author: MAXWELL, J.,

text:
    Clinton EVANS, Appellant v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES d/b/a Warren County Department of Human Services, Child Support Division, Appellee.
    No. 2009-CA-00417-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.

      Melanie H. Morano, Patricia Peterson Smith, attorneys for appellant.

      James N. Bullock, Jackson, attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Clinton Evans filed suit against the Mississippi Department of Human Services, d/b/a Warren County Department of Human Services, Child Support Division (MDHS), in the Circuit Court of Warren County. Evans essentially claimed MDHS mishandled child-support funds deducted from his wages, failed to properly account for his payments, converted those funds, caused him emotional distress, and defamed him while carrying out its duties to administer his child-support obligation. The circuit judge granted MDHS’s motion for summary judgment and declined to rule on several other pending motions filed by Evans and MDHS. Finding genuine issues of material fact exist regarding MDHS’s negligent accounting and disbursing, we reverse and remand on these issues. We affirm the grant of summary judgment on the remaining issues.

FACTS

¶ 2. On October 8, 2003, Clinton and Qiana Evans were divorced in Louisiana, and a Louisiana district court ordered Evans to pay $800 per month in child support to Qiana. After the divorce, Qiana remained in Louisiana where she retained custody of the three children, and Evans moved to Vicksburg, Mississippi. The Louisiana child-support obligation was then registered in Mississippi.

¶ 3. In 2004, Evans’s employer reduced Evans’s work hours and periodically laid him off. Because Evans was no longer able to pay $800 per month, he filed a joint motion with MDHS in the Warren County Chancery Court to modify his child-support obligation. Qiana submitted an affidavit that Evans was not in arrears on his child-support payments, but the affidavit did not reflect that she agreed to the reduction. On November 15, 2004, the chancery court entered an agreed order modifying the Louisiana support order. The agreed order reduced Evans’s monthly support obligation from $800 to $400. The chancery court entered its Order for Withholding on January 8, 2005, directing Evans’s employer(s) to withhold the $400 monthly obligation and to remit it to MDHS.

¶ 4. A few months after entry of the agreed order, MDHS began deducting $400 in child support from Evans’s wages each month. On April 6, 2005, an Assistant District Attorney with Louisiana’s 21st Judicial District, faxed a letter to a MDHS attorney, seeking clarification about the reduction in Evans’s support obligation. The letter noted that Qiana had complained about the reduction. The State of Louisiana also sought information about Mississippi’s authority for modifying the Louisiana support order from $800 to $400 per month.

¶ 5. Docket entries reflect that after receiving the inquiry from Louisiana, on June 27, 2005, MDHS filed a motion in the Warren County Chancery Court to set aside the agreed order. MDHS ultimately filed three motions in the chancery court arguing the November 15, 2004, agreed order was invalid because Qiana did not consent to modification as required by the Uniform Interstate Family Support Act (UIFSA). See Miss.Code Ann. § 93-25-101 (Rev.2004). MDHS claimed the agreed order was void as a matter of law; therefore, Evans still owed $800 per month pursuant to the valid Louisiana order. The chancellor, however, refused to hear the motions because Evans had not been served with process.

¶ 6. Records indicate MDHS enforced the Mississippi agreed order until termination of Evans’s support obligation in June 2007. Thus, MDHS required $400 be withheld from Evans’s wages each month. The Louisiana Department of Social Services (LDSS), however, maintained that its original $800 support order controlled.

¶ 7. On May 18, 2007, Evans filed a complaint for declaratory judgment against MDHS in the Chancery Court of Warren County seeking to enforce the $400 agreed order. He also sought monetary damages Jfrom MDHS for the infliction of emotional distress he alleged resulted from MDHS’s mishandling of his child-support obligation. MDHS responded that Evans failed to comply with the Mississippi Tort Claims Act’s (MTCA) notice requirements. The chancellor agreed and dismissed Evans’s claims without prejudice.

¶ 8. On June 4, 2007, a Louisiana district court entered an order awarding physical custody of the children to Evans. It also terminated Evans’s child-support obligation and determined he was not in arrears on his support obligation.

¶ 9. Thereafter, Evans sued MDHS under the MTCA in the Warren County Circuit Court. He alleged MDHS: (1) wrongly caused the suspension of his driver’s license, encumbrance of his bank account, interception of his tax return, and damaged his credit history, (2) intentionally or negligently inflicted emotional distress upon him; (3) fraudulently converted his child-support obligations to its own use; (4) failed to properly account or credit him for child-support obligations deducted from his wages and did not transmit payments to Qiana and his children. MDHS moved for summary judgment claiming it was generally immune from Evans’s claims under the MTCA. The circuit court granted summary judgment and found that MDHS did not breach its duty of ordinary care in abiding by a lawful order of a foreign jurisdiction — the $800 per month Louisiana support order — which was registered in Mississippi and had not been properly modified by the Mississippi chancery court. Accordingly, the circuit court held that MDHS was immune from liability under Mississippi Code Annotated section 11^16-9(l)(b) (Supp.2009). The circuit court reasoned it could not be shown that MDHS failed to act with ordinary care in directing the withholdings from Evans’s wages and for imposing statutorily permitted sanctions relating to Evans’s delinquent support payments. Evans now appeals.

STANDARD OF REVIEW

¶ 10. This Court applies a de novo standard of review to the grant of summary judgment by a trial court. Hill v. Carroll County, 17 So.3d 1081, 1084 (¶ 7) (Miss.2009) (citing Channel v. Loyacono, 954 So.2d 415, 420 (¶ 12) (Miss.2007)). Under Mississippi Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

¶ 11. In Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the United States Supreme Court explained the application of the identical Rule 56(c) of the Federal Rules of Civil Procedure. The Supreme Court stated:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmov-ing party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Id.

¶ 12. MDHS, as the movant, “has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, [it] is entitled to judgment as a matter of law.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). As the nonmoving party, Evans must support his claim with more than a “mere scintilla of colorable evidence[.]” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Instead, his evidence must be such that a fair-minded jury could return a favorable verdict. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). “[B]are assertions” are insufficient to avoid summary judgment, and the non-movant may not rest upon mere allegations or denials in its pleadings. Watson v. Johnson, 848 So.2d 873, 878 (¶ 18) (Miss.Ct.App.2002) (citing Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996)).

DISCUSSION

I. MTCA

¶ 13. The MTCA provides the exclusive remedy against a governmental entity or employee for an act or omission giving rise to the suit. Miss.Code Ann. § 11-46-7(1) (Rev.2002). The MTCA provides the state and its political subdivisions immunity. However, that immunity is waived in claims for monetary damages arising from torts committed by government entities or employees while acting in the scope of their employment to the extent set forth in the MTCA. Miss.Code Ann. §§ 11-46-3(1), 11-46-5(1) (Rev.2002). This waiver of immunity is subject to exceptions. Miss. Code Ann. § 11-A6-9. Mississippi Code Annotated section 11-46-9 provides in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

Covington County Sch. Dist. v. Magee, 29 So.3d 1, 4 (¶ 7) (Miss.2010) (quoting Miss. Code Ann. § 11-46-9(1)(b), (d)).

¶ 14. “A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” Id. at 5 (¶ 8) (citing Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (¶ 14) (Miss.2002)). However, an act is deemed ministerial, “(if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Id. (quoting Stewart, 804 So.2d at 1048 (¶ 15)).

¶ 15. To the extent MDHS’s actions are required by statute they are ministerial. Therefore, it is shielded from liability only if ordinary care is exercised in performing or failing to perform its statutory duties. Id. (citing Stewart, 804 So.2d at 1048 (¶ 15)). The duty of ordinary care is a fact question to be decided by the judge. Henderson ex rel. Henderson v. Simpson County Pub. Sch. Dist., 847 So.2d 856, 858 (¶ 6) (Miss.2003) (citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1142 (¶ 26) (Miss.1999)); see also Beacham v. City of Starkville Sch. Sys., 984 So.2d 1073, 1076 (¶ 14) (Miss.Ct.App.2008).

A. MDHS’s statutory duties

¶ 16. Before deciding Evans’s claims, we find it necessary to review MDHS’s statutory requirements concerning collection and disbursement of child-support payments. We also review its duties relating to modification of foreign child-support orders.

i. Child-Support Duties

¶ 17. Mississippi Code Annotated section 43-19-31 (Rev.2009) authorizes MDHS to create a child-support unit (CSU). Pertinent to this case, it is the CSU’s authority to secure and collect child support for individuals receiving certain listed benefits. MDHS is also required:

To maintain a Central Receipting and Disbursement Unit to which all payments required by withholding orders and orders for support in all actions to which the Department of Human Services is a party shall be forwarded, and from which child support payments ordered by the court in actions to which the Department of Human Services is a party shall be disbursed to the custodial parent or other such party as may be designated by the court order.

Miss.Code Ann. § 43-19-31(k).

