author: PIERCE, Justice,

text:
    Samantha Louise SANFORD v. Leslie SANFORD.
    No. 2010-CT-00873-SCT.
    Supreme Court of Mississippi.
    Oct. 31, 2013.

      S. Christopher Farris, attorney for appellant.
    David Alan Pumford, Erik M. Lowrey, Hattiesburg, attorneys for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. It is often, said that bad facts make bad law — but inattention to detail also can make bad law. There are two distinct paths to an irreconcilable-differences divorce under Mississippi law. One option is for the couple to provide a written agreement settling the custody and maintenance of any children of the marriage and property rights; if the chancellor deems the terms adequate and sufficient, he or she may incorporate the agreement in the judgment and grant a divorce. Miss.Code Ann. § 93-5-2(2) (Rev.2013). A second option is for the couple to consent to allow a chancellor to decide certain disputed issues. Miss.Code Ann. § 93-5-2(3) (Rev. 2013). The consent must: (1) be in a writing signed by both parties; (2) state that the couple voluntarily agrees to permit the chancellor to decide the issues designated in their written consent; and (3) state that the parties understand that the chancellor’s decision will be binding and lawful. Id. All matters involving the custody and maintenance of any children of the marriage and property rights must then be either adjudicated by the chancellor or agreed upon by the parties and deemed adequate and sufficient before a divorce can be granted. Id.

¶ 2. Every divorce based on irreconcilable differences must proceed under either Section 93-5-2(2) or Section 93-5-2(3), but not both. In this case, the two distinct subsections were conflated and confused. The parties attempted to “switch horses” in the middle of a volatile stream not once, but multiple times. Ultimately, they failed to saddle either horse successfully; hence, they are being swept back into chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 3. The facts below were drawn heavily from the Court of Appeals’ decision. San ford v. Sanford, 124 So.3d 664 (Miss.Ct.App.2012).

¶ 4. On January 28, 2008, Samantha Sanford filed a complaint for divorce and temporary relief against Leslie Sanford in the Chancery Court of Lamar County. Samantha asserted that her and Leslie’s marriage was “irretrievably destroyed.” As fault grounds, she cited Leslie’s habitual cruel and inhuman treatment of her, his habitual and excessive drug use, and his habitual drunkenness. Alternatively, she alleged irreconcilable differences. And in her request for relief, she sought custody of their minor child.

¶ 5. On June 19, 2008, the chancellor entered a temporary order granting Samantha temporary physical custody of the minor child, temporary child support, and temporary alimony. Leslie was granted temporary visitation. Trial eventually was set for September 10, 2009.

¶ 6. Several events occurred on the day of trial. First, as permitted under Section 93-5-2(3), Samantha and Leslie executed a joint motion to withdraw fault grounds and a consent to divorce. Consequently, the chancellor signed an order dismissing fault grounds so the Sanfords could proceed with a divorce on the ground of irreconcilable differences. In their consent to divorce, they agreed to permit the chancellor to decide several designated issues. But before filing their consent, they struck through those designated issues; underneath, either Leslie or Samantha or one of their attorneys wrote that “[a]ll issues are settled and will be dictated into the record.” At that point, the Sanfords sought to travel under Section 93-5-2(2), not (3).

¶ 7. Later, after court was called to order, Leslie stated that the parties had settled. Still, he noted that the chancellor might have to decide the division of household goods, which is impermissible under Section 93-5-2(2). As the proceedings continued, it is clear from the record'that the Sanfords once again began invoking the provisions of Section 93-5-2(3). Disagreements arose about tax-related issues and whether Leslie would have to pay child support during the summers. Their back-and-forth finally prompted the chancellor to ask, “Well, have y’all got an agreement or not?” In response, Samantha said that she would submit the issue of summer child support to the chancellor for his consideration. At that point, understandably frustrated, the chancellor recessed for lunch: “I’m going to lunch. I’ll be back at 2:00. Get ready to go to trial. We’ll hear everything you want to hear.”

¶ 8. Following the noon recess, the San-fords announced a settlement. The chancellor and the Sanfords’ attorneys read the settlement agreement into the record, and Samantha and Leslie agreed to be bound by it:

THE COURT: All right. Mr. Sanford you stood there and heard what was dictated by your attorney and concurred in by Mrs. Sanford’s attorney as a proposed agreement between you and her for the settlement of all issues. Did you hear all of it?
MR SANFORD: Yes, sir, I did.
THE COURT: Did you understand all of that?
MR. SANFORD: Yes, sir, I did.
THE COURT: Is that a correct statement of your agreement?
MR. SANFORD: Yes, sir.
THE COURT: It will be reduced to writing. Do you commit to the Court that when it is reduced to writing you will sign it—
MR. SANFORD: Yes, sir.
THE COURT: — as an agreement?
MR. SANFORD: Yes, sir.
THE COURT: Do you understand that having made that commitment that you are not at liberty to back out?
MR. SANFORD: I understand, sir.
THE COURT: An effort to back out may result in imposition of sanctions.
MR. SANFORD: Yes, sir.
THE COURT: Mrs. Sanford, you stood there while it was being dictated by [Leslie’s attorney] and with some additions by your attorney. Did you hear all of it?
MRS. SANFORD: Yes, sir.
THE COURT: Did you understand all of it?
MRS. SANFORD: Yes, sir.
THE COURT: Is that your agreement and commitment?
MRS. SANFORD: Yes, sir.
THE COURT: Do you understand and commit to the Court that when it is reduced to writing and submitted to you for signature that you will sign it?
MRS. SANFORD: Yes, sir.
THE COURT: You do not have the privilege of backing out or changing your mind.
MRS. SANFORD: Yes, sir.
THE COURT: If you do so, you may subject yourself to imposition of sanctions by the Court.
MRS. SANFORD: Yes, sir.
THE COURT: All right. On those assurances and what’s dictated, I will be pleased to approve it. It is approved and is the order of the Court as of now. It will be reduced to writing and signed by the parties.

¶ 9. One issue remained unresolved, however: the division of household goods. The plan was for Samantha to go through the couple’s home and make a list of items that she wished to keep. Leslie, in turn, was to review Samantha’s list and submit his own list if he disagreed. The parties represented in court that the division of household goods “may be one thing which is left that the [c]ourt can make a determination on one day.”

¶ 10. One month after the divorce hearing, on October 12, 2009, Samantha moved to withdraw her consent to divorce and to have the case tried. Leslie responded by moving for a contempt citation and to enforce their settlement agreement. He alleged that Samantha had inventoried the home and had listed its entire contents for herself. He argued that her actions violated the chancellor’s order and the parties’ agreement. Further, he asserted that Samantha had waived any right to withdraw her consent to the settlement agreement.

¶ 11. On December 2, 2009, the chancellor entered an order refusing to allow Samantha to withdraw her consent from the September 10, 2009, settlement agreement. Further, he appointed a commissioner to supervise a bidding process between Samantha and Leslie for the household goods and found Samantha to be in direct contempt of court.

¶ 12. On April 7, 2010, Samantha requested an on-the-record finding that the settlement agreement was inadequate and insufficient. Leslie responded by moving to dismiss and for sanctions. A short time later, he moved again to have Samantha cited for contempt.

¶ 13. At a hearing on May 24, 2010, the chancellor found Samantha in contempt for failing to sign the settlement agreement. In his bench ruling, he ordered that Samantha be incarcerated until she purged herself of contempt “by executing] ... the settlement agreement that was submitted on March 25, 2010, which the [e]ourt has found fully and completely complies with all terms and provisions of the announced agreement on September 10, 2009, to which she indicated her consent and understanding.”

¶ 14. The following day, Samantha moved to stay the judgment of contempt and for a determination of supersedeas bond pending her appeal. Days later, she filed a Petition for Writ of Habeas Corpus with this Court. On May 28, 2010, a panel of this Court granted Samantha’s petition and ordered that she be released immediately from the Lamar County jail.

¶ 15. On June 1, 2010, the chancellor entered an order on all pending motions filed by Samantha and incorporated his bench ruling and the transcript of the May 24, 2010, hearing as part of the order.

¶ 16. Two weeks later, on June 16, 2010, Samantha moved to have the chancellor recused from the case. She noticed a hearing on her recusal motion for July 21, 2010. And, on June 29, 2010, she moved to have Leslie cited for contempt, alleging that he had not paid his alimony obligations.

