author: TINDELL, J., FOR THE COURT: BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Charles Irvin BRUTON Jr., Appellant v. Allison Hipwell BRUTON, Appellee
    NO. 2017-CA-00124-COA
    Court of Appeals of Mississippi.
    October 30, 2018 Rehearing Denied April 30, 2019
    ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY
    ATTORNEY FOR APPELLEE: ALBERT RALPH JORDAN IV
    EN BANC.
   TINDELL, J., FOR THE COURT:

¶ 1. On May 9, 2013, the Lamar County Chancery Court entered an opinion and final judgment granting Allison Bruton a divorce from Charles (Chuck) Bruton. Chuck filed a petition to modify the judgment. In his petition, Chuck challenged the requirement that he pay private-school tuition and health-insurance premiums for his minor children, and he requested that the chancellor allow him to claim one of the children as his dependent for income-tax purposes. In addition, Chuck filed a civil-contempt claim against Allison. In response, Allison sought increased child support and filed a counter-claim for civil contempt against Chuck. Except for a ten-percent decrease in the amount Chuck was to contribute to the children's private-school fees and extracurricular expenses, the chancellor denied Chuck's claims for modification. The chancellor also granted Allison's request for an increase in child support and her claim for contempt and related attorney's fees.

¶ 2. On appeal, we find the chancellor erred in holding Chuck in contempt. We therefore reverse and render that portion of the chancellor's judgment and vacate the award to Allison of her attorney's fees related to the contempt proceedings against Chuck. As to all the remaining issues raised in this appeal, we affirm the chancellor's judgment.

FACTS

¶ 3. Chuck and Allison married on August 3, 2002. They separated in January 2012 about four days after the birth of their second son. On April 24, 2012, Allison filed a divorce complaint on the grounds of adultery and cruel and inhuman treatment or, alternatively, irreconcilable differences. Chuck responded and requested an irreconcilable-differences divorce. He agreed that Allison was fit and suitable to have full legal and physical custody of the parties' children and that he should pay child support.

¶ 4. On May 8, 2012, the chancellor entered an agreed temporary order that (1) granted Allison exclusive use and possession of the marital home; (2) ordered Chuck to pay the insurance, taxes, and homeowner's dues for both the home and an unimproved lot the parties owned; (3) ordered Chuck to pay $1,000 a month in child support pursuant to Mississippi Code Annotated section 43-19-101 (Rev. 2009); (4) ordered Chuck to pay the taxes and insurance on the parties' vehicles, the children's daycare expenses, and various other household expenses; and (5) granted Chuck visitation rights. On November 20, 2012, the parties entered into a temporary agreed order on custody and visitation. Pursuant to the agreed order, the chancellor granted the parties joint legal custody, with Allison receiving sole physical custody and Chuck receiving reasonable visitation rights. The remaining provisions of the May 8, 2012 temporary order remained in effect. The parties submitted all other issues, including child support, equitable distribution, alimony, and attorney's fees to the chancellor for determination.

¶ 5. Following a one-day trial, the chancellor entered his opinion and final judgment on May 9, 2013. Through his trial attorney, Chuck admitted that he had committed uncondoned adultery. The chancellor therefore granted Allison a divorce on that ground. The chancellor ordered Chuck to maintain health insurance for the children and to pay their daycare expenses and sixty percent of their private-school tuition and fees. In calculating child support, the chancellor determined Chuck's adjusted gross income exceeded $50,000. Section 43-19-101(1) creates a "rebuttable presumption ... regarding the awarding or modifying of child support" that the noncustodial parent should pay twenty percent of his or her adjusted gross income for two children. Section 43-19-101(4), however, requires the chancellor to make "written finding[s] in the record as to whether or not the application of the guidelines established in this section is reasonable" when adjusted gross income is greater than $50,000. After concluding the statutory guidelines were "not reasonable, just[,] or appropriate ... due to the children's expenses that Chuck will be responsible for in addition to child support[,]" the chancellor ordered Chuck to pay $834 a month in child support (or twenty percent of $50,000).

¶ 6. With regard to the equitable distribution of the marital estate, the chancellor awarded Allison the marital home and awarded Chuck the parties' unimproved lot. Finding that Allison had no debt, had received a larger share of the marital assets, and would have her own separate income and estate, the chancellor refused to award alimony. The chancellor also denied Allison's request for attorney's fees after finding she had the ability to pay them.

¶ 7. Chuck filed a subsequent motion to amend the chancellor's judgment as to the following: (1) the requirement that he pay expenses for the children in excess of child support (i.e., daycare costs, school tuition and fees, health insurance and uninsured medical costs, and life-insurance premiums); (2) the chancellor's decision to allow Allison to claim both children as dependents for tax purposes; and (3) the chancellor's acceptance of Allison's valuation of the unimproved lot. Although the chancellor amended his judgment to clarify that "school tuition" included "primary and secondary private[-]school tuition[,]" he otherwise denied Chuck's motion.

¶ 8. In 2015, Chuck filed a petition to modify the chancellor's May 9, 2013 opinion and final judgment. Chuck asserted a modification was justified because (1) his income had decreased; (2) he now supported the nine-month-old child he had with his girlfriend, Katie; (3) Allison had moved from Hattiesburg, Mississippi, to Baton Rouge, Louisiana, and enrolled the children in a more expensive private school; and (4) Allison's income had increased. Chuck also asked the chancellor to sanction Allison for her failure to inform him of her address change, as required by Uniform Chancery Court Rule 8.06, and to communicate with him regarding the children's health, education, and extracurricular activities.

¶ 9. Allison responded and filed a counter-complaint for modification and citation of contempt. According to Allison, Chuck "ha[d] willfully and contumaciously refused to abide by" the chancellor's order against having an unrelated overnight guest in the children's presence. Specifically, Allison alleged Chuck had: (1) moved in with his girlfriend, Katie; (2) fathered a child out of wedlock; and (3) taken the parties' children on vacations with Katie. Allison also claimed Chuck's increased income and the "increased needs and costs of raising the [now] older minor children" amounted to a substantial and material change in circumstances that justified an increase in Chuck's child-support obligation.

¶ 10. Following a hearing on their motions, the parties entered into an agreement on September 19, 2016, to modify the chancellor's prior visitation order. On October 13, 2016, the chancellor entered an opinion and final judgment on contempt, modification, and the parties' other requested relief. In accordance with the 2013 amendment to section 43-19-101(4), the chancellor increased Chuck's monthly child-support payment to $1,026 (or twenty percent of Chuck's entire monthly adjusted gross income). The chancellor also dismissed Chuck's claim for contempt but granted Allison's contempt claim and awarded her $2,750 in attorney's fees related to the contempt proceedings.

¶ 11. Chuck filed a posttrial motion, which the chancellor partially granted. The chancellor amended his prior calculation of both the children's private-school tuition and fees and Allison's net monthly income. The chancellor further ordered the parties to equally divide the children's private-school and extracurricular expenses. After reviewing the parties' 2015 tax returns, the chancellor denied Chuck's request for a downward modification of his child-support obligation and upheld the award of attorney's fees to Allison. Aggrieved, Chuck appeals.

DISCUSSION

I. Whether the chancellor's order violated the statutory guidelines for child support.

¶ 12. In his May 9, 2013 opinion and final judgment, the chancellor noted that the parties' children attended daycare at a monthly cost of $1,030 and that their older son was preregistered to attend a private school with an annual tuition of $4,700, annual fees of $600, and an after-school rate of $8 an hour. The chancellor ordered Chuck to pay the children's monthly child-care expense of $1,030 until the parties' older son started attending private school, at which time Chuck was to pay $585 per month for the younger son's child care. The chancellor further ordered Chuck to pay sixty percent of the private-school tuition and fees, including extracurricular expenses.

¶ 13. In the October 13, 2016 order for modification, the chancellor increased Chuck's monthly child-support obligation to $1,026 (or twenty percent of Chuck's adjusted gross income). However, the chancellor denied Chuck's request to modify the provisions as to the payment of daycare and school expenses and upheld his order that Chuck pay sixty percent of the private-school tuition and fees. In response to Chuck's motion to reconsider, though, the chancellor modified his order so that the parties equally split the school and extracurricular expenses, and he acknowledged a slight error in his prior calculation of Allison's net income and the school fees.

¶ 14. "[T]o justify the modification of the child[-]support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties." Hopson v. Hopson , 851 So.2d 397, 400 (¶ 10) (Miss. Ct. App. 2003). Affording the chancellor "broad discretion in the modification of child support, ... we will reverse only when he is manifestly wrong in his finding of facts or has abused his discretion." Id. (internal quotation mark omitted). Here, the chancellor determined in his order for modification that "a number of changes in circumstances [had occurred] since the divorce" to warrant a modification of child support, including Allison's move to Baton Rouge to take a better job and to be closer to her family. Neither party contests the chancellor's finding of a material change in circumstances.

A. Private-School Tuition and Fees

¶ 15. Chuck contends the chancellor's order that he pay half the children's school tuition, in addition to child support, constitutes reversible error because the chancellor exceeded the statutory guidelines for child support. Chuck alleges his ordered contributions would equal $4,950 a year in addition to his existing monthly obligations.

