                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CA-02157-SCT

EDWARD E. SHELNUT

v.

THE DEPARTMENT OF HUMAN SERVICES OF
THE STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         11/19/2007
TRIAL JUDGE:                              HON. J. DEWAYNE THOMAS
COURT FROM WHICH APPEALED:                HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   PATRICIA PETERSON SMITH
ATTORNEY FOR APPELLEE:                    JAMES JASON BAYLES
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              AFFIRMED IN PART; REVERSED IN PART
                                          AND REMANDED - 03/19/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    This case has been litigated for nearly twenty years in the court systems of two

sovereign nations, including a foray into this Court. See Dep’t of Human Servs. v. Shelnut,

772 So. 2d 1041 (Miss. 2000) (“Shelnut I”). The appellant asks this Court to reverse a

chancellor’s decree recognizing the registration and enforcement of a foreign judgment for

child support. We decline.
                               HISTORY OF PROCEEDINGS

¶2.    In 1981, Gaye-Lynn Kern (“Kern”) and Edward Shelnut (“Shelnut”) were married in

Saskatoon, Saskatchewan. They moved to Jackson, Miss., after briefly living in Atlanta, Ga.

They remained in Jackson for the duration of their marriage. One child, Margaret-Anne, was

born on July 31, 1986. In 1989 they experienced marital difficulties.

¶3.    On April 22, 1989, Kern returned to her native country, Canada, with Margaret-Anne.

Kern and Margaret-Anne have lived there ever since. On April 27, 1989, Shelnut filed a

complaint for custody in the Chancery Court of the Second Judicial District of Hinds County,

but failed to effect service on Kern.

¶4.    In October 1989, Kern filed an action in the Unified Family Court (“UFC”) in the

Queen’s Bench Judicial Centre of Saskatoon, Saskatchewan. Shelnut was served with this

action, hired an attorney and answered. He contested personal jurisdiction and child support,

inter alia. Kern sought monthly child support of $400 1 and monthly alimony of $350. The

pleadings revealed Shelnut’s address in Mississippi, where the couple had lived while

married and where he remained afterwards. Kern informed the Canadian court that Shelnut

had filed an action in Mississippi, and that she had filed a motion to dismiss those

proceedings. Shelnut’s financial statement, which included his annual salary, savings, and

property ownership, were filed in the UFC case.

¶5.    A temporary hearing was held in the Canadian action, although Shelnut did not attend.

Shelnut’s Canadian attorney submitted a Brief of Law contesting personal jurisdiction. In

an order dated December 4, 1989, the Canadian court exercised its “jurisdiction over the

       1
           All dollar amounts are in U.S. dollars.

                                                2
matters of interim custody, interim child maintenance and interim spousal maintenance.”

The court ordered Shelnut to pay child support of $300 for the month of December 1989.

The court deferred “matters of access, ongoing interim child maintenance and interim spousal

maintenance.” On January 17, 1990, another order was entered in which Shelnut was

ordered to pay ongoing child support of $325 per month, beginning February 1, 1990. On

May 2, 1990, Shelnut filed a divorce complaint in the Chancery Court of the First Judicial

District of Hinds County, but never obtained service on Kern.

¶6.    In June 1990, the Canadian court entered an order declaring that a divorce was

granted, to take effect thirty-one days from the date of judgment, unless appealed. The two-

page divorce judgment granted custody of Margaret-Anne to Kern, and ordered Shelnut to

pay child support of $325 per month, with the payments to be made through the Maintenance

Enforcement Office in Regina, Saskatchewan.2 Visitation and alimony were not mentioned.

Shelnut asserts that he was not given notice of the divorce hearing until he received the

judgment in the mail. He further asserts that he received the judgment three days before the

divorce was final. He testified that he chose not to pursue an appeal. Shelnut testified that

he consulted with a Canadian lawyer who told him that such an appeal would require a

$16,000 retainer and was not likely to be successful.

¶7.    In September 1990, the Mississippi divorce complaint was consolidated with his

earlier custody filing. The consolidated complaint was dismissed for mootness by an order

dated January 8, 1991. The order acknowledged the Canadian court’s jurisdiction to grant



       2
       The Maintenance Enforcement Office in Regina has maintained Statements of
Arrears from the 1990 court orders since that time.

