Decisions – COA – 3/19/2019

Hand down list

Stephen Demond Anderson Sr. v. Emmarie G. Flaggs Anderson cruel and inhumane treatment divorce – Stephen and Emmarie  married in 2007.  Unsure of their commitment to each other, they had two children before they married:  N.F., born in 2000, S.F., born in 2006. And then A.F., born in 2008 after they married.  Sick of being physically abused, Emmarie filed for divorce in 2012.  In 2016, with Emmarie’s case about to be dismissed for failure to prosecute, Stephen filed for divorce. The chancellor granted Emmarie a divorce on the grounds of  habitual cruel and inhuman treatment. He held that  Emmarie and the children should continue living in the marital home, with Stephen continuing to pay the mortgage. THey could sell the home when the youngest  reached age 21 or was emancipated, with Emmarie receiving one-third equity and Stephen receiving  two-thirds equity. Stephen appeals. The COA affirms.

Kemper County, Mississippi v. Cornelius Parkscost bond/ mootness – Parks was convicted of a misdemeanor for domestic violence in 2011. In order to appeal,  he filed a check for $449 along with his notice of appeal and a document entitled “Cost and Appearance Bond” with the circuit court. The State moved to dismiss the appeal and argued that Parks did not file the cost and appearance bond simultaneously with his notice, as required in former Rule 12.02 of the URCCP.  The case was dismissed but the dismissal was reversed on appeal.  On remand, the Kemper County prosecutor filed another motion to dismiss. The circuit court found that the $449 filed by Parks was only a “cost bond” and ordered the justice court to set an amount for the “appearance bond.” The justice court denied the request for jurisdictional reasons, and the circuit court then set the appearance bond at one dollar. Parks paid the bond fee, and after a trial on the original domestic violence charge, Parks was acquitted. The State appealed  the denial of its second motion to dismiss  complaining that the legal issue of bond should again be addressed by this Court.  The COA finds the issue moot and affirms. “The issue surrounding the bonds and what is required by now Rule 29 of the Mississippi Rules of Criminal Procedure was resolved by this Court in our original opinion. There are no further questions of law to be addressed in this case, and the decision of the circuit court is therefore affirmed.”
Gary L. Hall v. Carolyn J. Hall –  modification/laches – Carolyn  and Gary married in 1995.  Carolyn filed for divorce in 2004.  In 2006  the chancery court granted Carolyn a divorce on the ground of adultery, awarded her $1,500 per month for periodic alimony, and divided the parties’ marital property. The marital property included Gary’s 401(k) plan, Employee Stock Ownership Plan, and Standex pension-plan. The court ruled that Carolyn was entitled to lump-sum payments from Gary’s 401(k) plan and his  Employee Stock Ownership Plan, and $600 per month of Gary’s Standex pension-plan if he retired at the normal age. At the time of the marriage in 1995, Gary’s pension-plan benefit was projected to be $4,208 per month if he retired at the normal age.  As of December 31, 2007, Standex International Corporation, the parent company of Masterbilt, Gary’s employer, froze his pension benefits.  Several years later, in November 2016, Gary accepted an early retirement offer from Masterbilt causing him to retire at the age of 62 instead of the normal retirement age of 65 as stated in his retirement plan. Even though Gary retired, he did not draw on the retirement funds. In 2017 Gary filed to modify the payments to Carolyn arguing a material change in circumstances.   Carolyn argued that the issue was barred by  laches, judicial estoppel, and res judicata. The chancellor sustained Carolyn’s motion to dismiss. The COA affirms. ” Gary’s petition could and should have been submitted much earlier than ten years after the memorandum opinion and divorce judgment.”

Joni Warner v. Larry Thomas modification –  Joni and Larry had a child,  L.J., in 2016. Four years later they broke up and Larry filed a petition for filiation.  He was found to be the father and the chancellor granted joint legal and physical custody with the parents alternating weeks of custody. Three months later Joni filed a petition to modify claiming that after one of their child’s basketball games, Larry tried to assault her and ended up assaulting L.J.  The court ended up denying the motion finding that there were no impartial witnesses to the alleged assault.  Joni appeals. The COA affirms.

