author: CARLTON, J., ROBERTS, J.,

text:
    Cecil Byron SMITH, Appellant, v. Aurora Miceli SMITH, Appellee.
    No. 2007-CA-01920-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.
    Rehearing Denied Nov. 3, 2009.
    Certiorari Denied Jan. 21, 2010.

      S. Christopher Farris, attorney for appellant.
    Erik M. Lowrey, David Alan Pumford, Hattiesburg, attorneys for appellee.
   CARLTON, J.,

for the court.

¶ 1. The Lamar County Chancery Court granted Dr. Cecil Byron Smith and Aurora Miceli Smith’s joint request for a divorce, based on irreconcilable differences. The chancellor divided the mai'ital property and awarded Ms. Smith primary physical custody of the Smiths’ only child, child support, periodic alimony, rehabilitative alimony, and a division of the marital property. Additionally, the chancellor awarded Ms. Smith half of her attorney’s fees. Dr. Smith appeals and claims that the chancellor erred in (1) determining the amount of child support, (2) awarding rehabilitative alimony, (3) failing to accept a more recent valuation of the marital home, (4) failing to consider the fact that Dr. Smith was responsible for all marital debt, and (5) awarding attorney’s fees to Ms. Smith. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Smiths were married on April 3, 1991. Dr. Smith, an ophthalmologist, initially worked as an adjunct professor at the University of Kansas Medical School and operated a private ophthalmology practice in Kansas City, Missouri. When the couple first married, Ms. Smith worked as a surgical nurse. However, she stopped working soon after the marriage. They later had a son and their only child, Coleman. In 1998, the Smiths moved to Hattiesburg, Mississippi where Dr. Smith began practicing at the Southern Eye Clinic.

¶ 3. The Smiths’ marriage deteriorated, and they separated in late 2004. The Smiths attempted to reconcile, but they were unsuccessful. In July 2006, Ms. Smith filed for divorce. Slightly less than one year later, the chancellor granted the Smiths’ joint motion for a divorce based on irreconcilable differences.

¶ 4. Dr. and Ms. Smith agreed that Ms. Smith would have primary physical custody of Coleman, but they requested that the chancellor resolve the following issues: (1) equitable distribution of the marital assets, (2) whether Dr. Smith would pay Ms. Smith alimony, (3) the amount of child support Dr. Smith would be obligated to pay Ms. Smith, (4) whether the Smiths would share joint legal custody of Coleman and Dr. Smith’s visitation with Coleman, (5) division of certain personal property, and (6) whether Dr. Smith would be required to pay any of Ms. Smith’s attorney’s fees associated with the divorce.

¶ 5. Among other things, the chancellor ultimately: (1) granted Dr. Smith and Ms. Smith joint legal custody of Coleman, (2) set out Dr. Smith’s visitation schedule with Coleman, (3) ordered Dr. Smith to pay Ms. Smith $2,717.14 per month in child support, (4) divided the marital assets and liabilities, (5) ordered Dr. Smith to pay Ms. Smith $2,000 per month in periodic alimony, (6) ordered Dr. Smith to pay Ms. Smith $500 per month in rehabilitative alimony, and (7) ordered Dr. Smith to pay one-half of Ms. Smith’s attorney’s fees. Aggrieved by certain portions of the chancellor’s opinion that will be discussed in greater detail below, Dr. Smith appeals.

ANALYSIS

¶ 6. Our review of domestic relations matters is governed by the substantial evidence/manifest error rule. R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007). This Court will not overturn the chancellor’s decision unless the chancellor was manifestly wrong or clearly erroneous. Id. Additionally, we will reverse the chancellor if he applied an erroneous legal standard. Id.

¶ 7. The supreme court has made it clear that the “scope of review in domestic relations matters is limited.... ” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994). Additionally, we have found that “[w]hen-ever a chancellor’s decision is based on credible evidence, this Court will affirm that decision.” C.A.M.F. v. J.B.M., 972 So.2d 656, 666-67(44) (Miss.Ct.App.2007) (citations omitted). “Or differently stated, this Court may reverse a chancellor’s findings of fact only when there is ‘no substantial evidence in the record’ justifying his findings.” Id. (citations omitted). These considerations are particularly true in the areas of child support and rehabilitative alimony. Turpin v. Turpin, 699 So.2d 560, 564(17) (Miss.1997) (citations omitted).

I. CHILD SUPPORT

¶ 8. Awards of child support are governed by the guidelines set forth in Mississippi Code Annotated section 43-19-101 (Rev.2004). Those guidelines state that there is a rebuttable presumption that where there is one child who is due support, the non-custodial parent should pay child support in the amount of fourteen percent of his or her adjusted gross income, as defined within the statute. Miss. Code Ann. § 43-19-101(1). In situations where the non-custodial parent’s adjusted gross income exceeds $50,000 per year, as Dr. Smith’s income does, the chancellor “shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” Miss.Code Ann. § 43-19-101(4). The chancellor applied the fourteen percent statutory standard to Dr. Smith’s adjusted gross monthly income of $19,408.17. As a result, the chancellor ordered Dr. Smith to pay Ms. Smith child support in the amount of $2,717.14 per month.

¶ 9. In awarding the above amount of child support, the chancellor stated as follows:

The fact that [private school tuition] is part of basic support is a factor involved in the Court’s determination of the application of the statutory percentage of 14% to all of [Dr. Smith’s] income.... The Court finds that application of [the] guidelines to the full amount of income, not just the first $50,000, as reflected in [Dr. Smith’s] Rule 8.05 disclosures, is reasonable and appropriate, taking into consideration the lifestyle of the child and his parents, tuition costs for his possible attendance in private school, as well as the testimony of both parties in regards to Coleman’s extensive extracurricular activities and the fact that he would likely benefit from enhanced education activities not open to the average student. [Ms. Smith] has testified that she has no intention of going back to work until Coleman is 18, and intends to remain available and involved in the details of his day-to-day care and activities, and portions of these funds will obviously be used by her for her own day-to-day expenses as she performs parental duties and responsibilities.

On appeal, Dr. Smith argues that the chancellor “did not make the necessary findings to justify exceeding the $50,000 cap.” We disagree.

¶ 10. Section 43-19-101(1) does not state that fourteen percent of $50,000 is envisioned as a “cap” on the amount of child support a non-custodial parent can expect to pay a custodial parent. Instead, if the chancellor applies the child support guidelines found in section 43-19-101(1) to income in excess of $50,000, the chancellor must provide findings on the record pursuant to section 43-19-101(4) that it is reasonable under the circumstances to do so.

¶ 11. The criteria for determining whether deviation from the statutory guidelines is appropriate are found in Mississippi Code Annotated section 43-19-103(a-I) (Rev.2004), which include the following factors:

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

¶ 12. In Peters v. Peters, 906 So.2d 64, 72(¶ 36) (Miss.Ct.App.2004), this Court affirmed a chancellor’s decision to order a father whose adjusted gross income exceeded $50,000 per year to pay child support in accordance with the guidelines set forth in section 43-19-101(1). In so doing, the chancellor found no “reason to deviate from the statutory child support guideline of twenty percent of the adjusted gross income.” Id.; See Miss.Code Ann. § 43-19-101(4). This Court concluded that “when this statement is taken in the context of the chancellor’s opinion as a whole, it is apparent why the chancellor, given the facts and circumstances of the case, saw no reason to deviate from the statutory guidelines.” Id. (internal quotations omitted). Additionally, this Court found that although the chancellor’s statement was “rather succinct,” the statement constituted “nonetheless a written finding of reasonableness.” Id.

¶ 13. In the case at bar, the chancellor sufficiently articulated why he found it reasonable under the circumstances for Dr. Smith to provide fourteen percent of his income to Coleman for child support. See id.; C.A.M.F., 972 So.2d at 666-67(44). For example, in Hensarling v. Hensarling, 824 So.2d 583, 588(14) (Miss.2002), a case with facts similar to the ones at bar, the supreme court upheld the chancellor’s award of child support and explained its holding in the following manner:

[T]he chancellor found that special circumstances so exist which would “necessitate a variance from the statutory guidelines in setting Ken’s obligation of child support.” He noted that as a doctor, Ken has the ability to earn a substantial income, whereas at this time, Brenda has no source of income other than the rehabilitative alimony she will receive for a few years. Also, the children have special needs which he deemed to include private school tuition, as the children’s friends and “daily routines and activities” stem from them attending private school. We find that these reasons meet the criteria set out in Miss.Code Ann. § 43-19-103(0 & (h).

Id.

¶ 14. Like the father in Hensarling, Dr. Smith, as a skilled medical professional, has the ability to earn a substantial income, whereas at this time, Ms. Smith does not. Additionally, as the chancellor in Hensarling considered the children’s private school tuition and related educational activities, so did the chancellor in this case. Here, Coleman’s private school tuition and enhanced educational activities meet the criteria in section 43-19-103(a). Coleman’s extracurricular activities and the lifestyle to which the family was accustomed meet the criteria in section 43-19-103(f).

