Representing Yourself In A Contempt Case
Child custody and support agreements can be complicated, particularly when the parties have difficulty agreeing on financial terms. In some cases, a modification of an existing agreement may be necessary to ensure that the children’s best interests are being met. In this blog post, we will discuss the case of Michael Harrison, who was held in contempt by the chancery court for his failure to abide by an agreed order of modification of child custody and support. We will analyze the events that led up to the contempt charge, the arguments made by both parties, and the court’s ruling.
Background On This Contempt Case
On March 9, 2018, an agreed order of modification of child custody and support was entered by the chancery court. This order modified the previous child custody and support agreement between Michael Harrison and his ex-wife, Heather. Michael did not object to or challenge the validity of the Agreed Order when it was entered. Instead, he began making payments in accordance with the agreement. He made cash payments in April and May of 2018, and then began sending money orders from June to November of 2018.
On February 20, 2019, Heather filed a petition for contempt against Michael, alleging that he had failed to comply with the Agreed Order. The chancery court set a hearing for March 20, 2019, and issued a Rule 81 summons to Michael on February 21, 2019. The summons was returned executed on February 26, 2019. On March 8, 2019, Michael responded to the petition for contempt and counterclaimed for citation of contempt against Heather.
The Contempt Hearing
At the hearing on March 20, 2019, the chancery court first allowed the parties to address whether the Agreed Order was valid. Michael raised this issue for the first time in his responsive pleading to Heather’s petition for contempt. He claimed that he had objected to a “financial portion of that agreement” in an email to Heather before the Agreed Order was filed. He also claimed that when the chancery court entered the Agreed Order “without [his] agreement,” he felt that his objections were ignored and that the agreement would not be valid.
The chancellor asked Michael to produce the emails of his exchange with Heather’s attorney. Michael presented the emails to the chancery court. Based on the emails, the chancery court concluded that the discrepancy at issue was provision eight of the modified agreement, which instructed “the parties to exchange and calculate within the 10-day period.” The provision also explained the need for the parties “to look at some finances and come up with an exact amount.”
The chancery court also stated that the emails showed that at least until March 2018, Michael disagreed with Heather about the amount owed. Michael testified that there was disagreement because he believed he did not owe Heather for expenses, such as the grocery bill, during months when the children should have been with him. He testified that he paid the expenses in full from March 2018 to September 2018.
He sent an email to Heather on August 7, 2018, stating, “As for me, I will continue to contribute what I think is appropriate and reasonable.” According to the chancery court, on March 1, 2018, “there is an indication that the – – if the order was not returned, that the matter would be presented to the Court – – to the judge at that time.” At this time, Michael was notified both that the Agreed Order “presented to him would be entered” and that the exhibit submitted “set in place a payment plan.”
The chancery court ultimately concluded that the emails indicated that “we are talking about a difference of $597.01
Therefore, finding the $597.01 to be the only issue with the validity of the Agreed Order, the chancery court set that issue aside and then moved forward with Heather’s complaint for contempt against Michael.
Michael testified that he was self-employed and that his monthly income was between approximately $3,500 and $4,200. His income was flexible because he worked hourly as an independent contractor and was on commission with a radio station. He admitted that Heather sent him a monthly list of expenses requesting payment. While Michael pled that his failure to pay was one of inability and not willful, in court he testified to the contrary. He conceded to having the money to pay Heather.
Michael further testified that he may have received a letter from Heather stating that he owed $9,475.80 for his portion of the children’s expenses. However, Michael admitted that he stopped making payments in December 2018:
I have had enough. I have been writing checks. I got documentation of money that I have paid. I said, I’m not paying anymore money until I have a relationship with my children, until I see my children.
Michael stated that because the monthly expenses varied, “[s]ometimes [he] just kind of gave her what she asked and sometimes [he] [did not].”