                                             3
a divorce and stated that “no purpose could be served by pursuing a divorce in . . .

Mississippi.” No appeal was taken of this order.

¶8.    On January 25, 1999, Kern registered the Canadian judgments for enforcement in

Mississippi, through the Mississippi Department of Human Services (“MDHS”). Margaret-

Anne was then twelve years old. In August 1999, the Chancery Court of the Second Judicial

District of Hinds County dismissed the attempt to enforce the Canadian judgments. The

chancellor ruled that the divorce was valid, but that the Canadian court lacked the required

personal jurisdiction over Shelnut to require him to pay child support.

¶9.    This Court reversed the chancery court in Shelnut I, holding that the personal

jurisdiction issue was barred by res judicata, because Shelnut had challenged personal

jurisdiction in Canada and had lost. The Shelnut I Court ruled that the Canadian court had

jurisdiction over both of the parties and the dissolution of the marriage. The case was

remanded to chancery court for enforcement. See Shelnut I, 772 So. 2d at 1041. Shelnut

did not file a motion for reconsideration.

¶10.   In September 2003, Shelnut moved to dismiss the enforcement action for failure to

prosecute. The chancery court entered a judgment of dismissal after MDHS failed to

respond. In November 2003, MDHS successfully moved to set aside the dismissal. In

September 2005, MDHS filed a Notice of Registration Amended. Margaret-Anne was then

nineteen years old. Shelnut contested the amended registration, but waited two years before

claiming that MDHS had not sought leave of the court to amend.

¶11.   The chancery court held a hearing in September 2007 on the amended registration of

the Canadian order. The chancellor ruled from the bench that the hearing would be “treat[ed]

                                             4
as a new hearing for all purposes.” In his memorandum opinion, the chancellor ruled that

the Canadian judgments would be enrolled for enforcement. The opinion included a ruling

that the 2005 amended registration was proper under Mississippi Rule of Civil Procedure

15(a) and related back to the 1999 registration in accordance with Rule15(c), as the action

was one and the same.3 Thus, the registration was timely because it related back to 1999,

when Margaret-Anne was twelve and age of majority was not at issue. Later, the chancellor

issued an amended opinion, clarifying his determination that the applicable age of majority

in Canada was eighteen. Based on this determination, he ruled that the accrual of child

support would cease on Margaret-Anne’s eighteenth birthday, July 31, 2004.

¶12.   Over the course of these proceedings, MDHS informed the chancery court that it

represented Kern in the child-support action. MDHS made no representation that it was

representing Margaret-Anne. Margaret-Anne has not filed any pleadings in this matter, nor

has she appeared as a party.

¶13.   Shelnut has not honored any Canadian orders and has never paid any child support.

Except for a brief conversation during a court hearing in 1991, he has not seen or spoken to

his daughter since 1989. Apart from temporary work assignments, Shelnut has remained in

Mississippi, while Kern and Margaret-Anne have remained in Canada.




       3
      The only differences in the 1999 and 2005 registrations were the date and the
amount of arrearage.

                                             5
                                          ISSUES

¶14.   This court will consider:

       (1) Whether the chancellor erred in holding that Shelnut’s arguments against
       Canadian jurisdiction are precluded by this Court’s holding in Shelnut I.

       (2) Whether Kern’s conduct provided Shelnut a legal excuse for failing to pay
       child support.

       (3) Whether the chancellor erred in determining the applicable age of majority
       under Canadian law.

       (4) Whether the 1999 and 2005 registrations were timely.

       (5) Whether the chancellor erred in holding that the 2005 Notice of
       Registration should be treated as an amended complaint and, if not, whether
       he erred in relating it back to the 1999 registration.

       (6) Whether Margaret-Anne is a necessary party.

       (7) Whether the chancellor was biased to such an extent that Shelnut was not
       afforded a neutral forum.

                               STANDARD OF REVIEW

¶15.   "This Court will not disturb the findings of a chancellor when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong, clearly

erroneous or an erroneous legal standard was applied." Sanderson v. Sanderson, 824 So.

