author: BARNES, J., FOR THE COURT:

text:
    Keith MAGEE a/k/a Keith Quinn a/k/a Dude, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00532-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEY FOR APPELLANT: KEITH MAGEE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Keith Magee, appearing pro se, appeals the Marion County Circuit Court's summary dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 3, 2004, Magee was indicted by a Marion County grand jury on the charge of capital murder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2014). On January 18, 2008, Magee entered a plea of guilty to capital murder as an accessory before the fact, and was sentenced to serve a term of life imprisonment without eligibility for parole in the custody of the Mississippi Department of Corrections.

¶ 3. On September 24, 2010, Magee filed his first PCR motion, claiming that his life sentence without parole was illegal. The trial court entered an order denying relief, and Magee appealed. In November 2013, this Court issued a mandate dismissing Magee's appeal for failure to file a brief.

¶ 4. Magee filed his second PCR motion on June 7, 2016, alleging that his indictment failed to charge an essential element for capital murder (intent to cause the death of the victim) and ineffective assistance of counsel because his attorney failed to advise him of his allegedly defective indictment. Following this motion, on October 17, 2016, Magee filed a document entitled "Amended Claims" to his PCR motion. In this pleading, he raised two more ineffective-assistance-of-counsel claims: failure to seek dismissal of his case due to a speedy-trial violation, and an involuntary plea and denial of due process because his attorneys did not seek a competency examination and hearing before Magee's guilty plea was accepted.

¶ 5. On January 6, 2017, the trial court entered an order summarily dismissing Magee's motion, finding it time-barred and successive, as well as without merit. However, the trial court only addressed the claims raised in Magee's June 2016 PCR motion, and not the "amended claims." The trial court accordingly amended its order, addressing his two "amended claims," and found them without merit as well. Magee timely appealed, apparently abandoning his defective-indictment claim, but arguing against the procedural bar. He also claims he should have been afforded a competency and evidentiary hearing and that he suffered ineffective assistance of counsel related to the speedy-trial issue.

STANDARD OF REVIEW

¶ 6. This Court reviews a circuit court's denial or dismissal of a PCR motion for an abuse of discretion. This Court "will not disturb the trial court's factual findings unless they are clearly erroneous." Purvis v. State , 240 So.3d 468, 470 (¶ 7) (Miss. Ct. App. 2017). Questions of law, however, are reviewed de novo. Id.

ANALYSIS

¶ 7. We shall discuss the merits of the issues Magee raises on appeal; however, as the trial court ruled, Magee's PCR motion is both time-barred and successive, as will be discussed first.

I. Procedural Bars

¶ 8. Magee first argues that his PCR motion is excepted from the procedural bar under Rowland v. State , 42 So. 3d 503 (Miss. 2010), as his claims allegedly affect fundamental constitutional rights.

¶ 9. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Further, a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). This Court has upheld time- and successive-writ bars in capital murder post-conviction proceedings. See Randall v. State , 148 So.3d 686, 688 (¶¶ 7-8) (Miss. Ct. App. 2014). This PCR motion is Magee's second one relating to his capital-murder conviction and was filed over eight years after his judgment of conviction on January 18, 2008. Accordingly, his PCR motion is procedurally barred.

¶ 10. However, Magee attempts to overcome the procedural bar by claiming his motion is excepted due to the intervening decision of Rowland . In that case, the Mississippi Supreme Court held that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland , 42 So.3d at 506 (¶ 9). However, " 'the mere assertion of a constitutional right violation' does not trigger the exception." Evans v. State , 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013). The claim must at least appear to have some basis of truth. Fundamental rights excepted from procedural bars have included ineffective assistance of counsel in death-penalty post-conviction cases, illegal sentences, and double jeopardy. Smith v. State , 149 So.3d 1027, 1032 (¶ 10) (Miss. 2014) (overruled on other grounds by Pitchford v. State , 240 So.3d 1061 (Miss. 2017) ). In this case, Magee's ineffective-assistance-of-counsel claim does not implicate a fundamental-constitutional-rights violation.

¶ 11. Moreover, although Magee's claim that the trial court should have conducted a competency hearing before accepting his guilty plea could implicate a fundamental constitutional right, Magee fails to present any evidence that such a hearing was warranted. Because Magee presents no valid exception to the procedural bars, this issue is without merit.

II. Competency Hearing

¶ 12. Magee argues his constitutional rights were violated because the trial court failed to conduct a competency determination before he entered his plea. Uniform Rule of Circuit and County Court 9.06 states in part: "If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination ...." "The defendant bears the burden of proof to show by substantial evidence that his competency to stand trial is in question." Higginbotham v. State , 122 So.3d 1205, 1210 (¶ 14) (Miss. Ct. App. 2013). Magee fails to meet his burden.

¶ 13. Here, according to the trial-court docket, neither Magee nor his attorney requested a competency determination. Moreover, our review of the record indicates such a determination was not warranted. Although the entire plea-hearing transcript is not included in the record, the trial court did attach the pertinent portions of the sentencing transcript following Magee's guilty plea pertaining to his competency. Magee stated he understood the proceedings. Further, his two attorneys attested to his competency, as did Magee's mother and brother, who executed a "certification of counsel" that he had been apprised of his rights and was "very knowledgeable of what he's doing." He testified that he was not under the influence of drugs or alcohol, had no emotional or physical problems that would prevent him from understanding the proceedings, could read and write, and understood the petition and charge against him. Accordingly, the record reflects that Magee was competent to stand trial, and the trial court did not abuse its discretion in failing to order a sua sponte Rule 9.06 competency hearing.

III. Evidentiary Hearing

¶ 14. Next, Magee argues that the trial court erred in dismissing his PCR motion without holding an evidentiary hearing. "The trial court has 'considerable discretion' in determining whether to grant an evidentiary hearing." Whatley v. State , 123 So.3d 461, 471 (¶ 33) (Miss. Ct. App. 2013). Not every PCR motion must be afforded a full adversarial hearing. "The movant must prove, through affidavits or otherwise, the potential existence of such facts that, if proven at the hearing, would entitle him to relief." Id. "[A] trial court may summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it is clear that the petitioner is not entitled to relief ...." State v. Santiago , 773 So.2d 921, 923-24 (¶ 11) (Miss. 2000) (citing Miss. Code Ann. § 99-39-11(2) (Rev. 2015) ). Magee did not demonstrate any potential facts which might have entitled him to relief. Therefore, the trial court did not err in denying an evidentiary hearing.

IV. Ineffective Assistance of Counsel

¶ 15. Magee was appointed two attorneys. He argues that they were ineffective for failing to move for a dismissal of his case due to lack of a speedy trial. He also contends that they improperly coerced him to plead guilty and failed to request a competency hearing before he pleaded guilty.

¶ 16. Under the Strickland test, in order to succeed on an ineffective-assistance-of-counsel claim, the defendant must show that his trial counsel's performance was deficient, and he was prejudiced by that deficiency. McCollum v. State , 81 So.3d 1191, 1192-93 (¶ 8) (Miss. Ct. App. 2012) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "In the context of a guilty plea, the defendant must show that his 'counsel's errors proximately resulted in the guilty plea and, but for counsel's error, the defendant would not have entered the guilty plea.' " Wash v. State , 218 So.3d 764, 766 (¶ 6) (Miss. Ct. App. 2017) (quoting McCollum , 81 So.3d at 1193 (¶ 8) ). "The defendant 'must show unprofessional errors of substantial gravity,' and allege such facts with 'specificity and detail.' " Id. at 766-67 (¶ 6). "[T]here is a strong rebuttable presumption that counsel's conduct falls 'within the wide range of reasonable professional assistance.' " Id. at 767 (¶ 6).

¶ 17. In Barker v. Wingo , the United States Supreme Court established a four-part balancing test to determine whether the right to a speedy trial was violated: "length of delay, reasons for delay, whether the defendant asserted his right to a speedy trial, and whether the defense suffered any prejudice from the delay." Johnson v. State , 68 So.3d 1239, 1241 (¶ 6) (Miss. 2011) (citing Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ). "[A] delay of eight months or longer is presumptively prejudicial." Id. at 1242 (¶ 7) (citing Smith v. State , 550 So.2d 406, 408 (Miss. 1989) ). Magee was arrested in October 2004, indicted on December 3, 2004, and entered a guilty plea on January 18, 2008. Our review of the trial-court docket shows that Magee's trial was continued approximately nine times; however, the reasons for the delays are not apparent from the docket. Although the delay in this case does raise a presumption of prejudice, Magee has not provided any evidence of actual prejudice such as loss of witnesses or evidence, dimness of witness memories, or stale investigation. See Johnson , 68 So.3d at 1242-43, 1245 (¶¶ 6, 11, 18). Further, Magee did not assert his right to a speedy trial; in the record before us, an argument regarding a speedy trial is not mentioned until post-conviction proceedings, and even then it was in his "amended claims" to his second PCR motion. Asserting a violation of a speedy trial is not the same thing as asserting a right to a speedy trial. Franklin v. State , 136 So.3d 1021, 1035-36 (¶ 54) (Miss. 2014). Accordingly, the record before us does not indicate a motion to dismiss by Magee's counsel would have been successful.