¶ 18. In addition, section 43-19-31 (Í) requires MDHS to maintain a case registry of records with respect to (i) each case in which MDHS is providing child-support-enforcement services as well as (ii) each support order established or modified in Mississippi. Particularly significant to this case, is the CSU’s responsibility to “coo-perat[e] with other states ... [in] securing compliance with court orders for support of Temporary Assistance for Needy Families (TANF) children[.]” Miss.Code Ann. § 43-19-31(b). The CSU also has “full responsibility ” under section 43-19-31 for initiating actions under UIFSA and for responding to actions of other jurisdictions in cases where Mississippi is the responding state. Miss.Code Ann. § 43-19-31®.

¶ 19. UIFSA is codified in Mississippi Code Annotated sections 93-25-1 through 93-25-117 (Rev.2004) and provides a statutory framework “to facilitate interstate establishment and enforcement of support and paternity orders.” Deborah H. Bell, Bell on Mississippi Family Law § 18.08 (2005). Under UIFSA, a state ordering child support retains jurisdiction so long as the obligor, obligee, or child remain in that state. See Miss.Code Ann. § 93-25-101(l)(a)(i).

¶ 20. We again note that Evans’s wife and children received child-support benefits pursuant to a Louisiana court order. Upon Evans’s move to Vicksburg, the order was registered in Mississippi. However, because Qiana and the children still resided in Louisiana, Louisiana retained continuing, exclusive jurisdiction. See Miss.Code Ann. § 93-25-101; see also Watkins v. Watkins, 802 So.2d 145, 147 (¶¶ 5-6) (Miss.Ct.App.2001).

¶ 21. Due to difficulties in finding employment, Evans’s income decreased, and he sought a modification of his child support obligation by the Warren County Chancery Court. At this point, under UIFSA, the Mississippi court had no subject-matter jurisdiction over the child-support obligation and was without authority to address the requested modification.

ii. Modification by Late Consent

¶ 22. Section 93-25-101 creates a procedure for the parties to consent to try the support modification issue in Mississippi. If knowing consent under this provision is given, the parties may proceed in this state. For a Mississippi tribunal to obtain jurisdiction to modify Evans’s support obligation, all parties must consent in the record to a transfer from the court originally issuing the support order — here, the Louisiana district court. Section 93-25-101 provides, in pertinent part, that:

(1) ... upon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that:
(b) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

Miss.Code Ann. § 93-25-101(l)(b). Thus, if consent requirements are met, Mississippi acquires “continuing exclusive jurisdiction, and its orders must then be treated by other states as would those of the original state[.]” Nelson v. Halley, 827 So.2d 42, 49 (¶ 25) (Miss.Ct.App.2002).

¶ 23. MDHS contends that although it originally joined Evans in seeking modification of the Louisiana order, the resulting Warren County Chancery Court’s agreed order, which reduced Evans’s support obligations to $400, is invalid. MDHS argues that on November 15, 2004 — the date on which the Mississippi court modified the Louisiana order — Qiana had not consented in the record from the Louisiana court. Thus, MDHS claims she did not properly consent to a Mississippi tribunal modifying the Louisiana support order.

¶ 24. The record indicates Qiana did not file a consent in the record from the Louisiana court when Evans sought modification in Mississippi. She instead simply filed an affidavit with the chancery court attesting that Evans was not in arrears on his support obligation. Indeed, her affidavit did not even represent that she agreed to a downward reduction in support. Nor did it authorize a Mississippi court to decide the issue. Thereafter, on June 15, 2005, Qiana filed an affidavit in Tangipa-hoa Parish, Louisiana, wherein she swore she “had not made any agreement to modify the [Louisiana court’s] child[-]support award, nor ha[d] she been contacted by anyone with any suggestion of reducing the child support award.” In this affidavit, she made clear “she is opposed to a reduction” of the Louisiana support obligation. However, nearly two years later, she contradicted her prior sworn statement. On May 24, 2007, she claimed by affidavit that she had previously verbally consented to the reduction by the Mississippi court and had she been asked to “sign something in writing, she would have done so.”

¶ 25. Evans contends this Court’s decision in Nelson, 827 So.2d at 50 (¶ 28), supports his argument that Qiana’s late consent to Mississippi’s jurisdiction breathed life into the previously entered agreed order. We disagree.

¶ 26. In Nelson, the father, a non-Mississippi resident, sought to modify a California support order in Mississippi. Id. at 44 (¶ 4). The mother and children resided in Mississippi. Id. This Court analyzed UIFSA and held that consent to transfer jurisdiction is required where another state still holds continuing, exclusive jurisdiction. However, this Court found that all parties had consented at the outset of the Mississippi case and allowed the action, requiring a transfer request to be filed in the original jurisdiction. Id. at 50 (¶ 28). Judge Southwick, writing for this Court, noted:

There is no evidence that a written consent was filed in the California court. The actual filing is a simple act. Parties may fully be aware of UIFSA’s requirements and believe that their signed consent had been filed, only to find out late in the proceedings that it was not. We have no difficulty in concluding that the reality of the consent needs to exist, but a late filing of it does not affect the chancery court’s jurisdiction.

Id. (emphasis added).

¶ 27. Evans seizes on the latter part of the above paragraph as support that Qia-na’s later-filed, May 24, 2007, affidavit serves as consent to the Mississippi court’s handling and modification of the Louisiana support order. However, this Court in Nelson did not provide that late consent is a blanket curative measure for assuming jurisdiction. Rather, this Court was careful to point out that a later-filed consent would suffice, “unless an intervening order appears from some other state that did comply with UIFSA.” Id.

¶ 28. Here, we are not only confronted with Qiana’s conflicting affidavits; but we are also faced with an intervening order entered after the Mississippi agreed order was entered but before filing of the late consent. On June ⅝ 4, 2007, prior to any decision on the validity of the Mississippi agreed order and prior to the filing of Qiana’s late consent, the Louisiana court, which retained continuing, exclusive jurisdiction, ordered custody of the children to Evans. It also suspended his child-support obligation. Because of Qiana’s contradictory affidavits, and the intervening Louisiana order that complied with UIFSA and was entered prior to the late filing of consent, we find Evans’s argument misplaced.

¶ 29. Therefore, we find the Mississippi agreed order void ab initio, and we hold that the Louisiana order remained in effect.

Hi Modification Pursuant to Other Statutes

¶ 30. Evans contends other statutes provide for modification of child support without a request to transfer or the filing of consent. Though Evans is correct, these statutes are inapplicable to the facts of this case. Initially, we note Evans’s argument is without merit to the extent he cites procedures prohibited by UIFSA.

¶ 31. Here, the support order is clearly governed by UIFSA. Therefore, aside from sections 93-25-101 (requiring either consent or that none of the parties reside in the issuing state) and Mississippi Code Annotated section 93-25-107 (Rev.2004) (requiring both parties to reside in Mississippi), the only other alternative for modification is found in Mississippi Code Annotated section 93-25-108 (Rev.2004). However, section 93-25-108 requires that Louisiana either lack jurisdiction or refuse to modify the support order. Obviously, Louisiana did not lack jurisdiction since Qiana and the children continued to reside in that state, and there is no indication that Evans ever sought or was refused a modification in Louisiana. Accordingly, we find this argument without merit.

iv. Transfer from Louisiana to Mississippi Due to Filing for Enforcement

¶ 32. Finally, Evans argues that Louisiana lost its interest in the case after the child-support order was filed in the Chancery Court of Warren County for its enforcement in Mississippi. This is incorrect under UIFSA because Louisiana retains exclusive, continuing jurisdiction. Likewise, Mississippi Code Annotated section 43-19-59(3)(c) (Rev.2009) instructs: “If [MDHS] provides assistance to another state with respect to a case ... pursuant to this section, neither state shall consider the case to be transferred to the caseload of such other state.” Therefore, enforcement in Mississippi does not equate to a transfer of the entire case to Mississippi. This issue lacks merit.

B. Duty to Modify Evans’s Obligation

¶ 33. Alternatively, Evans alleges MDHS had a duty to ensure that a Mississippi tribunal had proper jurisdiction to modify his support order. Specifically, he contends MDHS breached its duty of ordinary care by failing to ensure proper jurisdiction for obtaining the Mississippi agreed order and by failing to take proper action to have the controlling order determined. Though this assignment of error is wholly at odds with his allegation in his complaint that MDHS was “without just cause to seek to set aside the agreed order,” we note that section 43-19-31© places responsibility on the CSU for initiating actions under UIFSA. Furthermore, Mississippi Code Annotated section 93 — 25—39(3)(b) (Rev.2004) provides that:

(3) A support enforcement agency of this state that is requesting registration of a child support order for enforcement or for modification in this state shall make reasonable efforts:
(b) To ensure that, if two (2) or more child support orders exist and the identity of the controlling order has not been determined, a request for such a determination is made in a tribunal with jurisdiction to do so.

¶ 34. Upon Louisiana’s contact with MDHS and inquiry into the Mississippi court’s reduction of Evans’s support obligation, MDHS attempted at least three times to set aside the agreed order. But the chancellor refused to do so absent service on Evans.

