Michael Eugene Harrison v. Heather Howard

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00697-COA

MICHAEL EUGENE HARRISON APPELLANT

v.

HEATHER HOWARD APPELLEE

DATE OF JUDGMENT: 05/25/2021
TRIAL JUDGE: HON. ROBERT GEORGE CLARK III
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: MATTHEW THOMPSON
CHAD KENNETH KING
ATTORNEY FOR APPELLEE: JEFFREY BIRL RIMES
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 02/07/2023
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Michael Harrison appeals from the chancery court’s judgment holding him in

contempt for his failure to abide by an agreed order of modification of child custody and

support entered on March 9, 2018. After thoroughly reviewing the record, we affirm the

chancery court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶2. Michael and Heather married on October 10, 1998, in Hinds County, Mississippi.

Fraternal twins (one boy and one girl) were born of this marriage in 2001. In March 2009,

Heather reconnected with Jason Howard, a man from her past, through social media. The

newly established relationship resulted in Michael and Heather’s divorce because Heather
began a physical and sexual relationship with Jason in September 2009. Once Michael

discovered Heather’s adultery, Heather abruptly decided to move out of the marital home.

She found a residence of her own and then allowed Jason to live with her there.

I. Divorce Proceedings

¶3. On November 12, 2009, Michael filed a complaint for divorce on the ground of

uncondoned adultery and served Heather with a summons on the same day. Michael claimed

that since the start of her affair, Heather had no longer been an attentive mother because she

focused all her attention on Jason. Michael requested that their minor children be placed in

his custody, with Heather paying him child support, and an equitable division of the marital

property. Heather answered and counterclaimed, requesting child custody, child support,

alimony, equitable division of marital assets, and attorney’s fees. Depositions were taken,

and a divorce hearing was held on January 18, 2012.

¶4. On May 17, 2012, the chancery court entered the “Final Judgment of Divorce” which

contained some of the following stipulated provisions:

a. Heather’s share of Highland Building Services shall be two Thousand,
Five Hundred Dollars ($2,500.00). Heather shall have no other interest
in said business henceforth and forever more.

b. Heather shall be entitled to Three [Thousand], Three Hundred and
Eighty Dollars ($3,380.00) as her portion of the equity in the marital
home [and] be paid at the time of closing on the sale of said property.

c. Michael shall make reasonable diligent efforts to refinance said marital
home and remove Heather’s name from the mortgage. Michael shall
make inquiries to three different lenders within sixty (60) days
following the entry of the Final Judgment of Divorce, followed by one
per year from that initial inquiry date for the following three (3) years,
for a total of four (4) inquiries made in three (3) and two months.

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Michael will provide reasonable proof of said refinance efforts.

d. Should Michael be unable to refinance said home after the initial year
after the entry of the Final Judgment of Divorce, interest shall accrue
in favor of Heather at the amount of 8% on the $3,380 which is her
interest in the marital home.

e. Should Michael not make a mortgage payment within (30) days of it
being due, so that his and/or Heather’s credit reflect said nonpayment,
this trigger[s] placing the home on the market with a reputable real
estate [agent]/broker to be sold at fair market value.

....

g. Michael shall be entitled to use, possession, and control of the marital
home and shall be responsible for the mortgage, insurance, taxes, and
upkeep of same. Upon closing on the marital home, Michael shall be
entitled to exclusive ownership of the home, and Heather shall
quitclaim same to Michael at the time she is released from the
mortgage.

¶5. The Final Judgment of Divorce granted Michael sole physical custody of the twins,

with Heather having visitation rights. The chancery court also ordered that Heather pay

twenty percent of her monthly adjusted gross income, totaling $866, to Michael for child

support. The chancery court provided that Michael shall have exclusive use, possession, and

ownership of the marital home and be “solely responsible for the mortgage, taxes, and

insurance.” Both parties were to continue to hold a $400,000.00 life insurance policy that

named the children as beneficiaries.