¶ 17. On September 21, 2010, a final judgment of divorce was entered. The final judgment stated, in part, that:

This matter came on for trial on September 10, 2009. The parties executed and filed with the [cjourt a[c]onsent wherein they agreed that they would withdraw any and all fault grounds and, in writing, signed by both parties and their attorneys, stated[:] “The designated issues are settled. All issues are settled and will be dictated into the record,” and [the parties will] proceed pursuant to [Section] 93-5-2 ... with a divorce on the grounds of irreconcilable differences. Immediately thereafter, the [a]greement was dictated into the record, both parties under oath and represented by their respective counsel.
The parties hereto have made a full, adequate, sufficient[,] and complete provision by agreement, as set forth in the transcript attached hereto as Exhibit “A”, for the custody and maintenance of the minor child and for the settlement of any property rights between the parties. Said [a]greement is attached hereto as Exhibit “A” and made a part hereof as if copied in full herein.
The aforesaid [a]greement entered into by and between the parties, attached hereto as Exhibit “A[,]” is hereby ... ratified and approved, and incorporated herein and made a part of this [f]inal judgment [o]f [d]ivorce as if copied in full herein; and the parties are hereby ordered to comply with the terms of conditions of said [a]greement.
Based on the [c]onsent to [d]ivorce, this [e]ourt signed an [o]rder on September 10, 2009, allowing the parties to withdraw their fault grounds, dismissing the fault grounds[,] and allowing the divorce to proceed on the grounds of irreconcilable differences. The [o]rder was signed by both parties and the undersigned [c]hancellor in the presence of the parties.
Contemporaneously with the withdrawal of fault grounds and consent to divorce, the parties did announce their stipulation into the record, a copy of [the] same has been reviewed by the [c]ourt, has been transcribed, and reflects all of the settlement of all issues regarding equitable distribution, child custody, child support, alimony, and all personal property with the only exception being that of certain household goods as set out in [p]age 3 of the transcribed settlement statement. As a matter of law, divorce agreements dictated into the record and acknowledged by both parties are binding and are to be upheld. Bougard v. Bougard, 991 So.2d 646 (Miss.Ct.App.2008); Cobb v. Cobb, [29 So.3d 145 (Miss.Ct.App.2010) ]....
The stipulation attached hereto was drafted into a[p]roperty [settlement [a]greement and sent to Samantha[’s] ... prior attorney ... and the [c]ourt, having reviewed the [property [settlement [a]greement, as well as the dictated settlement finds ■ that the only element of the [p]roperty [settlement [a]greement which has not been carried out is the portion as it relates to household goods only.... [T]he dictated [property [settlement [agreement undertakes to set out the entire agreement with specifieity[,] and the [c]ourt finds in the area of the household goods that Samantha. ... was to go to the home and make a list of the items which she wished to have and Les[lie] would review and submit a separate list if he did not agree. '
The [c]ourt finds that pursuant to the sworn testimony of Samantha ... in open court on May 24, 2010, the issue of remaining personal property distribution is now moot by virtue of Samantha[’s] ... testimony that she would receive certain items of pre-marital and marital property....
On or about October 12, 2009, Samantha ... filed her own pleading where she attempted to withdraw her consent-to the divorce and the binding agreement which was transcribed. The [c]ourt finds that the attempted withdrawal, some thirty-two (82) days after the stipulated agreement under oath by the parties, is not sufficient^] nor will the [cjourt set aside that which the parties have consented to in open [c]ourt; the [c]ourt has relied on the same[,] and the [c]ourt and the parties are bound [by] and will follow that which was dictated in the record. [Bougard, 991 So.2d 646; Cobb, 29 So.3d 145.]
The [c]ourt finds as a matter of fact and law that Samantha ... is in direct, deliberate[,] and willful contempt of [c]ourt as it applies to her testimony under oath on September 10, 2009, and her subsequent actions thereto. Samantha ... represented to this [c]ourt her full and complete agreement to the settlement and that she would execute the documents when presented to her with the exception of the household goods. She is in contempt of this [c]ourt’s [o]rder through her own testimony under oath, by disavowing her previous sworn statements and ... not [acting] in good faith.

¶ 18. The transcript of .the September 10, 2009, hearing was incorporated in and attached to the final judgment of divorce.

¶ 19. Samantha appealed the final judgment to this Court, and we assigned the case to the Court of Appeals. The Court of Appeals reversed the judgment of divorce and remanded the case. Sanford v. Sanford, 124 So.3d 664 (Miss.Ct.App.2012). It held that the chancellor erred in granting a final divorce because the Sanfords had not entered into a signed written agreement resolving all property, custody, and support issues as required under Section 93-5-2(2) of the Mississippi Code. Id. at 671-74.

¶ 20. We granted Leslie’s petition for a writ of certiorari.

DISCUSSION

¶ 21. We will not disturb a chancellor’s findings unless they are “ ‘manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.’ ” Smith v. Smith, 20 So.3d 670, 674 (Miss.2009) (quoting Evans v. Evans, 994 So.2d 765, 768 (Miss.2008)). Legal questions, however, are reviewed de novo. Shelnut v. Dep’t of Human Servs., 9 So.3d 359, 363 (Miss.2009) (quoting Wilburn v. Wilburn, 991 So.2d 1185, 1190 (Miss.2008)).

Whether the chancellor erred in granting a divorce based on irreconcilable differences.

¶ 22. As discussed already, a couple can obtain an irreconcilable-differences divorce in one of two ways. Section 93-5-2(2) states that:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

Miss.Code Ann. § 93-5-2(2) (Rev.2013). Alternatively, Section 93-5-2(3) provides that:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such.consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any .child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce....

Miss.Code Ann. § 93-5-2(3) (Rev.2013).

¶ 23. Here, Samantha and Leslie Sanford wavered between Sections 93-5-2(2) and 93-5-2(3). They began under Section 93-5-2(3) by signing a written consent agreement. But, on the morning of trial, they reached a tentative settlement, marked through their designated issues, and handwrote underneath: “All issues are settled and will be dictated into the record.” By filing a document with these representations, they abandoned 93-5-2(3): there was no longer a written, signed consent agreement designating certain issues for the chancellor to decide. Instead, they declared that they had settled everything and attempted to proceed under Section 93-5-2(2).

¶ 24. All was not settled, however.

¶ 25. The Sanfords continued to dispute certain issues, particularly the division of household goods. As a result, they contemplated returning to Section 93-5-2(3). Yet, after a noon recess, they confirmed a settlement,. dictated the terms of the settlement into the record, and affirmed that they understood the terms and agreed to be bound by them. Even then, though, all still was not settled. The division of household goods remained unresolved. For example, as they were dictating the terms of the settlement into .the record, the parties said that the chancellor might have to weigh in on that particular issue. And, sure enough, eventually he did.

¶26. In sum then, the parties never fully complied with either Section 93-5-2(2) or Section 93-5-2(3). The written, signed consent agreement they filed was insufficient because it did not specifically set forth any issues for the chancellor to decide. And the purported settlement that was dictated, transcribed, and included in the judgment of divorce did not settle all property rights, because the division of household goods remained unresolved.

¶ 27. Thus, we agree with the Court of Appeals that the judgment should be reversed and the case remanded. Section 93-5-2(2) is designed to allow divorcing parties to completely agree and settle all issues touching the marriage. The parties must fully agree on all issues. That did not happen here prior to Samantha withdrawing her consent.

CONCLUSION

¶ 28. Because the requirements of neither Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the judgment of the Court of Appeals, reverse the judgment of the Chancery Court of Lamar County, and remand the case for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REVERSED AND THE CASE IS REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ„ CONCUR.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Barbara LEWIS, Individually, as Administratrix for the Estate of R. J. Lewis, and on Behalf of the Wrongful Death Beneficiaries for the Estate of R. J. Lewis v. FOREST FAMILY PRACTICE CLINIC, P.A. and John Paul Lee, M.D.
    No. 2011-CT-00828-SCT.
    Supreme Court of Mississippi.
    Oct. 31, 2013.

      James Howard Thigpen, attorney for appellant.
    John Burley Howell, III, Mildred M. Morris, Timothy Lee Sensing, Jackson, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. The trial court granted the defendant’s motion to dismiss because of insufficient service of process. The plaintiff appealed and the Court of Appeals reversed, holding that, even though service of process was improper, good cause existed under Mississippi Rule of Civil Procedure 4(h), and the action should not have been dismissed. We granted certiorari because the plaintiff never raised the issue at trial. Because we find it improper to raise this issue for the first time on appeal, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Scott County.

FACTS AND PROCEDURAL HISTORY

¶ 2. R.J. Lewis was Dr. John Paul Lee’s patient from May 19, 2008, through May 23, 2008. Lewis died on May 23, 2008. On June 1, 2010, Barbara Lewis, as Ad-ministratrix for R.J. Lewis’s estate and on behalf of the wrongful-death beneficiaries of R.J. Lewis (“Lewis”), filed a complaint in the Circuit Court of Scott County against Dr. Lee and Forest Family Practice.

¶ 3. Dr. Lee served as agent for service of process for Forest Family Practice. Proofs of service indicate that Process Server Gary Windham personally served Dr. Lee and Forest Family Practice with process on September 21, 2010. Relying on the proofs of service, Windham testified that he personally gave Dr. Lee the process, but admitted he had no independent recollection of doing so.

