Katherine Brown v. Jim Brown

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00416-COA

KATHERINE BROWN APPELLANT

v.

JIM BROWN APPELLEE

DATE OF JUDGMENT: 03/25/2020
TRIAL JUDGE: HON. PAULA DRUNGOLE-ELLIS
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: RICHARD SHANE McLAUGHLIN
JAK McGEE SMITH
ATTORNEY FOR APPELLEE: J. DOUGLAS FORD
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 10/05/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

McDONALD, J., FOR THE COURT:

¶1. Katherine Brown appeals the Oktibbeha County Chancery Court’s decisions on her

two motions for contempt, for enforcement of a divorce judgment and property settlement

agreement, and for attorney’s fees. Katherine contends that the chancery court erred by

declining to address the distribution of the parties’ personal property, and in finding

Katherine as well as her ex-husband, Jim Brown, in contempt. After a review of the record

and relevant precedent, we affirm the chancery court’s decisions.

Facts
¶2. Jim and Katherine were married on July 1, 1995. They had three daughters and a son.1

At the beginning of the marriage, Katherine worked as a teacher while Jim completed

medical school. Thereafter, Katherine became a stay-at-home mom. Along with his medical

practice, Jim also created several businesses of substantial value. The parties also had

retirement accounts, life insurance policies, and personal property.

Divorce Proceedings

¶3. On December 8, 2014, Katherine filed for divorce, alleging as grounds constructive

desertion, habitual cruel and inhuman treatment, and irreconcilable differences. Jim

answered the complaint, on April 30, 2015, and later, he counterclaimed for custody of the

children. There ensued a highly litigious two-and-a-half years of extensive discovery, several

motions hearings and temporary orders, and an unsuccessful court-ordered mediation.

¶4. Ultimately, on October 5, 2017, the parties filed a joint motion to dismiss the fault-

based grounds of their pleadings and consented to the entry of a judgment of divorce due to

their irreconcilable differences. That same day, the chancery court entered an agreed order

dismissing the fault grounds and granting a final judgment of divorce. The divorce judgment

stated that the parties had, by written agreement, adequately and sufficiently provided for the

custody and maintenance of the minor children and the settlement of the parties’ property

rights.

¶5. Incorporated into the final judgment was the parties’ detailed, thirteen-page, single-

1
To protect their privacy, the children are referred to by their initials. At the time of
the divorce in October 2017, daughter ERB was 17, son JBB was 15, daughter MMB was
12, and daughter KGB was 11.

2
spaced “Property Settlement, Child Custody and Support Agreement” (PSCCSA). By its

terms, the parties shared joint legal and physical custody of the minor children, with

Katherine receiving physical custody during the first half of the month, and Jim during the

second. The agreement contained numerous provisions concerning interactions of the parties

with the children, child support, and division of the parties’ assets, largely with lump-sum

payments being made by Jim to Katherine and with the exchange of deeds to real property.

Specific items of personal property were named and divided in the agreement (jewelry, a bass

boat, guns, and dogs). Remaining items were covered in Section 3.5(f) of the agreement,

“other personalty,” which read as follows:

Within thirty (30) days of entry of the Final Judgment, the parties shall create
a global list of all tangible items of marital personalty. The parties then shall
divide so much of the items as they can agree upon. Once the items are
divided, the parties shall then make a good faith effort to divide the remaining
disputed items. If the parties cannot resolve the disputed items within sixty
(60) days of entry of the Final Judgment, either party may seek assistance from
the Oktibbeha County Chancery Court. Until all tangible items of marital
personalty are divided by agreement or otherwise resolved, neither party shall
move, transfer, destroy, damage, conceal, sell, assign or change any such item.

Thus, according to the agreement, the parties had sixty days to amicably divide the remaining

items of personal property. If they could not, then either party could seek the court’s

assistance. Until the final division was made, all disputed items would remain in the family

home, of which Jim was given possession per the agreement.

¶6. Thereafter, counsel for the parties exchanged lists of the items the parties claimed as

heirlooms or gifts, and lists of the remaining disputed marital personal property. Some

headway was made with both Katherine and Jim conceding on a number of items. However,

3
negotiations stalled and by an email on October 12, 2017, Katherine’s counsel said, “We are

through with the back and forth lists. We need to get a hearing date to address the

personalty.” But Katherine did not seek the court’s assistance until seven months later.

During that time, the record reflects that the parties were able to divide a number of items

that were delivered to Katherine.

First Contempt Action

¶7. On May 9, 2018, Katherine filed a verified petition for contempt against Jim. She

alleged that Jim had violated the final judgment in numerous ways with respect to the

children that interfered with her relationship with them and deliberately deprived her of her

scheduled custodial times. For example, she claimed that she had not had custody of her

eldest daughter from November 2017 through May 2018, except for one hour at Christmas.