¶6. On August 31, 2012, Heather and Michael submitted the below “Stipulation and

Partial Property Settlement Agreement” (Property Settlement Agreement) for the court to

amend the Final Judgment of Divorce by adding these terms:1

1
The bracketed words signify handwritten text by the parties.

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The parties agree that Mike has an agreement with Chase Mortgage, and Mike
shall continue to pay timely his present amount with Chase Mortgage through
the month of November 2012, when the agreement shall be satisfied, and the
stipulations incorporated in the Final Judgment of Divorce shall continue to
govern [Mike’s mortgage payments]. . . .

That the parties further agree that the correct child support amount . . . should
be reduced to $693.00 per month. The parties agree that the coverage in
payments for the months of June, July, and August, 2012, shall be credited
back to Heather, so that for the month of September 2012, Heather’s child
support payment shall be $174, which shall be paid on September 1, 2012.
Beginning October, 2012, and for each month thereafter, Heather’s child
support payment shall be $693 per month.

That Mike owes unto Heather the amount of $2,500 for her share of Mike’s
business, and that parties request this Honorable Court to determine the time
in which said amount must be paid to Heather by Mike. . . .

The parties further stipulate and agree that Heather owes taxes per the Final
Judgment of Divorce, and the [Plaintiff] request[s] this Honorable Court to
provide the timeline for Heather’s payment of same.

According to the terms of the Property Settlement Agreement, Michael owed Heather (1)

$3,380 for the equity of the marital home and if he does not sell the home an annual interest

of eight percent and (2) $2,500 for the share of the business. On September 4, 2013, the

chancery court granted Michael’s motion to amend and added the above provisions to the

Final Judgment of Divorce. Neither party contested the court’s additions.

II. Modification Proceedings

A. Motion for Modification

¶7. Two-and-a-half weeks later, Heather moved for modification of the Property

Settlement Agreement (which included the terms of the original Final Judgment of Divorce).

In October 2013, the chancellor set a modification hearing for April 16, 2014. On June 9,

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2014, Michael’s counsel entered a notice of appearance on his behalf. But after years

without any activity in the case, the court clerk entered a motion to dismiss the case for lack

of prosecution. On December 9, 2015, the chancery court dismissed the case without

prejudice.

B. Complaint for Contempt and Petition for Modification of
Custody and Other Relief

¶8. On December 15, 2016, Heather filed a combined complaint for contempt and petition

for modification of the Property Settlement Agreement against Michael. A new chancery

judge set a hearing for April 12, 2017, and a Rule 81 summons was issued to Michael,

notifying him of the April hearing. M.R.C.P. 81. On April 7, 2017, Michael, representing

himself, filed an answer to Heather’s complaint while also counterclaiming against Heather

for her failure to pay child support since 2014 in accordance with the Property Settlement

Agreement. Days later, Heather moved to continue the hearing. The hearing was held on

November 8, 2017, and both Michael and Heather were present. Michael appeared before

the chancery court without an attorney. During the hearing, Michael and Heather submitted

a memorandum to the chancery court. The memorandum was an agreement between Michael

and Heather modifying the Property Settlement Agreement and the following exchange

occurred:

COURT: Prior to coming into court, the Court conferred with
counsel for Ms. Howard and Mr. Harrison, who is acting
pro se. From what I understand, the parties have reached
an agreement as to all of the matter presently before the
Court.

PRIESTER: Yes, your Honor.

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COURT: And, in fact, that agreement has been reduced to a
memorandum.

COURT: That has been executed by both parties.

PRIESTER: Yes, your Honor.

COURT: And we went over that in chambers and from what I
understand, Mr. Harrison, this is an agreement that you
have made with Ms. Howard regarding the resolution of
both your petition – because you filed a counter-petition.

MICHAEL: Correct.

COURT: But it resolves all issues presently before the Court?

MICHAEL: Yes, your Honor.

COURT: And this is your agreement?