¶ 18. Further, Magee provides no proof that his attorneys coerced him into pleading guilty or that his plea is invalid. Indicted for capital murder, Magee was eligible for the death penalty. Counsel's strategy to work out a guilty plea in exchange for a life sentence and advice to him to take the plea would hardly be considered ineffective assistance. Finally, as we find no merit to Magee's competency argument, we cannot say his attorneys were ineffective for failure to move for a competency hearing. This issue is without merit.

¶ 19. We therefore affirm the circuit court's summary dismissal of Magee's PCR motion.

¶ 20. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect at the time of Magee's plea, Rule 9.06 is applicable to his case.


source: Caselaw Access Project

author: LEE, C.J., FOR THE COURT:

license: Public Domain

text:
    William Frances RYAN and Pamela Reynolds Ryan Appellants v. David RAY and Nancy Ray Appellees
    NO. 2017-CA-00365-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEY FOR APPELLANTS: PATRICK W. KIRBY
    ATTORNEYS FOR APPELLEES: DONALD ALAN WINDHAM, Jackson, MATTHEW WARD MCDADE, Gulfport
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. This appeal arises from a dispute between adjoining landowners, William and Pamela Ryan, and David and Nancy Ray, concerning an easement created in 1995-prior to their interest or ownership in the properties at issue. We must determine whether the chancellor erred when she (1) found that the deed granting the easement was ambiguous and (2) resolved the ambiguity in favor of the Rays, finding a perpetual easement for ingress and egress over the Ryans' property. We affirm these findings as set forth below.

FACTS

¶ 2. In 2011, the Ryans purchased their beachfront property in Bay St. Louis, Mississippi, via a warranty deed from David and Mary Baria. The warranty deed specified that the conveyance was made subject to a "reserved easement for Ingress and Egress, on, over and across the following described property," referencing a driveway alongside their property next to an adjacent rear lot owned by the Rays. The Rays had purchased their property in 2003 via a warranty deed which conveyed rights to the easement driveway over the adjacent front lot now owned by the Ryans. In 2005, Hurricane Katrina destroyed the Rays' residence situated on their property. Subsequently, the Rays moved out of Mississippi but retained ownership of the lot and continued use of the driveway as needed for lawn care and other routine maintenance on the property.

¶ 3. Sometime in 2013, the Rays listed their property for sale. The Ryans, having built a home on their property since purchasing it in 2011, noticed the real estate sign on the adjacent back lot, purporting to offer for sale a portion of the Ryans' property. The Ryans had a title examination performed on their property which revealed an easement reserved in a 1995 warranty deed through their parcel for access to the adjacent back lot owned by the Rays. The 1995 warranty deed specifically "retain[ed] an easement for the purposes of ingress and egress on, over and across the above mentioned property to be used only for access to the chapel." The "chapel" was a colloquial term referencing a building that had been situated on a once larger, common parcel, which encompassed both the Ryan and the Ray properties and contained numerous structures. At all times since the 1995 warranty deed, the "chapel" building was used as a residence-not as a chapel used for religious services of any kind. The "chapel" residence was present when the Rays purchased their property in 2003 and was used as the Rays' home until it was destroyed by Hurricane Katrina.

¶ 4. Both the Ray property and the Ryan property originated from a once single parcel owned by the Kingsley House and New Orleans Day Nursery, a New Orleans charity. In 1993, Edwin and Joy Hyde acquired the property by warranty deed. Accompanying the warranty deed to the Hydes was a survey that showed a number of structures on the property, including the "Old House," "Chapel," and multiple "Camp" and "Bath" houses. In 1995, the Hydes separated the property, conveying a beachfront parcel (the Ryan property) to N.B. and Audrey Tournillon. It was at this time that the Hydes created the 1995 easement "for the purposes of ingress and egress on, over and across the above-mentioned property to be used only for access to the chapel ...." When the Hydes created this easement, the building referred to as the "chapel" was actually used as a residence and not as a chapel for religious services. In fact, at no time since the 1995 warranty deed was the "chapel" ever used for any religious ceremonies, and at all relevant times it was used as a residence.

¶ 5. In 1997, the Hydes further subdivided the property and conveyed the property now owned by the Rays to Curtis Johnson via warranty deed. This deed conveyed to Johnson "an easement for ingress and egress, over and across the following described land ...." The easement in the 1997 warranty deed described the same property (the Ryan property) as described in the 1995 warranty deed. In 2003, Johnson conveyed the property to the Rays via warranty deed. This 2003 warranty deed purported to convey a fee simple interest in the property previously described as an easement in both the 1995 and 1997 warranty deeds.

¶ 6. Following the title examination which revealed the 1995 easement, the Ryans placed two physical barriers to block the driveway: one at the beginning of the Ryans' driveway (which they opened as needed only for their own use) and the other at the back of the driveway adjacent to the Rays' lot. The Ryans then filed a complaint to remove any cloud of title, arguing that the 2003 warranty deed from Johnson to the Rays attempted to convey a driveway used to access the Rays' property and that the driveway portion of land was actually an easement which had previously terminated when the chapel was destroyed. Additionally, the Ryans sought injunctive relief to prohibit the Rays or their agents from advertising marketable title to the portion of land in question. The Rays responded asserting a counterclaim for a declaratory judgment that a perpetual easement for ingress and egress had been created by one of the deeds, or in the alternative, that they had established an easement by prescription.

¶ 7. Following a trial, the chancellor found that the 1995 warranty deed containing the express easement contained a latent ambiguity because of its use of the term "chapel." The chancellor went on to resolve the ambiguity and further found that the easement was created with the intent to establish a perpetual easement for ingress and egress onto the Ray property. The chancellor also made an alternative finding that the Rays had established a prescriptive easement. The Ryans now appeal.

DISCUSSION

¶ 8. The Ryans first argue the chancellor erred by finding the term "chapel" rendered the easement ambiguous. The Ryans further argue that even if the easement was ambiguous, the court erred by failing to consider parol evidence to resolve the ambiguity and further erred by altering the nature of the easement from a specific-purpose easement to a perpetual easement for ingress and egress.

¶ 9. "Our standard of review of a determination of ambiguity, or the lack thereof, of a [deed], and its subsequent interpretation is two-tiered." Crisler v. Crisler , 963 So.2d 1248, 1251 (¶ 5) (Miss. Ct. App. 2007) (citing Tupelo Redevelopment Agency v. Abernathy , 913 So.2d 278, 283 (¶ 12) (Miss. 2005) ). "Whether a [deed] is ambiguous is a question of law which we review de novo." Id. "If an ambiguity is found to exist, its interpretation is a matter for the trier of fact[,] which we review under a substantial evidence/manifest error standard." Id.

I. Ambiguous Easement

¶ 10. "[A]n easement may be acquired by express grant, implied grant (implication), or prescription ...." Favre v. Jourdan River Estates , 148 So.3d 361, 368 (¶ 20) (Miss. 2014) (internal quotation mark omitted) ). "[I]n the case of an express grant, the fact of the creation of the easement, as well as its nature and extent, is determined by the language of the deed, taken in connection with the circumstances existing at the time of making it." Id. (internal quotation mark omitted). Id. "Descriptions of easements may be fairly general," but "any description ... needs accuracy and clarity." Id.

¶ 11. "A court interpreting a deed follows the same process as it does with contracts." Carmody v. McGowan , 222 So.3d 1064, 1065 (¶ 2) (Miss. Ct. App. 2017) (citing Conservatorship of Estate of Moor ex rel. Moor v. State , 46 So.3d 849, 852 (¶ 12) (Miss. Ct. App. 2010) ). "We begin by looking at the language of the instrument itself as contained within its 'four corners.' " Id. (citing Pursue Energy Corp. v. Perkins , 558 So.2d 349, 352 (Miss. 1990) ). "If the terms of the [deed] are subject to more than one reasonable interpretation, the [deed] is considered ambiguous." Maness v. K & A Enterprises of Miss. LLC , No. 2017-CA-00173-SCT, 250 So.3d 402, 410, 2018 WL 3791250, at *5 (¶ 22) (Miss. Aug. 9, 2018) (internal quotation mark omitted).

¶ 12. In the instant case, the deed at issue contains an easement "for the purposes of ingress and egress on, over and across the above mentioned property to be used only for access to the chapel." It is obvious in this case that the use of the term "chapel" is ambiguous or unclear. First, the term that the parties are at dispute over refers to a structure that is no longer in existence. Second, and more importantly, both parties agree that the term "chapel" does not represent its plain and ordinary meaning-neither now, nor at the time of the easement's creation. Before trial in the chancery court, the Ryans and the Rays stipulated to the fact that at the time of the 1995 warranty deed containing the easement provision, "the building referred to as the 'chapel' was actually used as a residence and not as a chapel that was conducting any type of religious services (including weddings, funerals, and any other religious ceremonies)." The parties also stipulated that "at no time since the 1995 warranty deed has the building referred to as the 'chapel' been used for any such religious ceremonies." As such, the easement's use of the term "chapel" is subject to more than one interpretation-its plain sense and its colloquial meaning understood by the parties and their predecessors in interest. Thus, it is clear that the language granting the easement presents an ambiguity. Applying a de novo review, we affirm the chancellor's finding that the easement was ambiguous.