She also alleged that Jim had refused to divide 169 items of marital personal property or

transfer an additional 97 items that Katherine claimed as gifts and heirlooms. She sought,

among other things, modification of the custody arrangement, an order limiting Jim’s

communication with the children while they are in her custody, the court’s instructions that

Jim transfer her personal property, and reimbursement of her attorney’s fees.

¶8. Jim responded that Katherine’s contempt action was barred by the doctrine of unclean

hands in that Katherine, herself, had violated the divorce judgment. He further said that the

two older children, ERB and JBB, had chosen to live with him. Despite this, Jim said he

continued to pay Katherine the full amount of child support ordered. According to Jim, the

best interests of all the children would be served if he were given full physical custody. Jim

4
claimed that Katherine had refused to cooperate in the allocation of the marital personal

property and that the list of items she attached to her motion was incorrect. Jim

counterclaimed for contempt against Katherine and for modification of the custody and child-

support orders.

Hearing on First Motion for Contempt

¶9. The chancery court heard Katherine’s motion and Jim’s counterclaim on August 20,

2018 and November 8, 2018.

A. August 20, 2008 Proceedings.

1. Marital Personal Property Division

¶10. Prior to presenting any testimony, Katherine’s attorney told the court that the parties

had agreed on the issue of the division of the marital property. Katherine’s attorney informed

the court as follows:

MR. SMITH: Well, we have agreed also, Judge, as to the items of
marital property, and we have a very detailed list -- I
have got one right here -- of all of the marital property
that everyone concedes is marital property. What we
have agreed to do is, Dr. Brown and my client are going
to add anything to this list that they know of that is
marital property at my client’s house or Dr. Brown’s
that’s not on the list. Dr. Brown and my client are going
to go through this list; and if anything is missing off of
this list, that is, it’s on the list but it’s not in the homes,
it’s missing, AWOL, whatever you want to call it, Dr.
Brown and his attorney are going to mark on here what
is missing. And we’ll do the same. If we know something
is missing, we’ll put it on here. And my client will put all
of the property that’s at her house -- if it’s not on this list
already, she will put it and add it to this list.

And then at an appropriate date that we’ll select, Mr.

5
Ford and I will get together with the clients, flip a coin,
whoever wins the toss gets the first pick of the marital
property, and it will -- we'll have some different colored
highlighters, and we can just mark it as they pick it until
it’s all gone. And then we can come back to the Court --
if there’s any problem of things missing of any
substance, we’ll come back to the Court and try to get
those few items resolved.

And then we’re going to put on proof today about the
gifts and inheritances. And whatever the Court says is a
gift or inheritance, it will be a gift or inheritance. We can
arrange a time to exchange that, and then –

THE COURT: If I make a decision, I will give you the time and place
that that’s going to be done.

MR. SMITH: Thank you. I appreciate it.

THE COURT: You’re giving it to me. You’re giving it to me to decide.

MR. SMITH: Yes, ma’am.

THE COURT: I will decide everything about it.

MR. SMITH: Great.

THE COURT: Okay. If we get through today, it might be today.

MR. SMITH: Yes, ma’am. Okay. Then if it’s not a gift or inheritance,
that will then fall onto the list of marital property if it’s
not already on there --

THE COURT: All right.

MR. SMITH: -- and we can go from there.

Although Katherine had attached lists of property to her contempt petition, no lists of either

the agreed-upon marital property or the disputed inherited/gifted property were entered into

6
the record or submitted to the court.

2. Testimony Relating to Issues with the Children

¶11. Testimony from Katherine, Jim, and three of the children ensued on the other issues

raised by the parties in the motion for contempt and response on issues relating to the

children. It was established that ERB and JBB had been living exclusively with Jim. JBB

testified to trust issues he had with Katherine. Katherine presented her version of various

incidents concerning the children. A more extensive recitation of the testimony is not

necessary to resolve the issues on appeal. The parties did not complete testimony and the

hearing was continued to a later date.

B. November 8, 2018 Proceedings

1. Testimony Relating to Issues with the Children

¶12. The hearing on Katherine’s case-in-chief continued on November 8, 2018, with

testimony from the eldest child, Jim, and Katherine. Their testimony concerned the parties’

interaction with the children and incidents relating to them. ERB testified about her

relationship with Katherine and why she left to stay with Jim.

2. Marital Personal Property Division

¶13. At the end of the hearing, the chancery court inquired about the division of the

property. The attorneys reported that they had two lists, one of the claimed inherited/gifted

items which they had whittled down to fifty items, and the other with the rest of the marital

property. As they had previously told the court, the attorneys said that the parties were going

to flip a coin and alternately choose from the final list of marital property. The chancery

7
court required the parties to submit, by November 15, 2018, any proof that either party had

on the inherited/gifted items, but they were to proceed with the coin toss and division of the

agreed-upon marital property immediately.