¶ 16. The Mississippi Supreme Court has held that private-school tuition is considered part of child support. Southerland v. Southerland , 816 So.2d 1004, 1006 (¶ 11) (Miss. 2002). Under section 43-19-101(1), the percentage of Chuck's adjusted gross income that should be awarded for the support of two children is twenty percent. Prior to the modification, Chuck was paying only twenty percent of the first $50,000 of his income, plus a sixty-percent share of the children's private-school tuition and fees. Therefore, the chancellor's modified order that Chuck pay twenty percent of his adjusted gross income, plus fifty percent of the children's private-school tuition and expenses, does constitute an upward deviation of the statutory guidelines for child support. However, the modification was to Chuck's child-support obligation, not those additional contributions he was previously ordered to pay, and the chancellor later reduced the percentage of the extra contributions from sixty percent to fifty percent.

¶ 17. Allison raises no dispute that the chancellor deviated from the statutory guidelines, but she claims the chancellor satisfied the statutory requirements by making detailed findings to justify any deviation. Section 43-19-101(2) provides:

The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child[-]support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in [s]ection 43-19-103.

(Emphasis added). The criteria specified in Mississippi Code Annotated section 43-19-103 (Rev. 2015) include:

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

¶ 18. The chancellor found that, when the parties lived in Hattiesburg, they agreed to enroll the children in private school. Chuck disputes this finding. He claims he was opposed to sending the children to private school and should therefore not be required to contribute toward the tuition costs. Our supreme court has previously stated that, "even where parents agree to send children to private school, support awards made in consideration of this expense must also be reasonable in light of both parents' financial means." Southerland , 816 So.2d at 1006 (¶ 11). Here, however, the chancellor did not base his determination solely on his finding that the parties had agreed to send their children to private school. The chancellor also conducted a thorough analysis of the elements enumerated in Adams v. Adams , 467 So.2d 211, 215 (Miss. 1985), as potentially "supportive" of a financial modification of a child-support decree. The elements addressed by the chancellor included: (1) the increased needs arising from the children's advanced age and maturity; (2) an increase in expenses; (3) the inflation factor; (4) the parties' relative financial conditions and earning capacities; (5) the children's physical and psychological health and special medical needs; (6) the parties' health and special medical needs; (7) the paying party's necessary living expenses; (8) the estimated amount of income taxes the respective parties must pay on their incomes; (9) the free use of a residence, furnishings, and automobile; and (10) any other factors and circumstances that bear on the support subject shown by the evidence. Id.

¶ 19. With regard to the children's ages, an increase in expenses, and their health and special needs, the chancellor noted the following: (1) the children were now older; (2) the younger son would soon attend school with his older brother and no longer need daycare; (3) they would "cost more to rear and support"; and (4) both children were in speech therapy, with those expenses covered under Chuck's medical insurance.

¶ 20. The chancellor also made detailed findings concerning the parties' financial conditions and earning capacities and concluded that, although Chuck's net monthly income had decreased and Allison's net income had increased, Chuck still had "a significantly higher monthly income than ... Allison." In considering both parties' lifestyles post-divorce, the chancellor commented that Chuck was now married to Katie and paying for their child's care. Further observing that Chuck had "enjoyed more social activities, time, travel, and expense, than has Allison," the chancellor noted Chuck had spent money gambling at casinos and traveling with Katie.

¶ 21. The chancellor analyzed the cost difference between the schools in Hattiesburg and Baton Rouge, and ultimately, he based his decision on the children's best interest. In so doing, the chancellor stated:

In considering the private[-]school expense for [the children], and the differences presented in what the costs would be if the boys were still at Sacred Heart in Hattiesburg as opposed to Our Lady of Mercy in Baton Rouge, the [c]ourt finds that the best interests of [the children]
must continue to prevail as the primary consideration in the educational costs and needs for their support.

¶ 22. We find no abuse of discretion in the chancellor's findings. In McEachern v. McEachern , 605 So.2d 809, 814 (Miss. 1992), the supreme court held: "When entering a child[-]support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents. The reasonable needs of the children are obviously the beginning point in such inquiry." See also Adams , 467 So.2d at 215 ("The underlying principle regarding child support is the legal duty owed by the parents to the child for the child's maintenance and best interests. " (Emphasis added) ); Tedford v. Dempsey , 437 So.2d 410, 417 (Miss. 1983) (holding that, in matters involving the modification of child support "the best interests of the children are[,] as always[,] our touchstone"). Allison testified that the boys loved their new school and were "thriving." Because her family attends Our Lady of Mercy church and the boys' cousins attend the same school, she testified the children have a good support system in Baton Rouge. She also testified that, when the children begin high school, her job at St. Joseph's could afford them a tuition discount.

B. Calculation of Allison's Net Monthly Income in Determining the Parties' Financial Obligations

¶ 23. Although Chuck does not expressly challenge the chancellor's calculation of his net income and the modification of his monthly child-support obligation to $1,026, he contends the chancellor erred in his calculation of Allison's net income. The chancellor determined that Allison's net monthly income had increased from $3,353 to $4,206.90 (as reported in her Uniform Chancery Court Rule 8.05 financial declaration). In the amended order, the chancellor allowed the parties to submit their 2015 tax returns, and Allison's net monthly income was recalculated as $4,534. Chuck argues that Allison's net monthly income should have been $5,442.28 because she received approximately $9,000 in 2015 federal and state tax refunds. Chuck asserts that the chancellor ignored Allison's tax withholdings, which he claims "distorted her actual monthly income," and that this "manifest error" resulted "in a lopsided analysis of obligations."

¶ 24. In calculating adjusted gross income for support purposes, section 43-19-101(3)(b) requires the court to subtract the following legal deductions:

(i) Federal, state[,] and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social [S]ecurity contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions[.]

In the order for modification, the chancellor considered "the financial declarations and tax returns of the parties in evidence and that each has received [f]ederal and [s]tate income tax refunds, and/or anticipates such, for each year including the year of their divorce, 2013." The chancellor later reviewed the parties' 2015 tax returns and found that the recalculated net-monthly incomes did not "warrant amendment" of his order for modification "as to Chuck's monthly child[-]support obligation."

In determining the parties' support obligations, we find the chancellor made an accurate and thorough analysis of the evidence.

¶ 25. Regarding Allison's 2015 tax return, we note that Allison deducted $4,705 in moving expenses, which would be a one-time, nonrecurring credit. She also received tax credits for claiming the children as dependents, which is in accordance with the chancellor's order. Furthermore, Allison's Rule 8.05 financial declaration indicated that her expenses left her with a monthly deficit of $1,216.02 (over $14,000 annually). Even if Allison had decreased her withholding to eliminate any tax refund, she still would have been left with a deficit. Chuck challenges neither Allison's monthly expenses nor the chancellor's finding that Chuck spent more on leisure activities. Thus, we cannot find that Allison's refund should have any effect on Chuck's financial obligations.

¶ 26. Accordingly, we conclude the chancellor made sufficiently detailed findings to warrant the upward deviation from the child-support guidelines. Furthermore, the chancellor granted a slight modification to Chuck's contribution-from sixty percent to fifty percent-based on his recalculation of Allison's income and the school's tuition and fees. We therefore find this issue lacks merit.

II. Whether the chancellor improperly denied Chuck's request to modify his obligation to pay his children's health-insurance premiums.

¶ 27. Chuck next challenges the chancellor's denial of his "request for a credit against the monthly child[-]support obligation in the amount of insurance premiums paid on behalf of [the children]."

¶ 28. In relevant part, Mississippi Code Annotated section 93-5-23 (Rev. 2013) provides:

[T]he court may[,] at its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody[,] and maintenance of the children of the marriage.... [W]here proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.

Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2015) also confers jurisdiction with the chancery court "to entertain suits for the custody, care, support[,] and maintenance of minor children and to hear and determine all such matters."

¶ 29. In Nichols v. Tedder , 547 So.2d 766, 769 (Miss. 1989), the supreme court held:

In the context of child[-]care and maintenance orders, regular child support refers to the sums of money which the particular parent is ordered to pay for the child's basic, necessary living expenses, namely food, clothing, and shelter.... Still other items [that] may properly be awarded pursuant to a valid child[-]care and maintenance order are health[-]related expenses such as reasonable and necessary medical, dental, optical, and psychiatric/ psychological expenses. A parent can also be required to absorb insurance expenses such as maintaining medical and hospitalization insurance on the child , and maintaining a life[-]insurance policy on his/her own life with the child named as beneficiary.

(Emphasis added and citations omitted).

¶ 30. We find no abuse of discretion in the chancellor's denial of Chuck's request to credit his child-support payments in the amount of the children's health-insurance premiums. Additionally, in calculating Chuck's adjusted gross income for purposes of child support, the chancellor allowed for a health-insurance tax deduction. Thus, this issue lacks merit.

III. Whether Chuck should have been allowed to claim one of his minor children on his tax return.

¶ 31. Because Allison had primary physical custody of the children, the chancellor held she could claim both as dependents on her tax returns. In his petition for modification, Chuck unsuccessfully requested that the chancellor allow him to claim one of the children as a dependent for state and federal tax purposes.

¶ 32. In Nichols , our supreme court determined a chancellor has the discretion to award to a noncustodial parent when necessary the right to claim tax exemptions for dependent children, especially where the custodial parent waives the right to that exemption. Nichols , 547 So.2d at 771. However, "[w]hen the request to transfer a tax exemption is pursuant to a request to modify a prior decree, a material and adverse change in circumstances must occur to transfer to one parent a tax exemption that was previously awarded to the other parent." Neelly v. Neelly , 213 So.3d 539, 542-43 (¶ 10) (Miss. Ct. App. 2016). We find Chuck alleged no material change in circumstances to warrant modification of the tax exemption. Instead, he merely asserted that he "simply wanted a modest break on his taxes ... to offset growing costs." In addition, as the chancellor noted, Chuck had another minor child he could claim as a dependent, and his new wife, Katie, was expecting their second child. Therefore, we find no error in the chancellor's denial of Chuck's request to modify which parent could claim the parties' children as a dependent on their tax returns.