¶ 35. Evans suggests that because MDHS failed to obtain personal jurisdiction over him, we should find MDHS failed to act with ordinary care in carrying out a statutory duty to obtain a judicial determination of the controlling order. We note there is little in the record from either party as to why service was not obtained on Evans. Nevertheless, though we have gone through great detail explaining why the Louisiana order remained in effect, we need not decide whether MDHS made reasonable efforts, or failed to act with ordinary care, by complying with section 95-25-39, but neglecting to serve Evans. We need not decide this issue because we find, based on the record before us, MDHS did not enforce the Louisiana order after its modification by the Warren County Chancery Court.

¶ 36. However, the circuit court based its immunity-based grant of summary judgment on the erroneous assertion that MDHS enforced the valid Louisiana order for $800 per month. But the record shows MDHS enforced the $400 (Mississippi) withholding order from early 2005 until a Louisiana court terminated Evans’s support obligation in June 2007. Because it granted summary judgment based on MDHS’s immunity defense, the circuit court did not specifically address each of Evans’s asserted claims. Thus, we proceed de novo to review each claim to determine whether the circuit court reached the right result in granting summary judgment, but based on the wrong reason. See Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993) (citation omitted).

II. Sanctions

¶ 37. Evans contends MDHS’s negligence resulted in the unwarranted suspension of his driver’s license, an encumbrance of his bank account, damage to his credit rating, and led to the interception of his income tax refund.

¶ 38. Evans does not challenge MDHS’s authority to levy these specific sanctions. Instead, he claims they were inappropriate under the circumstances because he was not in arrears on his support obligation. It is well settled that to survive summary judgment, the non-movant must provide significant probative evidence of a genuine issue of material fact, and may not rely on the pleadings. Dew v. Tchula Grain Co., 812 So.2d 1014, 1017 (¶ 7) (Miss.Ct.App.2001). To penetrate MDHS’s immunity under the MTCA, Evans must show MDHS failed to exercise “ordinary care” in performance of, or in the failure to execute or perform, its statutory duties. Miss.Code Ann. § ll-46-9(l)(b). Ordinary care means “that the immunity to a negligence suit provided under section 11-46-9(b) [applies] only when there is no negligence, i.e., when ‘ordinary care’ is exercised.” Lippincott v. Miss. Bureau of Narcotics, 856 So.2d 465, 468 (¶ 12) (Miss.Ct.App.2003).

¶ 39. MDHS’s immunity aside, we note Evans failed to provide sufficient evidence that he was not behind in his child-support obligation at the times MDHS imposed the various sanctions against him. Indeed, the many records he relies on, including unrecorded payments to Qiana for which he seeks credit, show he was consistently in arrears under the (Mississippi) $400 agreed order. In viewing the evidence in the light most favorable to Evans, we find his attorney’s accounting, which appears to be more generous than the record suggests is proper, indicates Evans was in arrears for the vast majority of the time MDHS enforced his support obligation.

A. License Suspension

¶ 40. Considering the issues surrounding Evans’s driver’s license suspension, Mississippi Code Annotated section 93-11-157 (Supp.2009) authorizes MDHS to suspend an obligor’s license for non-compliance with child-support orders. Before suspension is permitted, section 93-11-157(1) requires notice to the licensee by first-class mail. The notice must inform the licensee that ninety days from receipt of the notice, MDHS will request immediate suspension of the license unless the arrearage is paid or an agreement to satisfy the arrearage is reached. Id. Upon receiving notice, the licensee may request a review with MDHS, under section 93-ll-157(2)(a), or may seek to participate in negotiations with MDHS to establish a payment schedule for arrearage, under section 93-ll-157(2)(b). The notice to the licensee must clearly state the remedies and procedures available. Miss.Code Ann. § 93-11-157(6). If the licensee and MDHS do not reach an agreement, the licensee may request that a court establish a payment schedule. Miss.Code Ann. § 93-11-157(5). Within thirty days of license suspension, the licensee may appeal the suspension to the chancery court. Miss.Code Ann. § 93-11-157(8).

¶ 41. Evans wholly fails to mention or address these requirements. Instead, he relies on unsupported allegations that his license was wrongfully suspended. The record contains a letter from his attorney indicating his license was suspended in December 2006. At this time, Evans’s own accounting shows he was $2,420.81 behind in child-support payments — under the lesser $400 order. Absent is any allegation that MDHS failed to provide him with the statutorily required notice before suspension. Nor does he show MDHS neglected to inform him of the available remedies and procedures. There is also no indication he appealed the license suspension to chancery court.

¶ 42. Evans has the burden of presenting evidence showing a triable issue of fact exists. Borne v. Dunlop Tire Corp. Inc., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citation omitted). Because Evans neglected to establish a fact issue as to MDHS’s failure to exercise ordinary care in suspending his license, we find summary judgment proper here.

B. Bank Account

¶ 43. Evans also alleges MDHS injured his credit history and improperly froze assets from his bank account. Mississippi statutory law provides that whenever court-ordered child-support payments have become due and “remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments that are then due and owing.” Miss.Code Ann. § 93-11-71(1) (Supp.2009). “Assets held in financial institutions” are subject to “interception or seizure without regard to the entry of the judgment on the judgment roll of the situs district or jurisdiction!)]” Miss.Code Ann. § 93-11-71 (3)(c). Furthermore, Mississippi Code Annotated section 93-11-69 (Rev.2004) provides for reporting to consumer reporting agencies the amount of overdue child support owed by an absent parent.

¶ 44. Here again, Evans fails to support his allegations, as his own records show arrears supporting the lawful reporting, encumbrance, and seizure. Therefore, MDHS is not liable for any resulting credit injury. This issue is without merit.

C. Income Tax Return

If 45. Evans claims MDHS negligently accounted and disbursed his support payments causing LDSS to consider him behind in his obligation. Because Louisiana was assigned the rights to Evans’s support payments, it retained authority to seek repayment for those services. La. Civ. Code Ann. Art. 46:236.1.5. We note LDSS did refund a portion of the funds it initially withheld from Evans’s tax return. But Evans failed to show LDSS intercepted his income tax refund because of any action or inaction on the part of MDHS.

¶ 46. The “[m]ere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment. More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1356 (Miss.1990) (internal citations and quotations omitted).

¶ 47. Taking the evidence in the light most favorable to Evans, even under the $400 Mississippi support order, he was behind in his child-support payments for the vast majority of MDHS’s handling of this case. As a final note, Mississippi Code Annotated section 43-19-58 (Rev. 2009), provides the following procedure for those wishing to contest the imposition of administrative civil penalties:

(1) Persons wishing to contest the imposition of an administrative civil penalty under the provisions of Laws, 1997, chapter 588, shall be entitled to a hearing before the Director of the Department of Human Services or his designee by so requesting within twenty (20) days after receiving notice of the imposition of the administratively imposed civil penalty. The request shall identify the civil penalty contested and legibly state the contestant’s name, mailing address and home and daytime phone numbers. The date, time and place for the hearing shall be made as convenient as possible for the contestant, who shall receive notice thereof not less than seven (7) days before the hearing. A hearing on whether to impose a civil penalty and to consider circumstances in mitigation shall be held on the time and the place specified in the notice. The contestant may appear in person, through his attorney or, prior to the date set for the hearing, submit written testimony and other evidence, subject to the penalty for false swearing, for entry in the hearing record.
(2) After the hearing, the director or his designee shall issue his order, which may be appealed to the chancery court of the county in which the contestant resides in the same manner as is provided by law for appeals originating from county courts.
(3) The director or his designee may file the order assessing the penalty, or a certified copy of the order, with the clerk of any chancery court in the state after expiration of the time in which an appeal may be taken, or final determination of the matter on appeal, whereupon the order assessing the penalty shall be enrolled on the judgment roll and may be enforced in the same manner as a judgment.

¶ 48. Evans has not shown that he initiated challenges to any of the administrative sanctions imposed by MDHS, or that he was denied the ability to contest or appeal MDHS’s actions. In addition, the MTCA requires a plaintiff to exhaust all administrative remedies before filing suit. See Miss.Code Ann. § 11-46-11(1) (Rev. 2002) (abrogated in part by Univ. of Miss. Med. Ctr. v. Robinson, 876 So.2d 337, 341 (¶ 19) (Miss.2004)). From the record before us, it appears Evans also failed to comply with this mandate. Accordingly, we find summary judgment proper on each of the sanction-based allegations.

III. Emotional Distress

A. Intentional

¶ 49. Evans sought additional damages for emotional distress he argues MDHS caused both intentionally and through its negligence. Evans claims he experienced sleeplessness and anxiety. He also contends he experienced marital trouble and embarrassment at work due to his financial situation and his repeated requests for paperwork needed by MDHS. Evans alleges his distressed condition resulted from MDHS’s finding him in arrears on his support obligation, mishandling his support case, and pursuing sanctions against him.