Post-Hearing Meeting of the Parties

¶14. After the hearing, the parties met at Jim’s attorney’s office on November 15, 2018,

to choose among the agreed-upon items of personal marital property with the party winning

the coin toss being the first to choose. According to Jim’s attorney, before the coin toss,

Katherine declared that she wanted the “blue dishes.” When she was told that the parties

needed to flip the coin first, Katherine refused and left the office with no resolution of the

personal property being accomplished. Additionally, the record does not reflect that either

party submitted any information to the chancery court on the disputed inherited/gifted items

by the November 15th deadline that the court set.

Chancery Court Orders

¶15. On November 30, 2018, the chancery court entered an order stating that after hearing

testimony for two days that concentrated on issues regarding the children, the court had

learned that the parties had not divided the personal marital property as previously ordered.

The court held in abeyance any ruling on the contempt motion and said it would set aside the

divorce judgment if the parties did not resolve the personal-property issues by December 10,

2018.

Jim’s December 7, 2018 Motion for Reconsideration

¶16. As set forth in the property settlement agreement, the deadline for the parties to seek

8
the court’s assistance about the division of the marital property expired on December 5, 2017

(sixty days from the October 5, 2017 divorce decree). On December 7, 2018, Jim filed a

motion for reconsideration of the court’s November 30, 2018 order, asking the court to rule

that Katherine had waived her right to any of the personal marital property by her refusal to

abide by the parties’ agreement for dividing the property. Jim recounted the parties’ meeting

on November 15, and how Katherine refused to flip the coin and left. On December 10,

2018, Katherine filed her own motion in response to the November 30, 2018 order, asking

the Court to extend the time for dividing the personal property to December 17, 2018.2

¶17. Katherine did not file a response to Jim’s motion for reconsideration. But during a

later oral argument, Katherine’s counsel represented to the court that when they went to

divide the property, Jim and his counsel were willing to give Katherine some gifts from her

mother and grandmother. However, they refused to talk about other gifts and inheritances.

Katherine’s counsel admitted that Katherine became angry and left the meeting.

Chancery Court’s December 21, 2018 Order

¶18. On December 21, 2018, the chancery court withdrew its November 30, 2018 order and

entered an opinion and final judgment. In footnote one of its opinion, the chancery court said

that it would not address any issues regarding personal property because “if it had been

informed that there were outstanding personal property issues, the [c]ourt would not have

signed the Final Judgment of Divorce.”

2
According to the docket, Katherine never pursued this motion. Moreover, Jim
responded to the motion, alleging untimeliness under Mississippi Rule of Civil Procedure
59(e).

9
¶19. Moving on to deal with the issues of custody and child support, the chancery court

found that there was no credible evidence that Katherine had done anything that was not in

the best interest of the children. Nor was there any credible evidence of any erratic behavior

on Katherine’s part. On Jim’s part, the chancery court found it astonishing that after an

argument with her mother, Jim allowed the oldest daughter to leave Katherine’s home and

permanently reside with him, depriving Katherine of her court-ordered periods of custody

with the daughter. The chancery court was also concerned about Jim’s telling JBB that he

did not have to visit with Katherine if JBB did not want to. This son also had been living

permanently with Jim in violation of the divorce decree. After observing JBB’s behavior,

the court also encouraged the parties to seek counseling for him. Applying the legal

standards for modifying a divorce judgment to change custody of children, the chancery court

found that neither of the parties had met their burden to prove a material change in

circumstances that adversely affected the children that would compel the court to take the

“jolting, traumatic” action of changing custody. The chancery court further found that both

parties were in contempt of the divorce judgment, and denied attorney’s fees.

Katherine’s Post-Hearing Filings

¶20. On January 2, 2019, Katherine filed a motion to alter or amend the December 21, 2018

judgment. She contended that the chancery court specifically found that Jim had violated

numerous provisions of the divorce judgment and found that there was no proof that

Katherine had done anything not in the best interest of the children, nor had Katherine acted

erratically. Katherine argued that the chancery court made no finding to support its

10
conclusion that “both parties” were in contempt. Accordingly, Katherine argued that she was

entitled to payment of her attorney’s fees. Katherine requested that she be given custody of

the three younger children, or at least that the court should enforce the judgment that gives

her custody of all the children for half of each month. Katherine also sought a court order,

and not just a recommendation, that JBB undergo counseling, and that Katherine be allowed

to choose the counselor. Jim opposed Katherine’s motion, raising its timeliness and

challenging its grounds under Mississippi Rule of Civil Procedure 59(e). He also denied the

allegations contained therein.

¶21. In her motion, Katherine did not raise the issue of the chancery court’s refusal to

distribute the parties’ personal property. But her attorney attempted to restart discussions on

the matter in correspondence with Jim’s attorney. Jim’s attorney responded that he was not

authorized to deal any further on the matter of the property division and to contact Jim

directly.

