Robert Stuart Cole v. Carrie Ann Fish

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-00508-COA

ROBERT STUART COLE APPELLANT

v.

CARRIE ANN FISH APPELLEE

DATE OF JUDGMENT: 02/27/2024
TRIAL JUDGE: HON. JAMES B. PERSONS
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: MARK A. CHINN
JANEAH RAY SAKALAUKUS
ATTORNEY FOR APPELLEE: GAIL D. NICHOLSON
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 08/26/2025
MOTION FOR REHEARING FILED:

CONSOLIDATED WITH

NO. 2024-CA-00778-COA

ROBERT STUART COLE APPELLANT

v.

CARRIE ANN FISH APPELLEE

DATE OF JUDGMENT: 06/11/2024
TRIAL JUDGE: HON. JAMES B. PERSONS
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: MARK A. CHINN
JANEAH RAY SAKALAUKUS
ATTORNEY FOR APPELLEE: GAIL D. NICHOLSON
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND RENDERED - 08/26/2025
MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., McCARTY AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. Robert Stuart Cole and Carrie Ann Fish were granted a divorce on the ground of

irreconcilable differences in 2017. In 2024, Fish filed a complaint asking the court to find

Cole in contempt for failing to abide by the terms of the divorce. The chancery court ruled

on Fish’s petition by entering two separate orders. One order dated February 27, 2024,

addressed issues of contempt and attorney’s fees, while another order dated June 11, 2024,

addressed the enforcement of a purported escalation clause relative to child support contained

in the child custody and property settlement agreement, which had been incorporated into the

judgment of divorce.1 On appeal, Cole challenges the chancellor’s enforcement of the

purported child support escalation clause, the increase in his child support obligation, and the

award of attorney’s fees owed to Fish.

FACTS AND PROCEDURAL HISTORY

¶2. Cole and Fish were married on October 29, 2006. During their marriage, the parties

had two children, a daughter born in 2007 and a son born in 2010. The parties were divorced

on April 5, 2017. The judgment of divorce incorporated a child custody and property

settlement agreement (PSA), which provided for the minor children’s needs and monetary

support.

¶3. On February 6, 2024, Fish filed an amended complaint that alleged Cole was in

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Cole is challenging portions of the chancellor’s rulings in both the February 27 and
June 11 orders. Because both orders derived from a single hearing, the appeals have been
consolidated.

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contempt for his (1) failure to pay his child support via direct deposit in a timely fashion; (2)

failure to provide Fish with his federal tax returns each year in the time frame set forth in the

judgment; (3) failure to increase child support payments pursuant to the escalation clause

within the judgment of divorce; (4) failure to obtain and maintain a life insurance policy; and

(5) improperly claiming one of the minor children for tax purposes. Fish also requested that

she be reimbursed for attorney’s fees and costs associated with litigating the contempt action.

¶4. Ultimately, two orders were entered disposing of all Fish’s issues. In the order dated

February 27, 2024, the court held Cole in contempt for (1) failing to obtain and maintain a

life insurance policy; (2) failing to set up direct deposits for child support payments; (3)

failing to timely produce his tax returns; and (4) claiming one of the minor children on his

2022 tax return. As a result of Cole’s contempt, the court ordered him to reimburse Fish for

her attorney’s fees in the amount of $9,213.00. Further, the court ordered Cole to pay Fish

$500 toward her CPA fees to amend her tax filings to correct problems arising as a result of

Cole claiming the minor child on his taxes. The court held that a judgment on the escalation

clause in the parties’ original agreement would be reserved for a separate ruling. Cole filed

a “Motion to Alter or Amend Judgment or for a New Trial” on March 8, 2024, which the

court denied on April 17, 2024. Cole filed a notice of appeal on April 30, 2024.