Angela Vermillion v. Robyn Perkett and Douglas P. Vermillion –  grandparent visitation – Angela’s son Douglas had a baby, Chella Rose, with Robyn Perkett is the natural mother of Douglas.  When Chella Rose was born in 2014,  Angela visited the hospital and was allowed to hold her. Angela next saw Chella Rose when the baby was forty-nine days old. Angela claims that at that time, Robyn informed Angela that she would never see Chella Rose again and has denied her access to the child since then.  In 2016,  Angela filed a complaint for grandparent visitation.   The chancellor granted a directed verdict for Robyn and Douglas and awarded them over $7,000 in attorneys fees. Angela appealed. The COA recognizes that  “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .”  However, the chancellor did not err because Angela failed to meet the statutory minimum – occasional overnight visitation and financial support in whole or in part for not less than six months –  to be able to request grandparent visitation.  The COA affirms.

Fabiyonne Peel v. State of Mississippi –  hearsay/double jeopardy –  A man named Pates was caught on video using a stolen credit card.  When questioned, he implicated Peel and three others in a burglary and theft.   Peel was indicted for burglary of a dwelling, motor-vehicle theft, and conspiracy to commit motor vehicle theft.  He was found guilty of the burglary and motor vehicle theft.  On appeal, Peel argues that the trial court erred in limiting Peel’s cross examination of Investigator Adrian Ready after the state adduced evidence that Peel had asserted he had an alibi when questioned by Ready.  Peel wanted to question Ready regarding statements Peel made about where he had lawfully obtained the stolen  ipad.  The COA finds that the trial court did not err in finding this inadmissible hearsay. Peel also argues insufficient evidence and that the  conviction of motor vehicle theft was double jeopardy because the jury acquitted him of conspiracy to commit motor-vehicle theft. “The record indicates that one of Peel’s co-defendants spontaneously decided to steal the motor vehicle only after he happened upon its keys during the burglary. A rational jury could have found that Peel never agreed to enter into a conspiracy to accomplish this unplanned motor-vehicle theft. However, a rational jury could also have found that Peel “consciously share[d] in [the] criminal act, regardless of the existence of a conspiracy.” Pereira, 347 U.S. at 11.”  The COA affirms.
William Dotie Jackson v. Lori Duperier Jackson –  modification of custody – When Dotie and Lori Beth divorced in July 2012, they agreed Lori Beth would have primary physical custody of their son and daughter, WGJ and ADJ.  In  2015, Dotie petitioned the Hinds County Chancery Court to find Lori Beth in contempt and to grant him increased access to parenting time with the children.  Lori Beth filed a motion for emergency relief alleging that Dotie had abused WGJ and asking that Dotie’s visitation rights be temporarily suspended.  Following trial, the chancellor determined there was no material change in circumstances in the custodial home that would warrant a change in custody and denied both motions.  Dotie appeals. the COA affirms.

Columbus Light & Water Department v. Mississippi Department of Employment Security –  unemployment – Teresa Darby began working for Columbus Light & Water in 2010 as a payroll clerk. She was fired in 2016 for dishonesty, insubordination, etc.  She applied for unemployment benefits and she was found eligible. Columbus Light and Water appealed.  The COA affirms.

Daryl Watts v. Earl Jackson Jr.easement –  Jackson owned property behind Watts and had been allowed to use Watts’ private road up until the parents died and their children decided to limit access.  Jackson filed suit for a mandatory injunction and damages.  In June 2017, after a hearing on the merits, the chancery court ordered that the temporary injunction become permanent and awarded Jackson attorney’s fees in the amount
of $1,500. Watts appealed. The COA reverses finding that to obtain a prescriptive easement, one must prove the same elements as adverse possession. Since Jackson had been using the road with permission, he cannot establish that his use was hostile and under a claim of ownership.

Pro se PCR appeal affirmed:

Billy Ray Dunaway v. State of Mississippi


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