¶ 50. In cases involving intentional infliction of emotional distress, the plaintiff must prove the defendant’s conduct “was wanton and willful and evoked outrage or revulsion.” Riley v. F.A. Richard & Assocs., Inc., 16 So.3d 708, 719 (¶ 33) (Miss.Ct.App.2009) (citations omitted). We have already determined the complained of sanctions were authorized based on his constant arrearage. His other claims aside, we find he has failed to show MDHS’s actions were “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of deeen-cy, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Speed v. Scott, 787 So.2d 626, 630 (¶ 18) (Miss.2001)). Accordingly, this issue lacks merit. We next turn to Evans’s claim for negligent infliction of emotional distress.

B. Negligent

¶ 51. In 1999, the supreme court adopted a permissive view of the negligence-based claim, allowing plaintiffs to “recover for emotional injury proximately resulting from negligent conduct,” without any physical manifestation of harm “provided only that the injury was reasonably foreseeable by the defendant.” Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 743 (¶ 20) (Miss.1999) (quoting Strickland v. Rossini, 589 So.2d 1268, 1275 (Miss.1991)). In 2001, the supreme court changed course, holding that “some sort of physical manifestation of injury or demonstrable physical harm” was required. Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1209 (¶ 43) (Miss.2001). Despite its contrary pronouncement, the supreme court in American Bankers’ noted the conflicting views and explained that it had “applied the line of cases adopting the more restrictive majority view in the most recent holdings on this issue, although the cases applying the minority view [had] not been overruled.” Id. More recently, in Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 65 (¶ 28) (Miss.2004), the supreme court emphasized that “[e]ven in this more permissive line of cases [the court has] required a heavy burden of proof in order to establish a right to recover emotional distress damages.”

¶ 52. Here, even under the permissive standard, we find Evans’s claim fails because a plaintiff must still “prove some sort of injury, whether it be physical or mental.” Ill. Cent. R.R. Co. v. Hawkins, 830 So.2d 1162, 1174 (¶ 26) (Miss.2002); see also Adams, 744 So.2d at 743 (¶ 21) (“language ... adopting the term ‘demonstrable harm’ in place of ‘physical injury,’ indicates that the proof may solely consist of evidence of a mental injury without physical manifestation”).

¶ 53. A plaintiff must offer “substantial proof’ of emotional harm, Hawkins, 830 So.2d at 1174 (¶ 26), and the emotional injuries must be reasonably foreseeable from the defendant’s actions. Adams, 744 So.2d at 742-43 (¶ 19). Evans presents no medical or psychological treatment. The evidence he points to centers on his alleged sleeplessness and general worries about his children and his family. Our supreme court has held that sleeplessness, nightmares and even multiple visits to a medical doctor were insufficient proof of emotional harm. Hawkins, 830 So.2d at 1175 (¶ 27). Particularly, the court reemphasized in Wilson that being “ ‘very depressed ... [and] very upset ... and emotional ... [and] not able to sleep,’ [were] insufficient to sustain an award of damages for mental anguish.” Wilson, 883 So.2d at 65 (¶ 31) (quoting Strickland, 589 So.2d at 1275-76).

¶ 54. Even absent the immunity provided by the MTCA, and MDHS’s actions notwithstanding, we find Evans’s allegations fall short of the “substantial proof’ of emotional harm Mississippi law requires to establish claims of emotional distress, including those analyzed under the permissive view. Thus, we find his negligence-based claim of emotional distress also fails.

IV. Defamation

¶ 55. Evans alleges MDHS defamed his reputation through the negligent reporting of arrears. Certain intentional torts, such as defamation, are excluded from the MTCA’s waiver of immunity. Miss.Code Ann. § 11-46-5(2). Because this claim is outside the scope of immunity provided by the MTCA, we must determine whether Evans presents a fact issue on his defamation claim. To establish a claim of defamation, Evans must show:

(a) a false statement that has the capacity to injure the plaintiffs reputation; (b) an unprivileged publication, i.e., communication to a third party; (c) negligence or greater fault on part of publisher; and (d) “either actionability of statement irrespective of special harm or existence of special harm caused by publication[.]”

Mayweather v. Isle of Capri Casino, Inc., 996 So.2d 136, 139 (¶ 8) (Miss.Ct.App.2008) (quoting Speed, 787 So.2d at 631 (¶ 21)).

¶ 56. Evans’s own accounting indicates he was consistently in arrears during MDHS’s handling of the child-support obligation. Thus, we find he is unable to show the necessary false statement required to substantiate his defamation claim.

V. Conversion

¶ 57. Evans next contends MDHS negligently or intentionally converted child-support funds collected from him, withheld those funds, and failed to distribute them to LDSS or Qiana and his children as required by statute. He seeks release of all converted funds as well as accrued interest “prior to initiation and/or resolution of this action or in a percentage to be determined by the Court.”

¶ 58. “Conversion ... is an intentional tort that does not require proof of fraud, malice, libel, slander, or defamation.” Zumwalt v. Jones County Bd. of Sup’rs., 19 So.3d 672, 689 (¶ 86) (Miss.2009) (citation omitted). Thus, conversion is “arguably subject to the MTCA.” Id. Though at times he asserts a “fraudulent conversion” by MDHS, he fails to show any fraudulent intent on MDHS’s part. Thus, we proceed with deciding whether he has established a fact issue on his general claim of conversion.

¶ 59. To succeed on a conversion claim, Evans must show he owned the funds at issue. The supreme court instructs that “[i]t is elementary that ownership is an essential element of conversion.” Cmty. Bank of Ellisville, Miss. v. Courtney, 884 So.2d 767, 772-73 (¶ 10) (Miss.2004). To establish a conversion, “there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized and injurious use, or of a wrongful detention after demand.” Id. (quoting Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (¶ 20) (Miss.1998)). Indeed, “there is no conversion until the title of the lawful owner is made known and resisted.... ” Id. (citing Miss. Motor Fin., Inc. v. Thomas, 246 Miss. 14, 20, 149 So.2d 20, 23 (1963)).

¶ 60. It is undisputed that Evans was under court order to pay child support to Qiana, and “[o]nce a child support payment becomes due, that payment vests in the child.” Burt v. Burt, 841 So.2d 108, 112 (¶ 12) (Miss.2001); Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). For purposes of his conversion claim, we find Evans had no ownership interest in the vested support obligations regardless of whether the Louisiana or Mississippi order controlled. Absent Qiana or the children as party plaintiffs, there can be no conversion here.

VI. Accounting and General Negligence

¶ 61. Though Evans fails to establish a conversion, we find that regardless of which order controlled, he presents a fact issue on his claim of negligent accounting and disbursement.

f 62. MDHS has statutory authority to secure and collect child support for individuals receiving certain listed benefits. MDHS is also required by statute:

To maintain a Central Receipting and Disbursement Unit to which all payments required by withholding orders and orders for support in all actions to which the Department of Human Services is a party shall be forwarded, and from which child support payments ordered by the court in actions to which the Department of Human Services is a party shall be disbursed to the custodial parent or other such party as may be designated by the court order.

Miss.Code Ann. § 43-19-31(k).

¶ 63. Support-enforcement agencies such as MDHS, “shall disburse promptly any amounts received pursuant to a support order, as directed by the order.” Miss.Code Ann. § 93-25-63(1) (Rev.2004); see also Miss.Code Ann. § 43-19-39(1) (Rev.2009) (instructing MDHS to distribute payments as directed by the federal Social Security Act). MDHS, or a tribunal of this state, “shall furnish to a requesting party ... a certified statement ... of the amounts and date of all payments received.” Miss.Code Ann. § 93-25-63(1). Thus, MDHS had a statutory duty to disburse Evans’s child-support payments under section 93-25-63.

¶ 64. MDHS may retain collected funds as reimbursement for a mistaken or erroneous advance of benefits on behalf of a child. Miss.Code Ann. § 43-19-39(2). However, MDHS is not allowed to retain any amounts beyond that reimbursement. Brown v. Miss. Dep’t of Human Servs., 806 So.2d 1004, 1008 (¶¶ 14-15) (Miss.2000) (citing 42 U.S.C.A. § 657 (Supp.1999)). Our supreme court has noted:

[M]DHS is not nor should it be a “for profit” enterprise. Indeed the federal law governing the funds which it distributes does not allow it to be. [M]DHS should make sure that every cent above public assistance obtained for support is used where it is needed most, the care of the children). The amount that the [M]DHS may retain is only that amount “permitted under federal and state statutes as reimbursement for public assistance monies previously paid to the recipient or children.” Brown is entitled to an accounting and recovery of the excess.

Id. at (¶ 18).

¶ 65. The amounts collected and disbursed by MDHS are in dispute. MDHS’s accounting shows very few payments from Evans. In fact, from October 2004 to May 2006, MDHS’s records indicate only $1,654.77 in payments by Evans. Furthermore, a letter from LDSS to Evans’s attorney indicates, in April 2007, the State of Louisiana had received only $3,462.49 from MDHS. In total, MDHS’s records indicate payments by Evans in the amount of $4,735.67 as of June 2007.

¶ 66. Evans’s employer’s payroll summary, however, indicates child-support deductions of $3,538.91 between November 2004 and October 2005, and $738.48 withheld between October 2006 and January 2007. Therefore, Evans’s records show withholdings of $4,277.39 as of January 2007. Stated differently, by January 2007, Evans’s payroll records indicate withhold-ings totaling $458.28 less than what MDHS claims to have collected by June of that year.