¶ 15. Taking all of the chancellor’s findings above into consideration and in the context of the chancellor’s opinion as a whole, we find that the chancellor in this case possessed the best position to decide whether it was reasonable to apply the fourteen percent statutory standard to Dr. Smith’s adjusted gross monthly income. See Peters, 906 So.2d at 72(¶ 36). In following the precedent of Peters and Hen-sarling, while also respecting our standard of review, we affirm the chancellor’s award of child support.

II. REHABILITATIVE ALIMONY

¶ 16. At the conclusion of the chancellor’s thorough analysis of the Armstrong factors, he stated as follows:

Having considered the financial disclosures, and the evidence as it is affected by the Armstrong factors noted above, the Court finds that [Dr. Smith] should contribute monthly periodic alimony to [Ms. Smith] ... in the amount of $2,000.00 ... together with the sum of $500.00 per month rehabilitative alimony for a period of 24 months.

Dr. Smith argues that the record fails to support the chancellor’s award of rehabilitative alimony, and as such, he urges this Court to reverse and render that portion of the chancellor’s order.

¶ 17. “Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income.” Voda v. Voda, 731 So.2d 1152, 1155(¶ 8) (Miss.1999). Moreover, “[t]he primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force.” Alexis v. Tarver, 879 So.2d 1078, 1080(7) (Miss.Ct.App.2004).

¶ 18. In his opinion, the chancellor provided the following findings (among others not listed) under the Armstrong factors when he granted Ms. Smith rehabilitative alimony: (1) Dr. Smith was capable of making in excess of $300,000 per year while Ms. Smith had worked as a homemaker (at Dr. Smith’s insistence) and presently is a homemaker; (2) Dr. Smith had significant earning capacity, while Ms. Smith would have to attend classes and renew professional licenses in order to become a nurse again; (3) Ms. Smith had full custody and care of Coleman; (4) Ms. Smith at age forty-three was assumed to be able to continue her present abilities; and (5) the couple shared an “unusually high standard of living” both during the marriage and presently. Based on the above analysis, the argument that the chancellor failed to make findings as to the propriety of rehabilitative alimony falls short.

¶ 19. The rehabilitative alimony awarded to Ms. Smith would serve the purpose of preparing her to reenter the work force when their son reaches the age of eighteen. See Alexis, 879 So.2d at 1080(7). This Court yields to the chancellor’s discretion in light of the limited and restrained review under which this Court examines such cases. See C.A.M.F., 972 So.2d at 666-67(44).

III. APPRAISAL VALUE OF THE MARITAL HOME

¶ 20. As part of the chancellor’s distribution of the Smiths’ marital assets, the chancellor awarded Dr. Smith the marital home and ordered him to pay Ms. Smith her portion of the home’s equity. The chancellor set the value of the Smiths’ marital home at $599,000, stating:

Testimony and an appraisal (Exhibit 17 for identification) sought to be admitted at trial and shortly before trial began, reflected that the valuation may be shown as less than this, but the figure of $600,000.00 was established by the jointly approved appraisal performed exactly 9 months to the day before trial began and was represented by both in deposition, and through counsel in preparation for trial, to be the correct one up [sic] (and reduced slightly but still agreed on at $599,000 in Exhibit 2, the “Hemsley Report” jointly stipulated into evidence,!) ] until just before the trial, well after discovery had been completed. The Court finds the parties bound themselves to that figure.

Dr. Smith argues that the chancellor erred in failing to accept a more recent appraisal of the home. Dr. Smith also claims that he did not stipulate to the $599,000 figure.

¶ 21. The “Hemsley Report” does indeed list the value of the Smiths’ marital home at $599,000; however, during the colloquy immediately following admittance of the report, Dr. Smith’s attorney expressed concern over some items listed in the report. Specifically, he stated: “the first item of this one has to do with [the Smiths’ marital home]. The value reflected there is [$]599[,000], That value is in question.” The chancellor subsequently admitted the “Hemsley Report,” but he found that the valuation of the marital home required additional testimony.

¶ 22. Throughout the hearing, both Dr. Smith and Ms. Smith testified regarding the marital home’s appraisal and value. The first appraisal was ordered after Ms. Smith filed for a divorce. According to that appraisal, the home’s value was approximately $600,000. The marital home was placed on the market as the divorce went forward over the next several months, but it received one offer for $450,000 and another for $500,000. Dr. Smith testified that although he initially believed the first appraisal was correct, after the home failed to garner an offer close to the $600,000 appraisal, he looked closer at the appraisal and noticed it seemed to overvalue the home in certain respects. As such, Dr. Smith felt it prudent to order another appraisal. However, Dr. Smith also testified that during his deposition, he stated that he agreed the house was worth $599,000, that he did not believe anything was wrong with the appraisal, and that he was not going to order another one.

¶ 23. Although reversal of a chancellor’s decision not to order an updated appraisal of a marital home is not unheard of, we find that the facts of this case do not warrant such an outcome. See Saucier v. Saucier, 830 So.2d 1261, 1265(¶ 12) (Miss.Ct.App.2002) (reversing and remanding a chancellor’s decision not to order a more recent appraisal as a result of questions regarding the use of insurance proceeds on the home and the monetary effect of repairs made after hurricane). It is clear that at some point Dr. Smith acquiesced to the appraised value of $599,000-$600,000, and there was no expert testimony that the initial appraisal was faulty. Additionally, the delay between the completion of the appraisal and the division of marital assets was not unreasonable. As such, we cannot say that the chancellor erred in finding that Dr. Smith bound himself to that figure. This issue is without merit.

IV. EQUITABLE DIVISION OF ASSETS

¶ 24. Dr. Smith argues that the chancellor’s equitable distribution did not fully take into account the fact that Dr. Smith agreed to take responsibility for virtually all of the Smiths’ marital debt. As the chancellor stated in his opinion regarding the process of property division:

The case of Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), established the guidelines that chancellors are to consider when deciding issues of marital property division. In that case, [the supreme court] directed “chancery courts [to] consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:
1.Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of [t]he spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise[;]
3. The market value and the emotional value of the assets subject to distribution^]
4. The value of assets not ordinarily, absent equitable factors to the contrary subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

The procedure for dividing marital property was explicitly established in Johnson v. Johnson, 650 So.2d [1281,] 1287 [ (Miss.1994) ]. That case states that:

First, the character of the parties’ assets, i.e., marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines in light of each parity’s] nonmarital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmarital assets, will adequately provide for both parties, no more need[s] to be done. If the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered. This process does not require divestiture of inherited or gift-acquired nonmarital property.

Id.

¶ 25. Utilizing the above standards, the chancellor proceeded to categorize and distribute the Smiths’ assets and liabilities. After a lengthy recitation of the assets and liabilities as determined by testimony, stipulations, and other evidence, the chancellor awarded Ms. Smith a total of $609,545.48 in assets and $295,000 in liabilities, giving Ms. Smith a net award of $314,545.48. The chancellor awarded Dr. Smith $1,094,495.48 in assets and $734,435.51 in liabilities, giving Dr. Smith a net award of $360,059.97. Contrary to Dr. Smith’s view of the chancellor’s opinion, it is clear that the chancellor factored in all of the debts ultimately awarded to Dr. Smith when dividing the Smiths’ marital estate. This issue is without merit.

V. ATTORNEY’S FEES

¶ 26. At Ms. Smith’s request, the chancellor ordered Dr. Smith to pay Ms. Smith attorney’s fees in the amount of $15,340 — a figure that represents one-half of the attorney’s fees Ms. Smith requested. Dr. Smith asserts that the chancellor abused his discretion. Naturally, Ms. Smith disagrees and, in addition, requests that this Court order Dr. Smith to pay a portion of her attorney’s fees incident to this appeal.

¶ 27. The decision whether to award attorney’s fees in domestic cases is largely a matter entrusted to the chancellor’s sound discretion. Kelley v. Kelley, 953 So.2d 1139, 1144(¶ 14) (Miss.Ct.App.2007). Unless the chancellor abuses that discretion, we will uphold his or her decision on appeal. Id. However, as a general rule, attorney’s fees are not awarded unless the party requesting the fees has established an inability to pay. Id.

¶ 28. We cannot find that the chancellor abused his discretion. The chancellor found that Dr. Smith had a substantial income, and Ms. Smith had no income. However, the chancellor also found that, after his equitable distribution and alimony awards, Ms. Smith had the “ability to contribute ... toward [the] costs of [her] representation.” The chancellor weighed both factors and held that Dr. Smith should only be obligated to pay one-half of Ms. Smith’s legal expenses. This issue is without merit.

¶29. As for Ms. Smith’s request for attorney’s fees incident to the present appeal, such requests are not unheard of. To support her request, Ms. Smith relies on Lauro v. Lauro, 924 So.2d 584, 592(¶ 33) (Miss.Ct.App.2006) in which this Court stated that we have “generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court.” (quoting Monroe v. Monroe, 745 So.2d 249, 253(¶ 17) (Miss.1999)). We follow that precedent and award Ms. Smith attorney’s fees on appeal in the amount of $7,670.