MICHAEL: Yes, your Honor.

COURT: And you have gone through it, you understand it, and you
come to that resolution with your ex-wife and counsel?

MICHAEL: Yes, sir.

COURT: All right. Ms. Howard, you have gone through this with
your counsel regarding the terms as you have agreed to
resolve all matters before the Court?

HEATHER: Yes, sir.

COURT: And this is your agreement?

HEATHER: Yes, sir.

COURT: Both of you understand that this will be reduced to a
court order, which will be presented to the Court and
entered as the order of this Court. Do you understand
that?

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HEATHER: Yes, sir.

MICHAEL: Yes, sir.

COURT: For purposes of the record, the Court will admit as
Exhibit 1 to this matter on today the agreed - - the
agreement of the parties that have actually been executed
by both of the parties.

¶9. Michael and Heather each stated at the hearing that all issues were resolved. Michael

and Heather both signed the memorandum and dated their signatures as “11/8/17”—the same

day as the hearing. Both Michael and Heather understood that the memorandum would be

entered by the chancery court as an agreed order.

III. Events after the November 2017 Hearing

¶10. On December 20, 2017, Michael sent Heather an email, stating that he would like to

“reconcile the expenses.” Heather’s counsel sent the children’s expenses to Michael.

¶11. On January 16, 2018, Michael emailed Heather’s counsel stating, “I’m just trying to

make sure the math is correct.” He said, “I’m happy to sign the custody modification parts

of the agreement, so if you want to separate that out while we come to agreement on money

that is fine.” Heather’s counsel emailed Michael stating, “I have sent the document . . . as

you requested and I have sent you everything that you requested and this delay is

unreasonable.” Additionally, Heather’s counsel stated that Heather agreed to the

memorandum “with the understanding that this matter was resolved, if it is not then, we will

have to see how the Court will handle this matter.”

¶12. On January 23, 2018, Michael sent Heather and her counsel another email stating that

he came “up with a total of $9,678.74 as opposed to the proposed [agreed order] that shows

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the total at $10,275.75.” On March 1, 2018, Heather’s counsel sent Michael an email

attaching the proposed “Agreed Order Modifying Child Custody and Support” and informing

them of a scheduled hearing before the chancery court “to have him sign off on it.” On

March 7, 2018, Michael stated, “I have no problems with the agreement in substance and I

have been making payments to Heather since the last court date. But I had questions

regarding the math used to arrive at the total owed.” (Emphasis added).

¶13. On March 9, 2018, the chancellor entered an “Agreed Order” duplicating the

memorandum. In addition, the chancellor included the following terms in accordance with

provision eleven of the parties’ memorandum, which stated that the “Final Order of the Court

will contain the financial expenses which are to be exchanged between them”:

9. The expenses submitted by Michael Harrison total $3,241.85 (note
$3,871.85 was originally submitted by MH which contained $630.00 of
cell phone charges during the period that Heather Howard Harrison was
paying child support from 9/2012 through 12/2013 so his expense
request was adjusted to remove the $630.00 in cell phone charges as
inappropriate for that time period.)

10. The expenses submitted by Heather Howard (Harrison) total
$23,793.34 from May 2016 through November 2017.

11. The overall balance of expenses after offset is $20,551.49 of which half
is due and owing to Heather Howard (Harrison) from Michael Harrison
in the amount of $10,275.75.

12. That Michael Harrison shall pay $100.00 per month beginning
December 1, 2017 on the balance of $10,275.75 with statutory interest
of [eight percent] until June 1, 2018 at which time the amount will
increase to $300 per month for the next six months. Beginning January
1, 2019, Michael Harrison will pay $500 a month until the arrearage
and interest is paid in full. All said amounts shall be non-dischargeable
in Bankruptcy as child support.

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Heather signed the Agreed Order, but Michael did not. Neither Heather’s attorney nor any

attorney on behalf of Michael signed the Agreed Order.