1167. Evans provided other records indicating payments exceeding the amounts MDHS credited him. The first record is a $500 payment sent directly to MDHS. Adding this amount to Evans’s wage with-holdings, he appears to have paid MDHS approximately $41.72 more than MDHS accounted. Furthermore, Evans’s records indicate two checks, recorded on Evans’s employer’s letterhead, totaling $2,383.85. However, it is unclear if these checks are simply payments of the withheld amounts or some type of additional payment. The record also includes checks written directly to Qiana totaling $2,100, but it is unclear if Evans informed MDHS of these direct payments. Finally, an accounting from Evans’s attorney shows he had paid over $9,000 to MDHS by March 2007, though he admittedly was still behind in his payments even under the $400 agreed order. When considered with Qiana’s affidavit, wherein she attests she received no support disbursements, we find Evans has provided sufficient evidence to raise a genuine issue of material fact — -whether MDHS breached its duty of ordinary care in accounting and disbursing Evans’s support obligations.

¶ 68. In reviewing grants of summary judgment, we view the evidence in the light most favorable to the nonmoving party. Weathers v. Metro. Life Ins. Co., 14 So.3d 688, 691 (¶ 12) (Miss.2009) (citing Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 817 (¶ 8) (Miss.2006)). And “where there is doubt whether a fact issue exists, the non-moving party is the beneficiary of that doubt.” Id. (quoting Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996)). Finding fact issues exist as to MDHS’s negligent accounting and disbursing of Evans’s support obligations, we reverse and remand this issue for further proceedings in the circuit court.

CONCLUSION

¶ 69. Evans failed to provide sufficient evidence to show any sanctions were improper or caused by any negligence on the part of MDHS. Nor has he established valid claims for intentional or negligent infliction of emotional distress, conversion, or defamation. Accordingly, we reverse and remand the issue of MDHS’s negligent accounting and disbursement of Evans’s support payments, and affirm summary judgment on the remaining claims.

¶ 70. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE AP-PELLEE.

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

      . See City of Ridgeland v. Fowler, 846 So.2d 210 (Miss.2003) (finding circuit court had jurisdiction to entertain accounting claim asserted under the MTCA.)


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Arvin Dale ROCHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01730-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.

      Arvin D. Roehell, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Arvin Dale Roehell appeals the dismissal of his complaint against the Mississippi State Parole Board (Parole Board), Governor Haley Barbour, and the Mississippi state legislators (hereinafter collectively referred to as “the State”) in which he requested the interpretation of parole statutes, claimed that these statutes were unconstitutional, and alleged that the Parole Board arbitrarily denied him parole. Roehell raises five issues on appeal for this Court’s consideration:

I. Pursuant to Mississippi Code Annotated section 47-7-5(1) (Supp.2009), how many members are required to constitute the Parole Board;
II. Is there a limit on how many times a violent offender can be denied parole, and is the absence of such a limit unconstitutional;
III. Pursuant to Mississippi Code Annotated section 47-7-3(3) (Supp.2009), what is the legislative intent behind requiring the parole board to, within the first ninety days of incarceration, predict the length of incarceration necessary before the offender can be successfully paroled;
IV. Does the Legislature intend for an offender to be denied parole based on erroneous information contained in his parole file; and why are there not any procedures to allow an offender to correct erroneous information in his file; and
V. Whether the trial court erred by denying Rochell’s motion for a preliminary injunction, requesting that he receive a new parole hearing.

Finding no error in the trial court’s dismissal of Rochell’s case, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 11, 1994, Rochell pleaded guilty in the Circuit Court of Calhoun County to charges of murder and arson. He was sentenced to serve life for murder, and he was sentenced to serve twenty years for arson. The sentences were ordered to run concurrently in the custody of the Mississippi Department of Corrections.

¶ 3. In 2006, Rochell filed a complaint against the State in the United States District Court for the Southern District of Mississippi. Rochell later filed a motion asking the district court to transfer his case to state court or, alternatively, to dismiss his case without prejudice so that he might pursue his claims in state court. On December 18, 2006, the district court dismissed Rochell’s case without prejudice.

¶ 4. Thereafter, on January 5, 2007, Roc-hell filed a complaint against the State in the Circuit Court of Hinds County, asking the trial court to interpret parole statutes and to determine whether the statutes are unconstitutional. Rochell also filed a motion for a preliminary injunction on May 24, 2007. In this motion, Rochell alleged that members of the Parole Board wrongfully asked him questions about the pending litigation during an April 13, 2007, parole hearing and arbitrarily denied him parole.

¶ 5. The State filed an answer to the complaint and to the motion for a preliminary injunction and argued that Rochell failed to state a claim upon which relief could be granted and denied Rochell’s allegations of improper questioning during the parole hearing. The State asserted that Rochell was denied parole during the April 13, 2007, parole hearing based on the serious nature of his offense, the number of offenses committed, his police record, community opposition, and insufficient time served.

¶ 6. On November 19, 2008, the trial court issued an order dismissing Rochell’s complaint with prejudice. Aggrieved, Roc-hell timely filed his notice of appeal.

ANALYSIS

¶ 7. On appeal, this Court reviews the trial court’s dismissal of a lawsuit based on a question of law under a de novo standard of review. See Horton v. Epps, 20 So.3d 24, 27 (¶ 5) (Miss.Ct.App.2009).

I. Jurisdiction

¶ 8. Rochell requests that this Court interpret parole statutes, determine whether these statutes are unconstitutional, and determine whether the Parole Board arbitrarily denied him parole. Conversely, the State argues that the trial court properly dismissed Rochell’s case based on lack of jurisdiction. We will first address the argument regarding jurisdiction.

¶ 9. The law is clear that “parole eligibility is a matter of legislative grace, and the grant or denial of parole is entirely at the discretion of the Parole Board.” Garlotte v. State, 915 So.2d 460, 466 (¶ 19) (Miss.Ct.App.2005) (citing Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996)); see Miss.Code Ann. § 47-7-5(3) (Supp.2009). Thus, an inmate has no absolute entitlement to parole. See Edmond v. Hancock, 830 So.2d 658, 660 (¶ 5) (Miss.Ct.App.2002) (finding that inmates do not have a constitutionally recognized liberty interest in parole). Additionally, there is no statutory right of appeal from the denial of parole. Mack v. State, 943 So.2d 73, 76 (¶ 8) (Miss.Ct.App.2006) (citing Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 10) (Miss.2003)). However, the trial court may assert jurisdiction over those claims which raise constitutional issues. Id.

¶ 10. Rochell asked the trial court to interpret parole statutes, alleged that the Parole Board violated the statutes, and he claimed that the parole statutes were unconstitutional. First, Rochell asked the trial court how many members are required to constitute the Parole Board under section 47-7-5(1). He also argued that all five members of the Parole Board should have been present at his hearing, where he states that only three board members were present. At the least, this Court can acknowledge that section 47-7-5(1) provides that the Parole Board shall be composed of five members. Additionally, Mississippi Code Annotated section 47-7-13 (Rev. 2004) provides, in pertinent part, that: “A majority of the board shall constitute a quorum for the transaction of all business. A decision to parole an offender convicted of murder or a sex-related crime shall require the affirmative vote of three (3) members.” Thus, the Parole Board was in compliance with the statute.

¶ 11. Second, Rochell argued that the Parole Board should have limits on how many times that they can deny an inmate parole, and the absence of such a limit is unconstitutional. Third, Rochell asked the trial court to determine the legislative intent of section 47-7-3(3), and he argued that he could not have a fair and impartial hearing before the Parole Board because the Parole Board predetermines his length of incarceration. Last, Rochell asked the trial court whether the Legislature intended for an offender to be denied parole based on erroneous information contained in his parole file; he asked why there were not any procedures in place for offenders to correct erroneous information; and he argued that he should be allowed to correct false information in his parole file. In answer to the complaint, the State maintained that it was previously aware of what Rochell perceived to be erroneous information in his file, and it had access to his explanation.

¶ 12. We find that Rochell’s concerns fail to state a constitutional claim sufficient for the trial court to assert jurisdiction. See Mack, 943 So.2d at 76 (¶ 8)(finding that nothing in the complaint “rose to the level of a judicable constitutional issue”) (citing Vice v. State, 679 So.2d 205, 208 (Miss.1996)). Because the trial court lacked jurisdiction to consider Rochell’s claims, we find that the trial court did not err by dismissing Rochell’s complaint.

II. Motion for Preliminary Injunction

¶ 13. As previously mentioned, Rochell filed a motion for a preliminary injunction against the Parole Board during the litigation. In this motion, Rochell argued that the Parole Board violated his Fourteenth Amendment rights by arbitrarily denying him parole in retaliation for this lawsuit. On appeal, this Court must consider Rochell’s equal protection argument under a rational basis standard of review. Justus v. State, 750 So.2d 1277, 1279 (¶ 5) (Miss.Ct.App.1999). Therefore, the denial of parole will be upheld “if there is any ‘conceivable basis which might support the action.’ ” Id. (quoting Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).