2d 623, 625-626 (Miss. 2002). However, “[r]egarding legal questions, this Court applies a

de novo standard of review.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190 (Miss. 2008).

                                        ANALYSIS

       I.     Whether the chancellor erred in holding that Shelnut’s arguments
              against Canadian jurisdiction are precluded by this Court’s
              holding in Shelnut I.




                                              6
¶16.   Shelnut I lists the alternatives a person has when served with a suit from another

jurisdiction, as follows:

       First, he may ignore the complaint and summons, and, then, if a default
       judgment is issued against him, he may challenge that judgment on
       jurisdictional grounds in a collateral proceeding when the plaintiff seeks to
       enforce the judgment. Second, he may voluntarily waive any lack of personal
       jurisdiction and submit to the distant court's jurisdiction. And third, he may
       submit to the jurisdiction of the court for the limited purpose of challenging
       jurisdiction. The Supreme Court has explained that by taking this third route,
       . . . ‘the defendant agrees to abide by that court's determination on the issue of
       jurisdiction: That decision will be res judicata on that issue in any further
       proceedings.’

Shelnut I, 772 So. 2d at 1045-46 (quoting Ins. Corp. of Ireland v. Compagnie Des Bauxites

De Guinee, 456 U.S. 694, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982)) (internal cites omitted).

In the first case, Shelnut conceded that he had received sufficient service of process for the

Canadian actions. See Shelnut I, 772 So. 2d at 1046 n.3. He responded to the Canadian

complaint by raising the issue of personal jurisdiction. His Canadian lawyer also submitted

a Brief of Law on this issue. After asserting its jurisdiction, the Canadian court issued a

judgment granting a divorce and ordering Shelnut to pay child support. Shelnut was mailed

a copy of the Canadian judgment in time to appeal it, but chose not to do so. Later, in

chancery court, he argued that he could collaterally attack jurisdiction after losing a challenge

on the same issue in Canada. This Court ruled that he had taken the third route and that res

judicata applied to the Canadian decision. See id. at 1046-48. After Shelnut I was decided,

if he still felt aggrieved, he had the option of filing a motion for rehearing, but he chose not

to do so.




                                               7
¶17.   Shelnut seeks to retry an issue decided in Shelnut I, lack of personal jurisdiction.

Shelnut now asserts that he received process only in the first Canadian proceeding, but

cannot recall receiving service of process as to the second proceeding (divorce and child

support). He asserts that because the orders bear different UFC numbers, separate actions

must have been filed. However, he offered no proof at trial that two separate actions were

filed. Citing the lack of proof, and this Court’s holding in Shelnut I, the chancellor found

that there was only one Canadian action.

¶18.   We conclude that Shelnut has exhausted his right to another day in court, both in

Saskatchewan and Mississippi. The chancellor did not err in holding that new arguments

over Canadian jurisdiction are precluded.

       II.    Whether Kern’s conduct provided Shelnut a legal excuse for failing
              to pay child support.


¶19.   Shelnut argues that Cole v. Hood, 371 So. 2d 861 (Miss. 1979), provides a legal

excuse for him to avoid paying child support. In Cole, the mother took the children and

actively hid them from their father by moving around the country and not informing the

father of their addresses. Despite the father’s efforts, he was unable to find the children for

eight years. Once he did find them, the mother then attempted to enforce a child-support

order against him for the accrued support for those eight years. See id. at 863. This Court

affirmed the trial court’s dismissal of the mother’s claim. The trial court had held that she

did not come to equity with clean hands. Her actions had made it impossible for the father

to comply with the child-support order. See id. at 864.



                                              8
¶20.   The facts in this case are more like those of Cunliffe v. Swartzfager, 437 So. 2d 43

(Miss. 1983). In Cunliffe, the wife took the child to a foreign country and the father did not

see his child for several years. See id. at 44. This Court reversed the trial court (in part),

which had followed Cole in relieving the father of the requirement to pay. See id. at 45-46.

This Court reasoned that it was not impossible for the father to pay. See id. at 45-46. He

knew generally where the child was and could have paid the support through his former

wife’s relatives, who knew her address. See id. at 45-46.

