author: MAXWELL, JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

text:
    Carl SMITH v. Lisa DOE
    NO. 2016-CA-00875-SCT CONSOLIDATED WITH NO. 2015-CA-00208-SCT
    Supreme Court of Mississippi.
    January 25, 2018
    ATTORNEYS FOR APPELLANT: WILLIAM ABRAM ORLANSKY, SUSAN LATHAM STEFFEY
    ATTORNEYS FOR APPELLEE: LINDSEY C. MEADOR, DANNA ALBERT O'BRIEN
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. The husband in this case divorced his wife and entered into a property-settlement agreement that strongly favored his wife and child. The chancellor approved and adopted the agreement and incorporated it as part of the final divorce judgment. After abiding by the judgment's terms for two years, the husband asked the court to set it aside or modify it. As grounds, he alleged duress and his wife's supposed coercive misconduct in their negotiating of what he now deems an unconscionable settlement. The chancellor denied the husband's request, finding he simply had waited too long to challenge the judgment. We agree.

¶ 2. When a party to a previously entered settlement agreement incorporated into a divorce judgment seeks to set it aside based on an adverse party's alleged misconduct, Mississippi Rule of Civil Procedure 60(b)(1) mandates he or she do so within six months. And the husband's attempt to escape the agreement was filed more than two years too late. To the extent he sought relief from the already-entered judgment for some reason other than his wife's supposed misconduct, the chancellor found his request was not filed within a "reasonable time" under Rule 60(b)(6).

¶ 3. We find the chancellor properly applied the law. And his decisions about the tardiness of Carl Smith's motion and his alternative finding that the agreement was not unconscionable are substantially supported. Because the chancellor did not abuse his discretion, we affirm.

Background Facts and Procedural History

¶ 4. Carl Smith and Lisa Doe divorced in February 2010. The divorce decree incorporated a property-settlement agreement that was very favorable to Lisa. Carl acknowledged the lopsided nature of the settlement agreement. He understood he was assuming more debt and higher alimony and child-support payments than ordinarily required. The signed agreement memorializes this understanding and why Carl was amenable to it. One of the very first provisions in the settlement agreement says:

WHEREAS , Husband recognizes and acknowledges that the provisions ... and obligations undertaken by him regarding [child support], as well as the division of marital property and debt and the obligation undertaken by him to pay alimony, are ... more burdensome upon him for alimony and child support and division of marital property and debt than a court would ordinarily impose. Nevertheless, Husband is both willing to limit and restrict his rights ... and expand his obligations regarding child support, alimony, and division of marital property and debt as contained in this agreement ... These limitations and restrictions of rights and expansion of obligations are based, in part, by both Husband and Wife's mutual understanding of the unique difficulties in which Husband's behavior has placed the family unit ....

The "unique difficulties" on the family stemmed from Carl's salacious interactions and extramarital affairs with known and anonymous same-sex partners, lying about how he had contracted HIV, and allegations of his pedophilic activities. Because of his tremendous guilt and shame for the devastation he caused his family, Carl was amenable to the heightened obligations. He abided by the February 17, 2010 judgment, making all payments for more than two and a half years. But in October 2012, he tried to back out of it.

¶ 5. Carl filed a complaint to set aside, or alternatively modify, the settlement agreement. He did not claim a material change in circumstances or lack of financial ability to abide by the agreement. Rather, for the first time, he urged the agreement was the product of coercion and duress and was procedurally and substantively unconscionable. He suggested his wife had strong-armed him, threatening to disclose his affairs, disease, and alleged malfeasance if he did not sign the agreement. And he signed the agreement under duress, facing "financial ruin, humiliation, loss of his medical license, criminal prosecution, and loss of contact" with his daughter. Carl also claims Lisa would not permit him to have an attorney review the agreement's terms.

¶ 6. Lisa disagreed with much of Carl's version. She admits she was angry and behaved harshly toward Carl after she had unearthed much of his hidden second life and illicit activities. But she maintained his coercion and duress allegations are not only false but are undermined by his express acknowledgments in the property-settlement agreement.

¶ 7. The chancellor granted Carl a hearing on his motion. And after five days of testimony and argument, he held Carl's attempt to set aside the settlement agreement was untimely under both Rule 60(b)(1) and 60(b)(6). He also found that, even if Carl's request had been prompt, the agreement was not unconscionable. Carl has now appealed to this Court. On appeal, he argues the chancellor erred by (1) not finding his complaint timely and (2) not finding the settlement agreement substantively and procedurally unconscionable.

Discussion

¶ 8. We review the grant or denial of a Rule 60(b) motion for abuse of discretion. Finch v. Finch , 137 So.3d 227, 232 (Miss. 2014) (citing Stringfellow v. Stringfellow , 451 So.2d 219, 221 (Miss. 1984) ). When reviewing a decision for abuse of discretion, "we ask first if the court below applied the correct legal standard." Burkett v. Burkett , 537 So.2d 443, 446 (Miss. 1989) (citing Detroit Marine Eng'g v. McRee , 510 So.2d 462, 467 (Miss.1987) ; Croenne v. Irby , 492 So.2d 1291, 1293 (Miss.1986) ). "If so, we then consider whether the decision was one of those several reasonable ones which could have been made." Id.

I. Timeliness

¶ 9. Carl argues he signed the settlement agreement only because Lisa threatened to reveal his affairs and inappropriate behavior and activities. He insists Lisa's coercive misconduct and the agreement's favoring of Lisa warrant setting it aside.

A. Rule 60(b)(1)

¶ 10. " Rule 60(b)(1) deals with relief from judgment obtained by fraud, misrepresentation, or other misconduct of the adverse party. " Stringfellow , 451 So.2d at 221 (emphasis added). To obtain Rule 60(b)(1) relief from a final judgment, motion "shall be made ... not more than six months after the judgment , order, or proceeding was entered or taken." M.R.C.P. 60(b)(1) (emphasis added).

¶ 11. The chancellor recognized the obvious roadblock Carl faced. Rule 60(b)(1) affords relief from a judgment based on an adverse party's misconduct-such as overreaching, threats, and coercion-only if the complaining party seeks relief within six months from the judgment's entry. And here, Carl was well aware of Lisa's supposed misconduct when he entered the settlement agreement. Yet he waited more than two-and-a-half years after the divorce decree and property-settlement agreement were final to try to back out. Because Rule 60(b)(1) requires misconduct-based challenges be filed within six months, the chancellor correctly refused to set aside the property-settlement-agreement portion of the divorce judgment.

B. Rule 60(b)(6)

¶ 12. Carl next argues that, in addition to Rule 60(b)(1)'s "misconduct" route, Rule 60(b)(6) gave the chancellor another avenue to set aside the settlement agreement.

¶ 13. Carl is correct that Rule 60(b)(6) empowers chancellors to set aside judgments based on "any other reason justifying relief from the judgment."

M.R.C.P. 60(b)(6). And unlike Rule 60(b)(1), this particular provision contains no specified time period within which a party must file a motion for relief from judgment. Id. Rather, Rule 60(b)(6) says that such motions "shall be made within a reasonable time." Id. What qualifies as "[a] reasonable time is determined on a case-by-case basis, turning on the facts in each individual case." Cucos, Inc. v. McDaniel , 938 So.2d 238, 245 (Miss. 2006) (citing M.A.S. v. Miss. Dep't of Human Servs. , 842 So.2d 527, 530 (Miss. 2003) ). The two factors within the chancellor's discretionary call are "whether the party opposing the motion has suffered prejudice from the delay and whether the movant can show cause for failure to act sooner." Id. at 246 (citing M.A.S. , 842 So.2d at 530 ); see also Briney v. U.S. Fid. & Guar. Co. , 714 So.2d 962, 967 (Miss. 1998).

¶ 14. The chancellor carefully considered both factors when assessing the evidence from the five-day hearing. As the chancellor saw it, there was "no evidence of good cause in [Carl's] delay to challenge the Agreement." And to grant relief from the previously entered judgment "at this late date would cause actual prejudice to [Lisa]." The chancellor pointed out that Carl "made no assertion that he was unaware of the alleged misconduct." And he "admit[ted] that he was fully aware of the entirety of the circumstances on the date that he signed the Agreement." From these facts, the chancellor found Carl had not "acted within a reasonable time to file his motion under Rule 60(b)."