¶4. Dr. Lee, however, contends that process was served on the clinic’s cashier, Winnie McMullan, even though she had no authority to accept process and was not informed that she was accepting legal documents. McMullan testified she remembered seeing Windham and that he left papers with her to give to Dr. Lee, but she testified she did not know the documents concerned a lawsuit and that she was not authorized to accept service of process for Dr. Lee or Forest Family Practice.

¶ 5. Dr. Lee testified that he did not meet Windham or receive any documents from him on September 21, 2010. Dr. Lee further stated that he never gave McMul-lan, nor anyone else, permission to accept service of process on his behalf. Based on this, Dr. Lee and Forest Family Practice filed a motion to dismiss for insufficient service.

¶ 6. The trial court granted the motion to dismiss and dismissed the case with prejudice. Lewis appealed, and the Court of Appeals held that, although service of process was improper, good cause existed under Rule 4(h), and that the action should not have been dismissed. Dr. Lee and Forest Family Practice now appeal the Court of Appeals’ decision, arguing that: (1) any consideration of the good-cause argument was improper because Lewis did not raise the issue at trial; (2) the appellate court improperly made findings of fact; (3) the circuit court did not commit plain error; and (4) there is substantial evidence that good cause did not exist.

STANDARD OF REVIEW

¶ 7. We review a trial court’s grant or denial of a motion to dismiss de novo, but when considering fact-based findings, “we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.”

DISCUSSION

¶ 8. We agree with the Court of Appeals’ finding that the trial court did not abuse its discretion in holding that service of process was insufficient. Ample testimony in the record supports a finding that process intended for Dr. Lee and Forest Family Practice was served on McMullan, who had no authority to accept the process.

¶ 9. In order for a person to accept service of process on behalf of another, Rule 4(d) requires that the person be an “agent authorized by appointment or by law to receive service of process.” Further, this Court has defined agent “[to] include only agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers.”

¶ 10. Both Dr. Lee and McMullan testified that McMullan did not have authority to accept process for Dr. Lee or the Forest Family Practice. McMullan also stated that Windham did not inform her the papers pertained to a lawsuit. All of this evidence supports the trial court’s conclusion.

¶ 11. Rule 4(h) of the Mississippi Rules of Civil Procedure states that

[i]f a service of the summons and complaint is not made upon a defendant within 120 days ... and the party on whose behalf such service was required cannot show good cause why such service was not made within that period ... the action shall be dismissed....

¶ 12. Relying on this rule, the Court of Appeals found that Lewis made a showing of good cause why proper service was not made within 120 days. But as the Court of Appeals acknowledged, Lewis never argued good cause in the trial court. To justify overcoming the procedural bar, the Court of Appeals relied on its own precedent and asserted that in Spurgeon v. Eg-ger, it had found good cause existed under Rule 4(h) to prevent dismissal of a plain-tifPs claim, even though the plaintiff never raised that issue at trial. We are troubled by the Court of Appeals’ conclusion for two reasons.

¶ 13. First, we have never held that failure to raise the issue in the trial court could be overlooked on appeal. But we also find that Spurgeon does not support the Court of Appeals’ conclusion. In Spurgeon, the defendant moved to dismiss for insufficient service of process of a medical-malpractice claim when the defendant’s medical assistant accepted service of process on behalf of the defendant without authority to do and with no knowledge that she was accepting service of process. The circuit court’s judgement of dismissal stated:

[s]ervice of the Summons and Complaint in this cause were not made upon Dr. Egger within 120 days after filing of the Complaint and Plaintiffs have not shown good cause why such service was not made within that period,

¶ 14. So, in Spurgeon, the issue of good cause was raised and decided in the trial court. The circuit court’s failure to elaborate on its ruling — which was the basis of the Court of Appeals’ decision — does not change the fact that the issue was raised and considered, and certainly cannot stand as precedent for overcoming the procedural bar.

¶ 15. In the case before us today, nothing in the record suggests that Lewis raised the issue of good cause or that the circuit court considered it. The circuit court’s judgment makes no mention of good cause.

¶ 16. It is well-settled that issues presented for the first time on appeal are procedurally barred from consideration. We have held that

[o]ne of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level.

¶ 17. Because Lewis did not raise the issue of good cause before the trial court, she may not raise it on appeal. Accordingly, we find the circuit court did not abuse its discretion by granting Dr. Lee and Forest Family Practice’s motion to dismiss. However, when dismissing for insufficient service of process, we have held that “Rule 4(h) dismissals should be made without, not with prejudice.” Thus, we reinstate and affirm the trial court’s grant of dismissal but modify it to be without prejudice.

CONCLUSION

¶ 18. While the Court of Appeals correctly found that service of process upon Dr. Lee and Forest Family Practice was insufficient, it erred by considering Lewis’s good-cause argument for the first time on appeal. Because we find it improper for an appellate court to consider matters not raised during trial proceedings, we reverse the opinion of the Court of Appeals and reinstate and affirm the judgment of the trial court but modify it to be without prejudice.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED; THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED AS MODIFIED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING AND COLEMAN, JJ., NOT PARTICIPATING.

      . Johnson v. Rao, 952 So.2d 151, 154 (Miss.2007) (citing Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004)).

      . Johnson, 952 So.2d at 154 (quoting Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1197-98 (Miss.2004) (quoting Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002))).

      . M.R.C.P. 4(d).

      . Johnson, 952 So.2d at 154 (quoting Saxony Milis v. Wagner & Co., 94 Miss. 233, 239, 47 So. 899, 901 (1909)).

      . M.R.C.P. 4(h).

      . Lewis v. Forest Family Practice Clinic, PA, 124 So.3d 678 (Miss.Ct.App.2013) ("Lewis failed to raise the issue in the trial court.”).

      . Spurgeon v. Egger, 989 So.2d 901 (Miss.Ct.App.2007).

      . Id. at 903.

      . Id. at 906 (emphasis added)

        . Estate of Myers v. Myers, 498 So.2d 376, 378 (Miss.1986) (citing Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242 (1909)). See Flagstar Bank, FSB v. Danos, 46 So.3d 298, 311 (Miss.2010) ("[W]e need not consider this issue, which has been raised for the first time on appeal.”); Neider v. Franklin, 844 So.2d 433, 436 (Miss.2003) (“We have consistently held that a trial court will not be put in error on appeal for matters not presented to it for decision.”); Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 153 (Miss.2001) (It is a well-settled proposition that this Court will not review matters on appeal that were not considered by the lower court.); Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000) ("This Court has long held that it will not consider matters raised for the first time on appeal.").

      . Estate of Myers, 498 So.2d at 378.

      . Holmes v. Coast Transit Auth., 815 So.2d 1183, 1187 (Miss.2002).


text:
    CITY OF OCEAN SPRINGS, Mississippi v. PSYCAMORE, LLC.
    No. 2013-CA-00118-SCT.
    Supreme Court of Mississippi.
    Oct. 31, 2013.

      Robert W. Wilkinson, Amy Lassitter St. Pe’, Pascagoula, John B. Edwards, II, attorneys for appellant.
    William Lee Guice, III, Maria M. Cobb, Biloxi, attorneys for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Psycamore, LLC, sought approval to operate a mental-health treatment facility in an area of Ocean Springs, Mississippi (“the City”), where the zoning ordinance allowed facilities for the examination and treatment of human patients. The City of Ocean Springs denied Psycamore’s application, but the circuit court reversed and the City appealed. Because we find that the City’s decision was arbitrary and capricious, we affirm the circuit court’s ruling.

FACTS AND PROCEDURAL HISTORY

2. Any occupant seeking to change the use of an existing structure in Ocean Springs, Mississippi, must obtain either a certificate of occupancy or a use permit prior to commencing the new intended use. City ordinances divide the city into various zoning districts, listing the permissible uses of property within the corresponding geographic areas.

¶ 3. When the proposed use in the occupant’s application for a certifícate of occupancy conforms to one of the uses listed in the applicable district ordinance, the City must issue a certificate of occupancy. But when the proposed use is not listed in the applicable zoning district ordinance, the occupant may not conduct the proposed use at the subject property without obtaining a use permit, which requires public notice and a hearing before the city planning commission. The planning commission must then decide whether the proposed use is “similar to or not in conflict with those uses specifically permitted.” If it does, the mayor and board of aider-man must then approve the commission’s recommendation.

¶ 4. Psycamore, LLC, provides a wide range of clinical mental-health treatment. It leased an existing structure located at 1101 Iberville Drive in Ocean Springs for a proposed new treatment facility. It filed an application with the City to obtain a certificate of occupancy. The application identified “psychiatric partial hospitalization” as its intended property use. Notations on the application provided that all programs would operate Monday through Friday, with no session conducted later than eight p.m. The application further explained that patients would not stay at the facility overnight and that Psycamore was not a detox or rehabilitation facility. Finally, the application provided that Psy-camore would not conduct lab work or cooking on site.

¶ 5. The city planning commission met to discuss Psycamore’s application and intended use, and to determine whether it conformed to a listed use in the applicable Commercial-3 zoning ordinance. Because the applicable ordinance did not specifically list “psychiatric partial hospitalization” the commission refused Psycamore a certificate of occupancy.