IV. Whether the chancellor erred in dismissing Chuck's claim for civil contempt against Allison.

¶ 33. Chuck brought a civil-contempt claim against Allison. The chancellor dismissed the claim with prejudice after finding Chuck's evidence "in support of his contempt claims [did] not rise to the level of preponderance of the evidence." On appeal, Chuck argues Allison knowingly violated the chancellor's judgment by failing to inform him that she had moved to Baton Rouge and enrolled the children in a new private school. Chuck claims Allison also failed to inform him of the children's doctor visits, specifically citing one instance when Allison waited three hours to contact him after she had taken their younger son to the emergency room (ER).

¶ 34. "The primary purpose of a civil-contempt order is to enforce compliance with a court order." Stallings v. Allen , 201 So.3d 500, 504 (¶ 14) (Miss. Ct. App. 2016). The "[f]ailure to comply with a court order is prima facie evidence of contempt." Vincent v. Rickman , 239 So.3d 501, 504 (¶ 13) (Miss. Ct. App. 2017) (quoting Evans v. Evans , 75 So.3d 1083, 1087 (¶ 14) (Miss. Ct. App. 2011) ). A chancellor's determination of contempt is "fact specific" and left to his discretion. Id. This Court will not interfere with a chancellor's findings unless the chancellor was "manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Id. at 504-05 (¶ 13).

¶ 35. Although Chuck claimed Allison violated Rule 8.06 by failing to notify him of her change of address, the chancellor noted Chuck's admission that he knew where Allison and the boys were living and that there had been no visitation issues since she moved to Baton Rouge. We therefore find the record supports the chancellor's findings.

¶ 36. With regard to Allison's alleged failure to apprise Chuck of the children's doctor visits, the chancellor's order required the parties to "notify the other if any emergency occurs with the children such that medical treatment is sought." When discussing the younger son's trip to the ER, Allison admitted she should have immediately contacted Chuck upon her arrival at the ER. Allison provided the following reason for waiting three hours:

[T]his was right after we had been in court in [November 2013] where a lot of things had come out. Chuck had said he was going to drive to Baton Rouge and shoot my father in the head, and things were not going well with us, and so I wanted ... to make sure that something was really wrong with [our son], and I know now that I will not make that mistake again.
....
I mean, [Chuck] has even literally told me-when I explained about my new job-I won't say the word, but I hate your F'ing guts. You know, I mean there is really-it is not a question about does he hate me. He expresses it a lot, in text message[s], e-mails[,] and verbally. And I am afraid of him[,] ... [w]hich makes it difficult to turn to somebody in unpredictable situations.[ ]

Allison even felt the need to have Chuck's mother and sister come to the ER to diffuse any conflict between them.

¶ 37. We find no abuse of discretion in the chancellor's determination that Chuck failed to establish a prima facie case of contempt against Allison. The court-ordered provision simply required Allison to notify Chuck if an emergency occurred; it did not indicate any specified time frame for the notification. Allison only waited three hours to inform Chuck that their son was in the ER, and she contacted him when she knew their son's medical diagnosis. Chuck also acknowledged that Allison sent him text messages if one child was sick or had to miss school. We therefore find this issue lacks merit.

V. Whether the chancellor erred in finding Chuck in contempt.

¶ 38. The chancellor found that Allison established a prima facie case for civil contempt against Chuck by showing that he willfully, knowingly, and deliberately violated the morality provision contained in the May 9, 2013 opinion and final judgment. The chancellor further found that Chuck failed to present clear and convincing evidence of a defense for his conduct. As noted, we review civil-contempt orders for manifest error. Hanshaw v. Hanshaw , 55 So.3d 143, 147 (¶ 13) (Miss. 2011). A chancellor is afforded "wide discretion in 'exerting his coercive powers to enforce his decrees.' " Id. (quoting Matthews v. Matthews , 227 Miss. 358, 360, 86 So.2d 462, 462 (1956) ).

¶ 39. In his May 9, 2013 opinion and final judgment, the chancellor included a morality provision that prohibited both parties from having "overnight guests of the opposite sex not related by blood or marriage in the presence of the minor children." (Emphasis added). Although Allison asserts Chuck violated this provision by living with Katie, Chuck contends he did not because Katie was not an "overnight guest." Even though Chuck married Katie, which prevented him from being in future contempt of the chancellor's order, the chancellor concluded that Chuck, nonetheless, "willfully, deliberately, knowingly[,] and intentionally" violated the terms of the order to the "children's detriment."

¶ 40. In relevant part, the Concise Oxford American Dictionary defines a "guest" as (1) "a person who is invited to visit the home of or take part in a function organized by another[,]" and (2) "a person lodging at a hotel or boardinghouse[.]" Concise Oxford American Dictionary 398 (Erin McKean ed., 2006). Based on such a definition and the facts of this case, we find Katie was not Chuck's overnight guest.

¶ 41. Chuck and Katie purchased a home together in September 2014. They had a daughter together in October 2014 and then married in April 2016. When asked about the morality clause at the trial in July 2016, Chuck offered the following testimony: "[T]he morality clause talks about overnight guests[,] and ... she is not a guest.... [W]e are in a committed relationship. We are married. We have a family together. She was not living at my place ... because we bought a home together. I didn't consider her ... a guest."

¶ 42. Allison herself acknowledged that, "when Chuck moved from his parents' home to the home that he and Katie now share, that was ... right before the baby was born. I knew that he was moving ...." That was because, in June 2014, Chuck advised Allison that he and Katie intended to move in together prior to the birth of their new child. When Allison raised the morality clause, Chuck informed her then that he did not interpret Katie to be a "guest" under the morality clause, and he stated they could argue to the chancellor the meaning of a "guest."

¶ 43. The chancellor's original opinion and final judgment is a legal text, and when questions of meaning arise, answers are sought by "the same rules of construction which appertain to other legal documents." Estate of Stamper v. Edwards , 607 So.2d 1141, 1145 (Miss. 1992). "Courts must give the prior decree the most coherent and principled reading its words will bear." Id. The words of the text itself are the most credible source for what was intended. Cooper v. Crabb , 587 So.2d 236, 241 (Miss. 1991). As such, we must look to "the meaning of the language used, not the ascertainment of some possible but unexpressed intent ...." Cherry v. Anthony, Gibbs, Sage , 501 So.2d 416, 419 (Miss. 1987).

¶ 44. In his original opinion and final judgment, the chancellor chose to use the words "overnight guest" when restricting who could stay overnight in the presence of the children. Indeed, our own caselaw delineates between "cohabitation" and "overnight guest." Bresnahan v. Bresnahan , 818 So.2d 1113, 1120 (¶ 18) (Miss. 2002) ("There can be many situations involving overnight guests which do not rise to the level of cohabitation ...."); Ellis v. Ellis , 651 So.2d 1068, 1072 (Miss. 1995) (finding the record unclear as to whether the ex-wife cohabited with another man even though he was a frequent overnight guest). Based upon the foregoing, Katie was clearly not Chuck's "overnight guest." We therefore find the chancellor manifestly erred by holding Chuck in contempt. As a result, we reverse and render that portion of the chancellor's judgment.

VI. Whether Allison should be awarded attorney's fees.

¶ 45. Allison contends this Court should award her attorney's fees related to this appeal. She asserts that she does not know how her fees "will get fully paid" and contends that the fees "are an extreme hardship, daunting[,] and unnecessary." Chuck argues that Allison is not entitled to attorney's fees because she has not proven an inability to pay.

¶ 46. Allison was awarded $2,750 in attorney's fees related to the contempt proceedings against Chuck. Because we find the chancellor erred by holding Chuck in contempt, we vacate the chancellor's award of attorney's fees to Allison related to the contempt proceedings. In addition, because Allison has failed to prove an inability to pay, we further decline to award her attorney's fees related to this appeal.

CONCLUSION

¶ 47. We reverse and render the portion of the chancellor's judgment finding Chuck in contempt of the morality provision contained in the original opinion and final judgment, and we vacate the award to Allison of attorney's fees related to the contempt proceedings against Chuck. As to all other issues raised on appeal, we affirm the chancellor's judgment.

¶ 48. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND VACATED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR AND WILSON, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY FAIR AND TINDELL, JJ. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

WESTBROOKS, J., CONCURRING IN PART AND IN RESULT:

¶ 49. Riddick v. Riddick , 906 So.2d 813 (Miss. Ct. App. 2004), seems to have dealt with the same circumstances in this case. It is a 2004 Court of Appeals case where this Court agreed with the chancellor who opted not to find the ex-wife in contempt for violating the morals clause although she had technically violated it. It is my opinion that the majority is consistent with Riddick . I believe that Chuck technically violated the morality clause by living with Katie, but he should not have been held in contempt. I agree with the majority that the chancellor erred by holding Chuck in contempt because the record does not show that there was an adverse effect on the boys. The record reflects that the youngest son came home and reiterated what his dad and Katie told them-that they were getting married in two weeks. Allison chose to explain that people can have children when they are not married-which could mean that she was upset about adjusting her parenting versus the relationship having an adverse effect on the boys. At the time of the hearing, Katie and Chuck were engaged and shared an 18-month-old child. The pictures provided in the record show two boys happily interacting with their sibling and seemingly adjusting to a blended family that included Katie. Accordingly, I see no legitimate purpose or benefit in holding Chuck in contempt. Id. at 824 (¶ 37) ("This Court can see no benefit in rendering a judgment of contempt against the alleged contemnor, even though it would be appropriate under the law."). For these reasons, I concur in part and in the result.