IV. Events after the Entry of the Agreed Order

¶14. After the chancery court entered the Agreed Order, Michael did not object to or

challenge the validity of the Agreed Order. Michael did not move to set aside the judgment

under Mississippi Rule of Civil Procedure 55 or move to alter or amend the judgment under

Mississippi Rule of Civil Procedure 59(e). Nor did Michael file an appeal challenging the

Agreed Order. Instead, Michael began making payments in accordance with the Agreed

Order. Michael made cash payments in April 2018 and May 2018. Based on the record,

Michael began sending money orders, which were first received by Heather in June 2018

until November 2018.

V. Contempt Proceedings

¶15. On February 20, 2019, Heather filed a petition for contempt against Michael. The

chancery court issued an order setting a hearing for March 20, 2019. Heather issued a Rule

81 summons to Michael on February 21, 2019, and it was returned executed on February 26,

2019. On March 8, 2019, Michael responded to the petition for contempt and in the same

pleading counterclaimed for citation of contempt against Heather. The hearing was held on

March 20, 2019.

¶16. During the hearing, the chancery court first allowed the parties to address whether the

Agreed Order was valid because Michael raised this issue for the first time in his responsive

pleading to Heather’s petition for contempt. The chancery court first read aloud the modified

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agreement submitted to the court on November 8, 2017, paragraph by paragraph. Michael

then stated that prior to the filing of the Agreed Order, he conveyed to Heather through email

that he objected to a “financial portion of that agreement.” Michael also stated 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. Michael testified during

the contempt hearing:

It was filed at that time and my thinking is, something filed without my
agreement - - I think, an agreed order filed without my agreement would not
end up being valid. I did not know to challenge it, didn’t have access to - - you
know, I’m not a lawyer. I didn’t have - -

The chancellor then 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 in the emails submitted to the court

is provision eight of the modified agreement, which instructed “the parties to exchange and

calculate within the 10-day period.” The chancery court also acknowledged that provision

eight of the modified agreement explained the need for the parties “to look at some finances

and come up with an exact amount.”

¶17. The chancery court also stated that the emails show 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, like, 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-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

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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.”

¶18. 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.

¶19. 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.

¶20. 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].”

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¶21. 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.2 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

2
This Court’s docket text shows that after the contempt hearing, the chancery court
clerk moved to dismiss the case for lack of prosecution on August 21, 2020. On September
2, 2020, the chancery court dismissed the motion. On April 23, 2021, Heather’s attorney
moved for a telephonic status conference. Afterward, the chancery court ruled on Heather’s
petition for contempt against Michael.

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Michael has waived the jurisdictional issue and that his other issues are procedurally barred,

we affirm the chancery court’s contempt order.

DISCUSSION

I. Michael waived the issue of improper service of process.

¶22. Michael argues that the Agreed Order entered on March 9, 2018, was void because

he was not provided proper notice of the November 2017 modification hearing in accordance

with the Mississippi Rule of Civil Procedure 81. Michael also briefly asserts that he was

never properly served for the March 2018 hearing as well and, therefore, the chancery court

did not have personal jurisdiction over him for either hearing. “This Court uses a de novo

standard when reviewing questions concerning jurisdiction.” Pearson v. Browning, 106 So.

3d 845, 847 (¶6) (Miss. Ct. App. 2012) (quoting Sanghi v. Sanghi, 759 So. 2d 1250, 1252

(¶7) (Miss. Ct. App. 2000)).