¶ 15. Whether Carl's Rule 60(b)(6) motion was filed within a reasonable time was a discretionary call for the chancellor to make-not this Court. And Carl's failure to show cause for not challenging the judgment sooner is itself enough for the chancellor to deny the Rule 60(b)(6) request. This is particularly true where Carl certainly knew of the complained-of circumstances when he signed the agreement. Considering the lack of cause, coupled with the chancellor's finding there would be actual prejudice to Lisa, we cannot say the chancellor wrongly dismissed Carl's motion. To overrule these findings would require we impermissibly place ourselves in the chancellor's shoes and reweigh the evidence. We refuse to do so.

II. Unconscionability

¶ 16. The chancellor alternatively found that, even if Carl's filing was deemed timely under Rule 60, it still lacked merit. After review, we agree. While we find no abuse in the chancellor refusing to set aside the agreement under Rule 60(b), we also see no error in the chancellor's finding Carl was not overly browbeaten or otherwise coerced into signing a procedurally or substantively unconscionable agreement.

A. Procedural Unconscionability

¶ 17. "Procedural unconscionability may be proved by showing 'a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or an opportunity to study the contract and inquire about the contract terms.' " East Ford, Inc. v. Taylor , 826 So.2d 709, 714 (Miss. 2002) (quoting Pridgen v. Green Tree Fin. Servicing Corp. , 88 F.Supp.2d 655, 657 (S.D. Miss. 2000) ). But here, the chancellor found none of these problems.

¶ 18. To the contrary, after sifting the testimony and evidence, the chancellor found Carl "was able to make the payments, he understood the terms of the contract[,] and he voluntarily entered into the Agreement." Our review of the record shows strong support for these discretionary findings.

¶ 19. The agreement was incredibly clear. It emphasized that its terms strongly favored Lisa, and it mentioned why. The written explanation of Carl's enhanced obligations was not inconspicuous or hidden in fine print or a footnote-it was front and center in the agreement.

¶ 20. Furthermore, Carl's new procedure-based challenge is also completely at odds with his prior written acknowledgment that his and Lisa's negotiations were even-handed and not the product of duress, coercion, or overreaching. The agreement says so:

ACKNOWLEDGMENT OF FAIRNESS IN EXECUTION OF DOCUMENT: Husband and Wife agree that this Settlement Agreement is not entered into as a result of any fraud, duress, misrepresentation, overreaching, coercion, or undue influence. In executing this document, both Husband and Wife acknowledge and agree that they are free from any of these matters, and are executing this agreement as their own voluntary and free act, and that they do so knowingly and willingly ....

And his claim that Lisa kept him from obtaining counsel not only conflicts with her testimony but is also undercut by the agreement:

ATTORNEYS: ... Husband agrees that he has been encouraged to and has had adequate opportunity and has been free to seek his own legal representation or other advice concerning this matter, before he signed and obligated himself to this Settlement Agreement.

¶ 21. The chancellor essentially found Carl knew exactly what he was doing and exactly what he was obligating himself to do when he signed the settlement agreement. Indeed, according to the agreement, Carl accepted its strict terms based on "the unique difficulties in which [his] behavior has placed the family unit[.]" The chancellor recognized this and noted that "[Carl] was in a place of self-loathing and felt extreme guilt for his choices that had caused the destruction of his marriage and family." That his extramarital activities and devious behavior gave Lisa the upper hand in negotiating a favorable settlement did not negate that Carl "freely and willingly" agreed to the settlement's terms. Nor did Carl's "self-imposed guilt" and Lisa's "obvious hostility," in the chancellor's view, amount to an unconscionable disparity of bargaining power. Based on his advanced education, Carl was certainly aware of the finality of signed legal contracts and judgments. And the chancellor's findings and the agreement's express acknowledgments undermine Carl's newly minted procedural-unconscionability claim.

B. Substantive Unconscionability

¶ 22. "Substantive unconscionability occurs when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms." West v. West , 891 So.2d 203, 213 (Miss. 2004) (citing In re Johnson , 351 So.2d 1339, 1341 (Miss. 1977) ). Considering the agreement's terms, the chancellor found Carl "was able to make the payments ...." And he understood the heightened terms, which he voluntarily accepted. Though the settlement agreement was disadvantageous to Carl, the chancellor could not find that no person in his senses would accept it. See id. This finding is supported by the record.

¶ 23. In addition, Carl testified he is "very stable" financially. Indeed, his Rule 8.05 disclosure shows a monthly surplus of more than $5,000 after support obligations, expenses, and taxes are paid. It is also undisputed that Carl has abided by the agreement's terms, making all required payments for more than two-and-a-half years.

¶ 24. The chancellor did recognize support provisions are modifiable where an unanticipated substantial or material change in circumstances arises. See Wallace v. Bond , 745 So.2d 844, 848-49 (Miss. 1999) ; McDonald v. McDonald , 683 So.2d 929, 931 (Miss. 1996). But Carl did not suggest or prove his financial circumstances had materially changed. So the court found no showing of a material change in circumstances warranting a downward modification.

¶ 25. An agreement made between parties should ordinarily be enforced. Williams v. Williams , 37 So.3d 1171, 1174 (Miss. 2010). And courts should "take a dim view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts." Id. (quoting West , 891 So.2d at 211 ). Absent a finding of unusual circumstances-like fraud, overreaching, or mistake-"parties are afforded wide latitude in entering property settlement agreements." Id. (citing Steiner v. Steiner , 788 So.2d 771, 776 (Miss. 2001) ).

¶ 26. Here, the chancellor "expressly determined that no fraud or overreaching existed in this matter." Thus, he deemed "all provisions of the agreements regarding fixed alimony or a division of property" nonmodifiable. We therefore find, even if Carl's motion was not snagged on the chancellor's Rule 60(b)(1) and Rule 60(b)(6) timeliness findings, the chancellor did not abuse his discretion in alternatively rejecting the merits of the unconscionability claims.

III. Sealed Court Records

¶ 27. Given the allegations raised and evidence presented in this appeal, this Court has significant public health and safety concerns. We therefore remand the chancellor's order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole v. Ferrell , 163 So.3d 921 (Miss. 2012), and determine whether the court file should remain under seal.

Conclusion

¶ 28. The chancellor reviewed Carl's complaint under the appropriate legal standards of Rules 60(b)(1) and 60(b)(6) and supported his decision not to set aside the agreement with record evidence. We find no abuse of discretion in these calls. Nor do we find the chancellor erred in determining the agreement was not unconscionable. We thus affirm. We do however remand the chancellor's order sealing the court file, for the chancellor to conduct the Estate of Cole balancing test to determine whether the court file should remain under seal.

¶ 29. AFFIRMED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, JUSTICE, DISSENTING:

¶ 30. This Court has defined unconscionability to mean "an absence of meaningful choice on the part of one of the parties, together with contract terms [that] are unreasonably favorable to the other party." Caplin Enters., Inc. v. Arrington , 145 So.3d 608, 614 (Miss. 2014). Today's majority holds that a property-settlement agreement with terms almost solely favoring the wife and child was not unconscionable. With this, I cannot agree. Because the property-settlement agreement in this case was so drastically in Lisa Doe's and the child's favor, I believe that it was both substantively and procedurally unconscionable. Therefore, I respectfully dissent.

A. Timeliness

¶ 31. Carl Smith's complaint alleged that the agreement had been unconscionable, both procedurally and substantively, and that the settlement agreement should not be enforced in equity. In whole, the allegations in Carl's complaint encompassed the misconduct of Lisa as well as the unconscionable terms of the settlement agreement and overall equity of the agreement. Substantive unconscionability is not based on the misconduct of a party and therefore does not fall under Rule 60(b)(1). Accordingly, at least that part of Carl's complaint fell under Rule 60(b)(6)'s catchall provision: "any other reason justifying relief from the judgment." Although Rule 60(b) states that there is a six-month time limit for other misconduct of an adverse party, the vast majority of the cases that fall under subsection (1) are for fraud and misrepresentation. Thus, in my opinion, procedural unconscionability also is encompassed by Rule 60(b)(6), any other reason justifying relief from the judgment, and therefore is under a "reasonable time" standard.