Second Motion for Contempt

¶22. On February 13, 2019, Katherine filed a second motion for contempt and to enforce

the divorce judgment. In it, she said that the parties had tried to reach an agreement on the

division of the personal marital property, but they were unsuccessful. Katherine also raised

Jim’s interference with the recommended counseling of JBB that the court had ordered.3

Katherine sought orders concerning both matters, including an order on the inherited/gifted

3
Apparently the parties met with the chancery court on the first day of the term,
August 20, 2018, and the court ordered the counseling for the minor child. But there is no
transcript from that meeting nor any order from the chancery court in the record reflecting
this verbal order.

11
items, an order compelling Jim to participate in the coin-toss procedure to divide the marital

property, and an order finding Jim in contempt and awarding her attorney’s fees. In his

response to this pleading, Jim argued that Katherine’s motion was not timely filed, that she

was barred from seeking relief because she had “unclean hands,” that the division of the

marital property issue was res judicata, and that Katherine was not entitled to any relief. He

also filed a motion to dismiss and affirmatively stated the defenses he raised in response to

Katherine’s motion for contempt. Jim also filed a motion to correct a clerical mistake in the

December 2018 order.4

January 30, 2020 Hearing

¶23. The case was assigned to a new chancellor who heard the outstanding motions on

January 30, 2020. Concerning the division of the property, Katherine had argued that all the

marital property, except approximately fifteen items that she took when she left, were still

at Jim’s home. Jim countered that approximately 180 items—two truckloads—were

delivered to Katherine and there was not much else to divide; hence the agreement to flip a

coin. Jim argued that the parties met, but Katherine began the meeting by insisting that she

receive the blue dishes. When they reviewed the process again and the need to first flip a

coin, Katherine got up and walked out of the meeting. Jim’s attorney told the court that when

Judge Dorothy Colom found out about the failed attempt at a coin toss, she said she was not

going to deal with the division of marital property any further. Thus, Jim argued that

4
Footnote five of the December 21, 2018 order said that three of the children had
expressed a desire to life with their “mother.” But this was incorrect because the three had
said they wanted to live with the “father.”

12
Katherine’s motion should be denied because she had unclean hands and that the matter was

res judicata. On rebuttal, Katherine’s attorney admitted that two truckloads of items were

delivered, but he contended that there were still 180 items missing. He also admitted that

Katherine had walked out of the coin-toss meeting.

¶24. After argument the chancellor found that Katherine’s motion to alter and amend was

timely filed. Next, the chancellor said that her predecessor had taken forty-four pages of

notes and heard the case over two days. If there were no basis for the finding that Katherine

was also in contempt, then Katherine would have attached the transcript or shown in the

transcript where she herself had not violated the orders of the court. But she did not. The

chancery court found:

So by [Katherine] not attaching a copy of the transcript for the [c]ourt to
review and outlining or making reference to any provisions or showing there
were no provisions that show that she had committed contempt, the [c]ourt will
have to stand by what Judge Colom had indicated in her opinion of final
judgment that was rendered and entered in December 21, 2018. So in reference
to that particular request, the [c]ourt is going to deny that.

Concerning the issue of counseling for the minor child, the chancery court exercised its

discretion to order that it be undertaken and that the father “stay out of it.”

¶25. Concerning the issue of the division of the marital property, the chancery court said:

Well, let me state this. The parties got divorced October 5, 2017. And
I’m sure that, as the opinion stated, it was contentious divorce. I don’t doubt
that. But they did an ID divorce, what we call irreconcilable differences. So
when you do that, you put in certain language that you have done everything--
that you have divided whatever and that then if there is something that you
need the [c]ourt to decide upon, whether it is custody or for division or make
an equitable distribution or division of personal property, you ask the [c]ourt
to do that. Of course, your divorce is never final until the [c]ourt has ruled,
has a hearing on that particular part that you asked for.

13
Now, I do understand when that was filed, it stated that the parties were
going to divide things. But there was a paragraph in there. And based on what
I have read, that stated if the parties couldn’t agree, that the judge would
decide it. Well, the judge didn’t see it. And she specifically stated that[] [i]f
she had known that the parties had not divided this property, she wouldn’t
have granted them a divorce. She would not have signed the final judgment
of divorce. And I believe that to be true.