¶ 30. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. THE APPELLEE’S MOTION FOR ATTORNEY’S FEES ON APPEAL IS GRANTED IN THE AMOUNT OF $7,670. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

ROBERTS, J.,

concurring in part, dissenting in part.

¶ 31. I concur with the majority’s resolution of Issues I, III, IV, and V. However, I disagree with the majority’s conclusion that the chancellor properly ordered Dr. Smith to pay Ms. Smith rehabilitative alimony. In my opinion, Ms. Smith’s vehement and unequivocal position that she did not intend to enter the work force for at least several years precludes an award of rehabilitative alimony. Because the majority chooses to affirm that portion of the chancellor’s award, regardless of Ms. Smith’s own testimony, I must respectfully dissent to that portion of the majority’s decision.

¶ 32. The majority notes that “[rjehabil-itative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income.” Voda v. Voda, 731 So.2d 1152, 1155(¶ 8) (Miss.1999). The majority also correctly states that “[t]he primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force.” Alexis v. Tarver, 879 So.2d 1078, 1080(¶ 7) (Miss.Ct.App.2004). However, the majority then goes on to analyze the chancellor’s findings regarding rehabilitative alimony. According to the majority, the chancellor’s findings were sufficient because the chancellor discussed the parties’ earning capacities, the fact that Ms. Smith would have to take some unidentified number of classes at some unidentified expense before reentering the work force as a nurse, custody of Coleman, Ms. Smith’s age, and the parties’ standard of living. According to the majority, “[t]he rehabilitative alimony awarded to Ms. Smith would serve the purpose of preparing her to reenter the work force when [her] son reaches the age of eighteen.” The majority then “yields to the chancellor’s discretion.”

¶ 33. I cannot agree with the majority’s decision to yield to the chancellor’s discretion in this instance. To do so would fly in the face of the stated purposes of rehabilitative alimony. Ms. Smith unequivocally denied that she was “trying to become self-supporting” or “searching for a means of income.” Voda, 731 So.2d at 1155(¶ 8). Likewise, she absolutely refused to even consider entering the work force before Coleman left home, so there was no need to “give [her] the opportunity to enter the work force” because she did not intend to do so. As previously mentioned, giving the recipient spouse an opportunity to enter the work force is the “primary purpose of rehabilitative alimony.” Alexis, 879 So.2d at 1080(¶ 7). According to Ms. Smith, she stopped working as a registered nurse in 1991, after she married Dr. Smith. At the time of trial, Ms. Smith testified that her son, Coleman, would be living at home “for at least seven more years.” During Ms. Smith’s redirect testimony, the following exchange occurred:

Q. You are not looking for a job, are you?
A. No.
Q. You are not going to look for a job until after [Coleman] is grown—
A. Right.
Q. —which is after he is 18.
A. Right.
Q. At which time, what? Are you going to go to work?
A. Try to.
Q. Have any idea what you are going to do?
A. No, sir.
Q. To be a nurse you got to go back to school and get some more education or do something to get certified, correct?
A. Correct.
Q. Is it at all operable, worthwhile for you to try to get a job and do all of this stuff with Coleman as busy as you and Coleman are? Is that anything that is possible for you without upsetting the entire apple cart?
A. It would do that.

¶ 34. Not only did Ms. Smith unequivocally state that she had no intention of working for at least seven years, she also did not state that she intended to work as a nurse. Although she testified that she would have to update her education if she worked as a nurse, when asked whether she had any idea about what she would do if she reentered the work force, she responded, “[n]o, sir.” Consequently, Ms. Smith never testified that she intended to take classes to regain her certification to work as a nurse, and she never testified that she intended to work as a nurse. At best, Ms. Smith’s testimony indicated that, after at least seven years, she might reenter the work force, she might update her certification, and she might work as a nurse.

¶ 35. Additionally, as previously mentioned, “[rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income.” Voda, 731 So.2d at 1155(¶ 8) (emphasis added). Ms. Smith was not at risk of becoming destitute. As the majority points out in its analysis of the chancellor’s equitable distribution, the chancellor awarded Ms. Smith a net award of more than $314,000 in assets. The chancellor also ordered Dr. Smith to pay one-half of Ms. Smith’s attorney’s fees, which amounted to more than $15,000. While Dr. Smith’s obligation to pay Ms. Smith child support for Coleman’s benefit in the amount of approximately $2,700 per month is to support Coleman, certainly some portion of that figure will aid in preventing Ms. Smith from becoming destitute. As stated by the chancellor, Ms. Smith would need child support to transport Coleman to and from school and his extracurricular activities. Child support surely implies providing food, shelter, utilities, clothing, and numerous other things that will not have to be provided through Ms. Smith’s alimony award. Finally, the chancellor ordered Dr. Smith to pay Ms. Smith periodic alimony payments of $2,000 per month. Through child support and alimony alone, Ms. Smith will receive approximately $4,700 each month for a total of $56,400 per year. Although it is true that Dr. Smith has a greater earning capacity than Ms. Smith, precedent dictates that rehabilitative alimony “is not intended as an equalizer between the parties but is for the purpose of allowing the less able party to start anew without being destitute in the interim.” Wolfe v. Wolfe, 766 So.2d 123,129(¶ 11) (Miss.Ct.App.2000).

¶ 36. Our standard of review requires that we leave the chancellor’s decision undisturbed unless it is manifestly wrong or clearly erroneous. R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007). I recognize that these considerations are “particularly true” in the context of a chancellor’s decision to award or to decline an award of rehabilitative alimony. Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997). Be that as it may, the converse is also true. That is, we are required to reverse the chancellor if the chancellor’s decision is manifestly wrong. In my opinion, the chancellor committed reversible error when he ordered Dr. Smith to pay Ms. Smith rehabilitative alimony despite Ms. Smith’s own testimony that she did not intend to enter the work force for at least seven years. Even after seven years, at best, Ms. Smith’s testimony indicated that she might go back to work, and that she might need additional training. There was no testimony as to how much training she would need or how much that training would cost. Finally, there is no evidence that Ms. Smith would be “destitute” if she decided to pursue that additional training at some speculative time in the future. In my opinion, the chancellor’s decision was contrary to the undisputed evidence in this case and the stated purposes of rehabilitative alimony. Accordingly, I would find that there was no evidence, substantial or otherwise, that supports the chancellor’s rehabilitative alimony award. Because the majority finds no fault with the chancellor’s decision, I respectfully dissent.

ISHEE, J., JOINS THIS OPINION. IRVING, J., JOINS THIS OPINION IN PART.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . Dr. Smith stated that the recent real estate sales used in the appraisal were of houses that were on the golf course or on the lake side of the Smiths' neighborhood, and the house in question was neither on the golf course nor the lake. Additionally, Dr. Smith believed the listed square footage was misleading because it included a media room that was not connected to the house.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Kenyoung FAIR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00767-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.
    Rehearing Denied Nov. 10, 2009.
    Certiorari Denied Jan. 7, 2010.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Kenyoung Fair was convicted of murder in the Choctaw County Circuit Court. He was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his conviction and sentence, Fail' appeals citing three issues: (1) whether his murder conviction was supported by the evidence; (2) whether the trial court erred in refusing to grant a jury instruction; and (3) whether the trial court erred in preemptively denying a heat-of-passion manslaughter jury instruction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 28, 2007, Fair, Samuel Dotson, and Darnell Moore went to Ackerman, Mississippi. All three were from Weir, Mississippi. Fair and Moore had been involved in a fight in Ackerman several weeks prior to that day. On July 28, 2007, word got back to several teenagers in Ack-erman that some boys from Weir were coming to Ackerman to fight them. Several teenagers from Ackerman joined together and began walking around Ackerman. They stopped in front of the Friendship M.B. Church, as they routinely did. Several other groups of teenagers from Acker-man joined them there.

¶ 3. Shortly thereafter, Fair, Dotson, and Moore pulled up to the crowd in a car. Several of the Ackerman teenagers testified that a verbal exchange occurred between the occupants of the car from Weir and some of the Ackerman teenagers. One of the Ackerman teenagers testified that the exchange was initiated by one of the occupants of the car saying, “We heard y’all was [sic] looking for us.” One of the Ackerman teenagers responded, “no, I heard y’all was [sic] looking for us.” The Weir teenagers responded, “Well, what’s up?” The Ackerman crew responded for them to “get out of the car.” Suddenly, Fair, sitting in the passenger seat, grabbed a shotgun that was lying on the front seat of the car. One of the Acker-man teenagers saw this and yelled, “dude got a burner.” The Ackerman teenagers testified that all of them either started to back away from the car or turned and started to run in the other direction. Fair fired three or four shots out of the driver’s side window. One of these shots struck Gerrodd Edwards in the back. Edwards was initially taken to the hospital in Acker-man and later transported to a hospital in Memphis, Tennessee where he died on August 6, 2007.