¶ 32. The trial court stated that, even if the court had found that Carl's motion was founded on Rule 60(b)(6), Carl had failed to file his complaint within a reasonable time. I disagree. "A reasonable time is determined on a case-by-case basis, turning on the facts in each individual case. Cucos, Inc. v. McDaniel , 938 So.2d 238, 245 (Miss. 2006). For Rule 60(b) motions:

What constitutes reasonable time must of necessity depend upon the facts in each individual case. The Courts consider whether the party opposing the motion has been prejudiced by the delay in seeking relief and whether the moving party has some good reason for his failure to take appropriate action sooner.

M.A.S. v. Miss. Dep't of Human Servs. , 842 So.2d 527, 530-31 (Miss. 2003) (citations omitted).

¶ 33. Here, Lisa would not be prejudiced by Carl's failure to seek relief sooner. Despite Lisa also being a physician, Carl has been required to pay for almost everything in their child's life, including $7,000 in child support per month. Carl solely has been required to pay for child support, the child's private school, medical insurance, 529 and MPACT plan, and for a life-insurance policy with the child as beneficiary. Additionally, Lisa has been receiving an extraordinary amount in alimony payments per month. Carl also is paying for Lisa's school loans, in addition to his own.

¶ 34. Additionally, the circumstances of this case by definition are extraordinary and compelling. Carl clearly has demonstrated good cause for not filing his motion sooner. At the time of his divorce, Carl had HIV, was homosexual without the knowledge of his family, had not disclosed his HIV-positive status to the state licensing board, had engaged in homosexual extramarital affairs, and was in a precarious situation of possibly losing his means to support himself and also losing complete contact with his child. Given the totality of the circumstances in this case, Carl's hesitation to contest the property-settlement agreement was reasonable and was for good cause. Thus, I cannot agree with the majority's conclusion that the chancellor had not erred in finding that Carl's filing was untimely. I also cannot agree that Carl's motion lacked merit.

B. Substantive Unconscionability

¶ 35. "Substantive unconscionability is proven by oppressive contract terms such that 'there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party's nonperformance or breach ....' " Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rel. Braddock , 14 So.3d 695, 699-700 (Miss. 2009). The Court looks at the four corners of the agreement to discover any terms that cause gross disparity between the contracting parties. Id.

¶ 36. The terms in the property-settlement agreement in this case clearly are substantively unconscionable. Despite his more-than-adequate salary, Carl had not been represented by an attorney, while Lisa had been represented by two attorneys. The provisions included:

• Lisa has full and exclusive legal and physical custody of their child.
• Lisa has no obligation to confer with Carl in any decision-making concerning the child, including health, education, and welfare.
• Lisa has complete discretion of visitation and may completely curtail visitation for as long as Lisa desires.
• Although Lisa has complete and sole discretion and custody of the child, Carl is required to pay Lisa $7,000 in cash child support per month until the child receives her baccalaureate degree or is emancipated or reaches age twenty-one, whichever occurs later.
• Carl is required to maintain a reasonable hospitalization insurance policy and is responsible for any deductibles, co-pays, uncovered medical, dental, optical, orthodontic, or counseling expense reasonably necessary for the minor child until the child completes her postgraduate or professional college education.
• Carl is required to pay for the child's automobile of Lisa's sole choosing, including purchase price, tag, insurance, and maintenance and upkeep until the child completes her post-graduate or professional college education.
• Carl is required to pay for all costs of the child's first wedding.
• Carl is required to pay all costs and expenses of the child's college education, including any post-graduate and/or professional degrees at a college or university to be selected by Carl, Lisa, and the child, by majority rule.
• College expenses that Carl will be responsible for include, but are not limited to, registration fees, tuition, room and board, books, lab fees, transportation, and sorority dues.
• Carl has been required to pay $100 a month beginning on October 1, 2010, into an irrevocable "529 plan" to secure the child's college funds.
• Carl must fund the child's Mississippi MPACT plan, prepaid tuition, whereby within five years from the first payment all tuition for a Mississippi Institution of Higher Learning, undergraduate education, shall be prepaid.
• Carl must pay for all costs of any private school the child attends until the child graduates from high school.
• Carl is required to maintain a life insurance policy in the minimum amount of $500,000, with the child as irrevocable beneficiary and Lisa as trustee until the child completes her post-graduate or professional college education.
• Carl must designate Lisa as irrevocable secondary beneficiary of the life insurance policy, which status becomes primary and effective either upon the minor child's completion of her post-graduate or professional college education or predeceasing Lisa, whichever may occur first.
• Carl must list Lisa as primary beneficiary of any and all pensions held by him, with the child as secondary beneficiary.
• Carl is liable for all debt in his name, including:
- his student loans in the amount of $269,000
- Lisa's student loans in the amount of $249,000
- the second-mortgage line of credit in the amount of $50,000
- CitiBank credit card in the amount of $5,276
- Key Bank loan in Carl's name in the amount of $12,643
- ACS loan in the amount of $1,116
- CSL loan in Lisa's name in the amount of $11,583
- Methodist loan in Lisa's name in the amount of $3,000
• Carl is required to maintain monthly payments at their current amounts but may increase payments if he chooses. He must maintain the current payoff schedules for all liabilities or pay them off sooner.
• Carl was required to vacate the marital home within two days of the execution of the agreement.
• Lisa had the option to transfer title and possession of the marital home to Carl within eighteen months of the agreement.
• Lisa had the option to have Carl transfer all right, title, and interest in the marital home to Lisa, but Carl would remain responsible for the second mortgage loan.
• Carl must pay lump-sum or fixed alimony for thirty-five years in the amount of $9,000 per month, with a thirty-five percent override calculated on Carl's salary and all other earned or investment income. All alimony is a claim against Carl's estate.
• Alimony payments do not cease upon remarriage of Lisa or upon death of Lisa, but will be an asset of her estate.
• Lisa maintained all household goods, furnishings, appliances, and other items of personalty in and around the marital house except for a short list of items.
• If Lisa predeceases Carl before the child reaches the age of majority, Lisa's parents will have legal and physical custody of the child. If Lisa's parents and Lisa predecease Carl, Lisa's brother will have full custody.

¶ 37. Thus, the property-settlement agreement requires Carl to pay Lisa's medical-school student loans, as well as his own. The contract provisions wholly deprive Carl of seeing his daughter but require him to almost completely financially support his daughter. Carl eventually must pay for their child's vehicle of Lisa's choosing with no limitation on price, pay for the child's undergraduate and postgraduate education, and pay for the child's first wedding, with no limitation on price. Although Lisa also is a physician, Carl is paying on average approximately seventy-five percent of his earnings to support Lisa and the child. The agreement even had a provision to change the child's last name from Carl's surname to Lisa's.

¶ 38. Unconscionability looks at the circumstances existing at the time the contract was made as well as at the terms of the contract. Sanderson v. Sanderson , 170 So.3d 430, 437 (Miss. 2014). This Court looks within the agreement to determine if the terms caused a gross disparity between the contracting parties. Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rel. Braddock , 14 So.3d 695, 699 (Miss. 2009). For substantive unconscionability, "[a] much-quoted judicial definition is 'an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.' " Smith v. Express Check Advance of Mississippi, LLC , 153 So.3d 601, 607 (Miss. 2014) (citations omitted). The circumstances surrounding the property-settlement agreement left Lisa with complete power and Carl with none. At that time, Carl's sexual preferences were not publicly known, nor was his HIV diagnosis. The Medical Board had not been made aware of his diagnosis, which could have greatly affected his medical career. Lisa additionally had access to email accounts that contained sensitive information. He was faced with losing complete contact with his only child. Thus, the settlement agreement is not merely "disadvantageous" to Carl, but instead shows gross disparity on its face. Carl had no choice but to sign the agreement at that time.