Therefore, my position is this is a matter that should have been decided,
that it is over. It is done with. And I’m not going to revisit it, either. There
is no reason -- and I understand what you have done in the First Judicial
District. This is the 14th Judicial District. Maybe we do things differently
here. I understand what you think. But this is over. It is done with. And I
had -- you know, we consulted, and we have talked in chambers. Now, Judge
Colom, just for the record, in an order of November 30, 2018, she indicated
that this was to be resolved and, if it hadn’t been resolved by December 10,
2018, she was going to set aside your divorce. Now, I’ll say it again and I’ll
say it on the record. If it is something you want resolved and you have a right
to file a motion for me to set aside this divorce and they can be married again,
I mean, if that’s what you want me to do. But otherwise, at this point,
everything is final. That property issue is final, as far as I’m concerned, and
I’m not going to revisit it. Judge Colom ruled basically the same thing. She
would not even address the issue. So that’s the ruling of this [c]ourt, that it is
resolved, decided. I’m not going back on in reference to personal property.
It’s unfortunate you couldn’t work together, couldn’t figure out things. Too
bad. But all of that should have been taken care of before you presented your
ID divorce to the judge. And then you should have asked the judge at that time
to resolve that, knowing that you couldn’t get along. And you should have
asked the judge at that time to determine who gets what, knowing that you
weren’t going to be able to do it, get along. So when you failed to do that and
bring it to that judge’s attention whereby she could have said, you get A, you
get B, you get C, and divide that property, then you lost. That was out of the
window. She signed that divorce believing that all the property and the
agreement had been made. Final. Final decision. I will not revisit it.

March 25, 2020 Order

¶26. On March 25, 2020, the chancery court entered its order on the outstanding motions.

It granted Katherine the relief she requested concerning counseling with the minor child,

corrected the clerical error in the December 2018 order, but denied all other relief.

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Appeals

¶27. On April 24, 2020, Katherine filed her notice of appeal, challenging the November

30, 2018 order, the December 21, 2018 judgment, and the March 25, 2020 order.5 On appeal,

Katherine contends: (1) that the chancery court erred by declining to address the distribution

of personal property; and (2) that because the chancery court made no factual finding of

contempt against Katherine, it erroneously deprived her of an award of attorney’s fees.

Standard of Review

¶28. Our review of a chancery court’s ruling in a domestic relations case is limited. “We

will not disturb the findings of a chancellor unless manifestly wrong, clearly erroneous, or

if the chancellor applied the wrong legal standard.” Allgood v. Allgood, 62 So. 3d 443, 446

(¶7) (Miss. Ct. App. 2011) (citing McKnight v. McKnight, 951 So. 2d 594, 595-96 (¶5) (Miss.

Ct. App. 2007). “Legal questions, however, are reviewed de novo.” Wangler v. Wangler,

294 So. 3d 1138, 1142 (¶15) (Miss. 2020).

Discussion

I. Whether the chancery court erred by declining to address the
distribution of personal property.

¶29. Katherine argues that the parties’ written agreement concerning the children and the

division of the property complied with Mississippi Code Annotated section 93-5-2 (Rev.

2013) and the court’s refusal to divide the personal property of the parties deprives her of any

of the disputed marital property. She further argues that the court’s decision created a

5
The chancery court withdrew its November 30, 2018 order which was not final.
Therefore, it is not an appealable judgment under Rule 4 of the Mississippi Rules of
Appellate Procedure.

15
constructive trust on her behalf. Jim counters that Katherine waived court distribution of the

marital property when she presented no evidence on that issue to the court because the parties

agreed to the coin-toss settlement. Jim further argues that Katherine was not entitled to any

relief due to her “unclean hands” after walking out of the coin-toss meeting.

¶30. Section 93-5-2 provides two ways by which parties may obtain a divorce on the

grounds of irreconcilable differences. They may agree to the divorce and sign an agreement

that resolves all issues of custody, child support, alimony and property claims (section 93-5-

2(2)) or they can agree on the divorce but allow the chancery court to adjudicate the other

issues (section 93-5-2(3)).6 In this case, the Browns’ PSCCSA that reserved one area for

potential court adjudication meant their divorce proceeded under section 93-5-2(3).

¶31. There have been instances where a party’s change of heart concerning a previous

agreement to divide property has led to the setting aside of a divorce decree. For example,

in Sanford v. Sanford, 124 So. 3d 647, 649 (¶6) (Miss. 2013), on the day of trial, the

6
Section 93-5-2(3) read in part:

If the parties are unable to agree upon adequate and sufficient provisions for
the custody and maintenance of any children of that marriage or any property
rights between them, they may consent to a divorce on the ground of
irreconcilable differences and permit the court to decide the issues upon which
they cannot agree. Such consent must be in writing, signed by both parties
personally, must state that the parties voluntarily consent to permit the court
to decide such issues, which shall be specifically set forth in such consent, and
that the parties understand that the decision of the court shall be a binding and
lawful judgment. . . . No divorce shall be granted pursuant to this subsection
until all matters involving custody and maintenance of any child of that
marriage and property rights between the parties raised by the pleadings have
been either adjudicated by the court or agreed upon by the parties and found
to be adequate and sufficient by the court and included in the judgment of
divorce.”