¶ 4. Fair was arrested and charged with the murder of Edwards. A jury convicted Fair of murder after a two-day jury trial. He was sentenced to life imprisonment in the custody of the MDOC. Fair filed a post-trial motion for a new trial, which was denied by the trial court. Aggrieved, Fair appeals his conviction and sentence.

DISCUSSION

I. WHETHER THE VERDICT IS SUPPORTED BY THE EVIDENCE.

¶ 5. When presented with a claim that the evidence is insufficient to sustain a conviction, we review the record in “a light most favorable to the State.” Robinson v. State, 940 So.2d 235, 239-40(¶ 13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). This Court “must accept as true all evidence consistent with [the defendant’s] guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.” Id. at 240(¶ 13). If the evidence is “of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [persons] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 6. Fair argues that he should have been convicted of manslaughter under an “imperfect self-defense” theory. Fair contends that he was in fear of death or great bodily harm because of the past altercation between the two groups, the number of teenagers with the Ackerman group, and some alleged gestures the Ackerman teenagers made during the verbal exchange. Fair, sitting in the passenger seat, claims that he fired the shotgun three or four times out of the driver’s window “to get them to get back.”

¶ 7. As the State correctly points out, Fair did not raise this defense in the trial court. Fair’s defense was ordinary self-defense, not imperfect self-defense. All testimony, the jury instructions, and the opening and closing statements are void of any mention of imperfect self-defense. Additionally, Fair did not include imperfect self-defense as a basis in his motion for a new trial. “It is well established that ‘questions will not be decided upon appeal which were not presented to the trial court and that court given an opportunity to rule on them.’ ” Neese v. State, 993 So.2d 837, 843(¶ 12) (Miss.Ct.App.2008) (citations omitted). Accordingly, this issue is procedurally barred from our consideration.

¶ 8. Procedural bar notwithstanding, we find the sufficiency of the evidence does not warrant a manslaughter conviction under an imperfect self-defense theory. The supreme court has described imperfect self-defense as a killing “done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm.” Wade v. State, 748 So.2d 771, 775(¶ 12) (Miss.1999). If this bona fide belief is found, the intentional killing may be considered manslaughter. Id.

¶ 9. In facts similar to the present case, the supreme court in Smiley v. State, 815 So.2d 1140, 1146 (¶¶ 22-23) (Miss.2002) considered whether the defendant should be found guilty of manslaughter instead of murder under the imperfect self-defense theory. The supreme court found the facts did not warrant a reduction to manslaughter: the victim was shot in the back as he walked away from Smiley; witnesses heard Smiley say, “I got that bitch” and “I done told that mother f about fooling with me,” just after the victim was shot; and although Smiley and the victim had disagreed on a prior occasion, there was no testimony presented regarding violence or threats of violence between the two men before the shooting occurred. Id. at (¶ 23). Upon viewing the evidence which supported the jury’s verdict, the supreme court found in Smiley to be without merit. Id.

¶ 10. In the case at bar, the pathologist testified that Edwards was shot in his back, right arm, and buttock. He noted thirty-six pellet holes in these areas. The witnesses testified that when it was discovered that Fair had pulled a gun, everyone one in the Ackerman group either started backing away or turned and ran. The findings of the pathologist and the testimony of the witnesses confirm that Edwards had turned away from the car and was likely running in the other direction when he was shot. One of the persons who was in the car with Fair testified that Fair said, “I am tired of this,” right before he started shooting. He then told Dotson, the driver of the car, to pull his seat back; he then fired three to four shots out of the window. Additionally, Moore, who was in the car with Fair, testified that none of the Ackerman teenager made an aggressive move toward the car and that there were only words being exchanged. This was corroborated by several of the Ackerman teenagers. At most, there was a heated verbal exchange that does not support a manslaughter conviction under the imperfect self-defense theory. See Phillips v. State, 794 So.2d 1034, 1038-39(¶ 19) (Miss.2001). Finally, there was no evidence presented that any of the Ackerman teenagers were armed during this episode.

¶ 11. Viewing the evidence in the light most favorable to the State, we find more than sufficient evidence to support a murder conviction. Fair’s argument that he was under a genuine (but unfounded) belief that his actions were necessary to prevent death or great bodily harm, necessitating a manslaughter conviction under an imperfect self-defense theory, is negated by the facts of the case and the witnesses’ testimonies. Accordingly, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT FAIR’S JURY INSTRUCTION.

¶ 12. In reviewing the grant or denial of jury instructions, this Court considers the instructions as a whole and with no one instruction taken out of context. Strickland v. State, 980 So.2d 908, 922(¶ 24) (Miss.2008) (quoting Chandler v. State, 946 So.2d 355, 360(¶ 21) (Miss.2006)). While “[a] defendant is entitled to have jury instructions given which present his theory of the case, ... the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 13. Fair argues the trial court erred in refusing to grant his requested instruction D-5, which stated:

The court instructs the jury that while malice aforethought is a necessary element of the crime of murder, it does not follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rending a particular homicide case a murder. A person may be guilty only of [sic] manslaughter or justifiable homicide when slaying another even though the accused is mad [or] bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter to do any unlawful act, or after such attempt shall have failed, if such anger or ill will engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is thwarted, and is non-existent prior thereto. To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act.

The trial court refused to grant this instruction because it was covered in other instructions and, thus, cumulative. Fair argues that by refusing this instruction, the jury was not properly informed about the difference between deliberate-design murder and culpable-negligence manslaughter.

¶ 14. Our review of the jury instructions as a whole leads us to conclude that the jury was sufficiently informed about the differences between deliberate-design murder and culpable-negligence manslaughter. The trial court granted jury instruction S-2, which reads as follows:

The Court instructs the jury that deliberate design as mentioned in these instructions does not have to exist in the mind of the slayer for any given length of time; and if only moments before the act of violence, if any, the defendant, Kenyoung Fair, acted with deliberate design to take the life of Gerrodd Edwards, then it was truly malice and the act was truly murder as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, weeks, or even years.

The court also granted instruction S-l, a murder instruction, which states in part:

The Court instructs the jury that murder is the killing of a human being, not in necessary self-defense, and without authority of law, by any means or any manner, when done with the deliberate design to effect the death of the person killed OR when done in the commission of an act eminently dangerous to other[s] and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....

The court went on to grant two culpable-negligence instructions, D-6 and D-7. These instructions were given in addition to a self-defense instruction. Upon reading the instructions as a whole, we find that the jury was adequately informed with regard to deliberate-design murder and culpable-negligence manslaughter. Therefore, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN PREEMPTIVELY DENYING FAIR A HEAT-OF-PASSION MANSLAUGHTER INSTRUCTION.

¶ 15. In Mullins v. State, 493 So.2d 971, 974 (Miss.1986), the supreme court stated that:

[Heat of passion] is a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

“When a deadly weapon is used, ... malice is implied.” Turner v. State, 773 So.2d 952, 954(¶ 7) (Miss.Ct.App.2000). “[I]n order to overcome that [malice implication], there must be some evidence in the record from which the jury could determine that [the act] was not [the] result of malice, but a result of the heat of passion.” Wilson v. State, 574 So.2d 1324, 1336 (Miss.1990).

¶ 16. Fair does not provide any specific facts to support his assertion. He simply states that the facts and evidence entitled him to a heat-of-passion manslaughter instruction. The record indicates that, at most, Fair and the Ackerman teenagers were engaged in a verbal argument. However, the law is well settled that words alone are not enough to require a heat-of-passion manslaughter instruction. Myers v. State, 832 So.2d 540, 542(¶ 10) (Miss.Ct.App.2002).

¶ 17. Furthermore, the record is silent on any evidence that Fair was in a state of violent or uncontrollable rage at the time of the shooting. It shows the antithesis, a deliberate shooting. Fair and his friends armed themselves with two weapons, drove directly to the area where the previous fight had occurred, found the people with whom they had previously fought, and fired three to four shots into the crowd-one of which was a fatal shot to the back of Edwards. We find that these actions were calculated and show a deliberate-design murder.

¶ 18. We find that the evidence does not support a jury instruction for heat-of-passion manslaughter. Therefore, the trial court did not err by refusing to grant the instruction; thus, this issue is without merit.