¶ 39. Although the majority states that Carl is "very stable" financially, it mischaracterizes the facts. The property-settlement agreement requires him to pay seventy-five percent of his salary to Lisa and to his daughter, whom he has not been allowed to see after signing the agreement. That Carl is able to live on the amount left over after his extravagant obligations is not the standard this Court should apply when determining unconscionability. "The law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract ...." Covenant Health , 14 So.3d at 699. Fundamental fairness was absent from the circumstances surrounding this contract. Hence, I believe that the property-settlement agreement is substantively unconscionable.

C. Procedural Unconscionability

¶ 40. Further, procedural unconscionability may be proven by showing "a lack of knowledge, lack of voluntariness, ... disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms." MS Credit Center, Inc. v. Horton , 926 So.2d 167, 177 (Miss. 2006).

¶ 41. The trial court concluded that, because of his guilt, Carl freely and willingly had entered into the agreement. Even though Carl admitted feeling guilty for his actions, I cannot find that mere guilt coerced Carl into signing an agreement that gave complete custody and decision-making authority over Carl's minor child to Lisa, along with extraordinary and oppressive financial obligations.

¶ 42. Lisa had access to Carl's email accounts and forwarded Carl emails that were private as well as potentially detrimental to his future medical career. Carl alleged that Lisa had threatened to reveal his homosexuality and had threatened not only criminal prosecution, but medical licensure revocation or suspension, disclosure of his HIV diagnosis, embarrassment, and humiliation. Carl testified that Lisa had threatened exposure if he hired an attorney to represent him in the divorce or told any family members or friends about what was occurring. Yet Lisa had two attorneys and drafted the agreement to provide Carl only with the minimal amount he would need to live on per month. He had not been able to see or read the contract until the minutes immediately before he signed it. In addition, Carl stated that Lisa had threatened exposure if he rented an apartment or hotel room before the divorce was finalized. Consequently, Carl had lived in his car for several months. Carl had no bargaining power, had a lack of opportunity to study the contract, and had no input in drafting the agreement. Accordingly, I would find that the contract, too, was procedurally unconscionable. Based on the facts of this case and with so much at stake for Carl, two years was not an unreasonable time to wait to contest its unconscionable terms. The majority makes much of the clearness of the agreement's terms. With respect, I believe that the majority downplays the totality of Carl's position. Lisa did not have the upper hand; she had the only hand.

D. Confidentiality

¶ 43. In addition, I take issue with the majority's decision to remand the chancellor's order sealing the court file for the trial court to conduct a balancing test to determine whether the court file should remain under seal. The majority states as its reason for remanding to the trial court that certain facts in this case have caused the Court to have significant public health and safety concerns. If this Court has public health and safety concerns, I believe the appropriate method to allay those concerns would be to report to the relevant governmental authority.

¶ 44. In this case, the relevant governmental authority would be the State Medical Board. As Professor Arthur R. Miller stated:

[T]here are ways of dealing with the problem that are less destructive to the competing values than eviscerating the availability of protective orders .... [A] court has the power to disclose information revealed during litigation, especially to relevant governmental authorities, even after the parties have negotiated an agreement to maintain confidentiality .... Because the courts have the authority to protect public health and safety when necessary-and because judges seem to understand how to use their discretion to do just that-public health concerns do not justify curtailing the power to issue protective orders.

Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts , 105 Harv. L. Rev. 427, 478-79 (1991). Those relevant institutions must pursue the matter as they see fit. Id.

¶ 45. For example, in Anderson v. Cryovac, Inc. , 805 F.2d 1, 8 (1st Cir. 1986), the First Circuit Court of Appeals disclosed information to the relevant public-health authorities, finding that:

The court's exception for disclosures to public health and environmental authorities had a compelling justification. In a case involving allegations that a city's water supply had been poisoned by toxic chemicals, the public interest required that information bearing on this problem be made available to those charged with protecting the public's health.
This limited exception for disclosures to health officials would not by itself have defeated the protective order's intended goal of preventing a saturation of potential jurors with news reports of the allegations being made against the defendants. As long as dissemination of the information was not released to the general public, the court had good cause to continue the protection.

Anderson , 805 F.2d at 8 (emphasis added). The trial court in this case agreed with the parties that the record should be sealed. Should this Court have concerns relating to public health and safety, I believe that the appropriate avenue is to report those concerns to the State Medical Board. Because unsealing the record would do little to remedy any public health and safety concerns, I fail to see the public benefit gained by unsealing the record.

CONCLUSION

¶ 46. Therefore, I dissent and would reverse the decision of the chancery court and remand this case to reopen the parties' divorce. Additionally, I disagree with the majority's decision to remand the chancellor's order sealing the court file.

KITCHENS, P.J., JOINS THIS OPINION.

      Cause number 2015-CA-00208-SCT is consolidated with this case for record purposes only.

      The chancellor sealed this case. So, fictitious names are used for the parties. See M.R.A.P. 48A.

      Emails between Carl and others were admitted in evidence, in which Carl proposed to write off insurance for a patient he sought to have sex with, solicited multi-partner sexual encounters, traded an x-ray he had taken of a "cute 15 year old boy['s] ... nice [penis]," and discussed and requested a photo of a twelve-year-old boy, who another individual claimed "sucked like a pro" who "kinda wants to join in with us."

      This is Carl's second appeal in this matter. The first appeal was dismissed by this Court for lack of jurisdiction under Rule 54(b).See M.R.C.P. 54(b).

      This catch-all has been referred to as a "grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses, or when it is uncertain that one or more of the preceding clauses afford relief." Bryant, Inc. v. Walters , 493 So.2d 933, 939 (Miss. 1986) (citations omitted); see also Accredited Sur. & Cas. Co., Inc. v. Bolles , 535 So.2d 56, 60 (Miss. 1988). "But 'Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.' " M.A.S. v. Miss. Dep't of Human Servs. , 842 So.2d 527, 530 (Miss. 2003) (quoting City of Jackson v. Jackson Oaks Ltd. P'ship , 792 So.2d 983, 986 (Miss. 2001) ). So, Carl's failure to timely raise the misconduct-based grounds within six months under Rule 60(b)(1) cannot be recast as a Rule 60(b)(6) motion.

      See Uniform Rule of Chancery Court 8.05, requiring parties to submit financial statements and make disclosures for domestic matters involving "economic issues and/or property division."

      Carl's position is further supported by the majority's use of the word "salacious" to describe his extramarital affairs. The word salacious connotes indecency, obscenity, or lewdness. See http://www.thesaurus.com/browse/salacious?s=t (last visited January 23, 2018). I dare say that the majority would not have chosen that particular term had Carl chosen to engage in heterosexual affairs. A search of the term "salacious" in opinions reveals the term's use in criminal cases involving pedophilia. See Shaffer v. State , 72 So.3d 1090, 1098 (Miss. Ct. App. 2010) ; Wade v. State , 583 So.2d 965, 968 (Miss. 1991).


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT: BEAM, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    Benardrick C. MCKINNEY v. Kasey HAMP
    Benardrick Cornelius Mckinney v. Kasey Hamp
    NO. 2016-CA-00844-SCT NO. 2016-CA-01299-SCT
    Supreme Court of Mississippi.
    February 8, 2018
    TONYA YEVETTE POWELL, ATTORNEY FOR APPELLANT
    STEPHANIE NICOLE MORRIS, ERICA JEAN WILSON, ATTORNEYS FOR APPELLEE
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. In these consolidated appeals, we find the chancellor properly included a professional athlete's signing bonus as part of his gross income when crafting a child-support award. We also hold that a chancellor's order for prospective monthly child-support payments cannot be stayed by a clerk-approved supersedeas bond under Mississippi Rule of Appellate Procedure 8(a).

¶ 2. But until today, this Court had not addressed Rule 8(a)'s effect on prospective child-support payments. So it was reasonable for the father to have relied on his attorney's advice that the award was stayed. Thus, he should not have been held in contempt for nonpayment of the increased support award.

¶ 3. We affirm in part, reverse and remand in part, and reverse and render in part.