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divorcing parties consented to an irreconcilable differences divorce. Ultimately, they also

agreed on property settlement issues, except the division of household goods, which they said

may be the one thing for the court to determine. Id. at 650 (¶¶9-10). The parties had decided

that the wife would make a list of the items she wished to keep, and the husband would

review it and list those items he disagreed with. Id. at (¶9). A month after the divorce

hearing, the wife proceeded to list all the items in the home and claimed the entire contents

for herself. Id. at (¶10). When the husband disagreed, the wife moved to withdraw her

consent to the divorce. Id. The husband responded with a motion for contempt and the

chancery court found the wife in contempt. Id. at (¶11).

¶32. However, on appeal, we reversed the finding of contempt and the Mississippi

Supreme Court agreed. Id. at 654 (¶27). It said that at the time of the divorce hearing, the

purported settlement that was dictated into the record did not settle all property rights because

the division of household goods remained unresolved. Id. at 654 (¶26). The supreme court

further said that the parties never complied with either section 93-5-2(2) or section 93-5-2(3)

at the time the wife withdrew her consent. Id. It held that “[b]ecause the requirements of

neither Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the

judgment of the Court of Appeals, reverse the judgment [of contempt], and remand the case

for further proceedings consistent with this opinion.” Id. at (¶28). In essence, the parties

were back before the chancery court, undivorced, to begin the process again.

¶33. The facts of this case differ from those in Sanford in that here Katherine never

withdrew her consent to the divorce and a judgment of divorce was entered. She argues that

17
she was merely attempting to enforce the PSCCSA through the filing of two contempt

actions. But in her arguments to the courts, she fails to acknowledge three critical facts:

namely, that Katherine failed to seek the court’s assistance within the sixty-day deadline after

the entry of the divorce decree on October 5, 2017 as set out in the PSCCSA;7 that after filing

her initial contempt action, the parties announced a settlement of the property division issue;

and that she failed to comply with that settlement agreement. Accordingly, her claim that the

chancery court erred in refusing to divide the personal property items fails.8

A. Failure to Comply with Settlement and Court Orders

¶34. Our supreme court has found that a party who fails to take the necessary action to

enforce or protect his or her rights under a property settlement agreement must bear the

consequences for his or her failure. In the case of Hanlin v. Hanlin (In re Dissolution of

Marriage of Hanlin), 164 So. 3d 445 (Miss. 2015), the parties’ separation agreement required

that the husband maintain military medical insurance on the wife “as allowable by statute.”

Id. at 446 (¶1). Assuming that she had coverage for another year, the wife declined medical

insurance at her job. Id. at 447 (¶2). The divorce was granted in 2007 and in 2008, the wife

underwent medical procedures that the husband’s insurance initially paid for, but later

denied. Id. at (¶3). The wife was sued by the medical providers and incurred bills totaling

7
The deadline expired on December 5, 2018. Only after that, on December 10, 2018,
Katherine asked the court to extend the time.
8
We note that problems with the marital property division in this case arose because
the parties did not complete their attempt at the division of the property before the judgment
of divorce was presented to the court. The better practice would be that the parties clearly
present all issues—agreed upon and disputed—to the court for approval and/or resolution
prior to the entry of the judgment of divorce.

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$27,305.20. Id. In 2012, the husband filed a motion for contempt for the wife’s failure to

refinance or sell the home and the wife counterclaimed for the husband’s insurance failure

to maintain insurance. Id. at (¶4). The chancery court judge found the husband in contempt

and ordered that he pay half of the medical bill. Id. at (¶5). On appeal, we affirmed the

chancery court’s ruling. Id. at (¶6). But on petition for writ of certiorari, the Mississippi

Supreme Court reversed. Id. at 451 (¶23). The supreme court found the language of the

parties’ property settlement agreement to be clear and unambiguous. Id. at 451 (¶21). It

further reviewed the federal statute on military insurance coverage and determined that the

wife had failed to take the necessary steps to be covered. Id. at 450 (¶19). Thus, the supreme

court found that the husband had not breached the settlement agreement. Id. at 451 (¶22).

“[The husband] should not be penalized where the coverage was fully available to [the wife],

and she and her attorney merely failed to ascertain and take advantage of the insurance

benefits ‘allowable by statute to the divorced spouse of a retired military person.’” Id. at

(¶21). The supreme court reversed the chancery court’s finding of contempt and order that

required the husband to pay half of the medical bills the wife incurred and rendered judgment

in favor of the husband. Id. at (¶23). Thus, because of her own actions, the wife was left

fully responsible for the $27,305.20 in medical bills.

¶35. Similarly, in this case, Katherine had several opportunities to enforce any rights she

had under the PSCCSA or the coin-toss settlement she and Jim reached to resolve the matter.

However, because she failed to utilize these opportunities and failed to comply with court

orders in the process, it was within the chancellor’s discretion to find that she must suffer the

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consequences.