¶ 13. Next, we review the chancellor's interpretation of the easement under the substantial credible evidence standard. Crisler , 963 So.2d at 1251 (¶ 5).

II. Express Easement for Perpetual Ingress and Egress

¶ 14. "In ascertaining the intention of the parties from the language of the instrument, the grant or reservation should be so construed as to carry out that intention, and, in case of ambiguity or doubt, a grant or reservation of an easement ordinarily will be construed in favor of the grantee." Jackson Motor Speedway, Inc. v. Ford , 914 So.2d 779, 782 (¶ 9) (Miss. Ct. App. 2005) (quoting Boggs v. Eaton , 379 So.2d 520, 522 (Miss. 1980) ). "Intent is a question of fact, and is shown by the circumstances of the case, the nature and situation of the property subject to the easement, and the manner in which the easement has been used and occupied." Calvert v. Griggs , 992 So.2d 627, 633 (¶ 15) (Miss. 2008) (internal quotation mark omitted). The supreme court has stated that "when the grant is ambiguous[,] the construction given by the parties themselves, as proved by the manner in which they exercise their rights under the conveyance, is legal evidence." Warren v. Derivaux , 996 So.2d 729, 736 (¶ 16) (Miss. 2008) (quoting Capital Elec. Power Ass'n v. Hinson , 226 Miss. 450, 461, 84 So.2d 409, 412 (1956) ). "[T]he general rule is that where the grant is in general terms, the exercise of the right, with the acquiescence of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed." Id. "This rule applies not [only] to the location of the easement, but also to the extent thereof[;] it applies to the course, manner, extent, and length." Id.

¶ 15. The chancellor found that the evidence presented showed that "the easement was created for permanent access to the property now owned by the Rays, especially in the event the properties were further subdivided, and there was no intent to limit access only to a specific structure which was non-permanent in nature." The evidence before the chancellor included all of the deeds in the chains of title to both the Ryans and the Rays. After the initial 1995 warranty deed creating the easement, which used the language "for access only to the chapel," all the subsequent deeds-in both the Ryans' and Rays' chains of title-referenced an easement for ingress and egress without any reference to the chapel. The evidence before the chancellor also included deposition testimony from Barbara Staehle, a neighbor who lived next door to the Ryan and Ray properties for approximately seventeen years (ending in 2005) and was a real estate agent involved in many of the transactions concerning the properties. Staehle testified as to the use of the easement and colloquial use of the term "chapel" in reference to the residential home on the Ray property. Additionally, David Baria-the Ryans' immediate predecessor in interest-testified by affidavit that the Rays used the easement driveway to access their property. The 2011 deed from the Barias to the Ryans specified the property conveyance was made subject to a reserved easement for ingress and egress to the Ray property despite the fact the chapel residence was no longer in existence. All of this evidence considered on the record by the chancellor belies the Ryans' contention that the chancellor failed to use parol evidence to resolve the deed's ambiguity.

¶ 16. We hold that the chancellor's finding of a perpetual easement for ingress and egress onto the Ray property was supported by substantial credible evidence, particularly considering the deeds in both the Ryans' and Rays' chains of title identifying the easement as one for ingress and egress and the consistent manner the easement was used for ingress and egress to the property. This issue is without merit.

III. Prescriptive Easement

¶ 17. Although the chancellor found that there was an express, perpetual easement over the Ryan property for ingress and egress to the Ray property, the chancellor made an alternative finding that in the absence of a perpetual easement, there was clear and convincing evidence to support an easement by prescription using the doctrine of tacking. The Ryans argue on appeal that the Rays failed to satisfy the elements necessary for a prescriptive easement. We agree.

¶ 18. In this case, there was an express easement granted, which the chancellor found was one for perpetual ingress and egress to the property at issue. We affirm that decision as it was supported by substantial credible evidence. Therefore, an alternative theory for establishing an easement is unnecessary. But moreover, the alternative ground is legally contradictory. An express easement and a prescriptive easement cannot co-exist. "The rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription." King v. Gale , 166 So.3d 589, 594 (¶ 22) (Miss. Ct. App. 2015). Thus, the chancellor's finding of a prescriptive easement was legally erroneous, and we do not affirm on these grounds. The error does not require reversal however, as the chancellor's disposition is affirmed on other proper grounds as set forth in this opinion.

¶ 19. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: TINDELL, J., FOR THE COURT:

text:
    Fred PARTEE a/k/a Frederick Partee Appellant v. STATE of Mississippi Appellee
    NO. 2017-KA-00932-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, Jackson
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. In March 2017, a Tunica County jury found Fred Partee guilty of burglary of a dwelling. With four prior-felony convictions and prior sentences to separate terms of one year or more, the Tunica County Circuit Court sentenced Partee as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to twenty-five years without eligibility for parole or probation. Partee filed an unsuccessful motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Partee now appeals and asserts the admission of hearsay evidence bolstered the State's case against him and rendered his trial unfair. Finding no error, we affirm Partee's conviction and sentence.

FACTS

¶ 2. Over the defense's objection, the circuit court first allowed Investigator Columbus Jones to testify at trial about a burglary relayed to him by a fifteen-year-old witness, Jasmine Carey, who identified Partee as the person who burglarized Maggie Clay's house. Partee's attorney objected on the basis of hearsay and asked the court to limit the testimony to identification only. The court found the anticipated testimony fell within an exception to the hearsay rule and overruled the objection. The court allowed Investigator Jones to testify about what Carey saw and the manner in which Carey observed Partee. Investigator Jones testified as follows:

Q. [ (By Mr. Gresham:) ] And during that interview with Jasmine Carey -- excuse me -- I think I said Clay -- Carey, what did she advise you that she observed on that date, October 5th, 2016?
A. She stated that she had observed -- she'd seen Mr. Partee, Fred, as she called him --
Q. What's his last name?
A. Partee -- going inside of Ms. Clay's residence through the window.
Q. So did she say she knew him?
A. Yeah, she said she knew him.
Q. And was she consistent with her identification of Mr. Partee?
A. Yes, she was.
Q. And did she say how close she was to him or what she observed him doing or what he did or anything?
A. Yeah. She stated that she was standing in the street right in front of the residence, and she could observe him get up on the vehicle that was parked in the -- in that hole right there by the window, remove the air conditioner and go inside the residence. She stated that she didn't see him come out but --
Q. Go ahead.
THE COURT: Let's try to limit it down back to just her identification of him.
Q. (By Mr. Gresham:) And did she ever identify Mr. Partee as leaving the area?
A. Yes, she did.
Q. And when she identified him leaving the area, what --
MR. JOHNSON: Your Honor, object to this line of questioning as to hearsay.
THE COURT: Well, I'll allow it but only in terms of her ability to identify him.
Q. (By Mr. Gresham:) Did she state how close she was to him when he left?
A. Yes. She stated she was standing right there, and he walked right across in front of her.
Q. And she was positive on her identification to you?
A. Yes, she was.

¶ 3. The State thereafter called Carey to the witness stand, and she identified Partee in court. Carey described what she recalled Partee wearing on the evening of the burglary. In more detail, Carey testified to the following: she had known Partee all her life; and on October 5, 2016, she was across the street from Partee when she saw him walk by with a red two-wheeled cart, go toward Clay's house, stand up on Clay's green truck, lift the window of Clay's house, pull out an air conditioner, put the air conditioner on the two-wheeled cart, and go into Clay's house through the window. When Partee went inside the house, Carey testified that she stepped up closer to look. She did not see Partee come out of the house. She testified that she later saw Partee come out of Clay's yard with the air conditioner on the cart and walk past her. Carey testified that Partee was in the house at least ten to fifteen minutes. She additionally stated that she saw another individual, whose nickname she said was "Young," enter Clay's house through the open window along with Partee.

STANDARD OF REVIEW

¶ 4. We review a trial court's decision to admit or exclude testimony for abuse of discretion. McGriggs v. State , 987 So.2d 455, 457 (¶ 3) (Miss. Ct. App. 2008).

ANALYSIS

¶ 5. Partee argues that the circuit court erred in allowing Investigator Jones to testify at trial about the statements Carey made to him during the burglary investigation. Partee asserts that Investigator Jones's testimony about Carey's statements constituted inadmissible hearsay that improperly bolstered Carey's testimony.