. ¶ 19. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . D-6 states:
      The Court instructs the jury the killing of [a] human being by the culpable negligence of another, without authority of law, is manslaughter, and the Court further instructs the jury that culpable negligence is defined as negligence of a degree so gross as to be tantamount to a wanton disregard or, or utter indifference to, the safety of human life.
      If you believe from the evidence beyond a reasonable doubt that the death of Gerrod Edwards was caused by the culpable negligence of Kenyoung Fair, then you shall find Kenyoung Fair guilty of the crime of manslaughter.
      D-7 states:
      If you find the evidence in this case that the defendant, Kenyoung Fair, is not guilty of murder, then you should continue with your deliberation to consider the elements of the lesser crime of culpable[-]negligence manslaughter.
      The Court instructs tire jury the killing of [a] human being by the culpable negligence of another, without authority of law, is manslaughter, and the Court further instructs the jury that culpable negligence is defined as negligence of a degree so gross as to be tantamount to a wanton disregard or, or [sic] utter indifference to, the safety of human life.
      If you find from the evidence in this case, beyond a reasonable doubt, that Kenyoung Fair, on July 28, 2007, in Choctaw County, Mississippi, that Gerrod Edwards was a human being, and that, Kenyoung Fair, without authority of law did kill Gerrod Edwards, with culpable negligence, by discharge of a fireman, and not in necessary self-defense, then you shall find Kenyoung Fair guilty of manslaughter.
      If the prosecution has failed to prove any one or more of the above-listed elements beyond a reasonable doubt, then you shall find Kenyoung Fair not guilty of manslaughter.


author: ISHEE, J.,

text:
    Bobby Wayne WALLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-01082-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Jan. 21, 2010.

      Herbert H. Klein, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Bobby Wayne Walley and Kala Wal-ley were indicted in the Wayne County Circuit Court in a two count indictment alleging statutory rape and lustful touching of a child. Bobby and Kala both executed a petition to enter a guilty plea to a charge of sexual battery of a child. Bobby was subsequently sentenced to twenty years in the Mississippi Department of Corrections (MDOC), with fifteen years to serve, five years suspended, and three years of supervised probation. Kala was also sentenced to twenty years in the MDOC, with three years to serve, seventeen years suspended, and three years of supervised probation. After sentencing, Bobby filed a motion for re-sentencing pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, which was dismissed. Bobby appeals the dismissal, alleging two points of error:

I. Whether Bobby’s sentence was disproportionate to the crime committed.
II. Whether the circuit court engaged in gender discrimination by imposing a greater sentence on Bobby than on his wife, Kala, for the same crime.

STANDARD OF REVIEW

¶ 2. An appellate court will not disturb a circuit court’s dismissal of a motion for post-conviction relief unless the factual findings are determined to be clearly erroneous. Lockhart v. State, 980 So.2d 336, 338 (¶ 5) (Miss.Ct.App.2008) (citing Pace v. State, 770 So.2d 1052, 1053 (¶ 4) (Miss.Ct.App.2000)). However, questions of law will be reviewed de novo. Id.

FACTS AND PROCEDURAL HISTORY

¶ 3. Bobby and Kala were indicted in the Wayne County Circuit Court for statutory rape and lustful touching of a child. Kala made an agreement with the State and entered a guilty plea petition to the charge of sexual battery of a child, the terms of which included a five-year cap on initial custodial time for any sentence given by the circuit court. Bobby also executed a petition to enter a guilty plea to the charge of sexual 'battery of a child pursuant to an agreement with the State, the terms of which included a fifteen-year cap on initial custodial time for any sentence given by the circuit court. Bobby was subsequently sentenced to twenty years in the MDOC, fifteen years to serve, five years suspended, and three years of supervised probation. Kala was also sentenced to twenty years in the MDOC, three years to serve, seventeen years suspended, and three years of supervised probation. After sentencing, Bobby filed a motion for re-sentencing pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, which was dismissed. It is from this dismissal that Bobby seeks relief.

DISCUSSION

I. Sentence Proportionality

¶ 4. Bobby first argues in his motion for post-conviction relief that the circuit court never made any findings that his role or participation in the crime differed from that of Kala’s role. Bobby argues that there is no justification in the circuit court record to explain the alleged harsh and disproportionate sentence imposed on him in comparison to Kala’s sentence. Bobby points out that the sexual battery crime that both were charged with arose out of the same single occurrence, with both acting in concert to commit the crime. Bobby contends that there is no justification for his receipt of an additional twelve years to serve in the custody of the MDOC. Bobby asks that the order dismissing the motion for post-conviction relief be reversed and rendered or, in the alternative, reversed and remanded. Bobby seeks a sentence consistent with the sentence received by his wife, Kala.

¶ 5. The State first contends that Bobby is procedurally barred from raising the issue of his disproportionate sentence for the first time in his motion for post-conviction relief. Tate v. State, 961 So.2d 763, 767(¶ 13) (Miss.Ct.App.2007). The State also argues that Bobby failed to demonstrate how the length of his sentence is disproportionate to the length of sentences in other jurisdictions for the same crime. The State urges that merely comparing his sentence to the sentence of his wife is insufficient to establish that his sentence was disproportionate. Further, the State contends that Bobby has failed to show in his motion that his fifteen-year jail sentence is grossly disproportionate to the crime of sexual battery. The State argues that the fifteen-year sentence is well within the statutory limits under Mississippi Code Annotated section 97-3-101 (Rev. 2006). The State disputes Bobby’s claim that there was no explanation for the longer sentence he was given to serve than his wife. The State points out that the circuit court explained in its ruling that it had viewed the videotape of the sexual battery of the victim, which helped it determine the appropriate sentences. The State further notes that the circuit court determined that the sentence was appropriate in light of the evidence before the court at the sentencing hearing. Further, the State argues that Bobby was informed of Kala’s five-year cap before he entered his guilty plea. The State points out that the circuit court merely enforced Bobby’s plea agreement with the State.

¶ 6. With regard to sentencing, “a trial judge acts with the broadest of discretion as long as the sentence is within the statutory guidelines.” Vaughn v. State, 964 So.2d 509, 510(¶ 8) (Miss.Ct.App.2006). Further, Mississippi courts have held that “a sentence that does not exceed the maximum term allowed by the statute, cannot be disturbed on appeal.” Edwards v. State, 800 So.2d 454, 468(¶ 45) (Miss.2001) (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). Generally, “a sentence that is within the statutorily defined parameters of the crime, usually is upheld and not considered cruel and unusual punishment.” Nichols v. State, 826 So.2d 1288, 1290(¶ 12) (Miss.2002) (citing Barnwell v. State, 567 So.2d 215, 222 (Miss.1990)). This Court will “review sentences in light of the factors articulated by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Mingo v. State, 944 So.2d 18, 34(¶ 60) (Miss.2006) (citing Nichols v. State, 826 So.2d at 1290(¶ 12)). The three-part test requires a court to analyze: “(I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solent, 463 U.S. at 292, 103 S.Ct. 3001.

¶ 7. Additionally, under Mississippi Code Annotated section 99-39-21(1) (Rev.2007), “[fjailure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal ... shall constitute a waiver thereof and shall be procedurally barred.” In the case at bar, Bobby failed to raise any issue with regard to his allegedly disproportionate sentence at the sentencing hearing. Failure to raise this issue at the sentencing hearing waived Bobby’s right “to raise the issue for the first time in his motion for post-conviction relief.” Moore v. State, 906 So.2d 793, 795(¶ 5) (Miss.Ct.App.2004) (citing Miss.Code Ann. § 99-39-21(1) (Rev. 2000)). Further, Bobby was fully aware that the terms of his plea agreement differed from the terms of his wife’s plea agreement. Bobby received the sentence for which he had bargained with the State, being fully aware that the district attorney would recommend that he receive a fifteen-year cap on the time he would be required to serve. Bobby was also aware that the district attorney would recommend that Kala receive a five-year cap on any time she would be required to serve. Despite knowledge of this disparity, Bobby entered a guilty plea. Here, we find that the fifteen-year sentence is within the statutory guidelines for sexual battery, and Bobby entered into the plea agreement voluntarily. Further, we find that Bobby has failed to establish “a threshold showing of ‘gross disproportionality.’ ” Young v. State, 731 So.2d 1120, 1125(¶ 21) (Miss.1999) (quoting Hoops v. State, 681 So.2d 521, 538 (Miss.1996)). We cannot find that the circuit court erred in dismissing his motion for post-conviction relief.

II. Gender Discrimination in Sentencing

¶ 8. Bobby also argues that his sentence, when compared to Kala’s, amounts to a prima facie case of gender discrimination. Bobby contends that the circuit court failed to explain the reason for the disparate sentences for the same crime. Bobby asserts that the only clear difference between him and his co-defendant is their gender. Therefore, Bobby contends that the circuit court engaged in gender discrimination by imposing a greater sentence on him.

119. The State contends that Bobby never argued an issue of gender discrimination at the sentencing hearing and is, therefore, procedurally barred from raising it for the first time in his motion for post-conviction relief. Further, the State contends that there is no evidence in the record to support Bobby’s allegation of gender discrimination.