¶23. A judgment is void if “the court rendering it lacked jurisdiction” or “acted in a manner

inconsistent with due process.” Richard v. Garma-Fernandez, 121 So. 3d 929, 933 (¶19)

(Miss. Ct. App. 2013); Clark v. Clark, 43 So. 3d 496, 501 (¶21) (Miss. Ct. App. 2010);

Overby v. Murray, 569 So. 2d 303, 306 (Miss. 1990). “For a judgment to be valid, the court

must have personal jurisdiction over the parties to the action.” Richard, 121 So. 3d at 933

(¶20). “Personal jurisdiction depends on the presence of reasonable notice to the defendant

and a sufficient connection between the defendant and the forum.” Morrison v. Miss. Dep’t

of Hum. Servs., 863 So. 2d 948, 954 (¶17) (Miss. 2004). “A court obtains personal

jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when

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a defendant is properly served the summons and complaint under Rule 4 of the Mississippi

Rule of Civil Procedure [or] . . . when a defendant voluntarily enters an appearance.” Id. at

(¶21).

¶24. Since this is a matter regarding contempt and “modification or enforcement of

custody, support, and alimony judgments[,]’” M.R.C.P. 81(d)(2), whether Michael was

properly served “is governed by Mississippi Rule of Civil Procedure 81 . . . .” Pearson, 106

So. 3d at 847-48 (¶7); Morrison, 863 So. 2d at 950 (¶7). Mississippi Rule of Civil Procedure

81(d)(5) states:

[S]ummons shall issue commanding the defendant or respondent to appear and
defend at a time and place, either in term time or vacation, at which the same
shall be heard. Said time and place shall be set by special order, general order
or rule of the court. If such action or matter is not heard on the day set for
hearing, it may by order signed on that day be continued to a later day for
hearing without additional summons on the defendant or respondent. The
court may by order or rule authorize its clerk to set such actions or matters for
original hearing and to continue the same for hearing on a later date.

M.R.C.P. 81(d)(5) (emphasis added).

¶25. A Rule 81 summons assists in providing a party due process because it “sets a time

and place for a hearing in court concerning the matters set out in the complaint.” Powell v.

Powell, 644 So. 2d 269, 273 (Miss. 1994); accord Vincent v. Griffin, 872 So. 2d 676, 678

(¶6) (Miss. 2004) (“The fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.”). Hence, the issuance of a Rule 81

summons is mandatory. Sanghi , 759 So. 2d at 1258 (¶36) (citing Powell, 644 So. 2d at 274).

An opposing party’s failure to issue a Rule 81 summons may result in the chancery court

losing its personal jurisdiction. Pearson, 106 So. 3d at 852 (¶39).

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¶26. However, our appellate courts have consistently held that a party may waive the issue

of improper service by appearing before the court at the designated time and failing to object.

Pearson, 106 So. 3d at 852 (¶39); Curry v. Frazier, 119 So. 3d 362, 365 (¶11) (Miss. Ct.

App. 2013) (“All parties were present and waived all objections to defective process by their

appearance.”); Richard, 121 So. 3d at 933 (¶21) (“Personal jurisdiction is also established

when a defendant voluntarily enters an appearance. One waives process and service upon

making a general appearance.” (citation omitted)); Britt v. Orrison, 323 So. 3d 1135, 1148

(¶47) (Miss. Ct. App. 2021) (“[S]ervice of process is waived when there is a failure to raise

an objection.”). Appearance in this context means that the party manifested “a clear intent

to defend the suit.” Sanghi, 759 So. 2d at 1257 (¶34). This intent is sometimes exemplified

by the “informal contacts” made between parties. Id.

¶27. In Chasez v. Chasez, 957 So. 2d 1031, 1037 (¶15) (Miss. Ct. App. 2007), the pro se

defendant Frederick Chasez appeared at the hearing and made “no objection to lack of

notice” after the chancellor asked if there were any issues that needed to be discussed. The

Chasez court determined that Frederick waived the issue when he “appeared and indicated

his willingness to proceed.” Id. at 1033, 1037 (¶¶2, 15).

¶28. We also held in Britt that the chancery court should have heard Britt’s motion for

contempt on the merits, despite the improper service, because the defendant Orrison “waived

any service of process defects” when Orrison’s counsel appeared in court, stated that Orrison

was ready to proceed, and failed to raise the issue of improper service. Britt, 323 So. 3d at

1148 (¶48).

