorb drainage, in large wounds. It is manufactured in rolls that are typically 2 to 4 inches wide and 12 feet long. Testimony at trial explained that packing a large wound is done by placing an entire roll of gauze into the wound, but leaving a “tail” of the gauze protruding from the wound. The gauze is removed by pulling on the protruding “tail” until the gauze is extracted from the wound site.

After the initial irrigation and debridement procedure, Ivy was referred to the services of Dr. Carraway, a board-certified general surgeon. On October 31, 2002, Dr. Carraway performed a second irrigation and debridement procedure. Dr. Carra-way testified that before he entered the operating room, the nurses had prepped Ivy’s wound for surgery, including removing all the gauze from the site. He stated that he visually inspected the site before starting the procedure and that he did not notice any foreign objects. Dr. Carraway removed more dead tissue from the site and cleaned it. Dr. Carraway testified that upon completing the procedure he again visually inspected the wound and felt inside the cavity with his fingers to ensure that it was clean and that no foreign objects remained in it. He also asked for and received a correct needle and sponge count from the nurses. Dr. Carraway stated that he did not use Kerlix gauze during the operation, that Kerlix gauze is not used in surgeries, and that it is not included in the count taken at the end of a surgical operation.

Following the surgery, an open cavity remained at the wound site measuring approximately seven inches by six inches and varying in depth. After Dr. Carraway left the operating room, the nurses again packed the wound cavity with Kerlix gauze. Ivy remained hospitalized, and Dr. Carraway ordered certain treatment for the wound infection, including whirlpool therapy and more antibiotics.

Dr. Carraway ordered the whirlpool therapy to be carried out twice every weekday and once a day on weekends. This whirlpool treatment required the removal of the Kerlix gauze so that the wound site would soak uninhibited in the whirlpool. At the end of each treatment, the wound was repacked with Kerlix gauze. Residents and hospital nurses performed the packing and unpacking of Ivy’s wound before and after the whirlpool-therapy sessions. Dr. Carraway testified that he never packed and unpacked Ivy’s wound; Ivy did not contradict this testimony.

On November 5, 2002, Dr. Carraway performed a third irrigation and debridement procedure. Dr. Carraway again testified that to his knowledge the Kerlix gauze packed into the cavity had been removed by the nurses before he entered the operating room. He also stated that he “inspected” the cavity for foreign objects before beginning the procedure. After removing dead tissue and cleaning the wound, Dr. Carraway visually and manually inspected the site, and he did not see anything that would suggest that a foreign object remained in the cavity. Dr. Carra-way also testified that he once again asked for and received a correct needle and sponge count from the nurses. After Dr. Carraway left the operating room, the nurses again packed the cavity with Kerlix gauze.

Ivy continued to undergo whirlpool therapy, and, as before, the wound cavity was unpacked before he received the treatment and repacked with gauze after each treatment. Dr. Carraway stated that he personally never unpacked or repacked the cavity dui'ing these treatments.

On November 8, 2002, Dr. Carraway performed a split-thickness skin-graft procedure on Ivy. As with the previous operations, Dr. Carraway testified that to his knowledge the wound cavity was unpacked and prepped before he entered the operating room. He then performed a visual inspection of the site before beginning the procedure, and he did not see anything suggesting the presence of a foreign object in the cavity. Dr. Carraway first performed another debridement and irrigation of the site. He then performed the skin graft to cover the site. After completing this process, Dr. Carraway again asked for and received a correct count of the needles and sponges used in the operation. Because the cavity was closed by the skin graft, it was not repacked with Kerlix gauze upon completion of this procedure. The wound continued to heal, and Ivy was discharged from the hospital on November 13, 2002.

Ivy saw Dr. Carraway on four post-surgery visits. During his final follow-up examination on January 14, 2003, Dr. Carraway noted that Ivy’s right knee was swollen and that Ivy was experiencing pain and loss of motion in the knee. Dr. Carra-way ordered an MRI of Ivy’s right knee. Because Ivy’s medical insurance had lapsed, he was told by hospital personnel that he needed to have the MRI performed at Cooper Green Medical Center (“Cooper Green”).

Ivy was admitted to Cooper Green on January 14, 2003. Dr. Phillip Johnson examined Ivy the following day and discovered that the swollen area above Ivy’s right knee was infected. Dr. Johnson diagnosed Ivy with cellulitis and placed him on a regimen of antibiotics. On January 16, 2003, Dr. Johnson performed exploratory surgery on the swollen area above Ivy’s right knee. During the surgery, Dr. Johnson made an incision “longitudinally over the area of maximal swelling and carried through the skin into the cavity.” Dr. Johnson drained infected fluid from the area and removed a length of Kerlix gauze from the abscess approximately 10 feet long. Dr. Johnson performed another surgery on Ivy the following day to explore the cavity for additional foreign materials and to change the dressing. He did not find other foreign objects and noted that the wound was starting to heal. On January 20, 2003, Ivy was discharged from Cooper Green.