Background Facts and Procedural History

I. Paternity and Child Support

¶ 4. Benardrick McKinney and Kasey Hamp's son, K.M., was born out of wedlock while McKinney attended and played football for Mississippi State University. In his junior year, McKinney was selected in the second round of the National Football League (NFL) draft and signed a contract to play professional football for the Houston Texans.

¶ 5. Before McKinney signed his NFL contract, Hamp sought assistance to pay for K.M.'s support and expenses. The Mississippi Department of Human Services (DHS) became involved in her child-support request. And on October 15, 2014, DHS filed a complaint in Tunica County against McKinney to determine paternity and child support. On March 16, 2015, a paternity test showed a 99.99% probability that McKinney was K.M.'s father. The paternity test results led DHS to return to chancery court. And on June 15, 2015, the chancellor entered a temporary order awarding Hamp $150 per month in child support. McKinney voluntarily increased his support obligation to $750 per month.

¶ 6. The next day, Hamp, individually, filed a complaint for child support in Tunica County. She pointed out that McKinney's income had increased substantially since DHS had filed its complaint. McKinney had signed a four-year, several-million-dollar NFL contract, which included a substantial signing bonus.

¶ 7. McKinney answered the complaint and raised a counterclaim seeking custody of K.M. In his answer, McKinney argued that because DHS had already obtained a child-support award in another suit, Hamp failed to both state a claim and join a necessary party-DHS. Hamp petitioned to amend her complaint to name DHS as a party, but the chancellor denied her request. On July 30, 2015, the chancellor dismissed Hamp's complaint without prejudice. Hamp then filed a petition for modification of child support in the DHS lawsuit on September 14, 2015.

¶ 8. On February 25, 2016, Hamp and McKinney again appeared before the chancellor on the custody counterclaim. Both agreed they had resolved custody and visitation issues. And though the DHS lawsuit was still pending, the parties asked to proceed on the child-support issue. The DHS attorney was agreeable to moving forward on the support matter.

¶ 9. When the hearing concluded, the chancellor asked the parties, including DHS, to provide briefs addressing whether McKinney's signing bonus should be considered gross income. But before submitting a brief, McKinney filed a motion to recuse the chancellor. He took issue with the chancellor's comments and expressions from the bench-particularly her asking Hamp whether her father was K.C. Hamp, the Tunica County sheriff. The chancellor denied McKinney's motion. She insisted she did not know the sheriff personally. She also maintained, as she had at trial, that she would follow the statutory and caselaw requirements when setting child support.

¶ 10. In DHS's supplemental chancery court brief, DHS argued McKinney's signing bonus should be considered gross income. McKinney disagreed and argued it should not. From the record, it does not appear Hamp filed a brief.

¶ 11. On April 21, 2016, the chancellor consolidated McKinney's custody counterclaim and the DHS child-support suit. Four days later, the chancellor entered an agreed order determining custody and visitation. But the child-support issue remained unresolved.

¶ 12. On April 27, 2016, the chancellor entered her findings and order on the child-support claim. She addressed three main issues: (1) whether to include McKinney's signing bonus as regular income; (2) the amount of monthly child support; and (3) who should claim K.M. as a dependent for taxes.

¶ 13. Using McKinney's Uniform Chancery Court Rule 8.05 disclosure and other financial records, the chancellor found there had been a material change in circumstances. She found McKinney's signing a NFL contract required the temporary DHS order to be modified upward. Citing primarily Mississippi Code Section 43-19-101(3)(a), the chancellor determined McKinney's signing bonus should factor into the child-support award. But she decided it should be calculated independently from his nonbonus income and would be retroactive. She then took McKinney's signing bonus-after taxes and deductions-and divided it over five years. She ordered monthly child-support payments of $407.61 for four years and a one-year "retroactive" payment of $4,483.71.

¶ 14. The chancellor then turned to McKinney's nonbonus income and determined his annual adjusted gross income after taxes and deductions. She also found that, because Hamp was in school and K.M. should benefit from McKinney's increased financial status, the statutory fourteen-percent child-support rate for noncustodial parent income applied. The chancellor ultimately ordered monthly child-support payments of $2,410.37 and a retroactive payment of $18,264.07. The chancellor also ordered that McKinney and Hamp alternate claiming K.M. as a dependent for tax purposes each year. McKinney disagreed with each child-support award and appealed.

II. Contempt and Supersedeas Bond

¶ 15. On June 30, 2016-before McKinney had secured a supersedeas bond for appeal-Hamp filed a motion for contempt and attorney's fees. She claimed McKinney had failed to make any payments required by the chancellor's child-support order. McKinney ultimately secured a supersedeas bond, which was approved by the Tunica County chancery clerk on July 14, 2016. The next day he responded to Hamp's motion. He pointed to the supersedeas bond and asked the court to dismiss the contempt issue.

¶ 16. The chancellor heard arguments on Hamp's motion. In a July 27, 2016 order, she found McKinney's supersedeas bond was ineffective to stay enforcement of the child-support order. Citing Mississippi Rule of Appellate Procedure 8(a), the chancellor held the monthly and retroactive child-support payments were "not a money judgment or a judgment solely for payment of money." And even if Rule 8(a) applied to the child-support order, McKinney's bond did not meet the rule's 125-percent requirement. Though McKinney's bond was for $28,434.73, she found the child-support payments continually accrued until the contempt motion was heard. So, as she saw it, the bond should have been at least $36,184.65. For these reasons, she found his bond was ineffective-despite that the bond had already been approved and the chancery clerk had issued a stay on enforcement.

¶ 17. After the April 25, 2016 child-support order was entered, McKinney continued paying Hamp $750 per month-the amount he had been paying since the temporary DHS order in June 2015. While the chancellor credited McKinney for these payments, she ruled the remaining delinquent amount must be paid immediately. She then, in turn, awarded Hamp attorney's fees. To determine a reasonable amount, she required Hamp to provide an itemized statement and affidavits. Hamp submitted those items on August 8, 2016. McKinney filed a memorandum response, with his own affidavits, contesting an attorney's-fees award. On August 22, 2016, the chancellor awarded Hamp $3,316.41 in attorney's fees and required McKinney to pay within ten days. Again, McKinney timely appealed.

¶ 18. In the consolidated appeals before this Court, McKinney raises nine issues: (1) his signing bonus was wrongly considered gross income; (2) his mandatory retirement contributions were not deducted from gross income; (3) the retroactive support payments were based on incorrect income; (4) there were no written findings on whether the statutory child-support guidelines should apply; (5) only he should claim K.M. as a dependent for taxes; (6) Hamp's Rule 8.05 disclosure was submitted ex parte; (7) the trial court lacked jurisdiction to hear the contempt motion; (8) his conduct was not willful, deliberate, or contumacious; and (9) the attorney's fees award was excessive and unsupported by evidence.

Discussion

¶ 19. In matters of divorce, alimony, and child support, this Court will not disturb a chancellor's ruling unless it was manifestly wrong or an erroneous legal standard was applied. Lahmann v. Hallmon , 722 So.2d 614, 618 (Miss. 1998). Questions of law are reviewed de novo. Lewis v. Pagel , 172 So.3d 162, 172 (Miss. 2015).

I. Signing Bonus

¶ 20. Neither party disputes that McKinney received a substantial signing bonus when he signed with the Houston Texans. But they disagree over whether it qualifies as gross income for child-support purposes. While Hamp argues for its inclusion, McKinney maintains the signing bonus was a one-time payment-not a recurring bonus.

¶ 21. Mississippi Code Section 43-19-101(3) provides the formula for calculating adjusted gross income for child-support awards. This statute directs that gross income must be calculated "from all potential sources that may reasonably be expected to be available to the absent parent." Miss. Code Ann. § 43-19-101(3)(a) (emphasis added). The chancellor found the signing bonus qualified as "any other payment[ ]" or "any other form of earned income." Id. And because McKinney had already received the bonus, the chancellor found the income was "reasonably ... expected to be available" to McKinney. Id.

