Boone v. Boone, 2010–CA–01268–COA.

• Decision Date: 07 February 2012
• Docket Number: No. 2010–CA–01268–COA.,2010–CA–01268–COA.
• Citation: 80 So.3d 150
• Parties: Blake BOONE, Appellant v. Susan Ladette BOONE, Appellee.
• Court: Mississippi Court of Appeals

80 So.3d 150

Blake BOONE, Appellant

v.Susan Ladette BOONE, Appellee.

No. 2010–CA–01268–COA.

Court of Appeals of Mississippi.

Feb. 7, 2012.

Damon Scott Gibson, attorney for appellant.

Herbert J. Stelly, Gulfport, attorney for appellee.

EN BANC.

CARLTON, J., for the Court:

¶ 1. On April 7, 2010, the Hancock County Chancery Court entered an Agreed Judgment of Divorce between Blake and Susan Boone on the ground of irreconcilable differences. Shortly thereafter, Susan filed a “Complaint to Cite for Contempt and for Other Relief” ¹ based on the Agreed Judgment of Divorce entered between the parties. After a hearing on June 10, 2010, the Hancock County Chancery Court entered a “Judgment on Complaint to Cite for Contempt and for Other Relief,” (hereinafter referred to “Judgment of Contempt and Other Relief”) in favor of Susan against her former husband, Blake, and the court awarded Susan attorney's fees. Aggrieved, Blake appeals, raising the following assignments of error: (1) the Judgment of Contempt and Other Relief should be set aside as void because the Agreed Judgment of Divorce is void due to the court's failure to adjudicate all issues prior to entering the divorce as required by Mississippi Code Annotated section 93–5–2(3) (Supp.2011); (2) the Judgment of Contempt and Other Relief should be set aside as void because the underlying Agreed Judgment of Divorce is void due to the parties' failure to agree or acknowledge in writing or otherwise that the decision of the court on the issues left to be decided would be a binding and lawful judgment as required by section 93–5–2(3); (3) the Judgment of Contempt and Other Relief is void because the chancery court failed to possess personal jurisdiction over him due to the defectiveness of the summons; (4) the Judgment of Contempt and Other Relief is void due to improper venue; (5) the award of attorney's fees to Susan is against the overwhelming weight of the evidence; (6) the Judgment of Contempt and Other Relief awarding Susan a judgment in the amount of $11,627.30 on her claims of fraud and misrepresentation is improper due to the defectiveness of the summons; (7) the Judgment of Contempt and Other Relief is improper because it granted relief not requested in the complaint; (8) the court erred in finding him in contempt for his failure to pay child support and lump-sum alimony not yet due when the complaint was filed nor at the time of the trial; and (9) the court erred when it set aside its order pursuant to Mississippi Rule of Civil Procedure 62(a) staying execution of the contempt judgment placing him in jail on weekends prior to the entry of the order disposing of the motion for a new trial.

¶ 2. As set forth herein, we find that the order styled Agreed Judgment of Divorce fails to constitute a final judgment since the non-final order fails to comply with the statutory requirements as set forth in Mississippi Code Annotated section 93–5–2(3) due to the chancellor's grant of the divorce prior to resolving all attendant matters between the parties.² We further find that the related Judgment of Contempt and Other Relief is void; therefore, that judgment must be set aside.³

FACTS

¶ 3. Blake and Susan married on May 23, 1992. The marriage produced three children: a daughter born in 1994, a son born in 1995, and a daughter born in 1996. The parties separated on April 2, 2008.

¶ 4. On April 7, 2010, the Hancock County Chancery Court filed an Agreed Judgment of Divorce between the parties on the ground of irreconcilable differences. On that same day, the parties entered into a “Child Custody, Child Support[,] and Property Settlement Agreement” (the Settlement Agreement), which the court incorporated into the Agreed Judgment of Divorce. However, the Settlement Agreement as incorporated failed to resolve all matters between the parties as required by Mississippi Code Annotated section 93–5–2(3).

¶ 5. The Settlement Agreement required Blake to pay Susan $1,330 in temporary monthly child support ⁴ and $96,000 in lump-sum alimony to be paid over a ten-year period at $800 per month.⁵ The Settlement Agreement also required Blake to convey to Susan all right, title, and interest in the parties' eighty acres of land and the trailer, which was the parties' current family home that sat on the property. The Settlement Agreement further stated that all future payments on the trailer and the taxes and insurance for the land became Susan's responsibility after the execution of the Settlement Agreement. Additionally, the Settlement Agreement required Blake to bring current the then-delinquent child-support payments and temporary spousal-support payments in the amount of $2,330; attorney's fees in the amount of $1,553; $177.33 to CitiBank; and $10.22 to Cellular South. These delinquent payments were to be paid out of Blake's first paycheck with his new place of employment and, if insufficient, from his second paycheck.