¶ 10. “[I]nvidious gender discrimination violates the Equal Protection Clause of the Fourteenth Amendment.” Williams v. Currie, 103 F.Supp.2d 858, 863 (M.D.N.C.2000). “The protection of the clause is ‘applicable not only to discriminatory legislative action, but also to discriminatory governmental action in the administration and enforcement of the law.’ ” Id. The Equal Protection Clause applies to criminal sentencing as well. Id. In addition, “when a person claims invidious discrimination, the claimant must show both that the action (in this case criminal sentencing) had a discriminatory effect and that it was motivated by a discriminatory purpose.” Id. (citing United States v. Bell, 86 F.3d 820, 823 (8th Cir.1996)). The court further stated that:

To establish discriminatory effect, petitioner must show that the disparity in sentences resulted because he was disfavored for being a male or that females receivefd] favorable treatment based on gender. To show discriminatory purpose, petitioner must show that the decision was based, at least partially, on gender. If petitioner shows both discriminatory effect and purpose, the burden then shifts to the State to show that the same sentencing decision would have occurred even if discriminatory purpose had not been considered.

Id. Accoi’dingly, the mere fact that Wal-lers sentence was longer than Kala’s sentence, taken on its own, does not establish gender discrimination.

¶ 11. Furthermore, courts have recognized that disparate treatment of males and females may be warranted in some sexual abuse cases. The United States Supreme Court has found that a statute which criminalized only males who committed the act of illicit sexual intercourse with a minor female did not violate the Equal Protection Clause. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981). In that case, the Supreme Court addressed the issue of “whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female.” Id. at 472, 101 S.Ct. 1200. The Supreme Court held that the statutory rape “statute [was] sufficiently related to the State’s objectives to pass constitutional muster.” Id. at 472-73, 101 S.Ct. 1200. The Supreme Court rationalized the distinction by pointing out that “[b]ecause virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct.” Id. Further, “this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Id. at 469, 101 S.Ct. 1200. “The Equal Protection Clause does not ‘require things which are different in fact ... to be treated in law as though they were the same.’ ” Id. (citations omitted).

¶ 12. In Bobby’s motion for post-conviction relief he fails to expand on his allegation that his sentence was the product of both discriminatory effect and purpose. Bobby merely compares his sentence to that of Kala’s. The circuit court noted at the sentencing hearing that it had reviewed the exhibits and the videotape made by Bobby and Kala of the sexual battery of the victim, and it had considered all of the evidence in handing down their respective sentences. Additionally, both sentences were the product of plea agreements reached with the State prior to sentencing. Therefore, Bobby has failed to meet his burden of proof required to establish gender discrimination, and we affirm the circuit court’s dismissal of his motion for post-conviction relief.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

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


author: GRIFFIS, J.,

text:
    In the Matter of The ESTATE OF Kimberly Denise PEARSON, Deceased. Paula Davis, Administratrix Ad Litem, Appellant, v. Bobby Stokes, Appellee.
    No. 2008-CA-00160-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Jan. 7, 2010.

      Stephen P. Wilson, Joe Clay Hamilton, Meridian, attorneys for appellant.
    Andy Davis, Amanda Trawick Rainey, Meridian, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Bobby Gene Stokes brought an action against Paula Davis and claimed that Davis committed fraud upon the chancery court and that as Kimberly Denise Pearson’s biological father, he was entitled to a portion of the wrongful death proceeds from her estate. The chancellor found that Davis had committed fraud upon the court and awarded Stokes a portion of the proceeds from Pearson’s estate. Aggrieved, Davis now appeals and argues that: (1) the chancellor erred as a matter of law by finding that she committed fraud upon the court, and (2) the chancellor’s findings of fact were manifestly wrong and clearly erroneous. We find no reversible error and affirm.

FACTS

¶ 2. Pearson, a minor, died on February 24, 2003. Pearson’s mother, Davis, filed a wrongful death suit and was appointed as the administratrix ad litem of Pearson’s estate. Davis filed a complaint on April 13, 2006, to determine Pearson’s heirs. In her complaint to determine heirs, Davis swore:

that the name of the father of Kimberly Denise Pearson is unknown to her, but on information and belief, avers that he is now deceased. That your Administra-trix Ad Litem has fully supported the child since birth and no male has ever presented himself or claimed to be the father of Kimberly Denise Pearson and no other person has furnished any support of maintenance during the lifetime of the said Kimberly Denise Pearson.

Davis also ran a notice in the Wayne County News in the statutorily prescribed manner. On May 15, 2006, the chancellor approved the settlement and determined that Pearson had four statutory heirs: (1) Davis; (2) Pearson’s brother, Kedric; (3) Pearson’s sister, Coteasha; and (4) Pearson’s sister, Needra. On May 9, 2007, Stokes filed his petition to reopen Pearson’s estate and set aside the judgment approving the settlement pursuant to Mississippi Rules of Civil Procedure 60(b)(1) and 60(b)(6).

¶ 3. The chancellor held that a motion for error under Rule 60(b)(1) was not timely because: (1) it must be made within six months of the judgment, and almost one year had passed; and (2) Stokes was not an adverse party. However, the chancellor allowed Stokes to proceed with his claim that Davis committed a fraud upon the court under Rule 60(b)(6).

¶ 4. Stokes and Davis lived together for three years after Pearson was born in 1985. However, they ceased to live together after the birth of their daughter, Coteasha, because Stokes did not think that Pearson and Coteasha looked alike which led Stokes to believe that Pearson was not his daughter.

¶5. During the time Stokes and Davis lived together, Pearson lived mainly with Judge Tobie Bartee and his family. Judge Bartee testified that he met Davis at the doctor’s office. He asked Davis who took care of her child, and she responded that she left Pearson with anyone she could find. Soon after Judge Bartee and Davis met, Pearson began living with the Bar-tees.

¶ 6. When she was one year old, Pearson was diagnosed with rheumatoid arthritis. The record is not clear as to the cause, but at the same time, Pearson stopped walking and was crippled for life. The Bartees supported Pearson until she moved with her mother to Wayne County in 1996. Stokes often alleged that Judge Bartee was Pearson’s father.

¶ 7. After Davis and Stokes separated in 1988, Davis filed for welfare benefits. Davis filed an affidavit and affirmation that Stokes was the father of Kedric, Pearson, and Coteahsa; and the State of Mississippi filed a complaint against Stokes to determine paternity and for child support. The Chancery Court of Clarke County ordered Stokes to pay Davis child support. Stokes signed the judgment that adjudicated him the father of all three children and ordered him to pay child support. Stokes paid approximately two-thirds of the child support that he was required to pay. According to Davis, Stokes believed he only owed her for two children — Kedric and Coteasha — so he only paid two-thirds of the support. Davis admitted that she constantly kept after Stokes that he needed to support and help all three children.

¶ 8. Davis claimed that she was under duress when she filed for welfare benefits and did not know what she was signing. She alleged that the agency must have put paternity information in after she signed the paperwork. Davis also denied knowing that the Mississippi Department of Human Services “took Stokes to Court or anything pertaining to those proceedings.”

¶ 9. Davis swore during the wrongful death suit that Pearson’s father’s name was unknown to her. Davis explained that since Pearson was carried to full-term, she believed that Pearson’s date of birth excluded Stokes as the father, as Davis was involved with another man at the time of Pearson’s conception.

¶ 10. Stokes visited Pearson at the hospital shortly before she died, attended her funeral, and was listed as her father in the obituary. A DNA test confirmed that Stokes was in fact Pearson’s natural father.

STANDARD OF REVIEW

¶ 11. “The decision to vacate a previous order under Rule 60(b) of the Mississippi Rules of Civil Procedure is a matter left to the sound discretion of the trial court, and the only question asked on appeal is whether there has been an abuse of that discretion.” Tirouda v. State, 919 So.2d 211, 213(¶ 6) (Miss.Ct.App.2005) (citing Accredited Sur. and Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988)).

ANALYSIS

1. Did the chancellor err as a matter of law by finding that Davis committed fraud upon the court?

¶ 12. Davis claims that she could not have committed fraud upon the court as a matter of law. Stokes responds that the chancellor was within his discretion when he found that Davis committed fraud upon the court.

¶ 13. At the outset, we recognize that Stokes was not a party to the original action; therefore, his claim was not properly brought under Rule 60(b). Mississippi Rule of Civil Procedure 60(b) states that:

the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

(Emphasis added).

¶ 14. Rule 60(b)(6) is a catch all provision that includes fraud upon the court. Stokes was not a party, and his claim for fraud upon the court should have been filed as an independent action as explained in Rule 60(b)(6). However, we will treat his claim as though it was brought as an independent claim.

¶ 15. “Fraud upon the court should embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetuated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Tirouda, 919 So.2d at 216(¶ 11) (citing 7 Mooke, Federal Practice P 60.33 at 515 (1971)).

¶ 16. Relief “based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.1989).

¶ 17. Davis argues that the failure of a party to be fully truthful cannot constitute fraud upon the court and cites Wilson in support of her argument. In Wilson, the Fifth Circuit Court of Appeals stated that “[t]he mere nondisclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment.” Id. at 872. While a party’s nondisclosure may not constitute fraud upon the court, “an administratrix is under an affirmative duty to disclose to [the court] the existence of known potential heirs and claimants.” Smith v. Estate of King, 501 So.2d 1120, 1123 (Miss.1987). A party’s nondisclosure of a fact and a party’s failure to perform an affirmative duty are not one and the same. This Court can find no support for Davis’s position that an administratrix’s violation of her affirmative duty to inform the court of potential heirs and claimants cannot, as a matter of law, constitute fraud upon the court.