¶ 14. Based on our review of the record, the Parole Board denied Rochell parole based on the following: (1) the serious nature of the offense, (2) the number of offenses committed, (3) his police record, (4) community opposition, and (5) insufficient time served. As we held in Justus, the reasons stated by the Parole Board for denying Rochell parole are areas which the Parole Board has authority to consider under Mississippi Code Annotated section 47-7-17 (Rev. 2004). Id. at (¶ 6). Thus, “these categories cannot be viewed as arbitrary and capricious.” Id.

¶ 15. We cannot find anything in the record to support Rochell’s claim that the Parole Board arbitrarily denied him parole in violation of any Fourteenth Amendment right. Thus, we find that the trial court did not err by denying Rochell’s motion for a preliminary injunction. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . See Rochell v. State, 913 So.2d 993, 993 (¶ 1) (Miss.Ct.App.2005).

      . Section 47-7-3(3) (Supp.2009) provides that:
      The State Parole Board shall, by rules and regulations, establish a method of determining a tentative parole hearing date for each eligible offender taken into the custody of the Department of Corrections. The tentative parole hearing date shall be determined within ninety (90) days after the department has assumed custody of the offender. Such tentative parole hearing date shall be calculated by a formula taking into account the offender's age upon first commitment, number of prior incarcerations, prior probation or parole failures, the severity and the violence of the offense committed, employment history, whether the offender served in the United States Armed Forces and has an honorable discharge, and other criteria which in the opinion of the board tend to validly and reliably predict the length of incarceration necessary before the offender can be successfully paroled.


text:
    R.L. WALKER, Appellant v. Georgia M. WALKER, Appellee.
    No. 2007-CA-01074-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.

      Joseph Joshua Stevens, Jr., attorney for appellant.
    Carrie A. Jourdan, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. The Clay County Chancery Court granted a divorce to Georgia M. Walker (Georgia) and R.L. Walker (R.L.) on the ground of irreconcilable differences, divided the marital assets, and awarded alimony to Georgia. Aggrieved, R.L. appeals, raising three issues: (1) whether the chancellor made an equitable division of the marital assets in this cause; (2) whether the chancellor fairly apportioned the indebtedness of the parties; and (3) whether the chancellor erred in ordering R.L. to pay Georgia periodic alimony in the amount of $200 per month. Finding no error, we affirm the chancery court’s judgment.

FACTS

¶ 2. Georgia and R.L. married on January 1, 1969. After thirty-five years of marriage, the two separated in 2004. One child, Antonio Lamar Walker, was born as a result of the marriage; Antonio, had just turned twenty-one at the time of trial. Although no other children were born to this union, Georgia had a son, Lamar, prior to the marriage, who R.L. raised as his own child. There was testimony that R.L. had fathered children with other women during his marriage to Georgia.

¶ 3. Both Georgia and R.L. worked throughout the entire marriage combining resources to support their family and household. At the time of trial, Georgia, who was sixty-five years old and in fair health, was working as a cook and bus driver for the West Point School District. Also, at the time of trial, R.L., who was fifty-seven years old, had suffered three heart attacks, had a pacemaker, was taking approximately eleven different types of medication a day, and was working as a truck driver. Testimony indicated that R.L., as the primary breadwinner, was primarily responsible for household expenses as his income was higher than Georgia’s; and Georgia was primarily responsible for the household chores, caring for the children, and managing their rental property.

¶ 4. Georgia testified that one day R.L. came home and told her that he saw Attorney Josh Stevens to file for divorce. After becoming aware that a divorce pleading had not been filed, Georgia filed for a divorce on August 4, 2004, in the Clay County Chancery Court alleging adultery and habitual cruel and inhuman treatment. In her complaint, Georgia asked the court for complete custody of the minor child, child support, continued medical insurance for the child, reasonable attorney’s fees, an equitable division of the marital property, alimony, and possession and control of the marital home.

¶ 5. On October 14, 2004, the chancellor entered a temporary order which granted Georgia possession of the marital home and household contents and directed R.L. to pay the monthly mortgage and $400 per month in temporary alimony to Georgia. The chancellor ordered that neither party dispose of any marital property and instructed each to file an affidavit on the issue of emancipation of the minor son. The issues of child custody and child support were to be held in abeyance until receipt of the affidavits. On June 7, 2005, Georgia and R.L. agreed to a divorce on the ground of irreconcilable differences. In the June 7, 2005, pleading styled “Consent,” Georgia and R.L. also agreed to submit to the chancellor certain issues on which they could not agree. Those issues were as follows: (a) child custody and the amount of child support for the minor child; (b) determination of what was the marital estate and an equitable division and distribution of the same, including but not limited to the marital residence, rental properties, retirement and pension accounts, household goods and furnishings and automobiles; (c) the amount of alimony to award; and (d) whether to award attorney’s fees.

¶ 6. On January 19, 2006, the chancellor heard evidence on the contested issues. On March 9, 2006, the chancellor issued an opinion, which granted a divorce on the ground of irreconcilable differences. In that opinion, the chancellor awarded Georgia the marital home, the vacant lot, the 1993 Cadillac, the 1994 Dodge, her personal property, and her retirement account. The chancellor also directed Georgia to pay her own attorney’s fees and sign all necessary papers giving title to the other vehicles and rental properties to R.L. The chancellor also directed R.L. to refinance the debt on the marital home to give clear title to Georgia and to continue to pay the debt on the Dodge pickup truck until it was paid in full. The chancellor awarded R.L. the rental properties, the 2000 Freightliner truck, the Gooseneck trailer, the 270 John Deere Haycutter, the 1989 GMC Silverado, the 2004 Denali and all other vehicles and trucking equipment, his retirement account, his personal items that were still at the marital home, and the household furnishings that he had inherited from his mother. R.L. was responsible for payment of the debt on the rental properties and his own attorney’s fees. R.L. was ordered to pay periodic alimony of $400 per month and to refinance the rental properties in order to relieve Georgia of any financial obligations associated with these properties.

¶ 7. Aggrieved, on April 7, 2006, R.L. filed a motion for reconsideration of the chancellor’s judgment. On June 2, 2006, the chancellor reopened the case for submission of Georgia’s retirement account balance, which she had failed to submit to the chancellor prior to the ruling on March 9, 2006, and any and all of R.L. financial statements used to obtain financing from banking institutions for the purchase of trucking equipment and rental properties. On August 15, 2006, a hearing on the motion for reconsideration was held, and this information was received by the court. During the hearing, Georgia’s retirement account statement from the Mississippi Public Employment Retirement System (PERS) and R.L.’s 2005 income tax return were introduced. The chancellor heard testimony from R.L.’s witness Brenda Wofford, the H & R Block senior tax advisor in West Point, Mississippi, who discussed R.L.’s self-employment tax returns. Allegedly, the financial statements used in R.L.’s applications to obtain financing from banking institutions for the purpose of the rental houses did not exist. After reviewing the additional evidence and testimony, the chancellor, on December 22, 2006, entered an order granting the motion for reconsideration in part. In that order, the chancellor made the following adjustments: R.L. was directed to pay $200 per month in periodic alimony to Georgia, and Georgia was awarded her retirement account. A final judgment was filed on May 29, 2007.

STANDARD OF REVIEW

¶ 8. “The Court employs a limited standard of review on appeals from chancery court.” Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). “If substantial credible evidence supports the chancellor’s decision, it will be affirmed.” Id. “This Court will not disturb the findings of a[c]hancel-lor unless the [cjhancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

ANALYSIS

¶ 9. Although R.L. presents three assignments of error, because issues one and two raised by R.L. involve the division of marital property, they will be discussed together.

I. Division of Marital Assets

¶ 10. R.L. argues that the division of the martial property was not equitable, and the marital debt was not fairly apportioned. R.L. claims that their combined net worth at the time of trial was $34,968.29. R.L. contends that when the chancellor divided the marital property, Georgia had a positive net worth of $115,899.29, and he was left with a negative net worth of -$80,931, with no debt apportioned to Georgia. R.L. argues that a fair division of the marital property should have left an approximately equal net worth for him and Georgia in the amount of $17,488.14.

¶ 11. R.L. asserts that Georgia received a furnished home and the Dodge pickup truck debt free. R.L. contends that because a part of the vacant lot had been deeded to Georgia’s son, Lamar, prior to these proceedings, this lot should be charged against Georgia’s share. In addition, R.L. claims that because the Dodge pickup truck is an oversized pickup truck with double rear wheels used to pull the gooseneck trailer he received, the chancellor should not have awarded Georgia the Dodge pickup truck.