On October 22, 2004, Ivy filed a complaint in the Jefferson Circuit Court against the hospital and Dr. Carraway, alleging that the defendants had violated the standard of care as evidenced by the Kerlix gauze discovered by Dr. Johnson inside Ivy’s right leg. The defendants timely answered the complaint, and, following discovery, both defendants filed motions for a summary judgment. On April 17, 2006, the trial court entered an order granting the hospital’s motion for a summary judgment.

Ivy’s claims against Dr. Carraway proceeded to trial on June 5, 2006. The jury heard testimony from Ivy, his wife, and Dr. Carraway, and the deposition of Dr. Johnson was read into the record. At the close of Ivy’s presentation of evidence. Dr. Carraway filed a motion for a judgment as a matter of law. The trial court granted the motion and entered an order on June 12, 2006, stating that “the evidence was insufficient to permit a finding of any negligence or breach of the applicable standard of care on the part of [Dr. Carraway] and that the evidence was insufficient to show that any conduct of [Dr. Carraway] was the proximate cause of any injury to [Ivy].”

Ivy initially appealed both the summary judgment in favor of the hospital and the judgment as a matter of law in favor of Dr. Carraway. Ivy voluntarily dismissed his appeal of the summary judgment, however. This appeal concerns only Ivy’s medical-malpractice claim against Dr. Carra-way.

II. Standard of Review

“ ‘When reviewing a ruling on a motion for [a judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying the [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must present substantial evidence to withstand a motion for [a judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for [a judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’ ”

National Ins. Ass’n v. Sockwell, 829 So.2d 111, 125-26 (Ala.2002) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 302-03 (Ala.1999)).

III. Analysis

The threshold issue in this case is whether Ivy presented substantial evidence that Dr. Carraway breached the standard of care during any of the operations he performed on Ivy. The Alabama Medical Liability Act, § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”), provides, in pertinent part:

“In any action for injury or damages ... against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.”

§ 6-5-548(a), Ala.Code 1975.

This Court has interpreted § 6-5-548(a) to mean that “the plaintiff ordinarily is required to present expert testimony as to the relevant standard of care.” Martin v. Dyas, 896 So.2d 436, 441 (Ala.2004). Ivy did not present any expert testimony in this regard. Instead, he relied upon the fact that

“[t]his Court has recognized an exception to this rule
“ ““in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.’ ” [Tuscaloosa Orthopedic Appliance Co. u] Wyatt, 460 So.2d [156,] 161 [(Ala. 1984)] (quoting Dimojfv. Maitre, 432 So.2d 1225,1226-27 (Ala.1983)).’ ”

Sorrell v. King, 946 So.2d 854, 861-62 (Ala. 2006). One situation this Court repeatedly has said falls into this exception is “ ‘ “ ‘where a foreign instrumentality is found in the plaintiffs body following surgery’ ” ’ ” Id. at 862 (emphasis omitted) (quoting Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000), quoting in turn Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992), quoting in turn Holt v. Godsil, 447 So.2d 191, 192-93 (Ala. 1984)).

Ivy contends that the Kerlix gauze found in his right leg is a retained foreign object that constitutes prima facie evidence that Dr. Carraway breached the applicable standard of care by failing to discover and remove the Kerlix gauze during one or more of the three operations he performed on Ivy. In response, Dr. Carra-way testified that he did not control the placement and removal of Kerlix gauze inside Ivy’s leg and that he complied with the standard of care in each operation he performed on Ivy. Ivy contends that under the burden-shifting process set forth in Breaux v. Thurston, 888 So.2d 1208 (Ala. 2003), after he demonstrated the retention of the Kerlix gauze in his leg and Dr. Carraway testified concerning his performance relative to the standard of care, a jury question was presented as to whether Dr. Carraway breached the standard of care.

In Breaux, this Court explained:

“The presence of the retained object is prima facie evidence of negligence by the surgeon in carrying out that responsibility. The presence of the retained objected does not, however, establish negligence per se. Rather, it serves to shift the burden to the defendant surgeon to show that he or she was not negligent because he or she fully complied with the statutorily defined standard of care.... If, after the plaintiff offers prima facie evidence of negligence by a showing that a foreign object was retained in the body after surgery and the burden of proof shifts to the surgeon, the standard of care is clearly established by expert testimony and there is substantial evidence indicating that the surgeon complied "with all components of that standard of care, a jury question is presented as to whether the surgeon was in fact negligent.”