¶36. Katherine’s first opportunity was shortly after the divorce. Under their PSCCSA, the

parties were to list the property and attempt to divide it amicably. The agreement gave the

parties sixty days to agree. The agreement was signed on September 29, 2017, and the

judgment of divorce incorporating it was signed on October 5, 2017. But on October 12,

2017, Katherine said she was through with the lists and said that the chancery court’s

intervention was needed. But she took no action to set the matter before the court until

months later.

¶37. Katherine’s second opportunity to secure a division of the marital property was to

comply with the settlement she reached during her first contempt action. At the start of the

August 20, 2018 hearing on Katherine’s first motion for contempt wherein she accused Jim

of failing to amicably divide the marital property, Katherine’s attorney announced a

settlement of the parties on this issue. The parties had compiled a list of marital property and

they agreed they would each alternately choose an item. They would seek the assistance of

the court only for approximately fifty disputed items. This settlement was again announced

to the chancery court at the close of the hearing on November 8, 2018. The chancery court

approved this procedure both times and ordered the parties to proceed with the coin toss

immediately and submit information on the disputed inherited/gifted items by November 15,

2018. But when the parties eventually met, Katherine walked out when Jim would not agree

to give her an item before the coin was even tossed.

¶38. The chancellor gave Katherine a third chance when, after learning of the aborted

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meeting and that no one had submitted information to the court on the claimed inherited or

gifted items, the chancery court ordered the parties to complete the process by December 10,

2018 or have the divorce judgment nullified altogether. Katherine made no further attempt

to meet with Jim again at that time, nor did she submit any lists of items in dispute by the

deadline. On December 21, 2018, the chancery court then entered its final order on

Katherine’s first contempt motion. In it, the chancery court declined to deal with the issue

of the marital property any further.

¶39. In essence, as did the wife in Hanlin, Katherine failed to take advantage of the

opportunities she was given to resolve the issue of the division of the marital property. She

had settled the issue but then walked out of the coin-toss meeting. Furthermore, she failed

to submit any information to the court on any disputed items as ordered. Jim was not in

contempt with regards to the division of the property and the chancery court’s order of

December 21, 2018 was not in error.

B. Breach of Settlement Agreement

¶40. A settlement reached by parties, announced to the court, and read into the record is

binding on the parties. In Brown v. Thomas, 757 So. 2d 1091 (Miss. Ct. App. 2000), Brown

sued Thomas in chancery court for specific performance on a contract they had whereby

Thomas would purchase an apartment building from Brown. Id. at 1092 (¶2). On the second

day of trial, the parties reached a settlement that was read into the record and included in the

order of dismissal entered by the court. Id. at 1092, 1093 (¶¶4, 6). In a later action for

reconsideration of the order brought by Brown, the chancery court found for Thomas, saying

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that the original issues were resolved by the agreement of the parties at trial and ordered that

the sale of the property continue. Id. at 1093 (¶8). Brown appealed and we affirmed the

chancery court’s ruling. Id. at 1096 (¶5). We said that the parties’ settlement reflected the

terms of their original contract and had only changed the procedure for making payments.

Id. at 1094 (¶14). Clearly, Brown stands for the proposition that an oral agreement reached

during litigation and read into the record of the court in open court is binding on the parties.

¶41. Similarly, in this case Katherine filed a petition to hold Jim in contempt of court for

allegedly failing to divide the parties’ personal property. At trial, the parties announced a

settlement of this claim which did not change the actual terms of the PSCCSA but set forth

a specific agreed method for doing so. The parties would toss a coin to determine who would

choose first from a list of the marital property and alternately select items thereafter. This

was read into the record and became a binding agreement on Katherine. Information on

disputed inherited/gifted items would be provided to the court.

¶42. “It is well-established in Mississippi law that a property-settlement agreement is a

binding contract between the parties.” Wilson v. Wilson, 53 So. 3d 865, 869 (¶12) (Miss. Ct.

App. 2011). Breach of contract is proven by showing the existence of a valid contract and

a failure to perform a substantial part of the contract or one or more of its essential terms or

conditions. Maness v. K & A Enters. of Miss. LLC, 250 So. 3d 402, 414 (¶43) (Miss. 2018).

In this case, Katherine breached this agreement without justification by refusing to participate

in the coin toss unless she received certain items beforehand and by walking out of the

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meeting thereafter.9

¶43. One in breach of a contract cannot successfully maintain an action to enforce it against

the other. In equity, this principle is known as the “clean hands doctrine.” “In sum,

whenever a party seeks to employ the judicial machinery in order to obtain some remedy and

that party has violated good faith or some other equitable principle, the doors of the court will

be shut against him and the court will refuse to interfere on his behalf, to acknowledge his

right, or to award him any remedy.” Pruitt v. Payne, 14 So. 3d 806, 811-12 (¶13) (Miss. Ct.