¶ 6. Although Psycamore believed its proposed use — a “medical or paramedical clinic” — was indeed listed in the ordinance, it filed an application for a use permit under protest, arguing that the commission should have issued a certificate of occupancy following its first hearing and that it should not have to apply for a use permit. The City noticed a hearing on the use permit application.

7. In preparation for the hearing, the City’s planning director, Eric Meyer, prepared a report analyzing the Psycamore application. Meyer concluded that Psyca-more was a “medical or paramedical clinic” as defined by city ordinance, and that the commission should have issued a certificate of occupancy. In the alternative, Meyer concluded that Psycamore was similar to, and not in conflict with, a medical or paramedical clinic, and should received a use permit.

¶8. The planning commission held the public hearing to determine whether Psy-camore should receive a use permit. Psy-camore’s counsel argued that the City’s denial of Psycamore’s certifícate of occupancy constituted discrimination based on the patients’ disabilities; that Psycamore was a medical clinic as defined by city ordinance; and that Psycamore was more similar to a medical clinic than other facilities the City permitted to operate in the same type of zoning district.

¶ 9. The commission heard from opponents of the use permit, who argued that denial of Psycamore’s use permit would be a nondiscriminatory land-use decision, and that the facility should not be allowed in a historic district because its traffic would congest a residential area. They also argued that partial psychiatric hospitalization was not a permitted use in the applicable zone. At the conclusion of the hearing, the planning commission failed to reach a consensus and referred the matter to the board of alderman without recommendation.

¶ 10. The mayor and board of aldermen heard arguments similar to those at the planning commission hearing. Psycamore proposed a compromise in which the city would issue a temporary use permit and, after six to twelve months of monitoring Psycamore’s services, meet again to discuss a permanent use permit. Meanwhile Psycamore would contribute $5,000 to improve the city infrastructure surrounding the facility.

¶ 11. Thereafter, the board of alderman held a special meeting and denied Psyca-more’s use permit, citing as reasons for the denial traffic concerns, the residential and historic nature of the area, and the substandard infrastructure. The board stated that it must use good judgment in the interest of public welfare to reduce" delayed travel times, air pollution, traffic accidents, roadway congestion, and delays for emergency vehicles.

¶ 12. Finally, the board referenced reasons stated “in the October 24th Memorandum Brief of attorney John Barber, specifically sections 1, 2, 4, and 5.” The board stated that it did not base its decision on the patients’ conditions, noting that it had allowed other mental-health services in that neighborhood.

¶ 13. Psycamore filed its notice of appeal and bill of exceptions in the Circuit Court of Jackson County. The circuit court reversed the City’s decision, finding it unsupported by substantial evidence. The City appealed.

ANALYSIS

¶ 14. In zoning cases, the circuit court sits as an appellate court, and this Court must directly examine ■ the City’s decisions. “The standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence.” This Court will not set aside the decision of the mayor and board of aldermen “unless clearly shown to be arbitrary, capricious, discriminatory, illegal, or without substantial evidence.”

¶ 15. At issue here are two City decisions: the decision to deny Psyca-more’s certificate of occupancy and the decision to deny Psycamore’s use permit. Because we find that the City’s first decision — denying the certificate of occupancy — was arbitrary and capricious, and not supported by substantial evidence, we affirm the decision of the circuit court, and we need not address the City’s denial of Psycamore’s use permit.

¶ 16. In explaining why we give great weight to a city’s interpretation of its ordinances, we have said that the best interpretation of a city ordinance is the city’s history of applying that ordinance. And in this case, we are presented with a second, equally persuasive guide to interpreting the relevant ordinance. The issue we find dispositive — whether the City’s decision to deny Psycamore’s certificate of occupancy was arbitrary and capricious— turns on whether Psycamore is a “medical or paramedical clinic.” Because the City has defined the term “medical or paramedical clinic” for purposes of applying the City ordinance, and has applied it in the past, our decision is guided by that definition and the City’s past application of that term.

¶ 17. Any occupant who wishes to change the use of an existing structure in Ocean Springs is entitled to issuance of a certificate of. occupancy within three days of filing an application so long as the intended use is permitted in the zoning ordinance governing the relevant geographic area. The City denied Psycamore’s application for a certificate of occupancy, finding that its proposed use — “psychiatric partial hospitalization” — was not a permitted Commercial-3 use.

¶ 18. Psycamore’s leased property falls within a Commercial-3 highway commercial district, and Section 408 of the City’s zoning ordinance enumerates the permitted uses in a Commercial-3 highway commercial district. That section lists several uses such as medical and dental laboratories, veterinary services, public garages, and car dealerships. It also incorporates all uses permitted in a Commercial-2 community commercial district.

¶ 19. Section 407 enumerates the permitted uses in a Commercial-2 community commercial district, and it incorporates all uses allowed in a Commercial-1 neighborhood commercial district. Finally, Section 406 enumerates the permitted uses in a Commercial-1 neighborhood commercial district, including “[mjedical and paramedical practice or clinics licensed by the State of Mississippi for human care.”

¶ 20. Psycamore argues that it intends to operate a “[m]edical or paramedical practice or clinic” and that the City erred by finding to the contrary. City ordinance defines a medical or paramedical office as a “facility for the examination and treatment of human patients.” Accordingly, we must determine whether the City acted arbitrarily and capriciously when it determined that Psycamore was not a facility for the examination and treatment of human patients licensed by the State of Mississippi. We find that it did.

¶ 21. Arbitrary acts are those “not done according to reason or judgment, but depending on will alone.” An act is capricious when “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.”

¶ 22. Psycamore’s application noted that it would provide psychiatric care Monday through Friday, with no session conducted later than eight p.m. The application explained that patients would not stay at the facility overnight and that Psyca-more was not a detox or rehabilitation facility. Finally, the application provided that Psycamore would not conduct lab work or cooking on site.

¶ 23. The minutes of the planning commission’s hearing state that Psycamore provides outpatient treatment of stress, anxiety, bipolar disorder, depression, and compulsive disorders. They reflect that Psycamore does not offer inpatient confinement and that it accepts only voluntary patients. Psycamore serves as both a resource and a referral service for physicians, hospitals, other treatment facilities, mental-health therapists, and counselors.

¶ 24. The minutes describe Psycamore’s treatment as daily group therapy in the areas of stress management, self-esteem, relationships, cognitive behavioral therapy/positive thinking, grief and loss, anger management, family issues, life/coping skills, expressive therapy, and yoga therapy. Psycamore also provides weekly individual therapy conducted by a licensed professional counselor and weekly medication review by a psychiatrist, but medications are not administered on site.

¶ 25. Psycamore does not treat alcoholism, drug abuse, schizophrenia, mental retardation, dementia, severe psychosis, or physically combative or actively suicidal individuals. The minutes also include Psy-camore’s program schedule, with programs Monday through Friday, beginning at ten and eleven in the morning and one, two, and three in the afternoon. Despite these findings, the planning commission denied Psycamore’s certificate of occupancy.

¶26. Also, in preparation for the use permit hearing, the City’s own planning director — finding that Psycamore was a medical or paramedical clinic — recommended that the planning commission reconsider its certificate-of-oecupancy decision. In making his recommendation, Meyer provided a list of twenty-six medical clinics operating within Commercial-3 zoning districts. Meyer noted that none of those businesses was required to obtain a use permit. He also informed the commission that Psycamore had two other facilities licensed with the State of Mississippi. Finally, he concluded that Psycamore would provide outpatient treatment akin to a clinic and “would never be considered a hospital.” Nevertheless, the commission refused to follow Meyer’s recommendation.

¶27. Considering the foregoing findings by the planning commission and the information provided by Meyer, we find the planning commission’s decision was arbitrary and capricious when it held that Psycamore was not “facility for the examination and treatment of human beings.”

¶ 28. All of the evidence presented to the planning commission supported a conclusion that Psycamore was a facility for the examination and treatment of human beings licensed by the State, meeting the definition of a medical or paramedical “facility for the examination and treatment of human beings,” as provided in the City’s ordinance. In denying Psycamore’s certificate of occupancy, the City ignored the definition in its own ordinance definition— an act that was clearly arbitrary and capricious.

¶ 29. The City also argues that Psyca-more is not a medical or paramedical clinic because it is dissimilar to doctors’ and dentists’ offices which typically are considered medical clinics. But nothing in the City ordinances or the City’s past practice provides notice or even an indication of such a requirement. In fact, Meyer’s list of entities previously approved by the City to operate in the same type of zoning district — “the best interpretation of what the wording in the ordinance means is the manner in which it is interpreted and applied by the enacting and enforcement authorities” — included a facility that, as conceded by the City’s counsel, provides the same services as Psycamore.

¶ 80. The city planning commission simply ignored its own definition, past practices, and all of the evidence presented to it by denying Psycamore’s certificate of occupancy. This disregard for the facts and well-settled principles may be illustrated best by counsel’s statement at oral argument that, had Psycamore simply called itself a medical clinic in the initial application, the City would have issued a certificate of occupancy without question.