¶ 22. Indeed, the record shows McKinney received all of his signing bonus in 2015. And McKinney does not contest that chancellors may consider annual bonuses as part of gross income when awarding child support. See Alderson v. Morgan ex rel. Champion , 739 So.2d 465, 467-68 (Miss. Ct. App. 1999). Instead, he points out his signing bonus is not an annual performance bonus or some other potentially recurring income. And because he has entered a multiyear contract, it cannot be "reasonably expected" he will sign a new contract with the Texans or another team annually. He argues his situation is akin to Johnston v. Johnston , where we found it was "unreasonable and clearly erroneous" for a chancellor to include in a child-support award a father's income from teaching a one-time training course when "[the father] had no contract or expectation for this additional employment to continue." Johnston v. Johnston , 722 So.2d 453, 461 (Miss. 1998). After review, we find McKinney's employment situation and signing bonus are far different from the general uncertainty of a parent's supplemental income. Nor does his bonus bear much resemblance to money obtained from a parent's unexpected corporate buyout. See Robertson v. Robertson , 812 So.2d 998, 1002 (Miss. Ct. App. 2001) (father's buyout was not "reasonably expected" and "it was certainly not a yearly event" like a bonus). There is really no legitimate comparison between these scenarios and McKinney's.

¶ 23. McKinney is an NFL linebacker, not a moonlighting parent. And, according to the record, his signing bonus accounts for a major guaranteed portion of his income as a professional athlete. Under Section 43-19-101(3), gross income for child support must be calculated from "all potential sources that may reasonably be expected to be available to the absent parent ...." Because the bonus has already been received, it was certainly "reasonably expected to be available"-as contemplated by Mississippi law. So we cannot find the chancellor was wrong to deem it "gross income" for child-support purposes.

¶ 24. However, it appears the chancellor was incorrect about the duration of McKinney's NFL contract. The bulk of the record supports that McKinney's NFL contract was for four years, not five. So we reverse and remand for the chancellor to recalculate the child-support order to reflect McKinney's contract as a four-year contract.

II. Retirement Contributions

¶ 25. McKinney next argues the chancellor did not deduct his mandatory retirement contributions from his gross income. Even Hamp admits the chancellor "did not specifically state" that she had considered McKinney's retirement contributions.

¶ 26. Under Section 43-19-101(3)(b), "[r]etirement and disability contributions except any voluntary retirement and disability contributions" should be deducted from gross income. McKinney's financial statements from the Houston Texans show monthly retirement contributions, which he claims are mandatory. But the chancellor made no findings about these contributions. Because mandatory retirement contributions should be deducted from gross income, this Court reverses and remands for findings on whether the contributions are mandatory. If the contributions are indeed mandatory, they should be deducted from McKinney's gross income.

III. Retroactive Child Support

¶ 27. Citing a substantial and material change in circumstances-resulting from McKinney's professional football contract-the chancellor awarded a retroactive increase in child-support payments. The award was ordered retroactive to June 16, 2015. McKinney argues this was error.

¶ 28. Parties may seek a child-support modification when there are substantial and material changes in circumstances. See generally Evans v. Evans , 994 So.2d 765, 770 (Miss. 2008). And McKinney does not contest the substantial and material salary changes mentioned. His disagreement instead mainly focuses on the date of the retroactive award.

¶ 29. This Court has looked to our statutory law and has held that " '[a]n upward retroactive modification may be ordered back to the date of the event justifying the upward modification.' " A.M.L. v. J.W.L. , 98 So.3d 1001, 1018 (Miss. 2012) (citing Miss. Code Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original). Section 43-19-34(4) still provides the same today. See Miss. Code Ann. § 43-19-34(4) (Rev. 2015). But we have also suggested that "the better rule is to allow modification amounting to an increase in support as of the date of the petition to modify or thereafter, within the sound discretion of the trial court." Lawrence v. Lawrence , 574 So.2d 1376, 1384 (Miss. 1991). This is a discretionary call.

¶ 30. After review, we see no error in the chancellor awarding a retroactive increase. Nor did she abuse her discretion in choosing June 16, 2015-the date Hamp initially filed her separate petition for child support-to implement the retroactive increase.

IV. Statutory Guidelines

¶ 31. When the noncustodial parent's income exceeds $100,000, the chancellor must make a written finding on whether Section 43-19-101's support guidelines apply. See Miss. Code Ann. § 43-19-101(4) (Rev. 2015). There is a rebuttable presumption these guidelines are appropriate. Id. To overcome this presumption and deviate from these guidelines, a chancellor must make specific findings under the criteria in Section 43-19-103. But here, the chancellor did not deviate from the guidelines. So McKinney is wrong in his contention that the chancellor was required to make specific findings on each factor in Section 43-19-103. All that was required was for the chancellor to find, in writing, that the standard, statutory, fourteen-percent guideline should apply. And she did.

¶ 32. Furthermore, the chancellor's overall written analysis supports her decision. Contrary to McKinney's insistence, it is supported by evidence. The chancellor considered both Hamp's and McKinney's ages, health, incomes, and living expenses. She also considered K.M.'s age, expenses, and future needs related to his and Hamp's move to Memphis for Hamp to attend nursing school. Hamp was not particularly thorough on the cost for K.M.'s daycare or potential apartments in Memphis-the only two specific expenses McKinney takes issue with on appeal. But there is nothing that seriously undercut her testimony about these costs. After review, we see no error in the handling of either of these issues.

V. Tax Exemption

¶ 33. Based on the child-support award and his overall financial situation, McKinney claims the chancellor erred by alternating who could claim K.M. as a dependent on their taxes. He says the chancellor failed to consider the factors laid out in Louk when considering the tax issue. See Louk v. Louk , 761 So.2d 878, 883-84 (Miss. 2000). But in truth, this Court has not established a specific test for allocating child tax exemptions, though we have discussed some suggested considerations. Id. Still, though there is no definitive test, the chancellor was confronted with McKinney's substantial income and should have performed some analysis about the exemption, but did not. Thus, we find the chancellor's handling of this issue lacking. The record shows Hamp has no apparent significant independent income from which she would enjoy any advantage in having the dependent child exemptions. But McKinney clearly does. In short, all we have before us is the chancellor's conclusion that the exemption should be alternated. On remand, the chancellor should revisit this issue and, at a minimum, make findings detailing her reasoning for allocating the dependent tax exemption.

VI. Ex Parte 8.05 Disclosure

¶ 34. McKinney argues that Hamp's Rule 8.05 disclosure was submitted to the chancellor ex parte and it was never made part of the record. We note that neither party's Rule 8.05 disclosure was part of the record until McKinney filed his on May 11, 2016-approximately two weeks after the chancellor's April 25, 2016 child-support opinion and order. Yet the chancellor still references McKinney's and Hamp's 8.05 disclosures in that opinion. This issue could have been-but was not-raised below. So we will not consider the argument on appeal. See Adams v. Bd. of Supervisors of Union Cty. , 177 Miss. 403, 170 So. 684, 685 (1936).

VII. Jurisdiction for Contempt Motion

¶ 35. McKinney failed to abide by the chancellor's April 25, 2016 order, requiring him to pay monthly and retroactive child support. His nonpayment prompted Hamp to file a motion for contempt and attorney's fees on June 30, 2016. McKinney secured a supersedeas bond for $28,434.73, which the Tunica County chancery clerk approved and filed on July 14, 2016.

¶ 36. A week later, the chancellor heard Hamp's motion. She determined that child-support payments were "not a money judgment or a judgment solely for payment of money" under Mississippi Rule of Appellate Procedure 8(a). Alternatively, the chancellor found that, even if a supersedeas bond was effective to stay execution, McKinney's bond did not meet the required 125-percent amount of $36,189.65.

¶ 37. This Court has held that "[t]he amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal." In re Estate of Taylor , 539 So.2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved, execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey , 219 Miss. 720, 723, 69 So.2d 844, 844-45 (1954).

¶ 38. In a judicial-performance case, this Court has made very clear that a supersedeas bond stays execution of a child-support-modification order. Miss. Comm'n on Judicial Performance v. Littlejohn , 172 So.3d 1157, 1160 (Miss. 2015). Indeed, this Court found a chancellor abused his power and committed misconduct by holding a parent in contempt for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor was suspended without pay for disregarding "the clear wording" of Rule 8(a) and this Court's application of it in Lindsey. Littlejohn , 172 So.3d at 1160, 1163.