¶ 6. Hearsay is defined by Mississippi Rule of Evidence 801(c) as "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in[to] evidence to prove the truth of the matter asserted in the statement." However, Mississippi Rule of Evidence 801(d)(1)(C) provides "[a] statement ... is not hearsay [if]: ... [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement ... identifies a person as someone the declarant perceived earlier." (Emphasis added).

¶ 7. Here, Carey testified at trial and was available for and subjected to cross-examination. Likewise, Investigator Jones was available for and subjected to cross-examination. Further, each of Carey's statements, as testified to by Investigator Jones, are, for the most part, statements of identification of Partee in the manner Carey perceived him at the time. Carey identified Partee as: the person she saw cut down the side to the back of Clay's house; the person she saw get up on a vehicle; the person she saw remove an air conditioner from Clay's window; the person she saw go inside Clay's house through the window; and the person she saw leave the area minutes later.

¶ 8. Thus, the statements regarding Carey's identification of Partee were not hearsay. See M.R.E. 801(d)(1)(C). Instead, these were statements of identification made after perceiving Partee. We therefore find Investigator Jones's testimony regarding Carey's identification of Partee was non-hearsay and was admissible. To the extent the admission of any of Investigator Jones's testimony regarding Carey's statement was in error, the error was harmless. The jury heard, from Carey, in more detail about: Carey's relationship to Partee, the victim, and others; Partee's movements in, toward, and around the victim's house; and Partee's possession of the victim's air conditioner. Accordingly, this issue lacks merit.

CONCLUSION

¶ 9. Because the investigator's hearsay-identification testimony fell within an exception to the rule against hearsay and Partee's right to a fair trial was not prejudiced, we find no error in the circuit court's admission of the testimony. We therefore affirm Partee's conviction and sentence.

¶ 10. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


text:
    Theopolois HARPER, Individually and on Behalf of all the Heirs at Law and Wrongful Death Beneficiaries of Laura Tine Harper, Deceased, Appellant v. HUDSPETH REGIONAL CENTER and Mississippi Department of Mental Health, Appellees
    NO. 2017-CA-00265-COA
    Court of Appeals of Mississippi.
    August 21, 2018
    ATTORNEY FOR APPELLANT: DAVID L. VALENTINE, RIDGELAND
    ATTORNEYS FOR APPELLEES: STUART ROBINSON JR., RICHARD T. CONRAD III, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Laura Harper died while in the care of Hudspeth Regional Center. Following Laura's death, her brother, Theopolois Harper, individually and on behalf of Laura's heirs-at-law and wrongful-death beneficiaries, sued Hudspeth and the Mississippi Department of Mental Health (collectively, the Appellees) under the Mississippi Tort Claims Act. After conducting a bench trial, the Rankin County Circuit Court found in favor of the Appellees. On appeal, Theopolois argues he proved by a preponderance of the evidence that the Appellees breached their standard of care to Laura and that this breach proximately caused Laura's death and resulted in damages.

¶ 2. Because we find substantial credible evidence supports the circuit court's judgment, we affirm.

FACTS

¶ 3. Laura was born on October 28, 1954, with severe developmental disabilities. On February 12, 1980, Laura became a resident at Hudspeth, which is an intermediate-care facility for the developmentally disabled. For the next twenty-eight years, Hudspeth served as Laura's home. The Hudspeth staff diagnosed Laura with obsessive compulsive disorder (OCD), psychotic disorder, and seizure disorder. To provide better care specifically tailored to Laura's needs, Hudspeth created an individual-support plan (ISP) for her. The staff used the ISP to monitor Laura's progress toward stated goals, and an interdisciplinary team periodically reviewed the ISP.

¶ 4. On July 21, 2008, the interdisciplinary team reviewed and revised Laura's ISP. The ISP noted that Laura had a good appetite and was allowed to independently feed herself. However, the ISP also stated that Laura ate quickly "and should be monitored closely to prevent her from grabbing food in any environment." In addition, the ISP provided that the staff should redirect Laura "to an area farthest from the door, especially during lunch time" because she might try to steal food from the kitchen. With regard to Laura's other privileges, the ISP stated that she enjoyed going to the different areas of Tulip Cottage (her residence at Hudspeth), "toilet[ed] independently," and had bathroom privileges.

¶ 5. Laura died on October 26, 2008. Hudspeth's video footage showed Laura's movements prior to her death. The beginning of the video showed Laura asleep in a beanbag chair in Tulip Cottage's north dayroom. A Hudspeth employee awoke Laura, who then exited the dayroom. The employee followed Laura to the door, but after a few seconds, the employee turned around and reentered the dayroom. Laura walked down the north hallway and entered Tulip Cottage's south hallway, where she then entered the south hallway bathroom alone. The video showed Laura's legs while she was in the bathroom.

¶ 6. After exiting the bathroom, Laura walked back down the south hallway and headed in the direction of Tulip Cottage's kitchen. About forty seconds had passed since Laura had awoken and left the dayroom. After an additional forty seconds passed, Laura reappeared from the direction of the kitchen with what appeared to be cheese in her hand. Laura walked back down the south hallway, entered the north hallway, and stopped outside the dayroom door. Without entering the dayroom, Laura turned around and went back into the south hallway bathroom. A Hudspeth employee followed Laura into the bathroom. After Laura and the employee exited the bathroom, Laura entered Tulip Cottage's south classroom.

¶ 7. Once inside the classroom, Laura sat down and appeared to eat the item in her hand. A Hudspeth employee came toward Laura for a moment and appeared to speak to Laura. Laura then exited the classroom and walked back into the south hallway bathroom. A Hudspeth employee again followed Laura into the bathroom. Shortly after, a second Hudspeth employee also entered the bathroom. The video then showed Laura's legs on the floor as one of the staff members exited the bathroom. Nurses then entered the bathroom to help Laura, who remained unresponsive to their efforts. From the time Laura awoke from her nap to the time she collapsed in the bathroom, just over five minutes had elapsed.

¶ 8. At trial, the circuit court heard testimony from Hudspeth's director, Michael Harris. At the time of Laura's death, Harris served as Hudspeth's assistant director. Although Harris was not at Hudspeth on the day Laura died and had no firsthand knowledge of how she died, he testified he was familiar with Hudspeth's policies and procedures. At the time of Laura's death, Hudspeth's policy directed the staff to observe and monitor patients. While Hudspeth later implemented a policy that directed the staff to escort patients from one area of the residence to another, Harris acknowledged the policy was not in effect at the time of Laura's death. Harris further testified he possessed no experience in providing direct care to patients like Laura at a facility such as Hudspeth and was not qualified to offer an opinion on the nursing standard of care for monitoring and observing patients.

¶ 9. Mary Stubblefield, who worked at Hudspeth as a risk-management investigator, testified about her investigation into Laura's death. Stubblefield stated that someone from Hudspeth informed her that "it was the practice of the staff to accompany [Laura] from one location of the building to the other." After watching the video footage from the day of Laura's death, Stubblefield testified that the staff members' actions did not fully comply with the practice she had been told they usually employed for monitoring Laura. Stubblefield further acknowledged, though, that she did not review Laura's ISP, had never worked as a direct-care worker, and was not qualified to offer an opinion as to whether the Hudspeth staff appropriately monitored or supervised Laura on the day of her death. Stubblefield also stated she did not know whether a staff member was monitoring the facility's cameras and watching the live footage as Laura walked around Tulip Cottage prior to her death.

¶ 10. Dr. Russell Bennett testified for Theopolois as an expert in the fields of nursing and long-term care. In forming his opinions, Dr. Bennett testified that he reviewed discovery, depositions, Laura's medical records and ISP, the video footage from the day of Laura's death, Hudspeth's floor plans, and some of the facility's policies and procedures. The Appellees objected to Dr. Bennett providing any expert opinions related to the video footage and Laura's cause of death. After hearing the parties' arguments, the circuit court found that such testimony fell outside Dr. Bennett's expert designation. The circuit court therefore sustained both objections.

¶ 11. On direct examination, Dr. Bennett opined the Appellees breached the standard of care owed to Laura because they failed to provide a safe environment for her and observe her activities. Specifically, Dr. Bennett testified the Appellees failed to escort Laura from one area of Tulip Cottage to another and failed to properly secure the kitchen to prevent Laura from obtaining food. On cross-examination, Dr. Bennett agreed there could have been staff members not shown in the video footage who were observing Laura's movements. Dr. Bennett also acknowledged that the applicable standard of care for nursing is a constant and is not necessarily based on one particular facility's policies and procedures.

¶ 12. Although neither party called Christy Smith to testify at trial, the Appellees offered into evidence excerpts of Smith's deposition testimony. Smith was a registered nurse who supervised all the registered nurses on staff at Hudspeth. Prior to her deposition, Smith reviewed her nursing notes from the date of Laura's death. Smith testified she was charting when the staff alerted her that Laura had choked. After performing a finger sweep of Laura's mouth, Smith removed some cheese, checked Laura's pulse, retrieved a crash cart, and began CPR on Laura.