¶5. In a second order dated June 11, 2024, the chancery court found that the escalation

clause in the parties’ PSA concerning Cole’s child support payment was “free from

ambiguity” and therefore enforceable. As such, the court held that Cole’s monthly child

support payment should be increased to $4,099.65 per month. Further, Cole was ordered to

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pay Fish $599.65 for each of the ten months leading up to the trial date, for a total arrearage

of $5,996.50. The court declined to award Fish attorney fees for the action involving the

escalation clause because the court found that Cole’s claim “was not frivolous with no hope

of success.” Cole filed his notice of appeal on July 8, 2024. On July 23, 2024, the Mississippi

Supreme Court entered an order consolidating Cole’s two appeals. Cole raises three issues

on appeal, which we will address separately below.

STANDARD OF REVIEW

¶6. In Caplinger v. Caplinger, 108 So. 3d 992, 995 (¶6) (Miss. Ct. App. 2013), this Court

stated:

“Chancellors are afforded wide latitude in fashioning equitable remedies in
domestic relations matters, and their decisions will not be reversed if the
findings of fact are supported by substantial credible evidence in the record.”
Henderson v. Henderson, 757 So. 2d 285, 289 (¶19) (Miss. 2000) (citation
omitted). This Court will not “interfere with the chancellor’s findings of fact
unless they were manifestly wrong, clearly erroneous, or an erroneous legal
standard was applied.” Tucker v. Prisock, 791 So. 2d 190, 192 (¶10) (Miss.
2001) (citation omitted). However, the chancellor’s application of the law is
reviewed under a de novo standard. Id.

ANALYSIS

I. Did the chancellor err by enforcing the child support escalation
clause?

¶7. The parties’ PSA contained a section entitled “Child Support and Taxes.” This section

included the following provision:

Husband is to pay child support to Wife in the amount of $3,500.00 per month.
Child support shall be due on the 20th day of the first month following entry
of this Judgment of Divorce by direct deposit and continue every month
thereafter. Husband will present a complete copy of his federal tax return each
year on or before April 30th and child support will be increased if

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appropriate based upon statutory guidelines.

(Emphasis added). As part of Fish’s amended complaint, she claimed that Cole “has

steadfastly refused to provide a complete copy of his federal tax return each year on or before

April 30th and only did so in recent weeks.” She also claimed that Cole “has refused to make

the adjustment to child support as required by the terms of the judgment of divorce.” In his

answer, Cole claimed that the provision in their agreement concerning increased child

support lacked the specificity required for a valid escalation clause and was therefore not

enforceable.

¶8. In a judgment dated June 11, 2024, the chancery court reasoned that “Robert [Cole]

was familiar and knowledgeable of the Mississippi child support guidelines at the time of the

divorce and PSA to which he agreed.” The chancellor stated that Cole’s original child

support payment in the agreement “closely approximates” twenty percent of his monthly

income pursuant to the statutory guidelines. Finally, the chancellor stated that Cole’s prior

2019 complaint for modification did not challenge the validity or interpretation of the

escalation clause but, rather, requested that his child support be modified and determined by

the child support guidelines. Ultimately, for these reasons, the chancellor held in part:

[T]he escalation clause does not lack specificity so that it is rendered
unenforceable. The escalation clause is unambiguous in stating the parties[’]
intent that Robert’s child support obligation would be calculated based on the
statutory guidelines in recognition of the cost increases that would occur in
raising children, particularly as they enter their teenage years.

¶9. In Short v. Short, 131 So. 3d 1149, 1153 (¶12) (Miss. 2014), the Mississippi Supreme

Court explained, “This Court’s evolving interpretation on including escalation clauses in

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child-support agreements breaks ground in Tedford v. Dempsey, [437 So. 2d 410, 419 (Miss.

1983),] in which we explained that escalation clauses could save parties from the distress that

accompanies support-modification proceedings.” More specifically, in Tedford, the supreme

court held:

In the child support provisions of their separation agreements, the parties
generally ought to be required to include escalation clauses tied to the parents’
earnings or to the annual inflation rate or to some factored combination of the
two. Though under the structure of the irreconcilable differences statute
freedom of contract is exalted, there are limits. The statute requires that the
chancellor find that “the parties have made adequate and sufficient provisions
by written agreement for the custody and maintenance of any children. . . .”
Miss. Code Ann. § 93-5-2 (Supp. 1982). The chancellor thus has the power
and the responsibility, in the face of the reasonably forseeable, to require some
sort of reasonable escalation clause tailored to the situation of the parties.
Absent unusual circumstances that might render it inequitable, such a clause
ought be in every child support agreement. This practice would have the twin
virtues of more adequate and timely support for children and less frequent
modification litigation.