CONCLUSION

¶ 31. Because the city planning commission ignored its own definition, past practices, and all of the relevant evidence when it denied Psycamore’s certificate of occupancy, we find that the denial was clearly arbitrary and capricious. Accordingly, we affirm the ruling of the Jackson County Circuit Court reversing the decision of the City, and we remand this case to the City for further proceedings consistent with this opinion.

¶ 32. AFFIRMED.

WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.

      . Ocean Springs, Miss., Zoning Ordinance § 901.2 (2007).

      . Ocean Springs, Miss., Zoning Ordinance §§ 401-412 (2007).

      . Ocean Springs, Miss., Zoning Ordinance § 901.2(1) (2007).

      . Ocean Springs, Miss., Zoning Ordinance § 408.3 (2007).

      . Id.

      . Id.

      . Id.

      .Those sections argued that Psycamore was not a medical or paramedical clinic, was not similar to or not in conflict with a medical clinic, that granting Psycamore a use permit would conflict with the city’s Comprehensive Development Plan, and that denying Psyca-more's use permit would not violate the Americans with Disabilities Act.

      . Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416, 418 (Miss.2004) (citing Board of Aldermen v. Corterly, 509 So.2d 877, 885 (Miss.1987)).

      . Drews v. City of Hattiesburg, 904 So.2d 138, 140 (Miss.2005) (citing Perez v. Garden Isle Community Ass’n, 882 So.2d 217, 219 (Miss.2004) (citing Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986))).

      . Id. (citing Perez, 882 So.2d at 219; Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997)).

      . Fondren North Renaissance v. Mayor and City Council of Jackson, 749 So.2d 974, 983 (Miss.1999) (quoting Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991)).

      . Ocean Springs, Miss., Zoning Ordinance § 901.2(1) (2007).

      . Ocean Springs, Miss., Zoning Ordinance § 408.2 (2007).

      . Id.

      . Ocean Springs, Miss., Zoning Ordinance § 407.2 (2007).

      . Ocean Springs, Miss., Zoning Ordinance § 406.2 (2007).

      . Ocean Springs, Miss., Zoning Ordinance § 202 (2007).

      . Burks v. Amite County School Dist., 708 So.2d 1366, 1370 (Miss.1998) (McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992)).

      . Id.

      . Fondren North Renaissance, 749 So.2d at 983 (quoting Faircloth, 592 So.2d at 945).


author: RUSSELL, J., FAIR, J.,

text:
    Samantha Louise SANFORD, Appellant v. Leslie SANFORD, Appellee.
    No. 2010-CA-00873-COA.
    Court of Appeals of Mississippi.
    May 08, 2012.
    Rehearing denied Oct. 9, 2012.

      S. Christopher Farris, attorney for appellant.
    Erik M. Lowrey, David Alan Pumford, Hattiesburg, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Samantha Sanford appeals the Lamar County Chancery Court’s final judgment of divorce. She argues that the chancery court erred in entering the parties’ divorce without a signed property settlement agreement. Upon review, we agree. Therefore, we reverse the judgment of divorce and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 28, 2008, Samantha filed a complaint for divorce and temporary relief against Leslie Sanford alleging fault grounds for divorce, including habitual cruel and inhuman treatment, habitual and excessive use of drugs, habitual drunkenness; in the alternative, Samantha alleged irreconcilable differences. She also sought custody of the parties’ minor child. On June 19, 2008, a temporary order was entered that, among other things, granted Samantha temporary physical custody of the minor child, temporary child support, and temporary alimony. Leslie was granted temporary visitation. Subsequently, the trial court entered an order setting the trial for September 10, 2009.

¶ 3. On September 10, 2009, Samantha and Leslie executed a joint motion to withdraw fault grounds, which was filed on September 11, 2009. Also on September 10, 2009, the chancellor signed an order dismissing fault grounds, which was filed the next day. That order stated “it is therefore, ordered and adjudged that the fault grounds for divorce be, and the same are hereby dismissed as to both parties[,] and this matter may proceed with a divorce on the grounds of irreconcilable differences.” Additionally, on September 10, 2009, a consent to divorce was signed by Samantha, Leslie, and counsel for each, and it was filed on September 11, 2009. The consent to divorce contained handwritten revisions. The text lined through below was actually struck through with a pen. The text italicized below was actually handwritten in the document. None of the changes were initialed by the parties. It is unknown who made the revisions, when the revisions were made, and whether the revisions were agreed to by the parties before signing. The' consent to divorce reads as follows:

The undersigned, Samantha ... and Leslie ..., enter this [ejonsent pursuant to the provisions of § 93-5-2 ... and voluntary consent to a divorce each from the other on the grounds of irreconcilable differences.
The parties do hereby voluntarily consent to permit the [c]ourt to decide the remaining issues upon which they cannot agree, and all other issues raised in the pleadings. The parties further agree that they may not withdraw their consent without leave of the [c]ourt and just cause shown. The designated issues are as-follows¿ settled.
Child-e-ustody-and-visitation;
Child support and medical;
Equitable division of-marital assets-and debts^
Identity-and division-of personal proper-⅛⅞
Almoayy if any;-and
Attorney fees and-costa, if any.
All issues are settled and will be dictated into the record.
The, undersigned parties agree and understand that the decision of the [c]ourt shall be a binding and lawful judgment.

¶ 4. Also on September 10, 2009, the parties read into the record an oral agreement concerning, among other things, child custody, visitation, and partial property division. At the time of the oral agreement, the parties had not resolved issues pertaining to the division of personal property.

¶ 5. On October 12, 2009, Samantha filed a handwritten motion to withdraw her consent to divorce, which stated: “I, Samantha Louise Sanford, hereby withdraw my consent to the divorce agreement that was discussed September 10, 2009. I wish to have my case tried before Judge Dale or any other available judge. If you have any questions, please contact me.”

¶ 6. On October 16, 2009, Leslie filed a motion for citation for contempt and to enforce settlement:

Comes now, Leslie Dewitt Sanford, by and through counsel, files this his [m]otion [f]or [c]itation [f]or [c]ontempt [a]nd [t]o [e]nforce the stipulated property settlement agreement and portions thereto and for cause would show unto the [c]ourt as follows:
1. On the 10th day of September, 2009, this matter was set for trial[,] and the parties dictated into the record a property settlement agreement of all matters[; ...] the same was accepted by the [c]ourt as the property settlement agreement in the termination of this litigation and all rights of the parties.
2. Pursuant to the stipulation in the record, Leslie’s attorney prepared the [c]hild [c]ustody, [s]upport[,] [a]nd [property [settlement [a]greement and sent the same to attorney for Samantha Sanford on the 18th day of September, 2009.
3. Further, in accordance with the stipulation, Samantha Sanford was suppose[d] to report back to her attorney on that same day, September 10, after inventorying the house and notifying counsel of the items in which Samantha Sanford determined that she wanted.
4. On the 23rd day of September, 2009, thirteen (13) days after the trial, a handwritten copy of household goods were reeeived[,] which listed the entire contents of the house.
5. Subsequent thereto, Leslie has reviewed Samantha Sanford’s list and objects to the list and that it is outside the agreement[,] and Samantha Sanford is in violation of the [c]ourt [ojrder and therefore has waived any rights to the household goods.
6. Further, as this [cjourt will remember, Samantha Sanford chose to leave the State and took the minor child of the parties and herself to Las Vegas, Nevada, to live with her sister where she has stayed. Further, at no time prior to the hearing date, has Samantha Sanford offered, requested, or discussed any of the household goods located in the home prior to the [stipulation date and the [stipulation.
7. This [cjourt should find that Samantha Sanford has violated the stipulation agreement, has caused additional attorney[’]s fees to Leslief,] ... [that] the same should be offset based on the property settlement agreement by reducing the amount paid to Samantha Sanford pursuant to the property settlement agreement^] and that she has waived all rights to all the personal property on the attached list located at the home.
8. Alternatively, Leslie has highlighted, in yellow, the items which he will agree that Samantha. Sanford can remove from the home. Said list .is attached as Exhibit “A.”
9. Further, on September 10, 2009, in open court and under oath, pursuant to the [stipulation as entered, Samantha Sanford did file an irrevocable consent to divorce[,] and that [c]onsent was ratified by [c]ourt [o]rder on September 10, 2009. On October 12, 2009, Leslie received, by fax[,] a handwritten, document, purported to be from Samantha Sanford[,] attempting to withdraw her [cjonsent and demanding a trial thereon. Leslie would show unto the [c]ourt that Samantha Sanford .has given up any right to withdraw her [cjonsent and this [c]ourt should enforce the stipulated settlement as set out.