FAIR AND TINDELL, JJ., JOIN THIS OPINION IN PART.

BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 50. I dissent from the majority's determination that Katie could not be classified as an overnight "guest" because she and Chuck purchased their house together. The provision, as read by the majority, is neither "coherent" nor "principled." See Estate of Stamper v. Edwards , 607 So. 2d 1141, 1145 (Miss. 1992).

¶ 51. The majority's emphasis on the term "guest" renders a portion of the remaining provision meaningless. If the person staying overnight is related to the parent "by marriage," he or she most probably would not be a "guest" in the home. Therefore, under the majority's interpretation, the phrase "not related by ... marriage" is superfluous.

¶ 52. Further, as only "guests" are prohibited under the majority's analysis, Chuck would not have been in contempt of the order had he hired a prostitute to spend the night with the children present. She would, of course, have been an "invitee" rather than a "guest."

¶ 53. I submit that the true focus and "principle" of the provision is to prevent the parties from engaging in improper behavior in the presence of the children. The parties agreed to the provision in the temporary order, and the chancery court incorporated the provision into the final order, which was not appealed. The majority has not explained how Katie's status as a co-owner of the house affects the propriety of the situation.

¶ 54. Chuck freely admitted that he and Katie-members of the "opposite sex not related by blood or marriage"-spent the night together in the children's presence. Additionally, as Allison argues, the "court found Chuck's blatant violation to have had a negative impact on the children as [she] was forced to explain mature issues to the children." When her son informed Allison that Katie was pregnant, Allison testified that she had to explain to him (aged seven at the time of trial and educated in parochial school), "that sometimes people can have a baby when they are not married." Confronted by Allison about the morality provision, Chuck responded: "Deal with it.... I'm doing it."

¶ 55. The chancery court dealt with it, and I would affirm.

GREENLEE, J., JOINS THIS OPINION.

      Although the parties' sons both attended daycare at the time the chancellor entered his final judgment, the oldest son was scheduled to enroll in elementary school later that year.

      Effective July 1, 2013, the Legislature amended section 43-19-101(4) to require written findings as to whether the guidelines are reasonable if the noncustodial parent's adjusted gross income exceeds $100,000 or falls below $10,000.

      Due to changes with her job in Hattiesburg, Allison had accepted a new job at a school in Baton Rouge.

      The chancellor noted that, as of June 2016, there was no longer any daycare expense for the parties' younger son. Thus, the chancellor found moot Chuck's request to be relieved of paying for daycare.

      Chuck failed to timely appeal this order.

      The chancellor's order for Chuck to contribute to private-school tuition was in the original opinion and final judgment, which Chuck failed to properly appeal.

      The chancellor determined that Chuck's net monthly income at that time was $5,669, compared to $5,772 at the time of the divorce trial, and that Allison's net monthly income had increased from $3,353 to $4,206.90. Chuck raises no dispute as to the chancellor's calculation of his income.

      In the order for modification, the chancellor erroneously stated that Allison's employee discount would afford a tuition discount at Our Lady of Mercy. The chancellor corrected this finding in his subsequent order and decreased Chuck's contribution to the children's tuition and expenses to fifty percent.

      The chancellor noted he could not include any deductions for Allison for Social Security or Medicare because she submitted no W-2 or pay stubs into evidence.

      Chuck explained that the chancellor had instructed the parties to communicate only through texts, emails, and social media, indicating the ongoing strife between them.

      Black's Law Dictionary, Merriam-Webster, and the American Heritage College Dictionary all provide a substantially similar definition of a "guest."

      The morality clause also provided that "[b]oth parties agree to inform each other prior to introducing the minor children to anyone with whom they are romantically involved."

      See Evans v. Hodge , 2 So.3d 683, 686 (¶ 6) (Miss. Ct. App. 2008) ("Social guests are licensees. Business visitors are invitees." (Citations omitted) ).

      See Morrow v. Morrow , 591 So.2d 829, 833 (Miss. 1991) (finding no error in chancery court's modification of divorce decree, restricting the mother's visitation with her child in the presence "of any male to whom she is not married or to whom she is not related," as the court observed that the "seven year old child was unable, with her present lack of maturity and understanding, to evaluate the import of her mother's action[,]" i.e., her " 'illicit' relationship with her male friend while her daughter reside[d] with her").


source: Caselaw Access Project

author: TINDELL, J., FOR THE COURT:

license: Public Domain

text:
    Donald E. BOOKER and Nerissa Booker, Appellants v. C.V. GLENNIS and Livia Sue Glennis, Appellees
    NO. 2017-CA-01309-COA
    Court of Appeals of Mississippi.
    October 30, 2018
    ATTORNEY FOR APPELLANTS: D. SCOTT GIBSON
    ATTORNEY FOR APPELLEES: RONALD L. WHITTINGTON
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. This is an appeal from the Pike County Chancery Court's award of damages stemming from an ongoing property dispute between neighbors. In 2009, C.V. and Livia Sue Glennis brought suit against their neighbors, Donald and Nerissa Booker, who then filed a counter-claim. The chancery court entered its original judgment in 2010. Two years later the Glennises filed a petition for contempt. After a bench trial in 2016, the chancellor entered a judgment that, among other things, awarded $1,320 in damages to the Glennises. The award of damages is the sole issue the Bookers raised on appeal. After our review, we affirm the chancery court's award of damages.

DISCUSSION

¶ 2. The Bookers and the Glennises own partially adjacent parcels in Pike County, Mississippi. The Bookers came into ownership of their property by warranty deed in 1987. The Glennises purchased their separate property in 1993. In ongoing negotiations over the years, certain easements and other unwritten agreements were discussed between the parties. These discussions centered on allowing what the parties felt was a more suitable driveway to and from their homes to nearby access roads, as well as the Bookers' access to the view of a local lake. The parties also verbally agreed on other matters, such as the placement of utility lines servicing each of their properties.

¶ 3. In 2009, the Glennises filed their complaint seeking enforcement of various oral agreements, a constructive trust, and title to disputed property. Thereafter, the Glennises moved for a temporary restraining order and preliminary injunction alleging, among other things: threats, harassment, misuse of easements, and property damage. The Bookers responded with trespassing and property damage claims of their own.

¶ 4. After a trial, the chancellor entered a May 2010 judgment confirming certain easements and access areas to the Bookers and the Glennises, finding no proof of damages on either side of the dispute, and forbidding the parties to come onto or use the land of the other.

¶ 5. In 2012, the Glennises filed a petition for citation of contempt regarding the Bookers' violations of certain provisions of the May 2010 order. The Bookers filed an answer and counter-claim to this petition denying violation of the prior judgment and, in return, alleging the Glennises caused continuing property damage and annoyances. Prior to a hearing on the contempt petition, the Glennises requested emergency relief.

¶ 6. For reasons not pertinent to the determination of this appeal, the case was continued and delayed on various occasions until the trial on May 31, 2016. At trial, the chancellor ordered the pleadings "amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded." As reflected in the record, counsel for both parties requested and consented to this amendment of the pleadings.

¶ 7. After the second trial, the chancellor entered a July 5, 2016 judgment: defining certain driveways and utility easements; delineating cost allocation for elective improvements and access areas to the Bookers and the Glennises; extinguishing an easement running in close proximity to the Bookers' home; finding insufficient proof to find any party in criminal or civil contempt of the court's prior orders; forbidding the parties from coming onto, or interfering with, or damaging the land owned by the other; forbidding the parties from coming onto, or interfering with, or damaging the delineated easements held by the other; and granting an award of $1,320 to the Glennises against the Bookers for the destruction of certain shrubs (twenty-nine Elaeagnus bushes). The sole issue raised by the Bookers' appeal is the damage award of $1,320. The Glennises filed no response on appeal.

STANDARD OF REVIEW

¶ 8. We "will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Lane v. Lampkin , 175 So.3d 1222, 1227 (¶ 6) (Miss. 2015) (internal quotation mark omitted) (quoting Biglane v. Under the Hill Corp ., 949 So.2d 9, 13-14 (¶ 17) (Miss. 2007) ). The Mississippi Supreme Court has held that "damage awards are only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason." Id. at 1227 (¶ 7) (internal quotation marks omitted).

ANALYSIS

¶ 9. Three issues arise from the Bookers' appeal: (1) whether the failure of the appellees, the Glennises, to respond to the appeal has any effect on our review; (2) whether the claim for damages for the death of the shrubs was properly before the court and tried by consent; and (3) whether there was sufficient evidence to support the findings of the chancellor's damage award.

I. Appellees' Failure to File a Response Brief

¶ 10. We are presented with two options when the appellee has not filed a brief. The first "is to take the appellee['s] failure to file a brief as a confession of error and reverse." Miller v. Pannell , 815 So.2d 1117, 1119 (¶ 7) (Miss. 2002). The second is to disregard the appellee's failure to file a brief and affirm. Id.

¶ 11. We should take the failure to file a brief as a confession of error only when: (1) the record is complicated or voluminous; and (2) the appellant has presented an apparent case of error. Id. Here, the record is neither complicated nor voluminous, and this is not an apparent case of error. In fact, as will be discussed herein, the record shows "a sound basis upon which the judgment may be safely affirmed." Id. at 1119 (¶ 8) (internal quotation mark omitted). Therefore, we disregard the appellee's failure to file a brief, because there is "a sound and unmistakable basis upon which the judgment may be safely affirmed." McGrew v. McGrew , 184 So.3d 302, 306 (¶ 10) (Miss. Ct. App. 2015) (internal quotation mark omitted) (quoting Miller , 815 So.2d at 1119 (¶¶ 7-8) ).