¶21.   The chancellor made a finding of fact that “Shelnut knew all along where his daughter

was and Kern did not hide his daughter from him.” The chancellor found the following

testimony persuasive: (1) When asked how his daughter had survived, Shelnut stated that

Kern had a wealthy family.4 (2) Shelnut’s parents went several times to visit Margaret-Anne.

This included one trip to North Dakota in which Shelnut’s parents took Margaret-Anne’s

Mississippi cousins to visit with her. Even though Shelnut was aware of these visits, he

never showed any interest in joining his parents on any of these trips. (3) When asked why

he did not seek a modification of the Canadian orders, Shelnut replied that he could not

afford it. The court gave little credence to this response, observing that Shelnut has been able

to hire several lawyers to help him avoid his responsibilities over the last two decades. (4)

Shelnut had Margaret-Anne’s address during this time, as he showed by mailing letters,

cards, and gifts to Margaret-Anne over a ten-year period. (5) In addition, Kern sent cards,

pictures and letters, including return addresses, to Shelnut’s family.


       4
       The chancellor concluded that Shelnut believes that support of his child is
someone else’s responsibility.

                                               9
¶22.      We conclude that Kern’s conduct, coupled with Shelnut’s inaction in the Canadian

courts, does not provide a legal excuse for failing to pay child support. Shelnut knew

generally where Margaret-Anne was and could have paid the support through the

Maintenance Support Office, as ordered. We find no error in the chancellor’s analysis and

ruling.

          III.   Whether the chancellor erred in determining the applicable age of
                 majority under Canadian law.


¶23.      With some exceptions inapplicable to this issue, Mississippi Code Annotated section

93-25-87 calls for the issuing state’s law to apply under the Uniform Interstate Support Act

(“UIFSA”). See Miss. Code Ann. § 93-25-87(1) (Rev. 2004). That act defines “state” to

include “[a] foreign country or political subdivision jurisdiction that . . . has enacted a law

or established procedures for issuance and enforcement of support orders which are

substantially similar to the procedures under this chapter.” Miss. Code Ann. § 93-25-3(u)(ii)

(Rev. 2004). Saskatchewan enacted the Reciprocal Enforcement of Maintenance Orders Act

in 1996. See The Reciprocal Enforcement of Maintenance Orders Act, S.S., ch. R-4.2

(1996).

¶24.      After reviewing the Canadian Divorce Act and the Family Maintenance Act,5 the

chancellor determined that the age of majority in Saskatchewan is eighteen. Shelnut argued

an outdated version of the Canadian divorce act which stated:




          5
        The Family Maintenance Act is in force in Saskatchewan. “Child” is defined as
“a person who is under the age of 18 years.” The Family Maintenance Act, S.S., ch. F-
6.2, s.2 (1997).

                                              10
       1. This Act may be cited as the Divorce Act.
       2. (1) In this Act, . . . “child of the marriage” means a child of two spouses or
       former spouses who, at the material time,
       (a) is under the age of sixteen years, or
       (b) is sixteen years of age or over and under their charge but unable, by reason
       of illness, disability or other cause, to withdraw from their charge or to obtain
       the necessaries of life; . . . .

However, the current version of this Act states the following:

       2. (1) In this Act, . . . "age of majority," in respect of a child, means the age of
       majority as determined by the laws of the province where the child ordinarily
       resides . . . .

Divorce Act, 1985 R.S.C., 1985, ch. 3 (2nd Supp) (Can.) (emphasis added).

¶25.   Saskatchewan’s Age of Majority Act makes eighteen the age of majority in that

province:

       Every person attains the age of majority and ceases to be a minor on attaining
       the age of eighteen years.

The Age of Majority Act, R.S.S., ch. A-6, s.2 (1978).

¶26.   The 1990 divorce judgment cites the authority of the Canadian Divorce Act, a federal

law applicable in Saskatchewan. Margaret-Anne has been a resident of Saskatchewan since

1989, so the Age of Majority Act, a Saskatchewan provincial statute, would apply to her.

Thus, we conclude that the chancellor did not err in determining that eighteen is the

applicable age of majority.