¶ 13. With regard to Hudspeth's client-monitoring policies and procedures, Smith testified that, if patients were left in a room by themselves, staff members were supposed to check on the patients every fifteen minutes. Smith agreed that Hudspeth's policy directed staff members to not allow patients to enter the kitchen unsupervised. However, Smith denied that Hudspeth breached the standard of care owed to Laura by allowing her to walk around the facility's different areas unsupervised.

¶ 14. Smith testified that Laura had bathroom privileges and that Laura "could walk around by herself because the cottage [was] her home." Smith also stated that Laura did not have to be followed around the cottage. According to Smith, "monitored closely" meant that the staff had to know where Laura was at all times, but they did not have to be right there with Laura or looking directly at her. Smith testified that Laura was not under constant one-on-one supervision. Smith further stated that, even if staff members saw Laura had obtained some cheese, they did not have to take the cheese from her if they did not think Laura would choke on it. Although Smith testified it appeared Laura had in fact choked on some cheese, she stated the incident also could have occurred during any meal.

¶ 15. Luanne Trahant testified for the Appellees as an expert in the fields of nursing and patient care and, more specifically, in the care of individuals in intermediate-care facilities for the developmentally disabled. In forming her expert opinions, Trahant reviewed records and documents from Hudspeth, deposition testimony, and the video footage. According to Trahant, a facility such as Hudspeth does not typically provide one-on-one patient supervision and observation except for a specified purpose, such as a patient's time out, or in emergency circumstances. Consistent with Smith's testimony, Trahant stated the staff in such facilities is only required to be aware of a patient's general whereabouts on an every fifteen-minute basis.

¶ 16. Based on the documents she reviewed, Trahant found that Laura did not require one-on-one supervision and could, within reason, move independently around Tulip Cottage unless her programming schedule required her to be somewhere specific. Trahant stated that the Hudspeth staff followed Laura's ISP and appropriately monitored Laura. Trahant further stated that fifteen-minute checks on Laura was a very reasonable plan for the staff to follow. In Trahant's expert opinion, the Hudspeth staff properly monitored and observed Laura on the date of her death and did not breach the standard of care.

¶ 17. After considering the evidence and testimony, the circuit court found the staff at Hudspeth may have breached the facility's policy by allowing Laura to obtain cheese from the kitchen. Even so, the circuit court determined "that such action did not violate the standard of care" the Appellees owed to Laura. Because the circuit court concluded that no breach of the standard of care proximately caused Laura's death, it found in favor of the Appellees. Aggrieved, Theopolois appeals.

STANDARD OF REVIEW

¶ 18. This Court affords a circuit-court judge sitting without a jury the same deference as a chancellor, and we will not disturb the circuit court's findings when supported by substantial credible evidence. City of Jackson v. Lewis , 153 So.3d 689, 693 (¶ 4) (Miss. 2014). Furthermore, we will not disturb a circuit court's findings after a bench trial unless the circuit court manifestly erred, was clearly erroneous, or applied an erroneous legal standard. Id. However, we review questions of law de novo. Stratton v. McKey , 204 So.3d 1245, 1248 (¶ 8) (Miss. 2016).

DISCUSSION

¶ 19. On appeal, Theopolois contends he presented sufficient evidence to establish a prima facie case of medical negligence. He therefore asks this Court to reverse the circuit court's judgment and to remand the case for a trial on damages.

¶ 20. To establish a prima facie case of medical negligence, a plaintiff must prove:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury[;] and[ ] (4) the plaintiff was injured as a result.

Glenn v. Peoples , 185 So.3d 981, 985 (¶ 11) (Miss. 2015). "The plaintiff must provide expert testimony articulating the requisite standard that was not complied with, and ... establish that the failure was the proximate cause, or proximate contributing cause." Univ. of Miss. Med. Ctr. v. Littleton , 213 So.3d 525, 535 (¶ 29) (Miss. Ct. App. 2016) (internal quotation marks omitted). With regard to proximate causation, "the plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough." Id. (quoting Barrow v. May , 107 So.3d 1029, 1034 (¶ 11) (Miss. Ct. App. 2012) ).

¶ 21. In the present case, Laura's ISP noted her tendency to try to steal food from the kitchen and to eat too quickly. According to the excerpts from Smith's deposition, Hudspeth's policy directed staff members to not allow patients to enter the kitchen unsupervised. After reviewing the video footage from the date of Laura's death, the circuit court concluded that Hudspeth's staff may have indeed violated a facility policy by allowing Laura to obtain cheese from the kitchen. Despite this fact, the circuit court found the staff's conduct failed to amount to a breach of the standard of care owed to Laura. The circuit court further concluded that no expert testimony demonstrated the Appellees proximately caused Laura's death by breaching the standard of care.

¶ 22. Based on the trial testimony and evidence, the circuit court found Laura "was free to move about the cottage so long as the staff knew where she was at least every [fifteen] minutes" and that she had "bathroom privileges," which meant she could go to the restroom unescorted. In Trahant's expert opinion, Laura was an independent patient who, within reason, could move about Tulip Cottage without an escort unless her programming schedule required her to be somewhere specific. Smith corroborated Trahant's expert opinion by testifying that Laura could walk around Tulip Cottage by herself because the cottage was her home. Although Trahant and Smith testified the staff was required to know Laura's location at all times and to perform fifteen-minute checks on her, they also both stated that "monitored closely" did not equate to constant one-on-one supervision. According to both Trahant and Smith, the Hudspeth staff appropriately monitored Laura on the date of her death and did not breach the standard of care owed to Laura.

¶ 23. After considering both Trahant's and Dr. Bennett's expert opinions, the circuit court determined Trahant's testimony to be more credible as to the relevant standard of care and whether a breach occurred. Upon review, we find substantial credible evidence supports the circuit court's determination. We therefore conclude this assignment of error lacks merit.

CONCLUSION

¶ 24. Because we find substantial credible evidence supports the circuit court's judgment, we affirm.

¶ 25. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      Hudspeth is a state-operated facility.

      See Miss. Code Ann. § 11-46-13 (Rev. 2012).


author: WESTBROOKS, J., FOR THE COURT:

text:
    Heather Marie DUNNAM, Appellant v. Shaun DUNNAM, Appellee
    NO. 2017-CA-00588-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANT: RITA MARION SILIN
    ATTORNEY FOR APPELLEE: SHAUN DUNNAM (PRO SE)
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Heather Marie Dunnam appeals the judgment of the Chancery Court of Jackson County awarding physical custody of her two minor children to her ex-husband and joint legal custody to both parties, subject to her visitation rights. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Heather and Shaun Dunnam married in 2007 and had two children, P.D. and M.D. Heather filed a complaint requesting a divorce, property division, and the sole care and custody of P.D. and M.D. in December 2015. Following a temporary custody hearing, the chancellor awarded Heather and Shaun joint legal and physical custody, subject to Shaun's visitation rights. The chancellor also directed both parties to undergo drug tests. Heather tested positive for cocaine, and Shaun tested positive for marijuana. During this hearing, Shaun's lawyer withdrew as Shaun's trial counsel, and the matter was rescheduled.

¶ 3. In July 2016, Heather filed a petition for citation of contempt and modification, alleging that Shaun violated the temporary order the court previously entered. She alleged that Shaun harassed her, caused her to lose her job, and refused to return the children after Shaun and Heather's brief period of reconciliation. In August 2016, the chancellor replaced the previous temporary order and entered another order granting both parties joint legal and physical custody of the children, subject to Heather's visitation rights. At that time, the court ordered that the parties undergo additional drug tests, and both parties tested negative for drugs. The chancellor also enjoined both parties from communicating, unless communication was necessary because of a medical emergency or to exchange the children.

¶ 4. In November 2016, Shaun filed his answer and counterclaim to Heather's original complaint for divorce, and Shaun and Heather consented to a divorce due to irreconcilable differences. The chancellor was left to decide the following issues: custody of P.D. and M.D., visitation, child support, tax deductions, division of assets and liabilities, Heather's petition for contempt and modification, and attorney's fees.

¶ 5. Following a one-day trial, the chancellor ordered Shaun and Heather to submit proposed findings of fact and conclusions of law. In March 2017, the chancellor awarded joint legal custody to both parties and physical custody to Shaun, subject to Heather's visitation rights. The chancellor issued findings of fact regarding all of the other issues the parties presented before the court. Heather timely appeals the chancellor's ruling regarding the custody of P.D. and M.D.

STANDARD OF REVIEW

¶ 6. In Webb v. Webb , 78 So.3d 933, 935-36 (¶ 7) (Miss. Ct. App. 2012), this Court stated that:

We apply a narrow standard of review of a chancellor's child-custody decision, and we give deference to the chancellor's findings of fact in these situations as he must determine the credibility and weight of evidence. Further, the chancellor's decision must be supported by substantial evidence established by the record of the case. It is well established that we may only reverse a chancellor's findings if his decision was manifestly wrong, clearly erroneous, or he applied an incorrect legal standard.

(Citations and internal quotation marks omitted).