Id. (footnotes omitted). While an escalation clause within a property settlement agreement

may be preferred, it does not escape the scrutiny of contract review. West v. West, 891 So.

2d 203, 210 (¶13) (Miss. 2004). The supreme court has consistently held:

“[P]roperty settlement agreements are contractual obligations.” In re Estate of
Hodges, 807 So. 2d 438, 442 (Miss. 2002). The provisions of a property
settlement agreement executed prior to the dissolution of marriage must be
interpreted by courts as any other contract. Id. at 445. In East v. East, 493 So.
2d 927, 931-32 (Miss. 1986), we held “[a] true and genuine property
settlement agreement is no different from any other contract, and the mere fact
that it is between a divorcing husband and wife, and incorporated in a divorce
decree, does not change its character.

Id. When a dispute arises concerning the terms of a property settlement agreement, the court

has delineated a three-tiered process for the purpose of interpretation. Id. at (¶14).

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First, we look to the “four corners” of the agreement and review the actual
language the parties used in their agreement. [Pursue Energy Corp. v. Perkins,
558 So. 2d 349, 351 (Miss. 1990).] When the language of the contract is clear
or unambiguous, we must effectuate the parties’ intent. Id. However, if the
language of the contract is not so clear, we will, if possible, “harmonize the
provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’
intent remains uncertain, we may discretionarily employ canons of contract
construction. Id. at 352-53 (citing numerous cases delineating various canons
of contract construction employed in Mississippi). Finally, we may also
consider parol or extrinsic evidence if necessary. Id. at 353.

Id. at 210-11 (¶14).

¶10. In the case at hand, the disputed portion of the parties’ agreement stated in part that

“child support will be increased if appropriate based upon statutory guidelines.”2 While

Mississippi Code Annotated section 43-19-101(1) (Rev. 2023) sets forth specific percentages

for awarding child support, section 43-19-101(4) states:

In cases in which the adjusted gross income as defined in this section is more
than One Hundred Thousand Dollars ($100,000.00) or less than Ten Thousand
Dollars ($10,000.00), the court shall make a written finding in the record as
to whether or not the application of the guidelines established in this section
is reasonable. The court shall take into account the basic subsistence needs of
the obligated parent who has a limited ability to pay.

(Emphasis added).

¶11. It is clear from both parties’ trial testimony, as well as statements made by the

chancellor in pretrial motion hearings, that there were different interpretations of this broadly

sweeping clause in the parties’ agreement. When Cole’s attorney attempted to question Fish

about her understanding of the statutory child support guidelines for two children, Fish’s

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The dissent suggests that it is clear that if Cole’s income increased, “his child
support payments would increase in accordance with the statutory guidelines.” We disagree.
The use of the phrase “if appropriate” leaves open the question of who determines whether
an increase in child support is “appropriate” based solely upon an increase in Cole’s income.

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attorney objected, stating, “That is a legal question. The statute – lawyers and judges have

trouble figuring out what the statute says, much less . . . .” Although Fish did ultimately

testify that she was aware the percentage used to calculate the support for two children was

twenty percent, the percentage of monthly income may not be the sole factor for

consideration when determining child support payments. This is specifically true in cases like

the one at hand, where the paying spouse earns over $100,000 per year. See Miss. Code Ann.