On May 25, 2021, the chancery court ordered that Michael be held in contempt for his failure to abide by the provisions in the modified agreed order. Specifically, the chancery court stated that Heather proved by clear and convincing evidence that Michael was in arrears of (1) $1,100 toward his $3,380 debt, (2) $3,100 toward his $10,275.75 childcare expenses prior to March 2018, and (3) $8,580.45 of his one-half portion of the twins’ expenses between March 2018 and February 2019. The chancery court’s contempt order observed that there was a $597.20 (instead of $597.01) discrepancy between the expense reports and, therefore, reduced the amount owed by subtracting $597.20 from $9,177.65, the total amount of children’s expenses between March 2018 and February 2019. The chancery court ordered Michael’s incarceration in the Madison County jail until he paid all debts owed.
The chancery court further ordered Michael to pay the $3,380 with eight-percent interest, the $3,100 with eight-percent interest, the $8,580.45, and $3,021.30 in attorney’s fees within thirty days of entry of the order. Michael appeals the chancery court’s ruling, asserting that the contempt order was void for lack of personal jurisdiction due to defective process and for it being based upon an invalid Agreed Order. Michael asserts that the Agreed Order was invalid because he did not sign it and because he did not agree with terms five, eight, nine, eleven, and twelve of the Agreed Order. Michael further asserts that term two of the Agreed Order retroactively terminated child support and was also void. Given that Michael has waived the jurisdictional issue and that his other issues are procedurally barred, we affirm the chancery court’s contempt order.
Michael argues that the Agreed Order was void because of (1) his lack of signature and (2) his disagreement with the terms. Under Mississippi Rule of Civil Procedure Rule 60(b)(4), “the court may relieve a party or his legal representative from a final judgment, order or proceeding [if] . . . the judgment is void.” M.R.C.P. 60(b)(4). Additionally, an objection to a void judgment may be raised at any time. O’Neal v. O’Neal, 17 So. 3d 572, 575 (Miss. 2009) (“There can be no time limitation for relief from a void judgment as ‘no amount of time or delay may cure a void judgment.’” (quoting Kirk v. Pope, 973 So. 2d 981, 988 (Miss. 2007))). As discussed below, we find that the Agreed Order is voidable, not void. This changes the complexion of how the order is treated under Rule 60(b)(4). We also conclude that Michael’s lack of signature or disagreement with its terms were waived. We further find that because Michael failed to timely appeal the Agreed Order, his attack on the validity of the Agreed Order is procedurally barred.
Mississippi Rule of Civil Procedure Rule 60(b)(4) applies to agreed orders as final judgments. “[A] final, appealable judgment [is] one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Boone v. Boone, 80 So. 3d 150, 157 (Miss. Ct. App. 2012) (internal quotation marks omitted). Our Supreme Court has held that an agreed order is “a judgment of the issuing court, subject to the court’s enforcement powers.” McNeese v. McNeese, 129 So. 3d 125, 130 (Miss. 2013) (quoting Riley v. Wiggins, 908 So. 2d 893, 899 (Miss. Ct. App. 2005)). Moreover, “it is ‘given the same force and effect as judgments rendered after litigation.’” Id. (quoting Guthrie v. Guthrie, 233 Miss. 550, 102 So. 2d 381, 383 (1958)). Furthermore, “[a] consent decree, although founded on the agreement of the parties, is a judgment . . . . It thus has greater finality than a compact.” Riley, 908 So. 2d at 899.
With the understanding that an agreed order is in fact a final judgment, Michael’s collateral attack on the Agreed Order at hand is only permissible if this Court determines that the Agreed Order is void. See Moore v. Love, 2 Miss. Dec. 724, 731 (1882) (“A void judgment is a nullity and could not be amended. If it is voidable merely, it cannot be attacked collaterally.”).
“An agreed order, or consent judgment, is essentially a contract . . . .” McNeese v, 129 So. 3d at 130 ; accord Riley, 908 So. 2d at 899 (“[A]n agreed order or consent decree is in the nature of a contract.”). Hence, an agreed order is treated as if it is a contract. Guthrie, 102 So. 2d at 383 (“Also, being in the nature of a contract, a consent judgment should be construed as a written contract.”). Under general contract principles, “[a] ‘void’ contract is one that is illegal ab initio as a matter of law, whereas a ‘voidable’ contract is one that is later set aside due to some external factor.” Home Base Litter Control LLC v. Claiborne County, 183 So. 3d 94, 101 (Miss. Ct. App. 2015).