DISCUSSION

Whether the chancellor improperly analyzed certain Albright factors.

¶ 7. With all child-custody cases, "the polestar consideration ... is the best interest and welfare of the child." Id. at 936 (¶ 8) (quoting Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983) ). Heather asserts that the chancellor erred in finding that certain Albright factors favored Shaun over her and as a result, the chancellor erred in awarding Shaun physical custody. The Albright factors used to determine what is, in fact, in the "best interests" of a child regarding custody are as follows:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; and 11) other factors relevant to the parent-child relationship.

Hollon v. Hollon , 784 So.2d 943, 947 (¶ 12) (Miss. 2001) (citing Albright , 437 So.2d at 1005 ).

¶ 8. "In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by [the] record." Id. at (¶ 13). Heather maintains that the chancellor did not place sufficient weight on four of the Albright factors.

A. Parenting Skills

¶ 9. The chancellor found that this factor favored Shaun. But Heather asserts that the chancellor erred because he did not consider that she performed most of the parental duties during their marriage. We disagree.

¶ 10. Shaun's parents stated that they were both able to help Shaun take care of the children and noted that Shaun had custody of his two other children from a previous union. It appears this is why the chancellor weighed this factor in favor of Shaun. The chancellor also mentioned that Heather tested positive for cocaine during the pendency of the proceedings and Shaun tested positive for marijuana. But both parties tested negative after the second drug screening.

¶ 11. Heather maintains that Shaun performed some parental duties but that she was in charge of taking care of all the children, including the two from Shaun's previous union. But Heather admitted that she left one of the children in Shaun's care while she went to work and that Shaun had experience raising children before they met because he had custody of his other two children prior to their marriage, and the chancellor noted that neither party testified about the other party's parenting skills.

¶ 12. The Mississippi Supreme Court has held that "the chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003). Accordingly, we find no error in the chancellor's findings regarding this factor.

B. Physical and Mental Health and Age of the Parents

¶ 13. The chancellor found this factor to be neutral. Heather asserts that during the course of her marriage, Shaun suffered fits of rage and bouts with depression. As a result, she maintains that Shaun's violent behavior and untreated mental illness precludes him from being fit to be the primary custodian of their children.

¶ 14. But the chancellor found that both parties were physically healthy. Further, the chancellor stated that Shaun had received treatment for his issue with stress and depression. Shaun also submitted a letter from his treating physician at Merit Health Gulf Oaks Hospital, stating that he did not pose a danger to himself or others once he was discharged. The chancellor also found that there was no evidence presented to suggest that Shaun's anxiety and depression affected his ability to care for his children. "[T]his Court may reverse a chancellor's findings of fact only when there is 'no substantial evidence in the record' justifying his findings." C.A.M.F. v. J.B.M. , 972 So.2d 656, 667 (¶ 44) (Miss. Ct. App. 2007). Here, we find the chancellor's finding of neutrality was supported by substantial evidence.

C. Stability of Home Environment

¶ 15. The chancellor found that this factor favored Shaun, and Heather maintains that the chancellor's inclusion of her partner's arrest for a nonviolent crime was improper. But Heather fails to cite authority in support of her argument, and "failure to cite authority in support of [her] argument precludes consideration on appeal." Blakeney v. McRee , 188 So.3d 1154, 1165 (¶ 28) (Miss. 2016).

¶ 16. Notwithstanding this procedural bar, Heather testified that she and Megan, her paramour, had difficulties and that she contacted the police to escort Megan off the premises (of her home) to avoid an altercation. The chancellor found that Heather's relationship with Megan was occasionally rocky and noted that Megan had been arrested for embezzlement, but the chancellor also mentioned Shaun was in the process of moving into a two-bedroom home and had his parent's help in rearing the children. Although the chancellor heard testimony regarding the fact that Shaun was living in his father's rental home at the time, he found that there was no evidence of discord or lack of stability in Shaun's living environment. The chancellor has the ability to weigh evidence as he sees fit including "the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation." Brown v. Crum , 30 So.3d 1254, 1259 (¶ 16) (Miss. Ct. App. 2010).

¶ 17. Accordingly, there was sufficient evidence to support the chancellor's findings, and we find no error.

D. Other Factors Relevant to Child Custody

¶ 18. The chancellor noted that Shaun had custody of his two other children from a previous relationship and found that it would be in the best interests of P.D. and M.D. to grow up knowing their half-siblings. Heather purports that the chancellor erred in considering that Shaun had custody of his two other children from a previous relationship.

¶ 19. This Court has held that "there was no requirement that the chancellor specifically address the question of siblings and custody." C.A.M.F. , 972 So.2d at 661 (¶ 23). "It is not a separate Albright factor but a question which the chancellor may consider along with the best interest of the child." Id. (citing Albright , 437 So.2d at 1005 ). Therefore, the issue of raising the two minor children is an issue that the chancellor has the discretion to weigh as he sees fit.

¶ 20. Also, Heather asserts that the chancellor erred because his analysis did not reference any testimony regarding a gun that Shaun allegedly had in his possession around the children and that more of the factors should have weighed in her favor. Shaun testified that he had a gun in the house but that he removed it and never had the gun around the children. Moreover, "[a]n Albright analysis is not a mathematical equation ..., [and] the factors are not meant to be weighed equally in every case." Hall v. Hall , 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014) (citation and internal quotation mark omitted). Our supreme court has determined that "[a]ll the [ Albright ] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Johnson , 859 So.2d at 1013-14 (¶ 46) ; Hall , 134 So.3d at 827 (¶ 19). Accordingly, we find no error.

CONCLUSION

¶ 21. "In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by the record." Hall , 134 So.3d at 828 (¶ 21). Accordingly, we find that the chancellor's on-the-record findings and conclusions of law were supported by substantial evidence.

¶ 22. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.

      To protect the minor children's identities, we will refer to them by initials.


author: FAIR, J., FOR THE COURT:

text:
    In the Matter of the DISSOLUTION OF the Marriage: Vanessa Marie PEVEY (Black), Appellant v. Dallas Kent PEVEY Jr., Appellee
    NO. 2017-CA-01144-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANT: STEPHEN L. BEACH III, JACKSON
    ATTORNEY FOR APPELLEE: PAUL E. ROGERS, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. A little more than a year after their divorce, Dallas Pevey sued his ex-wife, Marie Black, to modify the custody of their two children. The chancellor initially denied relief, but he expressed reservations with the decision. When Dallas filed a motion to reconsider, the chancery court gave him a hearing and heard additional testimony. Ultimately, the chancery court found that Marie had testified falsely at the initial hearing, and custody of the children was awarded to Dallas. Marie appeals and asserts numerous errors, both procedural and substantive. We find that the chancery court acted within its discretion, and so we affirm.

FACTS

¶ 2. Dallas and Marie divorced in 2014. Physical custody of their two young sons, born in 2008 and 2011, was awarded to Marie by agreement. In 2015, Dallas filed a petition to modify custody. Dallas alleged, among other things, that Marie was using illegal drugs, acting erratically, moving around frequently, and was not adequately caring for the children. After a hearing, the chancery court called it a "close case" and expressed concerns about the children's circumstances, but it found Dallas had failed to show a material change of circumstances adversely affecting the children. Dallas then filed what he styled a "Motion to Reconsider or, in the Alternative, to Amend Judgment pursuant to Rules 59 and 60" of the Mississippi Rules of Civil Procedure. Dallas contended he had newly discovered evidence and Marie had made numerous false statements at the hearing relating to her employment, living situation, and drug use. The chancery court held a hearing on the motion where it heard additional testimony and then rendered a new decision, awarding custody to Dallas.

DISCUSSION

1. Motion to Reconsider

¶ 3. Marie contends that the chancery court erred in granting Dallas's "motion to reconsider" because the claimed newly discovered evidence was lacking and could have been presented at the original hearing. Marie argues, essentially, that the chancery court gave Dallas a "do over" rather than holding him to the stricter standard that Rule 59 requires. But she is wrong about that legal standard.

¶ 4. It is true that, under the "new" Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K & A Enters. of Miss. LLC , No. 2017-CA-00173, 250 So.3d 402, 418-12, 2018 WL 3791250, at *12 (¶ 68) (Miss. Aug. 9, 2018) (Maxwell, J., specially concurring and joined by four other justices). But the motion at issue here was properly made, and considered, under Rule 59. See id.