¶ 6. As previously noted, the parties agreed in the Settlement Agreement, which was incorporated into the order styled Agreed Judgment of Divorce, to particular terms and conditions therein and submitted the following seven matters for the chancellor to resolve:

1. Who should pay the balance of the CitiCard bill?

2. Who should pay the phone bills for the children and should there be a change in phone service from Verizon to Cellular South[?]

3. Who is to be held responsible for the children's medical bills incurred during the course of the marriage as well [as] during the course of the pending domestic relations litigation?

4. Should the Husband be required to pay any or all of the attorney's fees incurred by the Wife during litigation process leading up to this divorce?

5. Should the Husband be held responsible for the outstanding $500 dental bill?

6. The issue of expenditures made out of the insurance fund resulting from Hurricane Katrina is to be reviewed by the [c]ourt and it is to be determined what is equitable with regard to such expenditures[,] and if need be adjustments made so that equity may be achieved between both parties.

7. Should the Husband be required to divide the 2008 federal and state income tax refund?

¶ 7. On May 27, 2010, approximately six weeks after the chancery court entered the order styled Agreed Judgment of Divorce, Susan filed a Complaint for Contempt and Other Relief. In her Complaint for Contempt and Other Relief, Susan moved the court to find Blake in willful and contumacious contempt of the prior orders of the court, and she also moved the court to address the seven unresolved matters arising out of the order styled Agreed Judgment of Divorce and identified in the Settlement Agreement. Susan also asked the court to address an additional matter and order Blake to repay $11,627.30 to Green Tree, the mortgage company for the trailer. The $11,627.30 reflects the monetary sum originally paid on the trailer's mortgage prior to entering into the Settlement Agreement. However, unbeknownst to Susan, Green Tree refunded this money, which had previously been paid on the mortgage, to Blake upon his unilateral request. Blake received notice of the hearing on Susan's Complaint for Contempt and Other Relief through service of process by Rule 81 summons. See M.R.C.P. 81.

¶ 8. The hearing on Susan's Complaint for Contempt and Other Relief commenced on June 10, 2010.⁶ Blake failed to appear at this hearing. Susan, however, attended the hearing and presented testimony and various exhibits to the chancery court. During the hearing, the chancellor addressed both the contempt matters and the request for other relief which sought resolution of the unresolved matters arising from the Agreed Judgment of Divorce. At the conclusion of the hearing, the chancellor in his bench opinion found, among other things, that Blake was in contempt of court for his failure to abide by the court's prior orders and judgment, including the terms of the Settlement Agreement.

¶ 9. In addition to the contempt matter, the chancellor also resolved the seven issues pending in the divorce that the parties had submitted to the chancellor for resolution. The chancellor then awarded Susan attorney's fees in the amount of $30,220.59 and a judgment in the amount of $11,627.30, the amount refunded by Green Tree to Blake in response to his unilateral request for such refund. The chancery court also ordered Blake be incarcerated in the Hancock County Jail every weekend from 6:00 p.m. on Friday to 6:00 a.m. on Monday until such time as he either fully complied with the court's judgment or until further order of the court. On June 11, 2010, the chancellor subsequently filed an order that memorialized his detailed bench opinion in which he addressed both the contempt findings and the additional divorce matters previously submitted for his resolution in the Agreed Judgment of Divorce.

¶ 10. On June 21, 2010, Blake filed a “Motion for New Trial and Motion to Reconsider Judgment on Complaint to Cite for Contempt and for Other Relief,” wherein he requested, among other things, that the chancery court enter an order staying the operation of the judgment pursuant to Rule 62(a). While the chancery court initially entered an order staying the June 11, 2010 Judgment for Contempt and Other Relief, the court set aside its order after a status conference on July 1, 2010, and ordered Blake apprehended and incarcerated as previously ordered.

¶ 11. Blake then filed an amended motion for a new trial and motion to reconsider, which the chancery court denied. The amended motion for a new trial asserted several basis for error, including that the Judgment of Contempt and Other Relief was void because the chancery court lacked jurisdiction over him due to insufficient process. Blake also contends the summons issued by the Hancock County Chancery Clerk was void because the hearing on the complaint was held outside of Hancock County, Mississippi, and the Rule 81 summons he had received provided...