II. Issue of Damage Tried by Consent

¶ 12. The Bookers argue that the destruction of the shrubs was not an issue properly before the court and therefore was improperly determined. The Bookers assert that they never consented to trying the claim for damages for the death of the shrubs. The record, however, reveals otherwise. At trial, upon request by the Bookers' counsel, the chancellor allowed testimony beyond that of the Glennises' contempt pleadings and treated all pleadings as amended to conform to the evidence tried and "to include the granting of any affirmative relief regarding the two parties ... so as to minimize the future conflicts between them." Later in trial, Bookers' counsel again asked to go further into issues with his examination of Mr. Booker, and the chancellor allowed the expansion because "those issues are before the Court in the complaint and counter-complaint, requesting for affirmative relief filed pro se by the Bookers ...."

¶ 13. Both the Glennises' counsel and the Bookers' counsel elicited, on a number of occasions, witness testimony regarding the destruction of the shrubs. Further, during the cross-examination of Mr. Glennis, the chancellor indicated her understanding that "from listening to the testimony and looking at the photograph the shrubs that have been testified [about], [which] were not raised in the pleadings but have been testified [about,] [are being] tried by the consent of the parties ...." No party objected to this issue being tried. In fact, at the end of the trial, the Glennises' counsel moved for their pleadings to be conformed to the proof submitted, and the Bookers' counsel asserted, "[w]e would make the same motion, Your Honor." Thereafter, in the subject order of July 5, 2016, the chancellor ordered "all of said pleadings ... [be treated as] amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded."

¶ 14. Mississippi Rule of Civil Procedure 15(b) permits issues to be tried by express consent of the parties.

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend does not affect the result of the trial of these issues.

M.R.C.P. 15(b) ; Weiss v. Weiss , 579 So.2d 539, 542 (Miss. 1991). As reflected in the record, counsel for both parties put on evidence regarding the shrub destruction, and counsel for both requested and consented to this amendment of the pleadings. Therefore this issue is without merit.

III. Sufficient Evidence to Support the Damage Award

¶ 15. The chancellor's damage award due to the shrub destruction covers over twelve detailed paragraphs and over two pages of the 2016 order. Further, the chancellor, as requested in a motion filed by the Bookers, viewed the parties' properties in person. She was fully informed, not just by photographs, but by visual inspection of the layout and condition of the parties' property.

¶ 16. The parties' testimonies presented to the chancellor were conflicting. The Glennises planted the shrubs along the right-of-way as an improvement to cover up the bare steel pipe and wire fence that marked the parties' property line with shrubbery. The Bookers claimed in their answer that the Glennises planted the shrubs to encroach upon the Bookers' view of the lake. Mr. Booker further testified that the lake view was the primary reason the Bookers purchased their property.

¶ 17. Approximately a year before the 2016 trial, the shrubs began turning brown and were "burnt-looking." Mr. Glennis testified that the dead and dying shrubs extended in either direction along the fence only in the areas blocking the Bookers' view. Glennis admitted to using a weed-control product a couple of times in proximity to the bottom of the shrubs but testified that he never had a problem with the shrubs when he used that weed-control product. Glennis testified that one could spray this kind of product around the trunk of a tree, and it would not kill the tree. Glennis denied spraying the product the year the shrubs died.

¶ 18. Glennis explained that they lost twenty-nine of the shrubs, each being four-to-six-and-one-half-foot tall plants and that each of those shrubs, after growing for five years, were six-to-seven-foot wide. Glennis testified that he called in people from the State Park division of Department of Agriculture regarding the dead and dying shrubs. He testified that men came, pulled plants, and took samples of roots, leaves, and branches. Glennis testified that he knew the shrubs were poisoned.

¶ 19. The Bookers' claims and testimony conflicts with that of the Glennises. Mr. Booker claims to have made a twenty-seven year decision to be "organic" and not use chemicals on his property or plants. Mr. Booker admitted to and stressed at trial his status as a long-time knowledgeable and organic herb gardener. The Bookers deny poisoning or spraying the shrubs. Instead, Mr. Booker claims that two days before the Department of Agriculture men came, he saw Mr. Glennis spraying in the woods with a sprayer. Mr. Booker testified that he thought Mr. Glennis poisoned the shrubs and wanted Booker blamed for it.

¶ 20. The chancellor noted "much acrimony" by the Bookers over the shrubs blocking their enjoyment of the view of the Glennises' lake. Further, photographs evidence that "the death of the shrub row stopped abruptly once the shrubs were no longer interfering with the [Bookers'] lake view" and that "the destruction of the shrub row is limited to the area that coincides with the Booker[s'] view of the lake." The chancellor also observed that after five years of peaceful growth, and reaching a height that would obstruct the lake, the shrubs are dead.

¶ 21. The portion of the order on damages delineates the evidence presented at trial on the shrub destruction. Therein, the chancellor pointed out her reasoned scrutiny of the support, or lack thereof, provided by each party. The chancellor viewed the parties and the properties first hand; the chancellor heard the testimony from the witnesses. The chancellor noted that Mr. Booker's admission to gardening and cultivation skills as an organic farmer would grant Booker the knowledge necessary to destroy the shrubs. The chancellor found the evidence clear and convincing that the Bookers destroyed the Glennises' shrubs and, in doing so, committed a trespass to the Glennises' property.

¶ 22. We cannot find that the chancellor abused her discretion or that the damage award is in any way exceptional or contrary to reason. The chancellor, as the sole trier of fact, determined the credibility of the witnesses and what weight to give the evidence. Heidkamper v. Odom , 880 So.2d 362, 365 (¶ 10) (Miss. Ct. App. 2004) (quoting Carter v. Carter , 735 So.2d 1109, 1114 (¶¶ 18-20) (Miss. Ct. App. 1999) ). And, when, as here, there is conflicting testimony, this Court "gives deference to a chancellor's findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses' testimony and the parties' behavior." McNeese v. McNeese , 119 So.3d 264, 275 (¶ 32) (Miss. 2013) (quoting Gable v. Gable , 846 So.2d 296, 299 (¶ 12) (Miss. Ct. App. 2003) ).

CONCLUSION

¶ 23. Based on our review, we find substantial evidence in the record to support the findings of the chancellor and we find no reason to question the chancellor's judgment. As such, we affirm the chancellor's damage award of $1,320 against the Bookers.

¶ 24. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      The Glennises planted the bushes along the Glennises' property line and obscured the Bookers' view of the Glennises' lake.

      Although the Glennises filed a motion for permission to file an untimely response, that request was denied by order of this Court.

      The report from the Department of Agriculture was not admitted into evidence due to hearsay concerns.


author: FAIR, J., FOR THE COURT:

text:
    Lamar D. BOND, Appellant v. Lee N. BOND and Jennifer M. Bond, Appellees
    NO. 2017-CA-00599-COA
    Court of Appeals of Mississippi.
    October 30, 2018
    ATTORNEY FOR APPELLANT: E. FOLEY RANSON, Ocean Springs
    ATTORNEYS FOR APPELLEES: G. CHARLES BORDIS IV, Ocean Springs, JOSHUA WESLEY DANOS, Pascagoula
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Lamar Bond spent a substantial amount of money building a workshop and apartment on the homestead of his son and daughter-in-law, Lee and Jennifer Bond. Lamar lived in the apartment for a couple of years until Lee-a police officer-discovered Lamar was using marijuana regularly. Lee and Jennifer had Lamar removed from the property, and Lamar ultimately brought suit against them, alleging that Lee and Jennifer had violated an agreement that Lamar could reside on their property for the remainder of his life.

¶ 2. At trial, Lee and Jennifer disputed Lamar's claim, contending that his stay was intended to be temporary, until his divorce was finalized. They alleged Lamar spent the money to dissipate his assets prior to the divorce and that the money was a gift, which was intended to be an advance on Lee's inheritance and a project for a father and son after years of estrangement. Lee and Jennifer further claimed the apartment was ultimately intended to be used for visits by extended family and not by Lamar as a permanent residence. Lee's three brothers also testified that their father had never told them he planned to reside in the apartment permanently.

¶ 3. The chancellor decided that Lee's and Jennifer's testimonies were more credible and found that there had been no promise to let Lamar live in the apartment indefinitely. The court concluded that Lamar was not entitled to a constructive trust or an equitable lien on the property. On appeal, Lamar challenges these findings, but we find them supported by substantial evidence and affirm.

STANDARD OF REVIEW

¶ 4. This Court employs "a limited standard of review in appeals from ... chancery court[s]." Corp. Mgmt. Inc. v. Greene County , 23 So.3d 454, 459 (¶ 11) (Miss. 2009) (citing Tucker v. Prisock , 791 So.2d 190, 192 (¶ 10) (Miss. 2001) ). As such, appellate courts will not disturb a chancery court's factual findings "when supported by substantial evidence unless the [court] abused [its] discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal standard." Id. (quoting Biglane v. Under The Hill Corp. , 949 So.2d 9, 13-14 (¶ 17) (Miss. 2007) ). Questions of law, however, will be reviewed de novo. Id.