¶ 18. Davis correctly states that “courts have uniformly held that the perjury of a single witness is not sufficient to trigger relief for fraud upon the court.” Tirouda, 919 So.2d at 216(¶ 12). Davis’s adult son, Kedric, testified that Stokes planned to hire his own attorney to pursue a wrongful death suit after Davis’s suit was over. This is evidence that Kedric knew Stokes believed that he was Pearson’s father. However, Davis and Kedric both signed the petition to compromise and settle the wrongful death claim, which stated that the sole surviving heirs and wrongful death beneficiaries of Pearson were Davis, Kedric, Coteasha, and Needra.

¶ 19. Next, we address Stokes’s claim as an action under Rule 60(b). Stokes was not made a party to the original action because of Davis’s misrepresentations to the trial court. Because Stokes was not a party to the original action, he cannot seek relief under Rule 60(b) which specifically states that “the court may relieve a party or his legal representative from a final judgment, order, or proceeding.” (Emphasis added). But Rule 60(b) “does not limit the power of a court to entertain an independent action ... to set aside a judgment for' fraud upon the court.” M.R.C.P. 60(b)(6). Stokes should have brought his claim as an independent action.

¶ 20. “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993) (citing Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)). Stokes’s claim could have been brought as an independent action, and the jurisdiction, court, and proof required would have been the same as the action under Rule 60(b)(6). Therefore, we will treat this matter as though it was brought as an independent action. Accordingly, we find that this matter was properly before the trial court and will now address the merit of Davis’s assignment of error.

2. Were the chancellor’s findings of fact manifestly wrong and clearly erroneous?

¶ 21. The chancellor found that Davis committed fraud upon the court by swearing that: (1) the father’s name was unknown to her; (2) no one besides herself had ever supported Pearson; and (3) no one ever held himself out to be her father. Davis contends the chancellor’s findings of fact are not supported by the evidence. Stokes responds that the evidence is indisputable that Davis knew Stokes was Pearson’s father.

¶ 22. Judge Bartee testified that he believed Stokes was Pearson’s father and that Pearson had traveled with the Bar-tees to Jackson, Mississippi on occasion for Pearson’s medical treatment. When Davis filed for welfare benefits, she listed Stokes as the natural father of all of her children, including Pearson. In response, the State of Mississippi filed a complaint against Stokes, and the Chancery Court of Clarke County adjudicated Stokes to be the father of all three of Davis’s children and ordered him to pay child support. Stokes paid child support under this order, and Davis testified that she “kept after” Stokes about his child support obligation to all three children.

¶ 23. In an attempt to show that Stokes knew about the wrongful death suit and had waived all his rights, Davis testified that she had discussed the lawsuit with him, and they had discussed whether her original attorneys would be able to collect any money. According to Davis, Stokes said he was going to get his own attorneys and sue when she was finished. However, the critical point is that Davis failed to explain why Stokes would file a wrongful death claim for Pearson unless he thought he was her father.

¶ 24. Furthermore, Stokes visited Pearson in the hospital shortly before she died, attended her funeral, and was listed as her father in the obituary. The chancellor was within his discretion when he found, based on these facts, Davis had committed fraud on the court; accordingly, we find that this argument is without merit.

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

LEE AND MYERS, P.JJ., BARNES, 1SHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. KING, C.J., AND IRVING, J., CONCUR IN RESULT ONLY.


author: LEE, P.J.,

text:
    George Dunbar PREWITT, Jr., Appellant, v. P. Scott PHILLIPS, Appellee.
    No. 2008-CP-01464-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Oct. 6, 2009.
    Certiorari Denied Jan. 7, 2010.
    George Dunbar Prewitt, Jr., pro se.
    P. Scott Phillips, pro se.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. George Dunbar Prewitt, Jr., filed a defamation action against P. Scott Phillips in the Circuit Court of Washington County. The alleged defamatory statements were made in connection with Phillips’s representation of Dr. David Lee in a civil action styled George Dunbar Prewitt v. David Howell Lee, cause number 2003-233, filed in the Washington County Circuit Court.

¶ 2. Phillips filed a motion pursuant to Mississippi Rule of Civil Procedure 12(b)(6) to dismiss the complaint for defamation filed by Prewitt. The trial court granted Phillips’s motion to dismiss, finding that Prewitt’s complaint failed to state a cause of action upon which relief could be granted because the alleged defamatory statements were made in the course of a judicial proceeding and, therefore, were privileged. Prewitt now appeals, asserting that the trial court erred in granting Phillips’s motion to dismiss.

FACTS

¶ 3. Both parties are licensed attorneys in the State of Mississippi. Prewitt represented himself, and Phillips represented Dr. Lee in the case in which Prewitt alleges the defamation occurred. During the pendency of Prewitt v. Lee, Phillips made a motion to dismiss the complaint against Dr. Lee and a motion for sanctions against Prewitt for violations of Mississippi Rule of Civil Procedure 11(b) and the Lawyer’s Creed. To support his motion for sanctions, Phillips attached docket sheets from another civil action in the United States District Court for the Northern District of Mississippi in which Prewitt was assessed sanctions and attorney’s fees.

¶ 4. The attachment of the docket sheets by Phillips led Prewitt to file the defamation action. Prewitt’s basis for his complaint was that although sanctions were filed against him in the district court, the sanctions were not due to his behavior; rather, the sanctions were retaliation by certain members of the federal judiciary after he pointed out to them “a little-noticed, 1973 Voting Rights Act violation” that made them appointments as judges illegal. Prewitt also takes issue with Phillips’s response to a motion that he filed in which Prewitt alleges that Phillips characterized his filing as “incoherent,” “nonsensical,” “incomprehensible,” and “less than candid.”

STANDARD OF REVIEW

¶ 5. A motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the complaint and raises an issue of law. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995); Taylor v. S. Farm Bureau Cas. Co., 954 So.2d 1045, 1047(¶ 3) (Miss.Ct.App.2007). This Court conducts a de novo review of questions of law. Noblitt, 650 So.2d at 1342. “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. “[T]he decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed unless that discretion is abused.” State Indus., Inc. v. Hodges, 919 So.2d 943, 945(¶ 2) (Miss.2006).

DISCUSSION

¶ 6. Prewitt argues that the docket sheet filed by Phillips which shows that sanctions were filed against Prewitt had no relevance to the underlying action and, therefore, should have been excluded. Phillips asserted in his answer to Prewitt’s complaint that the documents were privileged because they were part of a judicial proceeding. In the alternative, Phillips asserted truth as a defense to defamation. Prewitt argues that Phillips cannot use the defense of truth because the claims against him were false. Specifically, Prewitt argues that the sanctions were illegal retaliation by certain members of the federal judiciary after he told them that their appointment as judges was in violation of the Voting Rights Act of 1973.

¶ 7. “Statements made in connection with judicial proceedings, including pleadings, are, if in any way relevant to the subject matter of the action, absolutely privileged and immune from attack as defamation .... ” McCorkle v. McCorkle, 811 So.2d 258, 266(¶ 18) (Miss.Ct.App.2001). However, “[tjhere is precedent indicating that the presence of malice prohibits the assertion of judicial privilege.” Id.

¶ 8. Because Phillips attached the docket sheets in support of a motion in connection with a judicial proceeding, we find that the documents filed were privileged and immune from a complaint for defamation. The docket sheets were related to Phillips’s action because Phillips’s claim was that Prewitt should be sanctioned pursuant to Rule 11(b), and the docket sheets reflected that Prewitt had been sanctioned pursuant to Rule 11 in another action by another court. The docket sheets were public record, and there is no indication that they were filed by Phillips with malice.

¶ 9. Therefore, we find that the trial court did not abuse its discretion in granting Phillips’s motion to dismiss.

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

MYERS, P.J., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ, CONCUR. BARNES, J., CONCURS IN RESULT ONLY. KING, C.J., AND IRVING, J., NOT PARTICIPATING.


author: KING, C.J.,

text:
    GREEN TREE SERVICING, LLC, Appellant, v. Linda Kay DUKES, Appellee.
    No. 2009-CA-00422-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.

      Jeffrey Dale Rawlings, Madison, WI, Jon Jerdone Mims, Madison, attorneys for appellant.
    William Ernest Murray, Natchez, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Green Tree Servicing, LLC (Green Tree) appeals a decision by the Adams County Chancery Court refusing to set aside a tax sale for failure to provide proper statutory notice to the lienholder. Aggrieved, Green Tree appeals arguing that: (1) the chancellor erred in failing to set aside a tax sale where no sheriffs notice was attempted; (2) the chancellor erred in failing to set aside a tax sale where the alleged lienholder’s notice was defective; (3) the chancellor erred in failing to set aside the tax sale due to the clerk’s failure to strictly follow the tax-sale-notification procedure. Because Green Tree did not receive the proper statutory notice of the tax sale and right of redemption, this Court finds error, and reverses and renders .the decision of the Adams County Chancery Coui't.