       IV.    Whether the 1999 and 2005 registrations were timely.

              A. The 1999 Registration

¶27.   Under the UIFSA, a child-support order “is registered when the order is filed in the

registering tribunal of this state.” Miss. Code Ann. § 93-25-85(1) (Rev. 2004). MDHS first



                                               11
registered the Canadian order (issued June 1990) in January 1999, when Margaret-Anne was

twelve.

¶28.      In actions for arrears of child support, UIFSA’s choice-of-law provision allows use

of either Mississippi’s statute of limitations or that of the issuing state, whichever is longer.

See Miss. Code Ann. § 93-25-87(2) (Rev. 2004). The chancellor used Mississippi law.

¶29.   Mississippi’s applicable statute of limitations requires actions to be commenced

within three years against Mississippi residents, such as Shelnut.

       All actions founded on any judgment or decree rendered by any court of record
       without this state shall be brought within seven years after the rendition of
       such judgment or decree, and not after. However, if the person against whom
       such judgment or decree was or shall be rendered, was, or shall be at the time
       of the institution of the action, a resident of this state, such action, founded on
       such judgment or decree, shall be commenced within three years next after the
       rendition thereof, and not after.

Miss. Code Ann. § 15-1-45 (Rev. 2003). However, the statute is tolled while the child

remains a minor:

       If any person entitled to bring any of the personal actions mentioned shall, at
       the time at which the cause of action accrued, be under the disability of infancy
       or unsoundness of mind, he may bring the actions within the times in this
       chapter respectively limited, after his disability shall be removed as provided
       by law . . . .

Miss. Code Ann. § 15-1-59 (Rev. 2003).

¶30.   In Wilson v. Wilson, 464 So. 2d 496 (Miss. 1985), a mother brought a contempt action

twenty years after a divorce decree. Both children were emancipated, but the seven-year

statute of limitations had not run. See id. at 497. This Court recognized that child support

is a legal duty owed to the child. Even though the action must be brought by a guardian who

is not under the disability, the statute of limitations is tolled until the disability of infancy is

                                                12
removed upon emancipation. See id. at 498 (citing Weir v. Monahan, 67 Miss. 434, 7 So.

291 (1889)). The Wilson court detailed the philosophy behind this rule as follows:

       To allow the statute of limitations to run during the disability of the minor, the
       very period through which the minor needs and is entitled to the support of his
       parents, would defy reason. To bar the child because of a parent's failure to
       timely assert the child's claim for support is to deprive the child of that support
       which belongs to him for reasons over which the child has no control.

Wilson, 464 So. 2d at 499. In Vice v. Dep’t of Human Servs., 702 So. 2d 397 (Miss. 1997),

this Court followed Wilson, affirming a judgment in which a child-support order was

enforced even though it was brought six years after the order. Vice, 702 So. 2d at 398.

¶31.   The three-year statute of limitations applicable to Shelnut under Mississippi law was

tolled while Margaret-Anne remained a minor. The tolling applied to Kern and MDHS,

though neither was under such a disability. Margaret-Anne was twelve years old in January,

1999. Therefore, we conclude that the 1999 registration was timely.

              B. The 2005 Registration

¶32.   The Vice and Wilson cases allowed support orders to be enforced even though they

were brought years after the children had become emancipated. In Vice, this court stated,

“That the child has been emancipated does not pretermit recovery of vested but unpaid child

support.” Id. at 401 (quoting Varner v. Varner, 588 So. 2d 428 (Miss. 1991)). “We have

plainly allowed parents to sue to obtain unpaid child support where the children have been

emancipated at the time of the suit.” Id. at 402 (citing Wilson, 464 So. 2d at 496; Varner,

588 So. 2d at 428).

¶33.   The three-year statute of limitations applicable to Shelnut under Mississippi law was

tolled while Margaret-Anne remained a minor. Tolling ceased when she became eighteen

                                               13
(the Saskatchewan age of majority) on July 31, 2004. Kern and MDHS then had three years

to register the order.    The order was registered by the submission of the Notice of

Registration Amended in September 2005. Margaret-Anne was then nineteen years old.

Thus, we conclude that the 2005 registration was timely, and would have been so, even if it

were the first attempt to enforce the order. We find no error as to this issue.

       V.     Whether the chancellor erred in holding that the 2005 Notice of
              Registration should be treated as an amended complaint and, if
              not, whether he erred in relating it back to the 1999 registration.