¶ 12. In determining equitable distribution of marital assets and debts, the chancellor must first classify each asset as marital or non-marital. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). “[N]ot all debts incurred during a marriage are marital debts.” Fitzgerald v. Fitzgerald, 914 So.2d 193, 197 (¶ 21) (Miss.Ct.App.2005). “Whether a debt is classified as marital or separate depends on who benefitted from the debt.” Id. Once that determination is made, the chancellor must evaluate the equitable division of all marital property pursuant to the guidelines listed in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). An equitable distribution does not mean that the chancellor is required to divide the property equally. Drumright v. Drumright, 812 So.2d 1021, 1026 (¶ 14) (Miss.Ct.App.2001). Equitable division of marital property is left to the discretion and conscience of the chancellor, “having in mind all the equities and other relevant facts and circumstances.” Humphries v. Humphries, 904 So.2d 192, 198 (¶ 24) (Miss.Ct.App.2005). “Fairness is the prevailing guideline in marital division.” Id. at 198-99 (¶ 24).

¶ 13. “When reviewing a chancellor’s judgment in property division we are not to conduct a Ferguson analysis anew, but are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Jackson v. Jackson, 922 So.2d 53, 59 (¶ 16) (Miss.Ct.App.2006).

¶ 14. In this case, the chancellor considered all the evidence against the Ferguson factors. We will address them below.

(A)Substantial contribution to the accumulation of the property

¶ 15. The chancellor opined that for thirty-five years R.L. and Georgia had worked as a family unit, and both parties had contributed equally to the accumulation of the marital assets. The chancellor stated that although R.L. had been the primary breadwinner, Georgia had made significant contributions. In addition to being employed, Georgia was responsible for taking care of the house. Although R.L. testified that Georgia had been unfaithful, the chancellor appears to have found Georgia’s denial of the accusation credible. On the other hand, the chancellor noted that there was in fact evidence to support the fact that R.L. had fathered several children by other women during the course of his marriage to Georgia and was in fact living with another woman at the time of the divorce proceeding.

(B) 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

¶ 16. The chancellor found no evidence regarding this factor.

(C) 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 vi-vos gift by or to an individual spouse

¶ 17. The chancellor opined that the only evidence offered as to assets not ordinarily subject to such distribution was personal property R.L. had acquired from his mother. Georgia agreed to let R.L. have the items he had inherited from his mother.

(D)The market value and the

emotional value of the assets subject to distribution

¶ 18. As to the real property, the chancellor opined that although the parties’ testimonies differed as to the value of the marital home and other real property, Georgia introduced into evidence real-property appraisals from the Clay County Tax Assessor’s Office. The chancellor accepted the values placed on the property from the tax assessor because there was no other credible evidence before the court. The marital home was valued at $61,881. At some point, the marital home was debt free, but because the parties purchased a Freightliner truck for R.L.’s use in his business, the marital home had a debt of $57,000, leaving equity of $4,881. The vacant lot was valued at $1,500. Both parties testified that when they purchased the lot it was two acres, but they subsequently deeded an acre to Georgia’s son, Lamar, as a gift. The rental house was valued at $34,210, and the balance of the mortgage on the rental house was $28,414, leaving equity of $5,796. The duplex was valued at $37,290, but it carried a mortgage of $50,000. The court ruled that all the monthly income produced from the rental properties serviced the associated debt. R.L.’s financial statement also indicated that his guns were worth $1,200, the gooseneck trailer was worth $3,000, the haycutter was worth $2,000, and the front-end loader was worth $2,500. Although neither party provided documentation as to the value of the household furnishings, R.L.’s 8.05 financial statement approximated the value of the household furnishings at $15,000, while Georgia’s 8.05 financial statement approximated the value at $900. The chancellor found it difficult to accept that after thirty-five years of marriage, the parties’ household furnishings were valued at $15,000, unless the parties had purchased antiques, and there was no testimony as to such purchases.

(E) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution

¶ 19. The chancellor opined that there was no evidence regarding this factor.

(F) 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

¶20. The chancellor recognized that when there is friction between the parties, the marital property should be equitably divided to eliminate periodic alimony payments. In this case, the chancellor determined that there was animosity between the parties; however, it was not possible to provide for Georgia if periodic alimony was eliminated. Therefore, the chancellor sought to minimize payments and, thus, minimize future friction.

(G) The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity

¶ 21. The evidence indicated that both parties were employed. The evidence also showed that despite the fact that Georgia had reached the age of retirement and received social security benefits, she continued to work full time. The chancellor opined that the amendment to R.L.’s 8.05 financial statement regarding his gross monthly income (amended to $2,000 per month as opposed to $9,000 per month) was not credible, and that despite R.L.’s suffering from poor health, his business continued to gross $150,000 per year.

(H)Any other factor which in equity should be considered

¶22. The chancellor found that there was no evidence regarding this factor.

¶23. The evidence indicates that although R.L. had been the primary breadwinner, Georgia had made significant contributions to the marriage. The supreme court has recognized that “marital partners can be equal contributors whether or not they both are at work in the marketplace.” Hemsley, 639 So.2d at 915. Georgia testified that she has paid on R.L.’s medical bills, especially when she was threatened by the collection agency, and paid the household bills at the marital home for over a year because R.L. refused to pay any household bills despite the fact he was paying the household bills where he lived with another woman. Georgia stated that although R.L. was living with another woman, she continued to cook for R.L., get his medicine, and wash his clothes whenever he came to the marital home. Georgia also testified that she was involved in the management of the rental properties until R.L. took those responsibilities away.

¶ 24. Despite the testimony from Wof-ford as to how income taxes affect R.L., who was self-employed, the chancellor still found that R.L.’s testimony that his gross monthly income was only $2,000 per month not to be credible. The chancellor opined that despite his poor health, R.L. had continued to work, and his business had grossed more than $150,000 per year. The chancellor stated that although R.L. and Georgia obtained a home-equity loan to purchase the Freightliner truck, the truck was used solely for the business, and the debt of the truck could be paid by the business. The chancellor noted that the remaining liabilities were for three other vehicles, which were solely used by R.L. Lastly, in the order partially granting the motion for reconsideration, the chancellor made an adjustment to the amount of periodic alimony that R.L. would be required to pay.

¶ 25. Reviewing the chancellor’s judgment, according to Ferguson, we find that the chancellor did not abuse her discretion. Therefore, we affirm the chancellor’s judgment.

II. Periodic Alimony

¶ 26. Initially, the chancellor ordered R.L. to pay $400 in periodic alimony to Georgia; however, in the order partially granting R.L.’s motion for reconsideration, the chancellor decreased the payment of periodic alimony to $200 per month. R.L. argues that his income was not sufficient to justify periodic alimony. R.L. asserts that the chancellor had no proof to conclude that his amended 8.05 financial statement reflecting a gross monthly income of $2,000 was not credible or a misrepresentation to the court. R.L. also asserts that he has approximately $50,000 worth of medical bills.

¶ 27. “The purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Faerber v. Faerber, 13 So.3d 853, 862-63 (¶ 36) (Miss.Ct.App.2009). Alimony should be considered only after equitable division of the marital assets. Id. Periodic alimony should only be considered if the chancellor determines that a spouse has suffered a disparity of income and standard of living following the equitable division of marital assets. Carroll v. Carroll, 976 So.2d 880, 886 (¶ 12) (Miss.Ct.App.2007).

¶ 28. Georgia’s 8.05 financial statement reflected that she had a net monthly income of $2,077 per month and that her monthly expenses included residential maintenance, food and household supplies, household utilities, laundry, clothing, automobile gas and oil, automobile insurance, church donations, newspaper/magazines, yard expenses, credit card payments, and food and clothing allowances for her son. Georgia’s list of monthly expenses did not include an amount for property taxes and insurance, medical and dental insurance and expenses, entertainment, transportation other than vehicle, incidentals, automobile repairs, pest control, and charitable donations. R.L.’s initial 8.05 financial statement reflected that he earned a gross monthly income of $9,000. R.L. testified that after he realized that he had failed to consider the business expenses and rental property expenses, his monthly gross income was actually $2,000. The chancellor stated that there was no credible evidence that R.L. had $50,000 worth of medical bills, or that the rental properties did not self-service the debt owed. Therefore, the chancellor opined that R.L. should not have any monthly payments out of his income for the rental properties.

¶ 29. In this case, the chancellor held that equitable division of the marital assets did not adequately provide for the future income needs of Georgia.. In accordance with Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), in making a determination to award alimony, the chancellor considered the following factors: health and age of the parties, income and earning capacity and needs of each party, the obligations and assets of each party, the length of the marriage, the standard of living of the parties during the marriage and at the time of separation, and fault or misconduct. Considering the Armstrong factors that the chancellor considered in her decision, we find no indication that the chancellor’s findings constitute manifest error.

(A) Health and age of the parties

¶ 30. Georgia, who was sixty-five years old at the time of trial, was found to be in fair health. R.L., who was fifty-seven years old at the time of trial, has suffered three heart attacks and has a pacemaker. R.L. testified that he also suffers from arthritis, hypertension, and high cholesterol. R.L. asserted that despite his health conditions, he continues to make long trips driving trucks.