Breaux, 888 So.2d at 1217 (emphasis omitted); see also Houseman v. Garrett, 902 So.2d 670, 673-74 (Ala.2004) (stating that “Breaux ... makes it clear ... that in a medical-malpractice ease proof of a retained foreign object in the body following surgery amounts only to a prima facie showing of negligence, which can be met by expert and other supporting testimony indicating that the defendant physician has acted within the applicable standard of care. Such a showing by the physician creates a jury question as to whether the physician was in fact negligent” (footnote omitted)).

In the case before us, all the evidence presented indicates that Dr. Carraway controlled neither the placement of the Kerlix gauze in nor its removal from Ivy’s wound cavity. Ivy’s argument, therefore, implicitly asks us to enlarge the field occupied by the res ipsa loquitur rule beyond the scope it has in retained-foreign-object caselaw.

In 1923, in Sellers v. Noah, 209 Ala. 103, 105, 95 So. 167, 169 (1923), this Court stated:

“Where a surgeon performing an operation leaves in the body of his subject, closing the wound, a foreign substance that causes injury or damage to the subject, the burden of proof passes to the impleaded surgeon to show that he exercised the stated reasonable and ordinary care, skill, and diligence in respect of the operation upon his subject, including the process of closing the wound.”

In Powell v. Mullins, 479 So.2d 1119, 1126 (Ala.1985), this Court stated that “[ujnder our cases, a failure to remove sponges, needles, etc., which are placed inside the patient during the operation constitutes prima facie evidence of negligence.” (Emphasis added; overturned on other grounds by Breaux, supra.) In Breaux, the Court stated: “[I]t is the responsibility of a surgeon to remove before closing the incision all foreign objects due to be removed .... The presence of the retained object is prima facie evidence of negligence by the surgeon in carrying out that responsibility.” 888 So.2d at 1217.

In these and the other cases constituting a long line of precedent in this area, either an express holding or the facts of the case are consistent with the application of the rule only in those situations where the doctor exercises control over the foreign object. So understood, these cases represent a specific application of the general requirement of res ipsa loquitur that “the defendant must have had full management and control of the instrumentality which caused the injury.” Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48 So.2d 231, 238 (1950). The inference of negligence cannot be made without evidence indicating that the defendant is responsible for the cause of the injury. As was explained in Khirieh v. State Farm, Mutual Automobile Insurance Co., 594 So.2d 1220, 1224 (Ala.1992), “the general purpose” of the exclusive-control requirement is to provide an “ ‘indication] that it probably was the [alleged wrongdoer’s] negligence that caused the accident.’ ” (Quoting 57B Am.Jur.2d Negligence § 1874 (1989).)

Ivy attempts to overcome the fact that the undisputed evidence showed that Dr. Carraway did not insert into or remove from Ivy’s leg the Kerlix gauze either before or during surgery by noting that Dr. Carraway ordered the packing of the wound with Kerlix gauze after the surgeries and prescribed the whirlpool treatments that required repeated packing and unpacking of the wound site. For res ipsa loquitur to apply, however, it is not enough that Dr. Carraway could in some sense be derivatively responsible for the presence of the Kerlix gauze in Ivy’s leg. “ ‘[M]aking the negligence point to the defendant ... is usually done by showing that .,. “all reasonably probable causes were under the exclusive control of the defendant.” ’ ” Khirieh, 594 So.2d at 1224 (quoting Ward v. Forrester Day Care, Inc., 547 So.2d 410, 414 (Ala.1989), quoting in turn Restatement (Second) of Torts § 828D (1965)). The unavoidable fact is that Dr. Carraway did not have “full management and control” of the Kerlix gauze because residents and hospital nurses performed the packing and unpacking of Ivy’s wound.

Furthermore, the fact that Dr. Carra-way ordered the use of Kerlix gauze and whirlpool baths to treat Ivy’s wound is distinct from the acts Ivy contends were negligent, i.e., the failure to observe and remove the gauze during one or more of the surgical procedures performed by Dr. Carraway. Ivy did not argue and presented no evidence before the trial court indicating that Dr. Carraway misprescribed treatment for Ivy in ordering the packing and unpacking of the wound with Kerlix gauze. Expert testimony would be necessary to establish that Dr. Carraway breached the standard of care with regard to his prescription of a course of treatment for Ivy because in that regard the “want of skill or lack of care” is not “so apparent ... as to be understood by a layman” and requires more than “common knowledge and experience to understand it.” Lloyd Noland Found., Inc. v. Harris, 295 Ala. 68, 66, 322 So.2d 709, 711 (1975).