The actions of the chancery court support the conclusion that the Agreed Order was voidable. See id. (“A voidable contract can be revived, but a void contract cannot.”). Given that the Agreed Order was voidable but not void, Michael cannot now, on appeal regarding the contempt proceedings, attack the validity of the Agreed Order. See Burgess v. Williamson, 270 So. 3d 1031, 1037 (Miss. Ct. App. 2018) (“[I]ssues that should have been brought on direct appeal of a divorce judgment cannot be re-litigated in a subsequent contempt proceeding.” (internal quotation marks omitted)). Michael had every opportunity to challenge the entered Agreed Order but failed to do so. Michael could have, within ten days of its entry (March 9, 2018), filed a motion to alter or amend a judgment under Rule 59(e). M.R.C.P. 59(e). If Michael missed the ten-day deadline, then Michael could have filed a direct appeal within thirty days of the entry of the Agreed Order. M.R.A.P. 4(a) (“The notice of appeal . . . shall be filed with the clerk of the trial court within 30 days after the date of entry of judgment or order appealed from.”). Rather than challenge the order entering the Agreed Order, Michael exemplified his acquiescence by making payments in accordance with the Agreed Order the month that it was entered. Michael only now attacks the validity of the Agreed Order after counterclaiming against Heather for not abiding by the terms of the Agreed Order and feeling as though he was alienated from his children. Thus, we conclude that Michael waived his right to appeal the voidable Agreed Order.
Notwithstanding, we address Michael’s allegation that the Agreed Order is void due to his lack of signature, which has been dealt with previously by this Court in McDonald v. McDonald, 850 So. 2d 1182, 1189 (Miss. Ct. App. 2002). In McDonald, the chancery court entered the agreed order without Mr. McDonald’s signature. Id. at 1188. The McDonald court did not render the agreed order void but held that when there is a “recital of the terms of the settlement into the record, followed by an agreement to end the hearing,” the parties have expressed an intent to be bound. Id. Here, Michael submitted the terms of the memorandum that was codified into the Agreed Order by the chancery court. Additionally, Michael’s appearance at the March 2019 hearing, at which he contested the disputed terms of the order until the hearing concluded with his consent, exemplified his intent to be bound by the Court’s ruling making his subsequent argument moot.
As a final argument, Michael states that the chancery court committed error by retroactively terminating Heather’s child support obligations. The memorandum signed by Michael and Heather granted the parties joint physical and legal custody of the children. The memorandum also stated that Heather was no longer obligated to pay child support. Michael did not object to Heather’s termination of child support during the November 8, 2017 hearing, or anytime thereafter.
“It is well settled that issues not raised below may not be raised on appeal.” Austin v. State, 971 So. 2d 1286, 1288 (Miss. Ct. App. 2008). “Before an issue may be assigned and argued in this Court, it must first be presented to the trial court.” Williams v. Dep’t of Hum. Servs., 116 So. 3d 176, 181 (Miss. Ct. App. 2013) (citing Wilburn v. Wilburn, 991 So. 2d 1185, 1191 (Miss. 2008)). This is due in part because “[w]e cannot find that the chancellor erred” when the issue “was never properly before the chancellor.” Kelley v. Day, 965 So. 2d 749, 755 (Miss. Ct. App. 2007). Michael never raised the issue that the chancery court erred by retroactively terminating Heather’s child support. Therefore, this issue is not properly before this Court and is procedurally barred.
The Bottom Line On Contempt Cases
There are times when you don’t need a lawyer. But, a contempt case is not one of them. If you have this filed against you, you better get a lawyer. The issues are too complex for you to handle by yourself. Michael found this out and found himself in contempt. Don’t do this to yourself. It is not worth the aggravation, time, and money you will pay for representing yourself.
Don’t end up on contempt! Get a lawyer. 