DISCUSSION

1. Equitable Lien

¶ 5. At trial, Lamar claimed he was entitled to a constructive trust regarding the property, but the chancery court found that issue foreclosed upon by Lamar's failure to show that a confidential relationship existed among him, Lee, and Jennifer. On appeal, Lamar abandoned that claim; he instead argues he is entitled to an equitable lien. The chancery court can grant an equitable lien to prevent unjust enrichment "where it would be contrary to equity and good conscience for an individual to retain a property interest acquired at the expense of another." Neyland v. Neyland , 482 So.2d 228, 230 (1986).

¶ 6. Lee and Jennifer contend that this issue is procedurally barred on appeal because Lamar did not expressly seek an equitable lien in his complaint in the chancery court. The record reveals that the issue was suggested in the original pleadings, and it was clearly articulated in briefing and arguments prior to the judgment. Lee and Jennifer made no objection. "Where a party offers no timely objection, we treat the issue as having been tried by implied consent." Queen v. Queen , 551 So.2d 197, 200 (Miss. 1989). Thus, the question of an equitable lien is squarely before us on appeal.

¶ 7. The chancery court denied relief on this particular claim based on the statute of frauds. The court noted that the Mississippi Supreme Court held in Barriffe v. Estate of Nelson , 153 So.3d 613, 620-21 (¶ 36) (Miss. 2014), that "an equitable lien is not appropriate to enforce a contract that otherwise fails to meet the requirements of the statute of frauds." "Under Mississippi's statute of frauds, contracts involving the transfer of real property must be in writing." Id. Our supreme court quoted, with approval, the New Mexico Supreme Court's holding in Van Sickle v. Keck , 42 N.M. 450, 81 P.2d 707, 710 (N.M. 1938) : "A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another." Bariffe , 153 So.3d at 621 n.22.

¶ 8. Lamar conceded that he knew the title to the property was held by Lee and Jennifer. So, like the chancery court, we are bound by the supreme court's holding in Barriffe that the statute of frauds bars an equitable lien. This issue is without merit.

2. Restitution

¶ 9. Finally, we address Lamar's claim for money damages. He appears to argue he is entitled to restitution for unjust enrichment. Our analysis of this issue is complicated by the paucity of argument in the chancery court (and, indeed, on appeal). In Lamar's complaint "for a constructive trust," he also contended he was entitled to a money judgment for the money he gave Lee and Jennifer (or the money he allowed them to take). Lamar contended that Lee and Jennifer used their authority as joint owners of Lamar's retirement account to transfer about $158,000 to their own bank account and then spent or converted it. Lee and Jennifer said Lamar transferred the funds and then used Lee's debit card to spend most of the money; the rest was given to them for living expenses while Lamar stayed with them and while Lee could not work while building the disputed workshop/apartment. Voluminous bank records were introduced at trial, but neither side made much effort to trace where the money went; both sides said the other would know how the money was spent. Lamar claims he is entitled to restitution for the value of the improvement and for the money that was taken above and beyond the realistic cost of constructing it, which comes out to about $120,000.

¶ 10. But despite alleging that he was entitled to a money judgment in his complaint, Lamar never expressly articulated a cause of action that entitled him to recover it; unjust enrichment is only addressed, in cursory fashion, in his contentions concerning constructive trusts and equitable liens (of which unjust enrichment is an element). Restitution is never mentioned at all. The chancery court, in its judgment, noted that Lamar sought money damages, but it did not address them directly except perhaps when it stated in closing that "all other relief is denied." The chancellor did say he found Lee's and Jennifer's testimonies credible, and Lamar's not; but he did not explicitly resolve the many of the factual disputes surrounding Lamar's unjust enrichment theory, nor did he make any express finding that is dispositive of the claim.

¶ 11. This case is appropriate for the application of the oft-repeated maxim that "where a chancellor does not make explicit findings, [appellate courts] will assume that all disputed issues were resolved in favor of the appellees." Ross v. Brasell , 511 So.2d 492, 495 (Miss. 1987). Lee and Jennifer testified that Lamar gave them the money as a gift, without conditions. Lamar testified otherwise. The factual issue raised and the finding by the chancellor that the children were more credible than Lamar is sufficient to defeat Lamar's unjust enrichment claim; there is nothing unjust in Lee and Jennifer being enriched by a gift, nor in Lamar not being able to take it back. See Cates v. Swain , 215 So.3d 492, 496 (¶¶ 18-19) (Miss. 2013).

¶ 12. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J, NOT PARTICIPATING.

      There might have been a potential issue with waiver of this defense because the statute of frauds is an affirmative defense that must be timely asserted by the defendant; and arguably it was not in this case. See Brown v. Gravlee Lumber Co. , 341 So.2d 907, 912 (Miss. 1977). But Lamar has not argued waiver, and, thus, he has waived the issue. See Thornton v. Freeman , 242 So.3d 188, 190 (¶ 3) (Miss. Ct. App. 2018) (explaining that "waiver ... can itself be waived").


author: BARNES, J., FOR THE COURT:

text:
    Jimmy Joe TUTOR a/k/a Jimmy Tutor a/k/a Jimmy J. Tutor, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00885-COA
    Court of Appeals of Mississippi.
    November 6, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN SUBER, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Jimmy Joe Tutor was convicted of burglary of a dwelling and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Appealing his conviction, Tutor argues that his sentence as a habitual offender was illegal because the underlying offenses to prove his habitual-offender status arose from the same incident and that the verdict was against the overwhelming weight of the evidence. We find no error in the trial court's ruling that his underlying felonies were separate and distinct crimes, supporting Tutor's habitual-offender status. With regard to the weight-of-the-evidence argument, this issue is procedurally barred because Tutor failed to file a motion for a new trial. Alternatively, this argument is without merit. Therefore, finding no error, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 25, 2013, Preston McGreger returned to his home in Calhoun County, Mississippi, to find that it had been burglarized. The front door frame was busted, and three televisions (two Sanyos and one Vizio) and a briefcase containing personal documents were missing. Preston's wife, Candi, reported the burglary to the sheriff's department. Later that evening, while searching Craigslist, Preston saw a listing for a package deal with three televisions matching the description of the ones stolen from his home. The phone number associated with the listing was from Water Valley, Mississippi. Candi had a friend call to inquire about the televisions and to set up a meeting to buy them at the Dollar General store in Vardaman. Candi also contacted Sheriff's Deputy Juston Robertson to apprise him of the situation.

¶ 3. When the sellers-Tutor and Jessica Leister, Tutor's girlfriend- arrived at the Dollar General, Deputy Robertson and another officer approached Leister's vehicle, a tan Ford Explorer, and informed the couple that they were investigating a burglary. It was determined that the television in the vehicle was not one of the televisions stolen from the McGregers, but because the television listed for sale on Craigslist was a completely different model, Deputy Robertson became suspicious and took Tutor and Leister in for questioning. He obtained a search warrant for Leister's home in Water Valley, where law enforcement recovered three televisions and a briefcase. The McGregers identified the recovered items as the ones stolen from their home.

¶ 4. Tutor and Leister were indicted for burglary of a dwelling on April 2, 2014. Pursuant to a plea agreement with the State, Leister entered a guilty plea in exchange for her testimony at Tutor's trial, which was held on April 18-19, 2017. The McGregers both testified as to the events that transpired as described above. Tanner Bailey, a neighbor of the McGregers, also testified that on the day of the burglary, he saw a tan Ford Explorer about 50 yards from the McGregers' home and a woman standing in front of the vehicle.

¶ 5. Leister testified that in November 2013, Tutor had been living with her in Water Valley for approximately six months. They were visiting his family in Calhoun County that day and went for a drive. Tutor told her to stop at a house, saying he knew the people would not be home. She said he brought three televisions out of the home and put them into her car. Regarding the briefcase, she said Tutor claimed his fingerprints were on it. Later, when Candi's friend called about the televisions and began asking a lot of questions, Leister became nervous; so she suggested to Tutor that they take her television instead of the stolen ones to meet the buyer.

¶ 6. Defense counsel moved for a directed verdict, which the trial court denied, and the defense rested. After the jury returned a guilty verdict, defense counsel made an ore tenus motion for a judgment notwithstanding the verdict (JNOV). The court denied the motion, and requested that counsel file a written motion for the purposes of the timing of the appeal. However, no posttrial motions were filed. On June 22, 2017, the trial court entered an order nunc pro tunc to April 20, 2017, granting Tutor a sixty-day "extension of any deadlines and enlargement of time to file any posttrial motions or notices." Tutor filed a notice of appeal on June 27, 2017. His arguments on appeal are that his sentence as a habitual offender was illegal and the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. Whether the sentence as a habitual offender was illegal.

¶ 7. On August 26, 2016, the State moved to amend the indictment to charge Tutor as a habitual offender under section 99-19-81, noting he had two prior felonies: burglary of a dwelling and uttering a forgery. On December 23, 2007, Tutor had stolen checks from the home of Bill and Shirley Edmonson. The following day, he presented one of the fraudulent checks for payment. At the pretrial hearing on the motion to amend, defense counsel argued the charges "were not separate incidences, but a part of the ongoing crime," noting that the victims were the same and the incidents occurred within a twenty-four hour period. The State responded that the crimes were "separate and distinct." Finding that the crimes occurred on different days and were, therefore, "two separate and distinct crimes," the trial court granted the motion to amend the indictment.