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¶29. Whereas, in Pearson, we held that the defendant Dennis Pearson did not waive the

improper service issue when he was present before the court but “protested his lack of

notice.” Pearson, 106 So. 3d at 851-52 (¶¶33, 38). We stated that unlike the defendant in

Dennis v. Dennis, 824 So. 2d 604, 611 (¶18) (Miss. 2002), who “announced ready at the

beginning of the hearing, defended the allegations against him, and even subpoenaed

witnesses to rebut the allegation[,]” Pearson “continually objected” and declared that had he

been properly notified, he would have appeared with counsel. Id. at 851 (¶¶30, 33).

A. November 8, 2017 Hearing

¶30. In the case here, Heather filed a “Complaint for Contempt and Modification of

Custody and Other Relief” against Michael on December 15, 2016. On February 27, 2017,

Michael was personally served with a copy of the complaint and a summons. The Rule 81

summons notified Michael of the hearing and that it was set for April 12, 2017. On April 7,

2017, Michael answered Heather’s complaint and brought a counterclaim against Heather

for child support, requesting the chancery court to “enter an order directing Heather to

immediately pay Michael past due child support.” On April 11, 2017, Heather moved to

continue the hearing from April 12, 2017, to a later date. The hearing for modification of

custody was held on November 8, 2017. Absent from the record is any order by the chancery

court granting Heather’s continuance or any notice to the parties that the hearing had been

rescheduled, which suggests that Michael was not properly notified of the change of the

hearing’s date. However, as explained further below, we conclude that despite the alleged

lack of notice, Michael’s due process rights were not violated, and in any event, he waived

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the issue of improper service.

¶31. Michael appeared before the court on November 8, 2017. When the chancery court

asked if the memorandum resolved all the issues before the court, Michael answered in the

affirmative. At this time, Michael did not raise an objection to the service of process.

Therefore, in accordance with Britt, Michael waived the issue of improper service of process.

See Britt, 323 So. 3d at 1148 (¶48). Furthermore, much like the defendant in Chasez,

Michael announced to the court that all his issues had been resolved.

B. March 20, 2019 Hearing3

¶32. For the same reason, Michael’s argument that the chancery court lacked personal

jurisdiction over him during the March 20, 2019 contempt hearing lacks merit. Michael

consented to the chancery court’s jurisdiction when he filed a counter-claim on April 7, 2017,

and when he appeared in court to defend the contempt proceedings on March 20, 2019.

Similarly to the pro se defendant in Chasez but unlike the plaintiff in Pearson, Michael did

not raise the lack-of-service issue before the chancellor. Michael also had a full opportunity

to defend himself and be heard. Michael clearly indicated a willingness to proceed by asking

Heather questions while acting as a pro se litigant; he testified from the witness stand; orally

moved and argued motions before the trial court; and the chancellor allowed him to engage

in surrebuttal. Michael appeared and manifested a clear intent to defend the suit.

¶33. Under these circumstances, we conclude that Michael’s actions showed that he waived

3
Michael states in his brief, “Harrison was never properly summoned to the
November 2017 event/hearing, nor the March 2018 hearing.” This statement is not accurate.
The record reflects a March 20, 2019 hearing, and we will address the chancery court’s
personal jurisdiction over Michael relative to that hearing.

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his right to object to insufficient service and consented to the court’s exercise of personal

jurisdiction over him at both hearings. Accordingly, the chancery court had personal

jurisdiction over Michael when it entered the Agreed Order. Based on the record, Michael

was notified that the hearings would take place, and when he appeared before the court on

both dates, he failed to object. Michael waived any issue he had with Rule 81 and was

afforded due process.