A survey of other jurisdictions shows that other states have held that a physician must have placed the foreign object in question in the plaintiffs body in order for the rule of prima facie negligence to apply in a medical-malpractice action. In Ogle v. De Sano, 107 Idaho 872, 875, 693 P.2d 1074, 1077 (Idaho Ct.App.1984), the Idaho Court of Appeals observed that its Supreme Court in two cases “chose to find the object was not foreign because the doctor had not inserted it in the patient’s body[;] instead he had allegedly negligently failed to remove the object in his course of treatment.” In Despres v. Moyer, 827 A.2d 61 (Me.2003), the Supreme Judicial Court of Maine addressed the foreign-object exception in the context of a code section that provided that a three-year statute of limitation for causes of action for “professional negligence” did not apply “ ‘where the cause of action is based upon the leaving of a foreign object in the body....’” 827 A.2d at 62 (quoting Me. Rev.Stat. Ann. tit. 24, § 2902). The Despres court concluded:

“[0]ne can only ‘leave’ a foreign object that one has inserted, and ... if a physician has not inserted the foreign object in question, the exception to the statute does not apply. This is not to say that a physician incurs no liability for having failed to remove an object the physician did not insert but should have removed;.... ‘[A]ny alleged failure on [the physician’s] part to detect [the object] is founded upon a claim for negligent diagnosis or surgery....’ ”

827 A.2d at 66. Similarly, in discussing Georgia’s exception to its statute of limitation for medical-malpractice actions, the Georgia Supreme Court explained:

“Code Ann. § 3-1103[] refers to objects placed in the patient’s body during some medical procedure in such a fashion that the physician may be charged with knowledge that the object is lodged there.
“Where a physician places a foreign object in his patient’s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiffs claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient’s body is directly traceable to the doctor’s malfeasance.
“The present case of a doctor’s failure to remove particles of ceramic glass from the patient’s hand which were not placed there by him is much more akin to the ordinary mis-diagnosis and mistreatment cases which are covered under Code Ann. § 3-1102.”

Dalbey v. Banks, 245 Ga. 162, 163, 264 S.E.2d 4, 5 (1980). See also Reed v. Guard, 374 Ark. 1, 4, 285 S.W.3d 662, 664 (2008) (stating that “a ‘foreign object’ is just exactly that: an object introduced into the patient’s body by a physician, and then inadvertently left behind”); Hall v. Ervin, 642 S.W.2d 724, 728 (Tenn.1982) (stating that the foreign object exception “was intended to apply to cases where the defending health care provider was in some way responsible for the initial presence of the foreign object complained of’).

The plaintiff in Beckett v. Beebe Medical Center, Inc., 897 A.2d 753 (Del.2006), asked the Delaware Supreme Court to expand the Delaware foreign-object exception in a fashion similar to Ivy’s implicit request here. By statute, Delaware generally requires a plaintiff in a medical-malpractice action to substantiate his or her claims through expert testimony, but it carves out an exception where the complaint alleges that “ ‘a foreign object was unintentionally left within the body of the patient following surgery.’ ” 897 A.2d at 756 (quoting Del.Code Ann. tit. 18, § 6853(e)(1)). The Beckett court stated, in pertinent part:

“Plaintiff asks us to hold the statutory exception of [Del.Code Ann. tit. 18] Section 6853 applies more broadly, to encompass situations where an object existing in the body before surgery to remove it remains in the body after that surgery. We decline to broaden the scope of Section 6853(e)(i) in this manner.
“The purpose of Section 6853 is to ‘require that expert medical testimony be presented to allege a deviation from the applicable standard of care.’ The intent of the General Assembly in enacting this provision was to reduce the filing of meritless medical negligence claims. By requiring an Affidavit of Merit,[] the General Assembly intended to require review of a patient’s claim by a qualified medical professional, and for that professional to determine that there are reasonable grounds to believe that the health care provider has breached the applicable standard of care that caused the injuries claimed in the complaint.
“The underlying issue in this case is whether Dr. Tatineni was negligent in performing surgery to remove a foreign object already present. This is not a claim of negligence which speaks for itself as would the failure to remove from the patient’s body a surgical instrument used during the surgery. Expert testimony is necessary to determine the merits of this claim. We agree with the Superior Court that the foreign object exception was not intended to apply to the facts of this case.
“Accordingly, we approve the definition of ‘foreign object’ announced in Lacy [v. CD. Searle & Co., 484 A.2d 527 (Del.Super.Ct.1984),] and reiterated by the Superior Court here. ‘Foreign object’ within the meaning of Section 6858 refers to an object not present in the patient’s body before the commencement of the procedure by the health care provider and that was present in the patient’s body after conclusion of the procedure. Because the facts alleged here do not fit this definition, an Affidavit of Merit was required.”