¶ 8. On appeal, Tutor reasserts his claim that the two felonies arose out of the same incident; so they cannot both be used to support his habitual-offender status under section 99-19-81. "To qualify as a predicate felony for purposes of section 99-19-81, both prior convictions must arise out of separate incidents, meaning they must be separate from each other and from the felony for which the defendant is being sentenced." Burkhalter v. State , 179 So.3d 67, 71 (¶ 17) (Miss. Ct. App. 2015) (quoting Drummer v. State , 167 So.3d 1180, 1183 (¶ 7) (Miss. 2015) ). The Mississippi Supreme Court has held:

[T]he events should be sufficiently separate that the offender's criminal passions may have cooled so that he has time to reflect, and if after such an interval the individual forms and actualizes a new criminal design, and then does so a third time, he should be met with all of the power of the public force.

Pittman v. State , 570 So.2d 1205, 1206 (Miss. 1990). Tutor robbed the Edmonsons on the 23rd and presented the fraudulent check to a local convenience store the following day, the 24th. We find that sufficient time had passed between the burglary and the uttered forgery that Tutor had time to reflect and to form "a new criminal design."

¶ 9. Furthermore, no evidence was presented that Tutor committed the burglary to obtain the checks. Cf. Bergeron v. State , 60 So.3d 212, 216 (¶ 11) (Miss. Ct. App. 2011) (finding a defendant's prior convictions did not support habitual-offender status because he had only one intent when he broke into a car dealer's office, stole a key, and used the key to steal a vehicle). As the trial judge stated, after the burglary had been committed, "Tutor had the opportunity to either use that check or not use that check the next day, and he chose to use it." We agree with the trial court that the two crimes were "separate and distinct," and we find no error in court's ruling to grant the State's motion to amend the indictment charging Tutor as a habitual offender.

II. Whether the verdict is against the overwhelming weight of the evidence.

¶ 10. Tutor contends that the verdict is against the weight of the evidence, noting none of the stolen items were found in his possession and the only evidence of his involvement in the burglary "is that of a disgruntled drug-addicted ex-girlfriend." The State argues that Tutor is procedurally barred from raising this claim because he failed to assert this claim to the trial court. "There are certain errors that must be raised in front of the circuit judge in a motion for a new trial, including challenges to the weight of the evidence."

Davis v. State , 75 So.3d 569, 572 (¶ 14) (Miss. Ct. App. 2011) (citing Jackson v. State , 423 So.2d 129, 132 (Miss. 1982) ).

¶ 11. At trial, defense counsel moved for a JNOV, asserting: "Judgment notwithstanding the verdict, we would make a motion for the Court to set aside the verdict." However, "a motion for [a] JNOV challenges the sufficiency of the evidence presented to the jury, not its weight." Qualls v. State , 947 So.2d 365, 373 (¶ 25) (Miss. Ct. App. 2007) (citing McClain v. State , 625 So.2d 774, 778 (Miss. 1993) ). As noted, the trial court requested that counsel file a written motion for a JNOV and later granted Tutor leave to file any posttrial motions. He failed either to reassert his claim challenging the sufficiency of the evidence with a motion for a JNOV or to assert a claim regarding the weight of the evidence in a motion for a new trial. "The failure to preserve a matter by motion for new trial ... may also serve as a procedural bar to its consideration by an appellate court." Alonso v. State , 838 So.2d 309, 313 (¶ 10) (Miss. Ct. App. 2002) (citing Seals v. State , 767 So.2d 261 (¶ 6) (Miss. Ct. App. 2000) ). As the record contains no motion for a new trial, Tutor is procedurally barred from raising this issue.

¶ 12. Notwithstanding the procedural bar, we find the weight of the evidence supports the verdict. Leister testified that she and Tutor were in Calhoun County that day visiting Tutor's family and that Tutor stole the televisions from the McGregers' home. Tutor was from Calhoun County and knew the area. Also, although Tutor claims that he did not reside where the stolen items were found, Leister testified that Tutor had been living at her home in Water Valley for several months. Tutor was also with Leister at the Dollar General to sell the television.

¶ 13. Accordingly, we affirm the trial court's judgment.

¶ 14. AFFIRMED.

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

      Tutor entered a guilty plea to both charges.


author: GREENLEE, J., FOR THE COURT:

text:
    TABORIAN URGENT CARE CENTER INC., Margo Christian Brooks and City of Mound Bayou, Mississippi, Appellants v. BDT HOUSING SERVICES ENTERPRISE, International Order of Twelve Knights and Daughters of Tabor, Mississippi Jurisdiction Inc. a/k/a International Order of Twelve Knights and Daughters of Tabor in Mississippi and Any Other Persons or Entities that May Claim an Interest in the Subject Property, Appellees
    NO. 2017-CA-00940-COA
    Court of Appeals of Mississippi.
    November 6, 2018
    ATTORNEYS FOR APPELLANTS: HELEN E. MORRIS, LEVI BOONE, Cleveland
    ATTORNEYS FOR APPELLEES: SHELDON G. ALSTON, JESSE STEVEN NEW, Jackson, CHAKA DENISE SMITH
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This appeal arises from an action to quiet title filed by the International Order of Twelve Knights and Daughters of Tabor (KAD) against BDT Housing Services (BDT). The chancery court granted the City of Mound Bayou (the City), Taborian Urgent Care Center (TUCC), and Margo Christian Brooks the right to intervene. In the order granting TUCC and Brooks's intervention, the court held that it was holding the intervention in abeyance but was specifically reserving TUCC's and Brooks's rights to argue that KAD was a "defunct" corporation. The court entered its judgment quieting and confirming title in favor of KAD before hearing TUCC's and Brooks's arguments. Further, the judgment was entered before the City was able to file a cross-petition to confirm title. Because the judgment was not a final judgment or certified pursuant to Mississippi Rule of Civil Procedure 54(b), we dismiss for lack of jurisdiction.

BACKGROUND

¶ 2. This appeal arises out of KAD's suit to quiet and confirm title to five pieces of property. KAD is a fraternal organization that was established as a Mississippi nonprofit corporation in 1903. Until the mid-1980s, KAD engaged in various charitable endeavors within and around Mound Bayou, Mississippi. During this time, KAD acquired five tracts of land in Mound Bayou and through fund-raising efforts built the Taborian Hospital, which KAD operated until 1983.

¶ 3. By the 2000s, KAD's membership had dwindled; its members were older, and meetings were poorly attended. In addition, much of KAD's property was in disrepair. On April 25, 2007, KAD called a special meeting to revitalize the organization and to elect a new Grand Chief Mentor to replace Kemper Smith, whose failing health rendered him unable to continue serving as the organization's leader. The minutes from the meeting reflect that a quorum was present, and a resolution was passed by unanimous vote authorizing Kemper Smith Jr. and Myrna Smith-Thompson to jointly assume the duties of International Grand Chief Mentor. The resolution allocated Smith Jr. and Smith-Thompson the authority to "[m]ake, execute and deliver ... instruments of conveyance covering real, personal or mixed properties owned ... by the Knights & Daughters of Tabor[.]" Notice of publication was provided to all current and former KAD members in four local newspapers during three consecutive weeks. Although invited, no opposition to the resolution was received.

¶ 4. Upon assuming their roles as co-Grand Chief Mentors, Smith Jr. and Smith-Thompson sought to address the disrepair of KAD's real property through a partnership with the City. On May 10, 2010, KAD leased the Taborian Hospital and the Taborian Administration Building, including the land between the two structures, to the City for a thirty-year term. On September 8, 2014, in effort to apply for grant money to restore the hospital, KAD filed articles of incorporation with the Mississippi Secretary of State, applying for status as a nonprofit corporation pursuant to 26 United States Code section 501(c)(3) (2011).

¶ 5. On May 18, 2015, the City sublet the Taborian Hospital, the Taborian Administration Building, and the land between both structures to TUCC. The sublease was made subject to the terms and provisions of the original lease agreement between KAD and the City. On October 13, 2015, KAD filed to evict the City and TUCC, alleging breach of the lease. Resolution of KAD's complaint is still pending in the Bolivar County Court.

¶ 6. On November 4, 2016, five individuals claiming to be surviving members of KAD quitclaimed the subject property to BDT. Later that month, on November 30, 2016, KAD executed a special warranty deed conveying a portion of the subject property to "Knights and Daughters of Tabor KDT."

¶ 7. In January 2017, KAD filed a petition against BDT to quiet and confirm title to the five tracts of land at issue. BDT filed its answer and counter-petition to quiet and confirm title on May 3, 2017.

¶ 8. On May 2, 2017, TUCC and its CEO, Brooks, filed a motion to intervene. On May 3, 2017, the chancellor heard arguments on KAD's petition to quiet and confirm title. On May 15, 2017, the City of Mound Bayou filed a motion to intervene.

¶ 9. The chancery court granted TUCC and Brooks the right to intervene on May 22, 2017, nunc pro tunc to May 3, 2017. In granting TUCC and Brooks the right to intervene, the court held that the intervention would be held in abeyance until it determined whether KAD, BDT, or neither owned the Taborian Hospital building. Notwithstanding the abeyance, the court specifically reserved TUCC's and Brooks's rights to argue that KAD was a defunct corporation. On May 23, 2017, TUCC and Brooks filed their cross-petition to confirm title and for other relief.

¶ 10. On May 31, 2017, the court granted the City the right to intervene.

¶ 11. On June 2, 2017, the court entered its final order on KAD's petition to quiet and confirm title. In the order, the court found that KAD was an entity in good standing and that KAD was vested with title to the land at issue. On June 9, 2017, TUCC and Brooks filed a "Motion for Status Conference," requesting a hearing on their cross-petition and seeking to conduct discovery on KAD's corporate status. KAD filed its response on June 21, 2017, arguing that TUCC and Brooks's motion for a status conference should be denied and their cross-petition dismissed. The record does not show that the court ruled on TUCC and Brooks's motion.