¶ 39. There is, however, a significant distinction between Littlejohn and this case. That distinction is the difference in the type of child-support payments appealed. In Littlejohn , a child-support order was modified and the father was required to pay $15,000 for an automobile for his child and $1,750 in attorney's fees-together, a definitive money judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule 8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a definitive money judgment. And this Court has never squarely addressed whether prospective, monthly, child-support obligations can be stayed by a supersedeas bond under Rule 8(a).

¶ 40. This Court has, however, recognized the need for continued, monthly, child-support payments to provide support for the child during the pendency of an appeal. Petersen v. Petersen , 238 Miss. 190, 118 So.2d 300, 304 (1960). In Petersen , the chancellor entered a decree awarding monthly, child-support payments but stated that such payments "should remain in effect pending the appeal with supersedeas ...." Petersen , 238 Miss. at 198-99, 118 So.2d at 304. And this Court held the chancellor was clearly justified in requiring continued, monthly, child-support payments pending an appeal with supersedeas. Id. But until today, this Court has not addressed whether prospective, monthly child-support payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure 8(a) supersedeas bond.

¶ 41. Under Mississippi law, child-support payments become fixed and vested when the payments become due and unpaid. Brand v. Brand , 482 So.2d 236, 237 (Miss. 1986). And as each payment comes due, it becomes "a judgment" against the noncustodial parent. Id. (citations omitted). Once fixed and vested, those judgments cannot be modified. See Hambrick v. Prestwood , 382 So.2d 474, 476 (Miss. 1980) ; see also Cunliffe v. Swartzfager , 437 So.2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive, one-time, child-support payments can be reduced to money judgments, a Rule 8(a) supersedeas bond can protect an appellee. But that is not necessarily the case for prospective, monthly, child-support obligations. We find these are not money judgments and cannot be stayed by a Rule 8(a) supersedeas bond.

¶ 42. But this does not necessarily mean McKinney could not have sought a supersedeas bond. However, to do so, he would have had to make an application to the chancellor for a stay under Mississippi Rule of Appellate Procedure 8(b). And the chancellor, not the clerk, would have to decide whether to approve the bond, in light of an opposing party contesting the bond.

¶ 43. Turning to this case, we find the chancellor's order modifying the monthly child-support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to make the increased, monthly, child-support payments. But, as to the retroactive child-support award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas bond would adequately protect Hamp, and ultimately K.M., during the appeal.

¶ 44. We therefore affirm the chancellor's ruling that prospective, monthly, child-support obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond. However, we reverse and render the chancellor's decision that a Rule 8(a) supersedeas bond could not stay execution on the retroactive child support.

VIII. Contempt Findings

¶ 45. At the contempt hearing, McKinney testified that he followed his counsel's, mother's, and financial advisor's advice to secure a supersedeas bond instead of making the retroactive and monthly child-support payments. There were also difficulties securing a bond, not knowing he could post a cash bond instead. McKinney testified that at no point did he intend to disobey the chancellor's order. Despite this, the chancellor found McKinney in contempt. But rather than "order McKinney be jailed," the chancellor ordered he pay the delinquent amount immediately and Hamp's attorney's fees. McKinney says this was error.

¶ 46. In a contempt action for unpaid child support, failure to make required child-support payments is prima facie evidence of contempt. Lahmann , 722 So.2d at 620 (citing Guthrie v. Guthrie , 537 So.2d 886, 888 (Miss. 1989) ). The burden then shifts to the payor to show, through clear and convincing evidence, an inability to pay or other defense to contempt. Id. "Whether a party is in contempt is left to the Chancellor's substantial discretion." Id. (citation omitted).

¶ 47. The record contains ample evidence that McKinney was advised and reasonably believed a supersedeas bond would stay the retroactive and monthly child-support payments. See generally McKnight v. Jenkins , 155 So.3d 730, 732-33 (Miss. 2013) (holding that a party's reliance on counsel's advice to not pay bill could not be willful contempt). And while reliance on counsel's advice may not in every instance protect a party from contempt, here the court clerk approved his bond and issued a stay on enforcement. Because this Court has, until now, never specifically addressed Rule 8(a)'s effect on monthly child-support payments, we cannot say McKinney's reliance on the supersedeas bond was contemptuous or merely disobedient, as the dissent labels it.

¶ 48. The dissent characterizes the contempt issue as one of McKinney not paying child support and ignoring the chancellor, by just listening to his attorney and other advisors. With respect, the dissent simply misses the gist of what happened and what we now hold. The record shows McKinney was already subject to an existing support order. And he continued to abide by that order even after the support-modification order at issue here was entered. So K.M. continued to receive child support. Rather, what McKinney sought, and what he was granted, was a Rule 8(a) supersedeas bond. He believed-and this Court has, until now, never expressly said otherwise-that the supersedeas bond stayed enforcement of the support-modification order . McKinney's conduct was no different than any other appellant seeking to stay a judgment while appealing to this Court. Thus, we find it was error for the chancellor to cast his actions as willfully and deliberately disobeying her order. Because McKinney should not have been held in contempt, we reverse and render the contempt finding.

IX. Attorney's Fees

¶ 49. Chancellors have broad discretion to award attorney's fees. Huseth v. Huseth , 135 So.3d 846, 859 (Miss. 2014). And attorney's fees are ordinarily appropriate when there is a contempt finding. See Gardner v. Gardner , 795 So.2d 618, 619 (Miss. Ct. App. 2001). But here, we find the chancellor wrongly held McKinney in contempt. Because we reverse and render that decision, we must also reverse and remand the automatic attorney's-fees award relating to Hamp's contempt motion. Cf. Lahmann v. Hallmon , 722 So.2d 614, 623 (Miss. 1998). On remand, the chancellor has discretion to award attorney's fees to Hamp but must consider the McKee factors in doing so. See McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982).

Conclusion

¶ 50. We find the chancellor properly considered McKinney's signing bonus as gross income when crafting her child-support order. We likewise affirm the chancellor's determination that the statutory child-support guidelines were reasonable and applied, as well as her decision to award a retroactive modification to June 16, 2015.

¶ 51. But because the chancellor wrongly divided the award over five years, rather than the four years of McKinney's contract, we reverse in part and remand for the chancellor to recalculate the child-support order to reflect a four-year contract. Additionally, because the child-support order contains no findings about whether McKinney's retirement contributions are mandatory or any discussion on the financial consequences for each party concerning K.M. as a dependent for taxes, we must remand on those issues as well. If on remand the chancellor finds the retirement contributions are mandatory, those amounts should be deducted from McKinney's gross income.

¶ 52. As to the supersedeas bond, we affirm the chancellor's ruling that prospective, monthly, child-support payments are not money judgments within Rule 8(a) and therefore cannot be stayed by a clerk-approved supersedeas bond. But we reverse and render her contempt finding. Because we reverse and render the contempt finding, we must reverse and remand the chancellor's automatic grant of attorney's fees to Hamp.

¶ 53. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, CHAMBERLIN AND ISHEE, JJ., CONCUR. BEAM, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

BEAM, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 54. I agree with all of the majority opinion except for the decision to reverse the chancery court's contempt ruling and award of attorney's fees. Therefore, I concur in part and dissent in part.

¶ 55. As the majority reiterates, the need for continued, monthly, child-support payments during the pendency of an appeal long has been recognized by this Court. See Maj. Op. ¶ 40 (citing Petersen v. Petersen , 238 Miss. 190, 118 So.2d 300, 304 (1960) ). The reason is obvious. Children have to eat and have a roof over their heads, and were a stay on child-support payments allowed-as a matter of course-in every case where a party challenges their court-ordered support obligation by appeal, those affected foremost by the wait would be the children.