FACTS

¶ 2. On August 28, 2000, Francis Sullivan purchased from R. Garrett Stephens, the property situated in Adams County, Mississippi described as:

All of Lot Number Seven (7) of the Passman Subdivision, as the same is shown, depicted and delineated on a map or plat of said Subdivision prepared by Richard T. Logan, P.E., dated July 1, 1983[,] and filed for record in Plat File Cabinet “A” Slide Number A-163, of the Plat records of Adams County, Mississippi to which special reference is hereby made for all purposes.
Being all and the same property conveyed by J.C. Passman and Marcia H. Passman unto Marlie R. Pevey and Vera A. Pevey by Deed dated the 19th day of August, 1983[,] and recorded in Deed Book 16-B at Page 168, of the Deed Records of Adams County, Mississippi.

¶ 3. Sullivan borrowed money from Con-seco Bank, Inc., to purchase the property. The loan was secured by a deed of trust on the aforementioned real property. Conse-co Bank, Inc., located at 2825 East Cottonwood Parkway, Suite 230, Salt Lake City, Utah 84121, assigned all its rights, title, and interest in the deed of trust to Conse-co Finance Servicing Corporation located at 1400 Turbine Drive, Rapid City, South Dakota 57703. On August 27, 2001, the land was sold by the Adams County tax collector in a tax sale to Mississippi Land Co., Inc., for delinquent ad valorem taxes for the year 2000.

¶ 4. Pursuant to Mississippi Code Annotated section 27-43-3 (Supp.2009), in 2003, the chancery clerk attempted to provide the owner(s) and lienholder(s) notification of the tax sale and their right of redemption. Section 27-43-3 states, in part, that:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
If said reputed owner is a nonresident of the State of Mississippi, then the clerk shall mail a copy of said notice thereto in the same manner as hereinabove set out for notice to a resident of the State of Mississippi, except that personal notice served by the sheriff shall not be required.
Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as hereinabove set out. If personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record....

¶ 5. On February 26, 2003, the Adams County Chancery Clerk, by certified mail, sent to Sullivan, what was styled “Notice of Forfeiture.” However, that notice, which was postmarked March 14, 2003, was returned not deliverable as addressed, unable to forward. That notice, as sent, reads:

NOTICE OF FORFEITURE
NO. 11434 2000
STEPHENS GARRETT R.
C/O FRANCIS SULLIVAN
23 PASSMAN RD
NATCHEZ MS 39120
You will take notice that
T & L BEING LOT 7 OF PASSMAN S/D
20 O PG 464 49-52
S/T/R BLOCK 07F
PARCEL: 0137 0001 0007F
RECEIPT NUMBER: 13407
lands assessed to you or supposed to be owned by you, was, on 8/27/2001 [,] sold to MISSISSIPPI LAND COMPANY INC for the county taxes of 2000 and that the title to said land will become absolute in MISSISSIPPI LAND COMPANY INC unless redemption from said tax sale be made on or before 8/27/2003. Witness my hand and seal of office, this day of 2/26/2003.
Thomas O’Beirne
Adams County Chancery Clerk

¶ 6. A copy of this notice was sent by certified mail to Conseco Finance Service Corporation, 1400 Turbine Drive, Rapid City, South Dakota 57703. The returned delivery receipt indicates that Lana Aker signed for the letter on April 2, 2003. There is no evidence in the record indicating the identity of Aker or her association with Conseco Finance Service Corporation.

¶ 7. On July 14, 2003, and July 25, 2003, the clerk caused to be published in The Natchez Democrat, a public newspaper of the county, a description of the aforementioned property as land having been sold for delinquent county and city taxes for year 2000. The advertisement, as published, reads as follows:

STEPHEN GARRETT R
T & I BEING LOT 7 OF PASSMAN S/D
20 O PG 464 49-52
Bloc 07F
Parcel 0137 0001 0007F 11434 Receipt 13407

¶ 8. On September 3, 2003, the chancery clerk then filed an affidavit indicating that further search and inquiry was conducted to locate and notify the owner(s) or lien-holder(s) of the tax sale and of the right of redemption. The affidavit indicated that additional efforts to locate and notify the owner(s) and lienholder(s) of their right to redemption included the following: mailed first notice to landowner, gave first notice to the sheriff, mailed first notice to lien-holder, checked the telephone directory, checked the city directory, checked with tax assessor, and checked old tax receipts.

¶ 9. After receiving no response from the landowner(s) or lienholder(s), on October 15, 2003, a tax deed was issued to Mississippi Land Co., Inc. On February 17, 2004, Mississippi Land Co., Inc., conveyed the property to Linda Kay Dukes by quitclaim deed. On April 30, 2004, Sullivan conveyed by a quitclaim deed her interest in the real property to Dukes. On July 9, 2004, Green Tree filed a complaint to set aside and void the tax sale. On February 14, 2008, at the conclusion of trial, the chancellor took the case under advisement. On February 25, 2009, the chancellor entered a final judgment denying relief to Green Tree and dismissing the complaint. Green Tree timely appealed.

ISSUES

Whether the trial court erred in failing to set aside a tax sale where no sheriffs notice was attempted. Whether the trial court erred in failing to set aside a tax sale where the lienholder’s notice was defective. Whether the trial court erred in failing to set aside the tax sale due to the chancery clerk’s failure to strictly follow the tax-sale-notification procedure.

STANDARD OF REVIEW

¶ 10. “A chancellor’s findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Nichols v. Funderburk, 883 So.2d 554, 557(¶ 7) (Miss.2004).

ANALYSIS

¶ 11. While Green Tree has presented three assignments of error, the core issue before this Court is whether the tax sale was valid as to the lienholder. Green Tree contends that the tax sale should be held invalid and set aside because the clerk: (1) failed to provide personal service, (2) failed to strictly comply with tax-sale procedures, and (3) failed to mail the correct statutorily-proscribed notice. Green Tree asserts that the book and page number for the deed of trust or assignment and lienholder’s name were not found on the face of the notice.

¶ 12. Mississippi Code Annotated section 27-43-1 (Rev.2006) mandates that the chancery clerk provide notice “within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption” to those persons having an interest in real property sold for ad valorem taxes. The chancery clerk has an affirmative duty under Mississippi Code Annotated section 27-43-5 (Rev.2006) to examine the records of mortgages and deeds of trust maintained in his office, for a period of six years prior to the date of a tax sale and to identify lienhold-ers with an interest in any property which was sold for delinquent taxes. After conducting the search the chancery clerk uses a form and the language set out in section 27-43-5 to send to the lienholder of the real property sold delinquent taxes. That statutorily-mandated notice reads as follows:

State of Mississippi, To_, County of_ You will take notice that_(here describe lands) assessed to, or supposed to be owned by_ was on the_day of_, 2_, sold to_ for the taxes of_(giving year) upon which you have a lien by virtue of the instrument recorded in this office in_Book_, page_, dated_, and that the title to said land will become absolute in said purchaser unless redemption from said sale be made on or before the _ day of May of 2_ This_day of_, 2_.. Chancery Clerk of_County, Miss.

¶ 13. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowner.” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). “Any deviation from the statutorily mandated procedure renders the tax sale void.” Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003) (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)). In the present case, there is a clear deviation from the statutorily-mandated notice. The notice sent to the lienholder was merely a duplicate of that notice sent to the property owner. The notice, which was sent to the lienholder, did not state it was in fact intended for the lienholder, as opposed to having been sent in error. The notice was directed to R. Garrett Stephens, c/o Francis Sullivan. The notice did not identify any interest purportedly held by the lienholder in the property that was the subject of the notice. The notice did not indicate that Green Tree, or any other entity might hold or be the beneficiary of a deed of trust on the subject property. Nor did the notice identify the source of any interest purportedly held by the lienholder in the subject property. The notice did not state the date of any document creating an interest in the lienholder, nor did it state the book and page number where any document was recorded.

¶ 14. The statutorily-mandated notice is intended to without equivocation advise a party that he has a specific interest which requires his attention. The attempted notice in this case did not meet that test and is, therefore, invalid.

¶ 15. Because the chancery clerk failed to provide the lienholder with the statutorily-mandated notice, this Court is obligated to reverse and set aside the tax sale as it pertains to any interest in the subject property held by Green Tree.-

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF ADAMS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. LEE, P.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.

      . Green Tree Servicing, LLC has successor interest to Conseco Finance Servicing Corporation. Green Tree Financial Servicing, initially called Green Tree Acceptance, was sold to Conseco Finance Servicing Corporation. Conseco Finance Servicing Corporation later filed bankruptcy, and Green Tree Financial Servicing went back up for sale. Green Tree Financial Servicing was sold to investors who renamed the company Green Tree Financial Services. On June 9, 2003, Green Tree Financial Services was converted to Green Tree Servicing, LLC.