¶ 12. TUCC and Brooks filed their notice of appeal on June 29, 2017. The City filed its notice of appeal on July 5, 2017, thirty-three days after the court entered the final order quieting and confirming title in KAD. On appeal, TUCC, Brooks, and the City argue that the court did not afford them the opportunity to meaningfully intervene.

DISCUSSION

¶ 13. The parties have not raised an issue as to whether the chancery court's judgment is appealable. Nevertheless, we must address this question on our own initiative. Deutsche Bank Nat. Trust Co. v. Brechtel , 81 So.3d 277, 279 (¶ 10) (Miss. 2012).

¶ 14. "Generally, parties may only appeal from a final judgment." Harris v. Waters , 40 So.3d 657, 658 (¶ 3) (Miss. Ct. App. 2010). "A final, appealable judgment ... adjudicates the merits of the controversy [and] settles all issues as to all the parties, and requires no further action by the [ruling] court." Id. (internal quotation marks omitted). Rule 54(b) provides an exception to this rule by allowing the trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties." But the chancery court may do so "only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment." Id. Absent a 54(b) certification, any judgment-regardless of how designated-is not final if it "adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties." Id.

¶ 15. The chancery court's decision whether to certify a judgment as final under Rule 54(b) is discretionary. M.R.C.P. 54(b) advisory committee's notes. However, should the court elect to certify the judgment as final under Rule 54(b), the court "must do so in a definite, unmistakable manner." Id.

¶ 16. Here, the chancery court's order failed to adjudicate the rights of all the parties. TUCC's and Brooks's reserved rights to contest KAD's corporate status are still outstanding. There has been no ruling on TUCC and Brooks's cross-petition to confirm and quiet title, and the City did not have the opportunity to file a cross-petition after they were granted the right to intervene. The court's order was not certified as a final judgment pursuant to Rule 54(b).

¶ 17. Because the judgment appealed from is not a final, appealable judgment, we lack jurisdiction and therefore dismiss this appeal.

¶ 18. APPEAL DISMISSED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., NOT PARTICIPATING.

      Because we dismiss for lack of a final, appealable judgment, we do not address the untimeliness of the City's appeal.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Senque WRIGHT a/k/a Senque Santanze Wright, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01697-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: SENQUE WRIGHT (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, Jackson
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Senque Wright pleaded guilty to conspiracy to possess precursor chemicals in 2011. After violating his non-adjudication order, Wright was sentenced to serve eight years in the custody of the Mississippi Department of Corrections (MDOC). In 2016, Wright filed a motion for post-conviction relief (PCR) and now appeals the Pearl River County Circuit Court's denial of his motion. Finding no error, we affirm.

FACTS

¶ 2. On February 17, 2011, Wright and Matthew Marcel were jointly indicted in Pearl River County on two counts: one count of possession of precursor chemicals, with the intent to unlawfully manufacture a controlled substance in violation of Mississippi Code Annotated section 41-29-313 (Rev. 2010); and one count of manufacturing a controlled substance in violation of Mississippi Code Annotated section 41-29-139(a) (Rev. 2010). The indictment also included a sentence enhancement under Mississippi Code Annotated section 41-29-142(1) (Rev. 2010) for manufacturing a controlled substance within 1,500 feet of a church.

¶ 3. On June 28, 2011, at Wright's plea qualification hearing, it was agreed by Wright, his defense attorney, the assistant district attorney, and the acting circuit court judge that Wright would enter a guilty plea to a reduced charge of conspiracy to possess precursor chemicals in violation of Mississippi Code Annotated section 97-1-1 (Rev. 2007) and, in return, counts I and II of the indictment would be dismissed. At that time, the circuit court entered an order of non-adjudication. Wright was sentenced to five years of probation and was transferred to the Indiana Department of Corrections. In March 2016, the circuit court found that Wright had violated the terms of the order and sentenced him to serve eight years in the custody of MDOC.

¶ 4. In October 2016, Wright filed a PCR motion in the Pearl County Circuit Court. An evidentiary hearing was held, and after testimony was given, the circuit court found that Wright was fully aware of the consequences of his plea and understood the charges against him. The court therefore denied his motion. Aggrieved, Wright appeals.

STANDARD OF REVIEW

¶ 5. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if the trial court abused its discretion and the decision is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Green v. State , 242 So.3d 176, 178 (¶ 5) (Miss. Ct. App. 2017).

DISCUSSION

¶ 6. On appeal, Wright raises five issues surrounding his indictment and guilty plea:

(1) Whether the court had jurisdiction to amend the defendant's indictment in court and [whether] the defendant [was] improperly indicted[;] (2) Whether the court[ ] violated the defendant's rights by failing to give a proffer on the amended charge of conspiracy to possess precursor chemicals[;] (3) Whether the court had any factual basis on the amended charge[;] (4) Whether the court[ ] violated the defendant's right by failing to properly indict the defendant[;] (5) Whether the plea of guilt was supported by the evidence alone[.]

For brevity and clarity, we address these issues using the following organization.

I. Indictment

¶ 7. Wright first asserts issues with his indictment: (1) whether the court had jurisdiction to amend his indictment and (2) whether he was properly indicted. This Court has held that "[o]nce an indictment has been served on a defendant, a court having subject-matter jurisdiction is empowered to proceed. A subsequent event such as a guilty plea to a lesser related offense in no way ousts the court of personal jurisdiction." Dedeaux v. State , 155 So.3d 924, 928 (¶ 14) (Miss. Ct. App. 2014) (quoting Jefferson v. State , 556 So.2d 1016, 1021 (Miss. 1989) ). Here, Wright pleaded guilty to the "lesser related offense" of conspiracy to possess precursors, instead of the indicted charge of possession of precursors. Id. Furthermore, this Court has held that a defendant who was "indicted under the jurisdiction of the circuit court, and ... voluntarily entered his pleas of guilty ... waived the right to be indicted for the crimes to which he entered a plea of guilty." Id. (quoting Young v. State , 797 So.2d 239, 243 (¶ 9) (Miss. Ct. App. 2001) ). We find that the circuit court had the proper jurisdiction over his indictment and had the authority to accept Wright's guilty plea.

¶ 8. This is evinced by the fact that during Wright's plea-qualification hearing, Wright's counsel, Mr. Schwartz, answered in the affirmative that Wright consented to the amended indictment.

MR. CRANFORD: Your Honor, if I may as to Mr. Senque Wright .... He's pleading to Count 1 which is possession of precursors. At this time, the State would make a motion to amend his indictment to reflect that he is pleading -- in his plea petition today, he is pleading to conspiracy to possess precursors which is Mississippi Section Article 97-11.
THE COURT: Mr. Schwartz?
MR. SCHWARTZ: Yes, ma'am, we agree and consent to that amendment. And, also, upon your acceptance of his guilty plea to this amended charge, it's my understanding that the State will dismiss and not prosecute Count 2 of that indictment.
MR. CRANFORD: That is correct, Your Honor.
THE COURT: We'll allow that amendment then.

¶ 9. Further, in Wright's evidentiary hearing, he stated that he understood the indictment was being amended. As a result, Wright waived his right to be indicted for conspiracy to possess precursors. Accordingly, we find this issue without merit.

II. Guilty Plea and Sufficiency of the Evidence

¶ 10. Wright further argues that the State did not present sufficient evidence to support his guilty plea. This Court has held that "[a] valid guilty plea waives the right to challenge the sufficiency of the State's evidence." Grissom v. State , 66 So.3d 1280, 1282 (¶ 6) (Miss. Ct. App. 2011). Here, Wright presents no evidence, other than his own assertions, that his guilty plea was not valid. In Wright's evidentiary hearing on his PCR motion, he stated that his lawyer told him to submit a guilty plea; and that is the reason he pleaded guilty and not because he was actually guilty. However, his testimony at his plea qualification hearing is in direct contradiction:

[THE COURT]: Mr. Wright, do I need to have your charge formally read to you[?]
A. (DEFENDANT SENQUE WRIGHT): No, ma'am.
Q. You understand what it is?
A. Yes, ma'am.
Q. And your charge is conspiracy to possess precursors; is that correct?
A. Yes, ma'am.
Q. And to that charge, how do you plead?
A. Guilty.
Q. And you're pleading guilty because you are guilty?
A: Yes, ma'am.
Q. And are the facts stated in your indictment true and correct?
A. Yes, ma'am.
Q. All right. Mr. Wright, I've determined for our record that there are enough facts for the basis of your plea.

¶ 11. This Court has held that "[a] plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea." Smith v. State , 35 So.3d 549, 551 (¶ 9) (Miss. Ct. App. 2009). During his plea hearing, the circuit court ensured that Wright understood the charges against him and understood the consequences of pleading guilty.

¶ 12. Because Wright voluntarily and intelligently pleaded guilty, he has waived the right to challenge the sufficiency of the evidence. Id. Accordingly, we find this issue without merit.

CONCLUSION

¶ 13. After review of the record, we affirm the circuit court's denial of Wright's PCR motion.

¶ 14. AFFIRMED.

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

      Wright's non-adjudication probation sentence was revoked because he was arrested and charged with the sale of a controlled substance within 1,500 feet of a church while in possession of a firearm and being a felon in possession of a firearm. Wright also tested positive for methamphetamines, failed to provide proof of legal employment, and failed to pay his court-ordered fines and fees.

      Alterations are made for readability.

      In the State's brief it stated that Wright's plea was akin to an Alford plea; however, it was not. North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Wright pleaded guilty and further stated that he was doing so because he was guilty.