¶ 7. Samantha filed a response to Leslie’s motion for contempt and for enforcement of settlement, and she also filed a motion for discovery and for a trial. A hearing was held on Leslie’s motion for contempt and to enforce settlement, along with Samantha’s response, and the chancery court entered an order on December 2, 2009, which reads, in relevant part, as follows:

[T]his matter was set for trial on September 10, 2009, and the parties executed and filed with the [c]ourt a [c]onsent to [d]ivorce wherein they agreed that they would withdraw any and all fault grounds and proceed ... with a divorce on the grounds of irreconcilable differences, and ... all issues are settled between the parties and will be dictated into the record.
[B]ased on that consent, the [c]ourt signed an [o]rder on September 10, 2009, allowing the parties to withdraw their fault grounds, dismissing the fault grounds[,] and allowing the divorce to proceed on the grounds of irreconcilable differences!.] [T]he [o]rder was signed by both parties and the Q]udge in the presence of the parties.
Contemporaneously therewith, the parties did announce their stipulation in the record, [and] a copy of [the] same has been reviewed by the [c]ourt, has been transcribed, and reflects all of the settlement of all issues regarding equitable distribution, child custody, child support, alimony, and all personal property with the only exception being that of household goods[,] which is set out in [p]age 3 of the transcribed settlement statement.
The stipulation was drafted into a [property [settlement [agreement and sent to Samantha’s prior attorney, Carol Ann Bustin, and the [c]ourt, having reviewed the [pjroperty [settlement [a]greement as well as the dictated settlement[,] finds that the only element of the [property [settlement [a]greement which has not been carried out is the portion as it relates to household goods only. That the dictated [p]roperty [settlement [a]greement undertakes to set out the entire agreement with specificity and the [e]ourt finds in the area of the household goods is Samantha was to go to the home and make a list of the items which she wished to have and Les[lie] would review and submit a separate list if he did not agree.
The [c]ourt finds that Samantha went to the house and, pursuant to the attached list submitted to Les[lie], included each and every item in the house. Les[lie] has highlighted those items ... he has agreed to allow her to take.
[O]n or about October 12, 2009, Samantha filed her own pleading where she attempted to withdraw her consent to the divorce and the binding agreement which was transcribed into the record on September 10, 2009.
The [e]ourt finds that the attempted withdrawal, some thirty-two (32) days after the stipulated agreement under oath by the parties, is not sufficient nor will the [c]ourt set aside that which the parties have consented in open [c]ourt; the [c]ourt has relied on the same and the [c]ourt and the parties are bound and will follow that which was dictated in the consent.
The [c]ourt further has. determined it will follow this [c]ourt’s standard procedure and it will not decide the issues of pots and pans as it relates to the parties. [T]he same is impossible to do by a [c]ourt[,] and the same is also not economically feasible....
Therefore, the Court will appoint ... a duly authorized and deputized commissioner of this [c]ourt to sell all household goods located at the home and to convert the same to cash.... [The commissioner] will file a report and request for confirmation of the sale and notice the time of the sale.
Both Samantha and Les[lie] are at liberty to bid on each and every item[,] and ... each and every item will be sold separately!;] • • • then the entire lot will be offered as a whole. [The commissioner] is charged to accept the bid which will bring the most money to the parties. [U]pon completion of the sale, [the commissioner] will report back to the [c]ourt[,] and the [c]ourt will determine at that time an equitable division of the proceeds of the sale.
The [c]ourt finds Samantha Louise Sanford in direct [c]ontempt of [c]ourt [for] her testimony under oath on September 10, 2009, and her subsequent actions thereto. Samantha represented to this [e]ourt her full and complete agreement to the settlement and [that] she would execute the documents when presented to her with the exception of the household goods. She is in contempt of this [c]ourt’s [ojrder through her own testimony under oath, by disavowing her previous sworn statements [as she] has decided that she wants another deal. Additionally, it is obvious [from] her list of all the contents of the house that her list of items under the stipulated agreement was not in good faith [nor was] her attempted withdrawal of her consent, which the [c]ourt finds is contemptuous based upon her sworn testimony of September 10, 2009.
The [c]ourt will not enter the judgment of [d]ivorce until the household goods issue has been completely resolved[,] and the [c]ourt has determined what[,] if any[,] attorney’s fees and other sanctions may be appropriate under the circumstances.

¶ 8. On April 7, 2010, Samantha filed a request for an on-the-record finding that the proposed property-settlement agreement was not adequate and sufficient, arguing that her share of the marital estate was inadequate. Leslie filed a response, motion to dismiss, and motion for sanctions.

¶ 9. On May 6, 2010, Leslie filed a second motion for citation for contempt. A hearing was held on May 24, 2010[,] on this motion, and the chancellor adjudicated Samantha in contempt for her failure to sign the property-settlement agreement. In his bench ruling, the chancellor ordered Samantha to be immediately incarcerated until she purged herself of contempt. Under the order, Samantha could purge herself of contempt “by execution of the settlement agreement that was submitted on March 25, 2010, which the [c]ourt has found fully and completely complies with all terms and provisions of the announced agreement on September 10, 2009, to which she indicated her consent and understanding.” On May 25, 2010, Samantha filed a motion for stay of judgment of contempt and determination of supersede-as bond pending her appeal. On May 28, 2010, the Mississippi Supreme Court entered an order on Samantha’s petition for writ of habeas corpus:

The chancellor has apparently found [Samantha] to be in contempt of court for failing to sign a property settlement agreement which she orally agreed to sign in a prior court hearing'. No order of contempt has been entered but [Samantha] is currently being held in the Lamar County jail. [Mississippi Code Annotated section] 93-5-2(2) provides that any settlement of property rights must be “by written agreement!.]” Furthermore, the written agreement must be “found to be adequate and sufficient by the court and included in the judgment of divorce.” Miss.Code Ann. § 93-5-2(3). See also Cassibry v. Cassibry, 742 So.2d 1121 (Miss.1999); Cook v. Cook, 725 So.2d 205 (Miss.1998). After due consideration, the panel finds that although [Samantha] orally agreed to the property settlement, there has been no written agreement as to property rights. [Samantha] was therefore entitled to .withdraw from the oral agreement. The panel finds that the petition should be granted and that [Samantha] should be released. The Sheriff of Lamar County shall immediately release Samantha ... from the Lamar County jail.

¶ 10. On June 1, 2010, the chancery court entered an order on all pending motions filed by Samantha, which incorporated the chancellor’s bench ruling and the transcript of the ruling. On June 29, 2010, Samantha filed a motion for contempt. On August 2, 2010, our supreme court entered an order denying Leslie’s motion to set aside its prior order.

¶ 11. On September 21, 2010, a final judgment of divorce was entered, which reads, in relevant part, as follows:

This matter came on for trial on September 10, 2009. The parties executed and filed with the [c]ourt a [e]onsent wherein they agreed that they would withdraw any and all fault grounds and, in writing, signed by both parties and their attorneys, stated[:] “The designated issues are settled. ■ All issues are settled and will be dictated into the record,” and [the parties will] proceed pursuant to [section] 93-5-2 ... with a divorce on the grounds of irreconcilable differences. Immediately thereafter, the [a]greement was dictated into the record, both parties under oath and represented by their respective counsel.
The parties hereto have made a full, adequate, sufficient[,] and complete provision by agreement, as set forth in the transcript attached hereto as Exhibit “A”, for the custody and maintenance of the minor child and for the settlement of any property rights between the parties. Said [a]greement is attached hereto as Exhibit “A” and made a part hereof as if copied in full herein.
The aforesaid [a]greement entered into by and between the parties, attached hereto as Exhibit “A[,]” is hereby ... ratified and approved, and incorporated herein and made a part of this [fjinal [¡Judgment [o]f [djivorce as if copied in full herein; and the parties are hereby ordered to comply with the terms of conditions of said [a]greement.
Based on the [c]onsent to [d]ivorce, this [cjourt signed an [o]rder on September 10, 2009, allowing the parties to withdraw their fault grounds, dismissing the fault grounds!,] and allowing the divorce to proceed on the grounds of irreconcilable differences. The [o]rder was signed by both parties and the undersigned [c]hancellor in the presence of the parties.
Contemporaneously with the withdrawal of fault grounds and consent to divorce, the parties did announce their stipulation into the record, a copy of [the] same has been reviewed by the [c]ourt, has been transcribed, and reflects all of the settlement of all issues regarding equitable distribution, child custody, child support, alimony, and all personal property with the only exception being that of certain household goods as set out in [p]age 3 of the transcribed settlement statement. As a matter of law, divorce agreements dictated into the record and acknowledged by both parties are binding and are to be upheld. Bougard v. Bougard, 991 So.2d 646 (Miss.Ct.App.2008); Cobb v. Cobb, [29 So.3d 145 (Miss.Ct.App.2010) ]....
The stipulation attached hereto was drafted into a [property [settlement [a]greement and sent to Samantha[’s] ... prior attorney ... [,] and the [c]ourt, having reviewed the [property [settlement [a]greement, as well as the dictated settlement finds that the only element of the [property [settlement [ajgreement which has not been carried out is the portion as it relates to household goods only.... [T]he dictated [plroperty Settlement [ajgreement undertakes to set out the entire agreement with specificity[,] and the [c]ourt finds in the area of the household goods that Samantha ... was to go to the home and make a list of the items which she wished to have and Les[lie] would review and submit a separate list if he did not agree.
The [c]ourt finds that pursuant to the sworn testimony of Samantha ... in open court on May 24, 2010, the issue of remaining personal property distribution is now moot by virtue of Samantha[’s] ... testimony that she would receive certain items of pre-marital and marital property....
On or about October 12, 2009, Samantha ... filed her own pleading where she attempted to withdraw her consent to the divorce and the binding agreement which was transcribed. The [e]ourt finds that the attempted withdrawal, some thirty-two (32) days after the stipulated agreement under oath by the parties, is not sufficient[,] nor will the [e]ourt set aside that which the parties have consented to in open [c]ourt; the [c]ourt has relied on the same[,] and the [c]ourt and the parties are bound [by] and will follow that which was dictated in the record. [Bougard, 991 So.2d 646; Cobb, 29 So.3d 145.]
The [c]ourt finds as a matter of fact and law that Samantha ... is in direct, deliberate[,] and willful contempt of [c]ourt as it applies to her testimony under oath on September 10, 2009, and her subsequent actions thereto. Samantha ... represented to this [c]ourt her full and complete agreement to the settlement and that she would execute the documents when presented to her with the exception of the household goods. She is in contempt of this [c]ourt’s [o]rder through her own testimony under oath, by disavowing her previous sworn statements and ... not [acting] in good faith.