§ 43-19-101(4). Fish’s attorney stated multiple times that the child support guidelines, which

are based on a percentage of income, is not the sole determinant of the amount of child

support, but, rather, the court has the authority to require less or more than twenty percent

based on the facts before it. Prior to trial, when the chancellor was presented with the

language from the parties’ agreement, he stated that he was “not sure what ‘if appropriate’

means. It’s a modification.” Cole maintained that he believed $3,500 per month was more

than sufficient to provide for two children and remain in compliance with the child support

guidelines. Cole further argued throughout the trial that the escalation clause lacked

specificity by not giving any parameters on when or by how much the support should be

increased. The agreement was silent as to a specific controlling percentage of income that

was appropriate, whether an increase was contingent on an annual bonus, or if there should

be an increase tied to the annual inflation rate. Before this appeal, Cole was never required

to pay (nor voluntarily paid) any amount over the $3,500 originally agreed to in the PSA.

There is no evidence in the record that the parties ever reached a meeting of the minds as to

the interpretation of the child support escalation provision.

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¶12. In furtherance of her argument on appeal, Fish claims that Cole’s appeal is barred by

the doctrine of res judicata. However, Fish raises this defense for the first time on appeal and

is therefore barred from raising it because it was not properly pled. Wholey v. Cal-Maine

Foods Inc., 530 So. 2d 136, 138 (Miss. 1988). In the alternative, Fish relies on Stigler v.

Stigler, 48 So. 3d 547 (Miss. Ct. App. 2010), to further her argument that the escalation

clause is clear and unambiguous. However, the escalation clause in Stigler gave the parties

more direction as to how the payor’s child support should be increased. Id. at 550 (¶3). The

clause in Stigler stated in part:

During this calendar year and each calendar year hereafter, should [the]
Husband’s bonus place the aggregate of [the] Husband’s adjusted gross
income in excess of the minimum guidelines for child support in effect in the
State of Mississippi, the Husband shall pay that amount necessary to bring his
child support payments $3,600.00 in excess of the minimum amount of child
support as provided by the guidelines then [in] effect for the State of
Mississippi based on the Husband’s annual income for that year.

Id. Fish also cites Short v. Short, 131 So. 3d 1149 (Miss. 2014). However, Short is also

distinguishable from the case at hand. The escalation clause in Short stated in part:

Andy would pay child support in the amount of $50,000 per year until the child
began kindergarten; thereafter, he would pay fifteen percent of his adjusted
gross income (AGI), never to fall below $36,000 per year.

Id. at 1151 (¶1). Because the parties in the case at hand had no clarifying features in their

agreement similar to those in Stigler and Short, and since the parties clearly do not share the

same interpretation of the escalation clause, we find that the clause is ambiguous and

therefore unenforceable.3

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“A contract is unenforceable if the material terms are not sufficiently definite.”
Rotenberry v. Hooker, 864 So. 2d 266, 270 (¶13) (Miss. 2003).

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II. Did the chancellor err by increasing the amount of child support
based on the escalation clause?

¶13. After finding that the escalation clause was enforceable, the chancellor proceeded to

recalculate Cole’s child support obligation going forward based on his income information

and, relying on that figure, determined a specific arrearage amount owed to Fish for the

months leading up to the trial. Because we find that the escalation clause was unenforceable,

we find that the chancellor erred in adjusting Cole’s child support obligation and ordering

arrearage payments for the months prior to trial.

III. Did the chancellor err as to the amount of the award of attorney’s
fees?

¶14. Cole argues on appeal that the chancellor erred in awarding Fish $9,213 in attorney’s

fees. Cole claims the attorney’s fees not only were not separated and apportioned correctly

between the contempt matter and the escalation clause matter, but they were excessive. In the

contempt order dated February 27, 2024, the chancellor ordered “that the Defendant, Robert

Stuart Cole, due to his contempt, shall pay the Plaintiff, Carrie Ann Fish, $9,213 toward her

attorney fees and costs on or before March 22, 2024.” In the order dated June 11, 2024,

regarding the escalation clause, the chancellor ordered, “The Court declines to award Carrie

Ann her attorney fees for this action involving the escalation clause, finding that Robert’s

claim was not frivolous with no hope of success.”