¶ 56. "Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstances and both temporal and visual proximity, is infinitely more competent to decide the matter than [this Court]." Varner v. Varner , 666 So.2d 493, 496 (Miss.1995) (quoting Morreale v. Morreale , 646 So.2d 1264, 1267 (Miss.1994) ). A contempt citation is proper only when the alleged contemnor willfully and deliberately has ignored the order of the court. Mizell v. Mizell , 708 So.2d 55, 64 (Miss. 1998). Failure to comply with a court order is prima facie evidence of contempt. McIntosh v. Dep't of Human Servs. , 886 So.2d 721, 724 (Miss. 2004). To rebut a prima facie showing of contempt, a person must show an inability to perform the order, that failure to comply was not willful, or that the order was ambiguous or uncertain. Evans v. Evans , 75 So.3d 1083, 1087 (Miss. Ct. App. 2011). "Contempt is an issue of fact to be decided on a case-by-case basis. R.K. v. J.K. , 946 So.2d 764, 777 (Miss. 2007). Resolution of a contempt matter by and large turns upon credibility of the contemnor, the assessment of which lies within the province of the trial judge sitting as trier of fact. Mizell , 708 So.2d at 64.

¶ 57. Here, the chancery court found that McKinney willfully chose not to abide by the court's child-support order because, based on McKinney's testimony, he had received advice from his mother, financial advisor, and attorney not to abide by the court's order. I find no manifest error in the chancery court's ruling.

¶ 58. While this Court has recognized that advice from counsel may constitute a factor for the trial court's consideration in its determination as to whether the party willfully ignored the order of the court, it has never held or suggested that it constitutes an automatic defense. See generally R.K. , 946 So.2d at 777-78 (chancellor acted within her discretion but not holding father in contempt when he relied upon advice of counsel in stopping child support payments); see also Mizell , 708 So.2d at 64 (same).

¶ 59. As a matter of practice and common sense, courts should be wary of such claims. United States v. Remini , 967 F.2d 754, 758 (2d Cir. 1992), helps illustrate why.

¶ 60. There, the Second Circuit rejected the claim by a defendant convicted of criminal contempt that a "good faith reliance on advice of counsel is a defense to criminal contempt." At trial and on appeal, the defendant argued the Supreme Court's decision in Cheek v. United States , 498 U.S. 192, 111 S.Ct. 604, 610-11, 112 L.Ed.2d 617 (1991), which held that a good faith misunderstanding of the law is a defense in a tax prosecution. Remini , 967 F.2d at 757. The Second Circuit found the defendant's reliance on Cheek misplaced. Id. at 758. The Second Circuit noted that Cheek first reiterated the general rule that "ignorance of the law or mistake of law is no defense to criminal prosecution[, which] is deeply rooted in the American legal system." Id. (quoting Cheek, 498 U.S. at 199, 111 S.Ct. 604 ). But Cheek recognized an exception to this rule in the tax prosecution before it, due to the complexity of tax law and proliferation of tax statutes and regulations that sometimes have made it difficult for average citizens to know and comprehend. Id. Distinguishing Cheek , the Second Circuit said: "There is nothing so complex about the law of contempt as to set it apart from the rest of the criminal law to which 'ignorance is no defense.' " Id.

¶ 61. The Second Circuit also noted United States v. Ryan , 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971), as an analogous example in support of its reasoning for rejecting the defendant's claim. Remini , 967 F.2d at 757-58. The Ryan Court said:

[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order ... prior to review of that order, and with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.

Ryan , 402 U.S. at 533, 91 S.Ct. 1580.

¶ 62. The same principle must apply in child-support matters for the reasons expressed above. Here, the chancery court's new child-support order, entered on April 27, 2016, was not uncertain or ambiguous, as was the support order at issue in McKnight v. Jenkins , 155 So.3d 730 (Miss. 2013), cited to by the majority. See Maj. Op. ¶ 47. Nor was McKinney incapable of complying with the court's order, as the record clearly illustrates. McKinney simply chose not to do so.

¶ 63. And this forced Hamp to have to file a motion for contempt on June 30, 2016. It was not until after the fact that McKinney then sought and obtained a supersedeas bond under Mississippi Rules of Appellate Procedure. 8(a), approved by the chancery clerk on July 14, 2016, which, as the majority finds, was not a proper measure.

¶ 64. That McKinney continued to abide by a previous support order is of no moment. McKinney became subject to the chancery court's new support order, which the record illustrates he willfully and deliberately disregarded.

¶ 65. For these reasons, I would not contradict the chancery court's discretion on this issue. Finding no manifest error in the chancery court's contempt ruling, I would affirm that ruling and the chancery court's award of attorney's fees.

KING, J., JOINS THIS OPINION.

      K.M. was born on September 3, 2013.

      The chancellor looked specifically at McKinney's salary projections for the 2015-16 NFL regular season.

      McKinney received his entire signing bonus in 2015, in three installments.

      Section 43-19-101(3) states, in full:
      The amount of "adjusted gross income" as that term is used in subsection (1) of this section shall be calculated as follows:
      (a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent's portion of any joint income of both parents; workers' compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent's current spouse;
      (b) Subtract the following legally mandated deductions:
      (I) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
      (ii) Social security contributions;
      (iii) Retirement and disability contributions except any voluntary retirement and disability contributions;
      (c) If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;
      (d) If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;
      (e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d), then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.
      Upon conclusion of the calculation of paragraphs (a) through (e), multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) to arrive at the amount of the monthly child support award.
      Miss. Code Ann. § 43-19-101(3) (Rev. 2015).

      Hamp argues on appeal that McKinney received state income tax deductions he should not have received. She claims Texas does not assess income taxes. But this issue was never presented to the chancellor, so we do not address it. See Adams v. Bd. of Supervisors of Union Cty. , 177 Miss. 403, 170 So. 684, 685 (1936).

      The transcript also shows an exchange between the chancellor and the attorneys, discussing each party's 8.05 disclosure at the end of trial. Hamp's attorney clearly stated that she had Hamp's 8.05 with her, and the chancellor responded that she would need it that day. McKinney's attorney was present and participated during that entire exchange.

      The $28,434.73 sum is 125 percent of the retroactive child-support award. But it does not include the three monthly child-support payments between the April 25, 2016 order and July 14, 2016.

      The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord , 94-CA-00947-COA, 94-CA-01158-COA, 691 So.2d 1036 (Miss. Ct. App. Sep. 17, 1996).

      Mississippi Rule of Appellate Procedure 8(b) states:
      (1) Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the trial court. The court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent required in cases under Rule 8(a).
      (2) However, a bond or equivalent security required on any money judgment entered in whole or in part on account of punitive damages shall, as to the punitive damages portion of the judgment only, be the lower of:
      (a) 125 percent of the total amount of punitive damages, or
      (b) ten percent of the net worth of the defendant seeking appeal as determined by applying generally accepted accounting principles to the defendant's financial status as of December 31, of the year prior to the entry of the judgment for punitive damages.
      (c) Absent unusual circumstances, the total amount of the required bond or equivalent security for any case as to punitive damages shall not exceed $100,000,000.
      (3) To qualify for reduction of bond or equivalent security under subpart (b)(2)(b), there must be a good and sufficient showing that the imposition of a supersedeas bond of 125% of the full judgment appealed from would place that appellant in a condition of insolvency or would otherwise substantially threaten its future financial viability.
      (4) When the appellant is allowed the benefit of a reduction in bond or equivalent security under subpart (b)(2)(b) or (c), the court may require submission of such reports or evidence to the court and to opposing parties as will allow them to be properly informed of the financial condition of the appellant during the period of supersedeas. If at any time after notice and hearing, the court finds that an appellant who has posted a bond or equivalent security for less than 125 percent of the full amount of the judgment has taken actions that affect the financial ability of the appellant to respond to the judgment, or has taken other actions with the intent to avoid the judgment, the court shall increase the bond or equivalent security to the full 125 percent of the judgment. If the appellant does not post the additional bond required by the court, the stay shall be revoked.
      (5) If a hearing is necessary for issues arising under subpart (b), the judgment shall be stayed during such hearing and for ten days following the trial court's ruling. The ruling of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme Court or the Court of Appeals.

      That McKinney also relied on his mother's and his financial advisor's advice need not be seriously entertained-except to say that it likely exacerbated the chancellor's reason for rejecting McKinney's excuse.