¶ 5. The chancery court's authority to modify the final judgment is "limited" by Rule 59, and it is a "higher" standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Id. at 419-20 (¶¶ 69, 71), 2018 WL 3791250, at *13 (¶¶ 69, 71). Still, Rule 59 permits a chancery court substantial discretion to reconsider its decisions-either on the motion of a party, or sua sponte "for any reason for which it might have granted a new trial on motion of a party." See M.R.C.P. 59(d). When a case has been tried to the court, Rule 59(a) expressly provides that a new trial may be granted "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi." "The ground rules [for a Rule 59 motion in chancery court] include those that preexisted the Civil Rules regarding the grant or denial of trial court rehearings." Mayoza v. Mayoza , 526 So.2d 547, 549-50 (Miss. 1988). In In re Enlargement of Corporate Limits of Hattiesburg , 588 So.2d 814, 828 (Miss.1991), the supreme court explained that "[i]n equity, the chancellor has always had entire control of his orders and decrees and authority to modify or vacate any of them on motion of any party, or on his own, prior to final judgment." While the chancellor's order may have been styled a final judgment, it was rendered non-final by Dallas's filing of the motion to reconsider. See Wilson v. Mallett , 28 So.3d 669, 670 (¶ 3) (Miss. Ct. App. 2009). "It is long-settled that when a final judgment is reopened [under Rule 59,] the judgment remains subject to the control of the court until the motion is disposed of and, until that time, does not become final." E.E.O.C. v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120 , 235 F.3d 244, 250 (6th Cir. 2000).

¶ 6. To grant the motion under Rule 59, the chancery court need only be "convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand." See Maness , --- So.3d at ---- (¶ 69), 2018 WL 3791250, at *13 (¶ 69) (Maxwell, J., specially concurring) (quoting McNeese v. McNeese , 119 So.3d 264, 272 (¶ 20) (Miss. 2013) ). This is an independent basis for granting the motion, distinct from the court's authority to order a new trial on the presentation of newly discovered evidence. Id. "When hearing a motion under Rule 59(e), a trial court proceeds de novo , if not ab initio . Recognizing that to err is human, Rule 59(e) provides the trial court the proverbial chance to correct its own error to the end that we may pretermit the occasion for a less than divine appellate reaction." Bruce v. Bruce , 587 So.2d 898, 904 (Miss. 1991). A Rule 59 motion is the "functional equivalent" of a motion for rehearing on appeal. King v. King , 556 So.2d 716, 722 (Miss. 1990).

¶ 7. Although Rule 59(a) refers to a "new trial," when a case was tried to the court, the formality of a full retrial is not required. Under Rule 59(a), the chancellor "may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." Id.

¶ 8. Motions under Rule 59 should be distinguished from motions under Rule 60(b), which seek "extraordinary relief" from a judgment that is truly final. Rule 60(b) motions are for "extraordinary and compelling circumstances" and "should be denied when they are merely an attempt to relitigate the case." S. Healthcare Servs. Inc. v. Lloyd's of London , 110 So.3d 735, 742 (¶ 14) (Miss. 2013). "[T]he trial court has considerably broader discretionary authority under Rule 59(e) to grant relief than it does under Rule 60(b)." King , 556 So.2d at 722.

¶ 9. In Adams v. Green , 474 So.2d 577, 582 (Miss. 1985), the supreme court quoted its 1854 decision in Dorr v. Watson , 28 Miss. 383 (1854), which has been "consistently applied in case after case" ever since:

The granting of a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to several legal rules as well as the justice of a particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.

"[G]iven the important corrective role of new-trial motions, the discretion granted to the court is exceedingly broad." Barriffe v. Estate of Nelson , 153 So.3d 613, 618 (¶ 22) (Miss. 2014).

¶ 10. Sitting as an appellate court, we are in no position to second guess the chancellor on whether he made an error in his initial credibility determinations. We therefore can find no abuse of discretion in granting the Rule 59 motion.

2. Guardian Ad Litem Recommendation

¶ 11. Next, Marie contends that the chancellor erred in not considering the recommendation of the guardian ad litem. In fact, there was no recommendation to consider; the guardian ad litem in this case was appointed for the limited purpose of investigating Dallas's allegations of abuse and neglect. The guardian ad litem concluded that the children had been neither abused nor neglected while in Marie's care. But he specifically declined to make recommendations as to whether a material change in circumstances had occurred or who should receive custody if that became an issue, though he did answer some questions that touched on those issues. Marie's attorney asked the guardian ad litem whether he knew of "anything that is currently happening" that would justify a modification of custody. The guardian ad litem answered "no," but he made it clear he was limiting his answer to the current circumstances. The chancellor also asked the guardian ad litem whether there were any "per se" adverse impacts to the children. The answer to this question was a qualified yes. The guardian ad litem was concerned that one of the children had been tardy to school twenty-six times during a single semester, though he conceded that others may not weigh it as heavily as he did. When the chancellor announced his initial decision in this matter, he briefly addressed the tardiness issue, but he did not fully summarize the guardian ad litem's testimony or address it as a custody recommendation. In announcing the judgment on reconsideration, the chancellor only briefly referenced the guardian ad litem's testimony, to the effect that, even if it was accepted, it did not foreclose the possibility of modifying custody.

¶ 12. The Mississippi Supreme Court has held that the chancellor is required to include a summary of the guardian ad litem's recommendations when the appointment is mandatory, as it is in cases where abuse or neglect has been alleged. Borden v. Borden , 167 So.3d 238, 243 (¶ 11) (Miss. 2014). But the supreme court has also made it clear that a chancellor has discretion in determining the scope of the guardian ad litem's assignment, and the assignment need not include making a recommendation as to custody. In S.G. v. D.C. , 13 So.3d 269, 282 (¶ 57) (Miss. 2009), the supreme court explained: "[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation." See also Smith v. Smith , 206 So.3d 502, 510 (¶ 13) (Miss. 2016) (guardian ad litem "must make recommendations to the court if requested"). Where the guardian ad litem has not made direct recommendations concerning custody, there is no error in the chancellor's failure to discuss them. See id. at 511 (¶ 19).

¶ 13. The guardian ad litem here was assigned to investigate whether the children were abused or neglected in Marie's care; he found that they were not. The chancellor accepted that conclusion, and Marie does not contest it. We can find no error in the chancellor's failure to discuss the guardian ad litem's report at length.

3. Admission of Annotated E-mail

¶ 14. Marie contends that the chancellor erred in refusing to admit into evidence a copy of an e-mail with handwritten notes from Marie's mother. She concedes that the notes are hearsay, but she contends they were admissible under Mississippi Rule of Evidence 801(d)(1)(A) and (B), which allow the admission of prior statements as non-hearsay under certain circumstances.

¶ 15. It is apparent that the printout and annotations meet neither exclusion to the hearsay rule. Rule 801(d)(1)(A) requires (among other things) that the prior statement "be given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition." The handwritten annotations to the e-mail were not. 801(d)(1)(B) requires that the statement be "consistent with the declarant's testimony" and offered to rebut a contention of recent fabrication; Marie offered the annotated e-mail to support her claim that her mother's testimony was a recent fabrication.

¶ 16. Marie has shown no error in the chancellor's refusal to admit the annotated e-mail into evidence.

4. Modification

¶ 17. Marie next challenges the chancellor's decision to modify custody. In this issue she does not directly contend that the evidence could not support the decision; rather, she attacks various aspects of the chancellor's decision, some based on fact and some based on law.

¶ 18. Our review of domestic-relations matters is limited. Chesney v. Chesney , 849 So.2d 860, 862 (¶ 8) (Miss. 2002) (citing Montgomery v. Montgomery , 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000) ). The chancellor's findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Carter v. Carter , 204 So.3d 747, 756 (¶ 37) (Miss. 2016) (citing Marascalco v. Marascalco , 445 So.2d 1380, 1382 (Miss. 1984) ). We will not reverse the decision of a chancery court unless the chancellor abused his discretion, was manifestly in error, or applied an erroneous legal standard. Dupree v. Pafford , 200 So.3d 1092, 1094 (¶ 4) (Miss. Ct. App. 2016) (citing Pearson v. Pearson , 121 So.3d 266, 268 (¶ 6) (Miss. Ct. App. 2013) ).

¶ 19. Marie's first contention is that the chancellor erred in relying on Riley v. Doerner , 677 So.2d 740, 744 (Miss. 1996), and Tucker v. Tucker , 453 So.2d 1294 (Miss. 1984), because those two decisions "are not the complete authority and total reliance and focus on just these two ... cases is misplaced." While these were the only two decisions concerning the custody modification standard the chancellor mentioned by name when he announced his decision from the bench, they are notable and often-cited decisions of the Mississippi Supreme Court on the subject, and both are good law in the present day. The chancellor cited Tucker for the general standard regarding modification of custody-a material change of circumstances and an adverse effect on the child-and Riley for a specific exception to the general test permitting modification "where a child living in a custodial environment clearly adverse to the child's best interest, somehow appears to remain unscarred by his or her surroundings." Riley , 677 So.2d at 744. The chancellor found that this case met the standard for modification under either test.

¶ 20. The chancellor gave no indication that he misunderstood the legal standard or that he gave the cases he mentioned by name any undue weight as to their particular facts or holdings. Rather, he cited them for the principles of law they discussed. Marie seems to complain the chancellor failed to recognize that custody modification requires an examination of the totality of the circumstances, which she claims was a later development in the law; but, in fact, that was part of Tucker 's holding and a proposition for which it is often cited. See Tucker , 453 So.2d at 1297 ; see also A.M.L. v. J.W.L. , 98 So.3d 1001, 1013 (¶ 24) (Miss. 2012) (citing Tucker ). We see no error in the chancellor's citation to these cases.