¶ 12. The court reporter’s transcript was attached to the final judgment of divorce and was incorporated as the parties’ property-settlement agreement. Neither party’s signature appears anywhere on the transcript, and no written property-settlement agreement was ever signed or filed by the parties.

¶ 13. Samantha appeals the chancery court’s entry of the judgment of divorce. Upon review, we find that the court erred in entering a judgment of divorce because the distribution of household goods remained unresolved; there is no written property settlement agreement; and merely attaching a court reporter’s transcript to the judgment of divorce is insufficient. Therefore, we reverse the judgment of divorce and remand this case to the chancery court for proceedings consistent with this opinion.

DISCUSSION

¶ 14. Our standard of review in domestic relations cases is well-established. “This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Dupre v. Dupre, 71 So.3d 1226, 1228 (¶ 11) (Miss.Ct.App.2011) (citing Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)). “Legal questions are reviewed de novo.” Id. (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002)).

¶ 15. The issue presented for our review is whether the chancellor had the authority to enter a divorce based on irreconcilable differences with only a transcript of the parties’ oral agreement attached to the judgment of divorce and without a written property-settlement agreement disposing of all property issues. In Mississippi, “divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a perception that declining to grant the divorce will not restore the couple to a harmonious marital relationship.” Cassibry, 742 So.2d at 1124 (¶ 7) (quoting Kergosien v. Kergosien, 471 So.2d 1206, 1210 (Miss.1985)). Divorce “is a statutory act and the statutes must be strictly followed[.]” Id. The statute governing irreconcilable-differences divorces provides, in pertinent part:

(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.
(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce. Appeals from any orders and judgments rendered pursuant to this subsection may be had as in other cases in chancery court only insofar as such orders and judgments relate to issues that the parties consented to have decided by the court.
(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the ground of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

Miss.Code Ann. § 93-5-2(2)-(3), (5) (Supp. 2011) (emphasis added). Under this statute, there are two routes under which a divorce may be obtained on the ground of irreconcilable differences. First, the parties may provide a written agreement settling all property rights between the parties to the court, which must be found adequate and sufficient by the court and incorporated into the judgment of divorce. Miss.Code Ann. § 93-5-2(2). Alternatively, if the parties cannot reach an agreement, the parties may consent in writing to the divorce itself and submit the issues on which the parties cannot agree to the court. Miss.Code Ann. § 93-5-2(3). Here, the parties filed a consent to divorce on the ground of irreconcilable differences, which stated “all issues are settled.” Therefore, the parties were required to provide a written agreement under section 93-5-2(2).

¶ 16. In Cassibry, 742 So.2d at 1122 (¶ 1), the wife appealed the chancellor’s grant of divorce on the ground of irreconcilable differences. Although there was an oral agreement between the parties, no written settlement agreement existed. Id. The issue presented was “whether the chancellor had the statutory authority to enter a divorce based on irreconcilable differences when no written settlement agreement had been signed and entered into the record by the parties” and “[o]nly a transcription of an oral agreement by the parties was placed into the record as authorized by the lower court.” Id. at 1123-24 (¶ 7). The husband’s attorney read the agreement into the record, and both parties verbally acknowledged their understanding of the agreement. Id. at 1124-25 (¶ 11). On appeal, our supreme court noted:

Although it appears that both parties were in agreement to the settlement agreement, no written, executed consent agreement was accomplished prior to or after the granting of a divorce on the grounds of irreconcilable differences. The chancellor should have recessed and required the parties to execute and file the written agreement prior to the additional proceedings. ..

Id. at 1125 (¶ 12). The supreme court continued:

Giving a strict interpretation to [section] 93-5-2(2), the statute provides that the parties provide a written agreement and that the court finds that such provisions are adequate and sufficient. After the reading of the agreement into the record, the chancellor found that the agreement was reasonable and granted a divorce based on irreconcilable differences without a written consent agreement being executed and filed. Because the statutory requirements were not met in this case, the chancellor exceeded his statutory authority in awarding a divorce upon grounds of irreconcilable differences.

Id. at (¶ 14). Thus, without a written agreement in accordance with our irreconcilable-differences-divorce statute, the chancellor was without authority to grant a divorce. Therefore, the supreme court reversed the judgment of divorce and remanded the case. Id. at 1126 (¶ 17).

¶ 17. Similarly, in Cook, 725 So.2d at 207 (¶ 8), the supreme court reversed a judgment of divorce where there was no written consent agreement, but only an oral agreement dictated into the record. Our supreme court held that “nothing in [section] 93-5-2 or the case law interpreting the statute indieat[es] that an oral agreement by the parties is sufficient to satisfy its requirements. To the contrary, the plain language of the statute dictates that the consent agreement be written and signed by both parties.” Id. at (¶ 7).

¶ 18. Likewise, in Joiner v. Joiner, 739 So.2d 1043, 1044 (¶ 3) (Miss.Ct.App.1999), counsel for both parties orally announced to the court that they had settled all issues. Later, the wife’ refused to sign a property-settlement agreement, but the chancellor incorporated each attorney’s notes of the alleged settlement into the judgment of divorce after finding the notes were adequate and sufficient. Id. at (¶¶ 4-5). On appeal, this Court held:

The frustration of the chancellor with Mrs. Joiner’s apparently obstinate behavior is an understandable reaction in these circumstances, but there is no provision in the law that would permit the chancellor to relieve his frustration by granting the divorce in the absence of the statutorily-mandated “written agreement for the custody and maintenance of any children of the marriage and for the settlement of any property rights between the parties.”

Id. at 1046 (¶ 14). Because there was no written property agreement, we reversed the judgment of divorce. Id. at (¶ 15).

¶ 19. In the instant case, the chancery court relied upon Bougard, 991 So.2d 646, and Cobb, 29 So.3d 145. Cobb is distinguishable because the parties in Cobb actually executed a written agreement. Id. at 149 (¶¶ 12-13). No written, agreement was ever executed in the case before us.

¶ 20. In Bougard, 991 So.2d at 650 (¶ 21), the husband appealed the parties’ divorce because no written agreement was ever prepared or signed by the parties. The parties orally resolved all issues of property division. Id. at 648 (¶ 10). Further, the parties had their agreement read in open court and agreed it would be binding even if they did not sign a written agreement. Id. This Court held that the parties had entered into a binding agreement. Id. at 650 (¶ 21). Bougard is distinguishable from the case before us because the parties in Bougard had an agreement covering all items of property division. In the instant case, the oral agreement covered everything except the division of personal property. Despite an incomplete agreement, the chancellor told the parties that they would not be at liberty to back out of the oral agreement as dictated into the record. Under section 93-5-2(3), “[n]o divorce shall be granted ... until all matters involving ... property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.” (Emphasis added). Therefore, the chancellor abused his discretion in binding the parties to an oral agreement that did not dispose of all property matters between the parties.

¶21. In addition, the parties filed a consent to divorce stating that “all issues are settled.” In fact, not all issues’were settled because the division of household goods was unresolved at that time. Nevertheless, because the parties were not submitting issues for the chancellor’s consideration under section 93-5-2(3), subsection (3) was not applicable. Instead, subsection (2) of section 93-5-2 applied, which required- a “written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties[.]” There is simply no written agreement between the parties resolving all property, custody, and support issues as required under section 93-5-2(2). Therefore, we are compelled to reverse the judgment of divorce and remand the case for further proceedings.