II. Michael’s remaining issues are procedurally barred.

A. Validity of the March 9, 2018 Agreed Order

¶34. A year after the entry of the Agreed Order, on March 8, 2019, Michael pled that the

order was an “invalid agreement” entered into without his consent. During the contempt

hearing on March 20, 2019, Michael made an oral motion pursuant to Mississippi Rule of

Civil Procedure 60(b)(4), asserting that the Agreed Order was void because he did not

consent to the Agreed Order or receive a copy of it. The chancery court found that the

Agreed Order was valid but noted “that there was a difference of $597.20 in the amount that

both parties indicated was owed on the arrearage.” As a result, the chancery court denied

Michael’s motion. The chancery court ruled that the provision of the Agreed Order that was

subject to disagreement as to the amount of children’s expenses that were owed (the

$597.20), could be taken into consideration, but as to the remaining provisions of the

judgment, the Court would hold that the order was valid. After the hearing, the chancery

court entered its “Findings of Fact, Conclusions of Law, and Judgment.”

¶35. Again, Michael argues that the Agreed Order was void because of (1) his lack of

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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 (¶14) (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.

¶36. 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 (¶23) (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 (¶13) (Miss. 2013) (quoting Riley v. Wiggins, 908 So. 2d 893, 899 (¶15)

(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

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parties, is a judgment . . . . It thus has greater finality than a compact.” Riley, 908 So. 2d at

899 (¶15).

¶37. 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.”).

¶38. “An agreed order, or consent judgment, is essentially a contract . . . .” McNeese v, 129

So. 3d at 130 (¶13); accord Riley, 908 So. 2d at 899 (¶15) (“[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 (¶22) (Miss. Ct. App. 2015).

¶39. 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 (¶20) (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

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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.

¶40. 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 (¶25) (Miss. Ct. App. 2002). In McDonald, the chancery

court entered the agreed order without Mr. McDonald’s signature. Id. at 1188 (¶22). 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. at (¶25). 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

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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.

¶41. We next address Michael’s assertion that he did not agree with the terms of the

Agreed Order. This issue is not supported by the record. At the November 8, 2017 hearing,

Michael told the chancery judge that there were no other issues for the court to resolve. After

the chancery court entered the Agreed Order on March 9, 2018, Michael did not alert the

chancery court to any disagreements or oppositions to the Agreed Order. Michael did not

alert the chancery court to any concerns with the Agreed Order until he responded to

Heather’s complaint for contempt.

¶42. The chancery court addressed the alleged discrepancy during the March 20, 2019

contempt hearing and concluded that the disagreement rested on a difference of $597.20

(voiding or setting aside the previous provision in the Agreed Order). The chancery court

corrected the error by reducing Michael’s amount owed by $597.20. The discrepancy in the

amount owed is a factual determination and not a matter of law. Again, Michael was given

an opportunity to defend himself and cross-examine Heather and address the court. Based

on these facts, we find that any contention by Michael that the Agreed Order was void is now

moot as Michael conceded that there were no other issues to resolve.

¶43. In conclusion, we hold that because the Agreed Order was voidable but not void,

Mississippi Rule of Civil Procedure 60(b)(4) is inapplicable. Therefore, Michael’s appeal

is untimely and his failure to appeal the voidable order created a procedural bar. Any

argument regarding the Agreed Order’s lack of signature or Michael’s disagreement with

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its terms is hereby waived.

B. Termination of Child Support

¶44. 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.

¶45. “It is well settled that issues not raised below may not be raised on appeal.” Austin v.

State, 971 So. 2d 1286, 1288 (¶8) (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 (¶12) (Miss. Ct. App. 2013) (citing Wilburn v. Wilburn,

991 So. 2d 1185, 1191 (¶14) (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 (¶12) (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.

CONCLUSION

¶46. For the reasons stated above, we affirm the chancellor’s Findings of Fact, Conclusion

of Law, and Judgment finding Michael Harrison in contempt.

¶47. AFFIRMED.

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BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD, LAWRENCE
AND SMITH, JJ., CONCUR. WILSON, P.J., McCARTY AND EMFINGER, JJ.,
CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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