¶34.   The chancellor’s determination of the age of majority was not essential to the

judgment, but only to the calculation of the amount due. The chancellor based his judgment

on his finding that the 2005 registration was an amended complaint which should relate back

to 1999, when age of majority was not at issue. The chancellor set the entitlement to child

support to the date of Margaret-Anne’s eighteenth birthday, July 31, 2004. As eighteen is

the applicable age of majority, even if the 2005 registration were the first attempt to register

this judgment, we hold that the statute of limitations would still not bar it.

¶35.   Further, the issue was not raised in the 2005 motion to contest the validity of the

order, but was first raised two years later in the Motion to Dismiss; thus, the issue was

waived by Shelnut. We find no error.

       VI.    Whether Margaret-Anne is a necessary party.

¶36.   In Vice, this Court held that, even though the child holds the legal right to accrued

child support, a former custodial parent may sue to enforce an order even after the child has

become emancipated. See Vice, 702 So. 2d at 401. See also Brown v. Brown, 822 So. 2d

1119, 1121 (Miss. Ct. App. 2002). “Either the child or the former custodial parent may

                                              14
bring an action against the defaulting parent . . . .” Vice, 702 So. 2d at 401 (emphasis added).

In Vice, the mother attempted to enforce a Louisiana child-support order for payments that

accrued while she was supporting the children before they became emancipated. She filed

two years after the child reached majority. See id. at 398.

¶37.   Shelnut’s reliance on Taylor v. Taylor, 478 So. 2d 310 (Miss. 1985), is misplaced.

In that case, the father attempted to modify a divorce settlement in which there had been no

award of custody or child support because all the children were emancipated at the time of

the divorce. See id. at 311-12.

¶38.   Either Margaret-Anne or Kern could have brought the action. MDHS, representing

Kern, filed for enforcement. We find no error.

       VII.   Whether the chancellor was biased to such an extent that Shelnut
              was not afforded a neutral forum.

¶39.   Shelnut argues that questions and comments made by the chancellor show that he had

a personal bias against Shelnut, thereby denying him a neutral forum. Shelnut directs this

Court to the chancellor’s comment that he was not impressed with Shelnut’s self-serving

testimony. Shelnut also claims in a post-trial motion that the court “stated to attorneys in

chambers that it already knew how it would rule, but would allow [Shelnut] to attempt to

make a case.” There is no record following these statements of a request for recusal.

¶40.   A judge is to be considered “qualified and unbiased unless evidence presented

produces a reasonable doubt as to the judge’s impartiality.” Weeks v. City of Clinton (In re

City of Clinton), 920 So. 2d 452, 458 (Miss. 2006) (quoting Turner v. State, 573 So. 2d 657,

678 (Miss. 1990)). An appeals court is to “ask whether ‘a reasonable person, knowing all



                                              15
of the circumstances, would harbor doubts about . . . impartiality.’” Id. In In re City of

Clinton, the chancellor made a statement of personal opinion that was not based on the

applicable rule of decision in the case. This Court held that this alone was not evidence of

disqualifying bias, but remanded to allow the chancellor to make the decision on the

appropriate law and not on personal opinion. Here, the chancellor heard all the evidence

from both sides and then issued a thoughtful opinion based on the appropriate law.

¶41.   The chancellor also commented on the credibility of a witness. In his memorandum

opinion, the chancellor found that Shelnut’s testimony was “self-serving and wholly lacking

in factual subtantiation.” However, the chancellor did not make an inappropriate comment

showing disqualifying prejudice. He heard all the evidence, and at the conclusion of the

evidence, based his opinion on the applicable law and his own findings of fact. Therefore,

we conclude that Shelnut was not denied a neutral forum.

                                          CONCLUSION

¶42.   Based on the analysis above, except for the calculation of the judgment, we affirm the

judgment of the Chancery Court of the Second Judicial District of Hinds County. We

remand for the limited purpose of recalculating the judgment amount, taking into

consideration the December 1989 and January 1990 Canadian orders, along with the

statement of arrearages prepared by Saskatchewan Maintenance Enforcement Office,

attached to the notice of registration.

¶43.   AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.



                                              16