¶ 21. Marie next argues the chancellor erred in finding the testimony of her mother credible because she had previously executed an affidavit supportive of Marie's home conditions and parenting ability; her mother subsequently described herself as the children's primary caregiver (when she and Marie were getting along) and Marie as unstable and manipulative. Marie also faults the chancellor for accepting the testimony of Justin Atwood to the effect that they had been in a sexual relationship and had spent the night together in the children's presence; Marie denied this allegation, but one of her children confirmed to the chancellor in camera that he knew Atwood and Marie "had a relationship" because he had walked in on them in what the chancellor called a "compromising position." On appeal, Marie takes issue with this description, arguing that the chancellor made an unsupported inference from the testimony.

¶ 22. Specifically, the child testified that Marie and Atwood were "about to kiss" while Atwood "had his underwear on and all of that." When the child opened the door, Atwood "did it real fast and hid something from me or something like that."

¶ 23. It is axiomatic that "the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation." Bowen v. Bowen , 982 So. 2d 385, 395 (¶ 42) (Miss. 2008). We find that the chancellor's interpretation of the child's testimony, especially when paired with Atwood's testimony confirming a sexual relationship with Marie, was a reasonable interpretation of the evidence.

¶ 24. As to the prior affidavits executed by Atwood and Marie's mother, inconsistent statements of a witness go to the weight of that witness's testimony, not its sufficiency. Jamison v. Barnes , 8 So.3d 238, 245 (¶ 17) (Miss. Ct. App. 2008). Both witnesses explained why they had executed the affidavits and subsequently recanted them, and their testimony at trial was corroborated in many respects. We cannot second guess the chancellor's determination of credibility here.

¶ 25. Finally, Marie contends that the chancellor erred in assigning undue weight to moral fitness in his Albright factor analysis to decide who should receive custody. See, e.g. , Brekeen v. Brekeen , 880 So.2d 280, 286-87 (¶ 19) (Miss. 2004). Here, the chancellor did discuss Marie's relationships at length, and he did find that they negatively impacted her moral fitness; but moral fitness was not the reason the chancellor spent so much time discussing them. In the case of Atwood, the chancellor found the relationship relevant because the children had been exposed to it. But the chancellor was especially interested in it because Marie had repeatedly lied about her relationship with Atwood while under oath, and the credibility of her denials of other misconduct was of paramount importance to the ultimate disposition of the trial.

¶ 26. The chancellor also discussed another of Marie's relationships, but in that case the man was a drug addict who saw Marie between his visits to rehab. He testified that he and Marie had used crystal methamphetamine while Marie's mother watched the children. The chancellor found the man's testimony credible, and he placed significant emphasis on Marie's association with the man and use of illegal drugs as both a material change of circumstances and an indictment of her fitness as a custodial parent.

¶ 27. We note also that the chancellor did not linger on these relationships when discussing the moral fitness Albright factor. The entirety of his moral fitness discussion follows:

Moral fitness is not even [a] close contest. [Marie] has exposed the children to immorality with her relationships with other men. She has consorted with a drug addict. She has in all probability been using illicit substances.

¶ 28. The credibility of Marie's denials of misconduct, instability, and poor parenting was one of the central issues in the trial, and her abuse of drugs was highly relevant to her fitness as a custodial parent. We cannot find that the chancellor placed an undue emphasis on moral fitness or that the chancellor awarded custody to Dallas to punish Marie for immoral behavior.

¶ 29. In summary, Marie has not shown an abuse of discretion in the chancellor's decision to modify custody.

5. Denial of Marie's Post-Judgment Motions

¶ 30. After announcing his decision from the bench, the chancellor asked Dallas's attorney to prepare a written judgment, which the chancellor ultimately executed and entered with minor changes; the decision from the bench was incorporated by reference. Marie moved, unsuccessfully, to have the written judgment amended to more strictly comport with the chancellor's findings and decision as he had announced them from the bench. She also filed a motion seeking additional findings of fact and conclusions on fifty-five enumerated points, several of which contained numerous sub-requests. The motion was denied, and Marie filed a Rule 59 motion to alter or amend the judgment, which was also denied. On appeal, Marie contends that the chancellor erred in denying these motions.

¶ 31. It is a well-established rule in equity that "every decree is in the breast of the court until entered, and a decree has no validity until written out and signed by the chancellor." Banks v. Banks , 511 So.2d 933, 934 (Miss. 1987) (quoting Orr v. Myers , 223 Miss. 856, 862, 79 So.2d 277, 278 (1955) ). Banks is directly on point in this respect; the Mississippi Supreme Court held that a chancellor could modify his oral pronouncements at will prior to the entry of a written final judgment. See id. at 934-35. Thus, where the written judgment varies from the court's oral pronouncements, the written judgment controls and is presumptively the chancellor's true decision. This is true even if it was prepared by one of the parties rather than the chancellor himself. See Bluewater Logistics LLC v. Williford , 55 So.3d 148, 155-57 (¶¶ 24-33) (Miss. 2011).

¶ 32. Marie also complains that the chancellor erred in not hearing her out as to these complaints; the chancellor summarily denied her "Motion for Proposed Judgments." Marie provides no authority requiring the chancellor to hold a hearing on the motion, and we are aware of none; so we cannot find any error here.

¶ 33. As to Marie's numerous requests for clarification or additional findings of fact, on appeal she only addresses two specific alleged deficiencies. First, she contends that the chancellor failed to specifically identify the material change in circumstances that warranted the change in custody. There is some merit to this contention, as the chancellor appears to have discussed both the material changes and their impacts on the children simultaneously, with the express findings being harmful impacts rather than material changes. But the chancellor's meaning is clear when the opinion is read as a whole, and the chancellor identified changed circumstances he found, in the aggregate, to be material and adversely affecting the children-Marie's household was unstable, she was using illegal drugs, and she was not properly caring for the children.

¶ 34. Marie's other complaint is that the chancellor failed to "completely make distinct findings related to the Albright factors"; Marie contends the chancellor was required to address each of the Albright factors. But she does not explain which factors the chancellor failed to consider or how that alleged failure would have affected the outcome of the case. The only applicable factors we can see that the chancellor did not expressly address are continuity of care and the health and age of the parents. The former, though it favored Marie, was discussed at great length in the chancellor's analysis of whether there had been a material change of circumstances-the chancellor concluded that living in Marie's home had been detrimental to the children. As to the age and health of the parents, Dallas and Marie appear to have been similarly situated such that the factor favored neither parent, with the possible exception of Marie's drug use-something the chancellor considered elsewhere and found to favor Dallas. "[T]he Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision" regarding the children's best interest. Blakely v. Blakely , 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012). We are satisfied the chancellor did consider all the relevant facts here, and so we will not disturb the decision.

¶ 35. As to the remaining requests for findings of fact, we see no abuse of discretion in the chancellor's refusal to make further findings. A chancery court "has technically complied with the mandates of Rule 52 where it makes general findings of fact and conclusions of law although requested by a party to make specific findings." Lowery v. Lowery , 657 So.2d 817, 819 (Miss. 1995). The chancellor's opinion, as delivered from the bench, spans more than ten pages of the transcript, and, in our judgment, it adequately addresses the issues that were before the court. The chancellor resolved the major factual disputes explicitly and cited and employed the relevant standards for modification and custody. We can find no error here.

¶ 36. Finally, as to Marie's Rule 59 motion, there was only one piece of what was arguably new evidence before the court. After announcing his decision from the bench, but before entering the final judgment, the chancellor ordered Marie to immediately submit to testing for illegal drug use. Both hair and urine were tested, and the results were consistently negative for methamphetamine. But Marie did test positive for the opioids hydrocodone and oxycodone, and she apparently did not have a current prescription for either. She filed a letter from a doctor saying she had a prescription the prior year for a drug that included oxycodone, but that was at least five months before the drug test. As we explained above, our review of the denial of a Rule 59 motion is extremely deferential. See Adams v. Green , 474 So.2d 577, 582 (Miss. 1985). We can find no error with regard to newly discovered evidence. Otherwise, Marie's Rule 59 motion tracked the same issues she has raised on appeal, and as we find the contentions without merit here, we can find no abuse of discretion in the chancery court's denial of the motion.

6. Visitation

¶ 37. Finally, Marie contends that the chancellor erred in "altering visitation provisions ... without evidence being presented." Essentially, she contends that the chancellor was required to award her the same visitation schedule and terms as she had agreed to give Dallas in the original divorce settlement. We are aware of no authority requiring this, and Marie provides us with none. Moreover, the visitation provisions are quite similar, and Marie was awarded more or less "standard" visitation with the children-visitation every other weekend, two two-week periods of extended summer visitation, and alternating holidays. No error has been shown on this point.

¶ 38. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).