¶ 22. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTED WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES AND CARLTON, JJ.

FAIR, J.,

dissenting:

¶ 23. I respectfully dissent and would affirm the judgment of the trial court.

¶ 24. Samantha raises only two specific issues on which she bases her appeal:

(1) “The Chancery Court Judge erred in entering a judgment of divorce on the grounds of irreconcilable differences without a signed property settlement agreement by the parties”; and
(2) “The Chancery Judge erred in proceeding to enter the final judgment of divorce on the grounds of irreconcilable differences when there was a pending motion to recuse pending before the judge.”

¶25. The second issue, not addressed by the majority, requires little discussion. A party who files a motion must obtain a ruling on the motion prior to final judgment. See Martin v. State, 354 So.2d 1114, 1119 (Miss.1978). Samantha failed to do so. If the trial judge denies a recu-sal motion or fails to rule on the motion in accord with Uniform Chancery Rule 1.11 within 30 days following its filing, Mississippi Rule of Appellate Procedure 48B provides a fourteen-day opportunity to seek review by the Mississippi Supreme Court. In the event of failure to seek review of the chancellor’s “action (or lack thereof)” within that period, “this issue is time-barred.” Doll v. BSL, Inc., 41 So.3d 664, 669 (¶ 14) (Miss.2010). Because Samantha failed to seek review of her recusal request within the time allowed, she has waived this argument.

¶ 26. Samantha next urges that the ID divorce statute, Mississippi Code Annotated section 93-5-2 (Supp.2011), requires personal signatures on a settlement agreement. Whether signatures are required is at the center of ongoing discussions by our state’s chancellors over how to deal with settlements reached “on the courtroom steps.” In ID divorce cases, issues set for trial are often the subject of last-minute agreements made in hallways and anterooms.

¶ 27. The statute and its interpretation in case law under such circumstances is unclear. Bougard v. Bougard, 991 So.2d 646 (Miss.Ct.App.2008) and Cobb v. Cobb, 29 So.3d 145 (Miss.Ct.App.2010) were specifically cited and relied on by the trial court in its determination that the written transcript of a settlement agreement announced in open court is sufficient compliance with the “written agreement” requirement of the statute. In both Bougard and Cobb, the trial courts used a similar process to the one followed in this case, and each time it was found statutorily acceptable. The majority erroneously distinguishes those cases. I suggest they should be either recognized as controlling precedent or overruled.

¶ 28. Samantha’s appeal is premised on the limited proposition that without the parties’ personal signatures, an official transcript of a property settlement announced in open court is not a binding contract and is neither enforceable nor valid compliance with the terms of section 93-5-2.

¶29. There is no specific “signature requirement” for property settlement agreements in the statute. Section 93-5-2(2) states:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

Similarly, there are no cases that mandate such a requirement. The wording of the statute requires party signatures only on their consent in the form and manner set out in subsection (3) of the statute:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally. ••.

Subsection (3), added in 1990 to the 1978 statute, was extensively addressed in Irby v. Estate of Irby ex rel. Marshall, 7 So.3d 223 (Miss.2009). In that decision, the supreme court determined that subsection (3) is standalone. Its own terms negate any need to follow other portions of the statute when proceeding under subsection (3). Once a written and signed consent has been approved, the litigation focus changes from grounds to the resolution of contested issues over children and property. Those issues are to be resolved by the court after a hearing, but often the court ends up with nothing to decide because the parties have resolved the issues a few minutes prior to trial.

¶ 30. In addition to filing their consent and announcing settlement of most, if not all, issues set to be tried, the Sanfords complied with subsection (5) of the statute by filing a motion for withdrawal of fault grounds on which an order was entered. Though a complete settlement stipulation was declared in the consent, the parties at the same time noted a possibility that one issue might remain for the court’s decision. As anticipated, marital personalty becamé the subject of dispute and required court orders for division. However, any need for such orders disappeared when Leslie agreed to pay Samantha $12,000 for her interest. This agreement was likewise announced to the court but was not set out in a document “personally signed by both parties.” Miss.Code Ann. § 93-5-2(3).

¶ 31. The parties’ main agreement, covering all other issues between them including their child and their five major assets, was not immediately written but was to be entered by stipulation on the record and incorporated by reference into their signed consent agreement. Both promised, under penalty of contempt, to sign a typewritten version after it was prepared. However, the court reporter’s transcript of the agreement, rather than the anticipated typed version with signatures, made it into the final judgment of divorce over a year later.

¶ 32. If signatures are required, then the majority opinion is correct; reversing and remanding for a full trial on all issues would be appropriate. But nothing in the statute or applicable case law requires the personal signatures of parties on their written agreement regarding child and property related issues. The statute only requires that there be a “written agreement” found by the court to be “adequate and sufficient.” Miss.Code Ann. § 93-5-2(2). While signatures on property settlement agreements are considered best practice, they are not required by the statute. See id.

¶ 3B. On September 10, 2009, the San-fords, personally and through counsel in open court, announced the details of their child custody and property agreement. It was transcribed later that day. The transcript, a written agreement, was recognized of record during a May 24, 2010 hearing. Though never signed by the parties personally, it was described and incorporated by reference into the consent “in writing” that they signed and filed on September 10, 2009.

¶ 34. In the final judgment of divorce, the trial court specifically relied on Bou-gard and Cobb in holding that the transcript satisfied the statute’s “written agreement” requirement. The majority distinguishes those eases rather than recognizing their precedential validity.

¶ 35. Those two cases remain good law on whether a property settlement agreement may be announced on the record in lieu of filing a typed or handwritten version of that same agreement. Once transcribed, the “written agreement” requirement of the statute has been fulfilled. Subsection (2) does not require personal signatures of the parties on the property settlement agreement; only the consent document described in subsection (3) requires signatures. This conclusion comports with the supreme court’s holding in Irby, 7 So.3d at 238 (¶ 50) (quoting Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992)), where it stated:

It is conceivable the required mutual consent in writing could have been accomplished by written stipulation, written agreement, or by some other viable means either prior to or during the last appearance before the chancellor.

¶36. Cassibry v. Cassibry, 742 So.2d 1121 (Miss.1999), is asserted by the majority as the lead case controlling the validity of an ID divorce in which an open-court, on-the-record stipulation is considered. As in this case, the parties stood up and announced the details of their agreement for custody and maintenance of their children and settlement of any property rights. Their agreement was approved, and they were granted an ID divorce. The judgment of divorce, however, was found incompatible with the statute and rejected because the consent was not written and personally signed as required. The court ruled:

Although it appears that both parties were in agreement to the settlement agreement, no written, executed consent agreement was accomplished prior to or after the granting of a divorce on the grounds of irreconcilable differences. The chancellor should have recessed and required the parties to execute and file the written agreement prior to the additional proceedings.

Id. at 1125 (¶ 12) (emphasis added).

¶ 37. It is important to note that no written agreement of any sort was executed and filed by the parties in Cassibry. “[Njothing in [section] 93-5-2 or the case law interpreting the statute indicates] that an oral agreement by the parties is sufficient to satisfy its requirements. To the contrary, the plain language of the statute dictates that the consent agreement be written and signed by both parties.” Cook v. Cook, 725 So.2d 205, 207 (¶ 7) (Miss.1998) (emphasis added).

¶ 38. If signatures are to become necessary on property settlements as well as consent agreements, the majority should expressly overrule Bougard, Cobb, and any other cases decided by this Court that have found written, but unsigned, property and child custody agreements to be effective.

¶ 89. I prefer an interpretation of the statute that encourages final settlement by the parties, and I agree with the supreme court’s approach in Williams v. Williams, 37 So.3d 1171, 1174 (¶ 5) (Miss.2010):

Mississippi law favors settling disputes by agreements. In re Dissolution of the Marriage of De St. Germain, 977 So.2d 412, 420 (¶ 23) (Miss.Ct.App.2008). Absent fraud or overreaching, parties are afforded wide latitude in entering property settlement agreements. Steiner v. Steiner, 788 So.2d 771, 776 (¶ 17) (Miss.2001). Property settlement agreements are contractual obligations. West v. West, 891 So.2d 203, 210 (¶ 3) (Miss.2004) (citation omitted). When the par ties have reached [an] agreement and the chancery court has approved it, [the appellate court] ought to enforce it and take a dim view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts. Id. at 211 (¶ 15) (citation omitted).

¶ 40. The Sanfords reached an agreement. It was announced in open court, and the chancellor found it adequate and sufficient. The announced agreement was transcribed, satisfying the “written agreement” requirement. A year and five days after the settlement was transcribed, when the sole remaining issue was also announced and approved, the court entered an ID divorce judgment incorporating and attaching the transcript. I believe this represents a statutorily acceptable procedure. As the only substantive issue raised by Samantha on appeal is whether signatures are required on the written property settlement agreement, I would affirm the chancellor’s judgment.

BARNES AND CARLTON, JJ., JOIN THIS OPINION.