897 A.2d at 757 (footnote omitted).

The underlying issue here is whether Dr. Carraway was negligent in failing to discover and remove the Kerlix gauze during the surgeries he performed on Ivy. As was true for the court in Beckett, we cannot conclude that this is “a claim of negligence which speaks for itself as would the failure to remove from the patient’s body a surgical instrument used during the surgery.” 897 A.2d at 757. Whether the efforts made by Dr. Carraway to examine the wound cavity during the surgeries he performed fell short of the applicable standard of care is not “so apparent as to be within the comprehension of laymen and to require only common knowledge and experience to understand it.” Parrish v. Spink, 284 Ala. 263, 267, 224 So.2d 621, 623 (1969).

Just as Delaware enacted its requirement of expert testimony for medical-malpractice cases “to reduce the filing of mer-itless medical negligence claims,” Beckett, 897 A.2d at 757, the Alabama Legislature enacted the AMLA to restrict “the increasing threat of legal actions for alleged medical injury.” § 6-5-540, Ala.Code 1975. The application of the doctrine of res ipsa loquitur in cases involving foreign objects represents an exception to the general requirement that a plaintiff in a medical-malpractice action must present expert testimony to establish a breach of the applicable standard of care. Enlarging the retained-foreign-object exception in the manner Ivy wishes us to do would be contrary to the essential requirements of res ipsa loquitur.

We conclude that Ivy needed to present expert testimony concerning whether Dr. Carraway breached the applicable standard of care by failing to discover and remove the Kerlix gauze from Ivy’s leg in order to present a jury question on that issue. Because he did not do so, the trial court correctly granted Dr. Carraway’s motion for a judgment as a matter of law. We therefore affirm the judgment of the trial court.

AFFIRMED.

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

      . The record indicates that the Kerlix gauze rolls used in Ivy’s wound cavity generally were used without being unwound; the record does not indicate the diameter of such a roll.

      . Though it is unclear from the transcript of trial testimony, the Court understands that the “cavity” to which Dr. Johnson referred was not the same wound cavity that resulted from the original injury; Dr. Johnson stated that the initial reason for the exploratory surgery was that "there was probably an abscess beneath the area of the swelling. And the primary treatment for an abscess is incision and drainage to evacuate the infection.” Dr. Johnson's notes from the surgery indicate that he found Kerlix gauze in the "abscess cavity” below the center portion of the swollen area. His notes also state that the gauze was "somewhat adherent to the wall of the cavity.”

      . This section was recodified in Georgia's current code as Ga.Code Ann., § 9-3-72, and provides that a two-year limitations period for medical-malpractice actions “shall not apply where a foreign object has been left in a patient's body...

      . "In Delaware, medical negligence complaints generally must be accompanied by an Affidavit of Merit signed by a qualified expert witness.... [A]n Affidavit of Merit shall be unnecessary [when] ... [a] foreign object was unintentionally left in the body of a patient following surgery-" Beckett, 897 A.2d at 755.

      . At one juncture in his testimony, for example, Dr. Carraway testified as to the possibility of an object such as the gauze in this case being "walled off” by new tissue growing in the wound cavity.
      That expert testimony would be required to establish that Dr. Carraway acted negligently in failing to discover and remove the Kerlix gauze during any of the three surgeries also answers an argument made by Ivy that Dr. Carraway voluntarily assumed the duty of looking for the Kerlix gauze in the wound cavity. Ivy did not make this argument before the trial court, but on appeal he notes that Dr. Carraway testified that he was "aware that [he] needed to be looking for [the] Kerlix gauze when [he] inspected the wound.” Even if such an admission establishes that Dr. Carraway had a duty to look for Kerlix gauze in the course of the operations he performed on Ivy, it does not establish that his failure to discover the gauze constituted prima facie evidence of breach of that duty. Dr. Carraway repeatedly stated that he looked for foreign objects in the wound cavity at the beginning and end of each surgery, that he saw no evidence of any such objects, and that he complied with the standard of care in each operation. Refuting Dr. Carraway's testimony required expert testimony because whether he should have discovered the Kerlix gauze when he did not insert it and had no actual knowledge of its presence is not "so apparent as to be within the comprehension of laymen....” Parrish v. Spink, 284 Ala. 263, 267, 224 So.2d 621, 623 (1969).