¶15. At trial, Fish’s attorney submitted an invoice for attorney’s fees, which was introduced

as Exhibit 9. Pursuant to the invoice, the total amount incurred and charged was $9,213. The

invoice does not distinguish which charges were incurred for the contempt matter versus the

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escalation clause matter, instead suggesting that the total amount charged covered both. As

a result, despite the chancellor’s statement that Fish’s request for her attorney’s fees in the

escalation clause matter was denied, Cole, in fact, had already been ordered to pay all of

Fish’s fees in their entirety in the previous order.

¶16. In Shumake v. Shumake, 233 So. 3d 234, 240-41 (¶21) (Miss. 2017), the Mississippi

Supreme Court upheld the decision in Tidmore v. Tidmore, 114 So. 3d 753, 759 (¶14) (Miss.

Ct. App. 2013), in which this Court “reversed the chancellor’s award of attorney fees in a

successful contempt action because the chancellor had awarded the full amount of the

attorney fee bill without subtracting the fees attributable to a child support modification

action.” Shumake, 233 So. 3d at 240 (¶21). The court further held that “[g]iven the differing

standards for awarding attorney fees in a contempt action and in a modification action, Mr.

Shumake is correct that the chancellor erred by failing to subtract the amount of attorney’s

fees Ms. Shumake incurred in defending the motion to modify alimony.” Id. at 241 (¶22).

Similarly, in the case at hand, Cole was ordered to pay all Fish’s attorney’s fees with no

distinction between the fees attributable to the contempt matter and those attributable to the

escalation clause matter. Therefore, we find that the chancellor erred in ordering Cole to pay

Fish’s attorney’s fees in their entirety pursuant to the invoice introduced as Exhibit 9.

CONCLUSION

¶17. After reviewing the record, we reverse the chancellor’s February 27, 2024 order

regarding attorney’s fees and remand for a determination of what portion of the attorney’s

fees were incurred for Fish’s representation in the contempt matter and what portion of fees

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were incurred for Fish’s representation in the escalation clause matter. Until an

apportionment of fees is completed, any questions regarding their alleged excessiveness are

premature. We reverse the chancellor’s June 11, 2024 order regarding the escalation clause

and render judgment finding the escalation clause unenforceable.

¶18. APPEAL NO. 2024-CA-00508-COA: REVERSED AND REMANDED.
APPEAL NO. 2024-CA-00778-COA: REVERSED AND RENDERED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McCARTY AND WEDDLE,
JJ., CONCUR. LAWRENCE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS, McDONALD AND LASSITTER ST. PÉ, JJ.

LAWRENCE, J., DISSENTING:

¶19. I respectfully dissent from the majority’s opinion holding that the escalation clause

within the parties’ agreed child custody and property settlement agreement (PSA) is

ambiguous and, therefore, unenforceable. The relevant provision required Cole to provide

his federal tax returns each year for a determination of whether his income increased. If his

income had increased, then according to the clause, his child support payments would

increase in accordance with the statutory guidelines. That seems clear and straightforward

to me.

¶20. The chancellor found that Cole “was familiar and knowledgeable of the Mississippi

child support guidelines at the time of the divorce and PSA to which he agreed.” The

chancellor also found that Cole’s previous complaint for modification did not challenge the

escalation clause. The lack of any prior objection by Cole undermines his claim that the terms

lacked the specificity required for a valid escalation clause and further supports the

conclusion that the clause was enforceable. The first time Cole objected to the clause that he

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and his lawyer approved occurred after Fish filed her complaint for contempt and

enforcement of the provision of the judgment of divorce that included the PSA. As the

majority correctly stated, this Court will not “interfere with the chancellor’s finding of fact

unless they were manifestly wrong, clearly erroneous, or an erroneous legal standard was

applied.” Tucker v. Prisock, 791 So. 2d 190, 192 (¶10) (Miss. 2001) (internal quotation mark

omitted) (quoting Bell v. Parker, 563 So. 2d 594, 596-97 (Miss. 1990)). Accordingly, I would

affirm the decision of the chancellor. Therefore, I respectfully dissent.

WESTBROOKS, McDONALD AND LASSITTER ST. PÉ, JJ., JOIN THIS
OPINION.

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