(B) Income and earning capacitg of each party

¶ 31. The record supports the chancellor’s finding that a disparity in income exists between the parties. Georgia’s 8.05 financial statement indicates that with her social security benefits and job as a cook and bus driver, she averages approximately $2,077 before taxes. However, when Georgia retires, she will receive only $369 per month from retirement. R.L.’s 2004 income tax return indicates that his yearly income as a truck driver was $156,646.

(C)Needs of each party

¶ 32. The record does not reflect that the parties have any special needs.

(D) Obligations and assets of each party

¶ 33. Georgia’s 8.05 financial statement reflects a net monthly income of $1,844 with monthly expenses amounting to $1,130. R.L.’s 8.05 financial statement indicates a net monthly income of $9,000 with monthly expenses totaling $6,210.66.

(E) Length of the marriage

¶ 34. At the time of the divorce proceeding, the couple had been married for thirty-five years.

(F)Standard of living both during the marriage and at the time of separation

¶ 35. The facts indicate that the parties maintained a good standard of living. Georgia and R.L. owned their home, owned rental properties, and paid their bills together. Although R.L.’s income was used primarily to support household expenses, the parties worked as a unit to support their family and business. At the time of separation, R.L. was living with another woman, who drove one of his vehicles, which he made installment payments on. However, even during the separation, R.L. would periodically come to the marital home, and Georgia would cook for him, do his laundry, pay his medical bills, and get his medicine; but R.L. refused to assist with the household expenses. Georgia’s income alone was responsible for the household expenses and maintenance during the time of the parties’ separation.

(G)Fault or Misconduct

¶ 36. The parties agreed to a divorce on the ground of irreconcilable differences. R.L. testified to Georgia’s infidelity, but Georgia denied the accusations. However, R.L. did testify that he was living with another woman during the period of separation and that he had fathered several children by other women during the course of his marriage to Georgia.

¶ 37. After careful consideration of the evidence before us, we find that the chancellor did not abuse her discretion when she awarded Georgia periodic alimony. Therefore, we affirm the chancellor’s judgment.

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

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

      . Lamar’s last name is not found in the record.


author: ISHEE, J.,

text:
    Ronson BANKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00070-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.
    Leslie S. Lee, Jackson, David Lydell Tisdell, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, John R. Henry, Jr., attorneys for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In December 2008, Ronson Banks was convicted of robbery in the Coahoma County Circuit Court. Banks was sentenced to twelve years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his conviction, Banks filed an appeal. Banks asserts that the identification process used to identify him was so impermissibly suggestive that he suffered irreparable misidentification. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 12, 2006, Elizabeth Cohens was walking home from her job at Wood Security in Clarksdale, Mississippi. As she was walking, she met an individual in the street who spoke to her. Cohens testified that she heard someone running behind her, turned, and then felt a gun being pressed against her back by a man. She further testified that the man demanded she give him her backpack and cell phone. After consenting to his demands, Cohens then walked across the street and called for help. The police arrived shortly thereafter, and Cohens described to them what had just taken place.

¶ 3. Cohens gave a description of her attacker, including that he had been drinking from a Burger King cup. The police then went looking for Cohens’s attacker. After receiving Cohens’s description, Officer Jason Sims began patrolling the area and attempted to locate the attacker. He and other officers stopped a man who fit the description. The man was also in possession of a Burger King cup. After being apprehended by officers, the man, later identified as Banks, was shown to Cohens, and she identified him as the one who had robbed her.

¶ 4. Banks was taken into custody. He was read his Miranda rights and proceeded to give a statement to Detective Ro-melle Matthews. In his statement, Banks admitted he took Cohens’s backpack, but he claimed that he did not have a gun.

DISCUSSION

¶ 5. Banks’s sole issue on appeal is whether the trial court erred in admitting the identification testimony. Banks asserts that the “showup” identification used by the police was unfairly suggestive and, therefore, inadmissible. However, Banks did not raise this issue at trial. “[A] failure to object is fatal for purposes of preserving error [for appeal].” Fleming v. State, 604 So.2d 280, 302 (Miss.1992). Further, “[questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973) (citing Boutwell v. State, 165 Miss. 16, 27-28, 143 So. 479, 482 (1932)). Banks effectively waived his objection to the identification testimony when he failed to raise the issue at trial.

¶ 6. Despite the procedural bar, had Banks not waived his right to appeal the alleged misidentification error, the issue would, nonetheless, be without merit. Banks admitted that he took Cohens’s backpack. The only issue at trial was whether or not he used a weapon when he took the backpack. His identity was simply not an issue. Accordingly, this issue is also without merit.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

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


author: CARLTON, J.,

text:
    Lonnie Lee WARDEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00639-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.

      Lonnie Lee Warden, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. The Forrest County Circuit Court dismissed Lonnie Lee Warden’s motion for reduction of sentence, which the trial court treated as a motion for post-conviction relief. Warden appealed the dismissal to this Court. However, Warden asserted no authority showing a basis for the trial court to grant a post-conviction reduction in sentence beyond the sentencing term of court. Therefore, we affirm the trial court’s dismissal of Warden’s motion for reduction of sentence.

FACTS

¶ 2. A Forrest County grand jury indicted Warden for possession of methamphetamine, a Schedule II controlled substance in violation of Mississippi Code Annotated section 41-29-139(c)(l)(D) (Rev.2009), and possession of two or more precursor chemicals with the intent to manufacture methamphetamine in violation of Mississippi Code Annotated section 41 — 29—313(l)(A)(i) (Rev.2009). On June 1, 2004, while represented by counsel, Warden pled guilty to both counts of the indictment against him in the Forrest County Circuit Court. The trial court sentenced Warden to serve twenty years on the possession of methamphetamine charge and twenty years on the possession of precursor chemicals with the intent to manufacture methamphetamine, with the sentences to run concurrently in the custody of the Mississippi Department of Corrections.

¶ 3. More than two years after his conviction and sentence, Warden filed a pro se motion requesting the trial court to review and reduce his sentence. Warden argued that he received excessive sentences, especially when compared with the sentences of other first-time drug offenders. The circuit court then treated Warden’s motion as a motion for post-conviction relief. In so doing, the trial court summarily dismissed Warden’s motion, because the motion failed to state a legal basis for the trial court to reduce or modify his sentence. Consequently, Warden then filed his notice of appeal.

¶4. In his appellate brief, Warden argues that he received a harsher sentence than other first-time offenders in his jurisdiction. There is no allegation that Warden’s sentences are illegal; rather, Warden complains of the harshness of the sentences in light of his rehabilitation and potential for further rehabilitation. In support of his motion for reduction of sentence, Warden attached proof of his completion of drug and alcohol treatment and letters from his supervisors and the jail chaplain stating that Warden possessed exemplary work habits and character.

STANDARD OF REVIEW

¶ 5. “In reviewing a trial court’s dismissal of [a motion for] post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). “However, where questions of law are raised, the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 6. Warden’s motion for a sentence reduction, along with the evidence submitted in support of his motion, fail to fall within the parameters defined by the Legislature in the post-conviction-relief statute. Miss.Code Ann. § 99-39-5(1) (Supp. 2009). Therefore, we affirm the dismissal of Warden’s motion, as no authority exists under which the trial court could grant Warden’s requested relief beyond the expiration of the term of court during which Warden was sentenced.

¶ 7. In support of his motion for reduction of sentence, Warden submitted evidence showing his rehabilitation, including a certificate of completion of substance-abuse treatment and letters of recommendation from his prison work supervisor and the jail chaplain. Despite the positive steps Warden took to rehabilitate himself, the trial judge possesses no authority to reduce a sentence two years after the conviction was entered and the sentence imposed. In Robinson v. State, 849 So.2d 157, 158 (¶ 4) (Miss.Ct.App.2003), this Court recognized that:

A reduction or reconsideration of a sentence by a judge must occur prior to the expiration of the sentencing term. The power to reduce the sentence after the expiration of the term is vested in another branch of the government. The trial judge was correct to deny the request.

(Internal citation omitted).

¶ 8. Further, despite Warden’s argument that similarly situated first-time drug offenders received less onerous sentences, Warden’s sentences constituted legal sentences falling within the minimum and maximum sentences authorized by statute. Under Mississippi Code Annotated section 41-29-139(c)(l)(E) (Rev.2009), a conviction for possession of methamphetamine carries a possible sentence of not less than six years or more than twenty-four years. Warden’s sentence of twenty years for possession of methamphetamine falls within the minimum and maximum sentences allowed by the statute. Id. Likewise, Mississippi Code Annotated section 41 — 29—313(l)(c) (Rev.2009) sets forth a maximum sentence of thirty years upon conviction of possession of precursor chemicals with the intent to manufacture methamphetamine. The trial judge sentenced Warden to twenty years for the possession of precursor chemicals with the intent to manufacture methamphetamine, which is less than the maximum allowed by the statute. Id.

¶ 9. Because Warden’s motion for reduction of sentence stated no legal basis for the trial court to grant relief, we affirm the trial court’s summary dismissal of his motion.

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

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

      . See Uniform Rule of Circuit and County Court 11.02 (defining content of presentenc-ing report and setting forth extenuating and mitigation evidence for a judge to consider at sentencing).