App. 2009). “[U]nder the clean hands doctrine, anyone that comes before a court of equity

must do equity as a condition of recovery.” Dill v. Dill, 908 So. 2d 198, 202 (¶11) (Miss. Ct.

App. 2005) (internal quotation marks omitted). In this case, Katherine’s failure to comply

with the settlement reached in her first contempt action barred her from filing a second

contempt action under the “clean hands doctrine.”

C. Constructive Trust

¶44. Katherine argues that the chancery court’s failure to enforce the PSCCSA and order

Jim to participate in the coin toss for the marital property in essence created an equitable

constructive trust of those items on her behalf because they remained at Jim’s house.

However, Katherine did not raise this issue to the chancery court and we have long held that

“a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of

Supervisors of Union Cnty., 177 Miss. 403, 170 So. 684, 685 (1936)); accord, e.g., Triplett

v. Mayor & Bd. of Aldermen of City of Vicksburg, 758 So. 2d 399, 401 (¶9) (Miss. 2000)

9
Katherine also failed to submit her proof on the inherited/gifted items to the
chancery court as ordered and thus waived her right to that relief as well.

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(“This Court has long held that it will not consider matters raised for the first time on

appeal.”); Brown, 757 So. 2d at 1094 (¶15) (statute of limitations issue that the plaintiff

failed to raise at the trial level was waived on appeal). Accordingly, Katherine is barred from

arguing this issue on appeal.

¶45. Notwithstanding the procedural bar, we find that Katherine’s argument lacks merit.

A constructive trust arises when a party wrongfully withholds personal property from

another.

A constructive trust . . . arises by operation of law against one who, by fraud,
actual or constructive, by duress or abuse of confidence, by commission of
wrong, or by any form of unconscionable conduct, artifice, concealment, or
questionable means, or who in any way against equity and good conscience,
either has obtained or holds the legal right to property which he ought not, in
equity and good conscience, hold and enjoy.

Kilpatrick v. White Hall on MS River, LLC, 207 So. 3d 1241, 1247-48 (¶26) (Miss. 2016).

“Clear and convincing proof is necessary to establish a constructive trust.” Pair A Dice

Farms, Inc. v. InSouth Bank of Covington, 118 So. 3d 165, 169 (¶10) (Miss. Ct. App. 2012)

(quoting Wright v. O’Daniel, 58 So. 3d 694, 699 (¶21) (Miss. Ct. App. 2011)).

¶46. In this case, Katherine has failed to provide any proof that Jim was wrongfully holding

any items that were rightfully hers. There had been no division of the property by the parties

as agreed and no adjudication by any court of the ownership of items she claimed. Without

any proof, and certainly no “clear and convincing proof” that Jim was wrongfully holding

these items, no constructive trust was established.

¶47. In summary, the chancery court did not err in its December 21, 2018 order when it

declined to divide the parties’ personal property because Katherine failed to comply with the

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settlement and failed to submit any proof to the court of disputed items, be they

inherited/gifted items or general marital property items. Katherine never withdrew her

consent to the irreconcilable-differences divorce and she herself willfully failed to enforce

her right to obtain her personal property in the several opportunities availed to her. Finally,

although procedurally barred, Katherine’s constructive trust claim fails as well because there

was no clear and convincing proof that Jim was wrongfully holding items that belonged to

her.

D. Chancery Court Order on Second Motion for Contempt

¶48. Although she does not distinguish between the chancery court orders, the March 25,

2020 order entered on Katherine’s second motion for contempt—in which she sought an

order compelling Jim to participate in the coin-toss meeting—was not erroneous either.

After the parties had obtained a divorce, Katherine first moved for contempt and raised the

issue of the adjudication of the division of the parties’ personal property. That issue was

settled and resolved as announced to the court by Katherine’s own attorney. As noted above,

in its December 21, 2018 order, the chancery court correctly determined that the issue was

no longer before the court for consideration. Although Katherine filed a motion to amend

or alter the December 21, 2018 order pursuant to Rule 59(e),10 she did not raise an issue

regarding the court’s ruling on the property division. Accordingly, after the ten days had

elapsed, all other issues in the December 21, 2018 order became final. Katherine did not

appeal the property division ruling nor did she seek to modify her motion to alter or amend

10
“A motion to alter or amend the judgment shall be filed not later than ten days after
entry of the judgment.” M.R.C.P. 59(e).

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to include that issue. Instead, Katherine attempted to raise it again in a new contempt action.

The chancery court correctly denied her attempt to revisit the issue under the doctrine of res

judicata.

¶49. “The doctrine of res judicata bars parties from litigating claims within the scope of

the judgment in a prior action. This includes claims that were made or should have been

made in the prior suit.” Hill v. Carroll Cnty., 17 So. 3d 1081, 1084 (¶8) (Miss. 2009)

(citation and internal quotation marks omitted). This applies in contempt actions as well.

See Hanlin, 164 So. 3d at 449 (¶13) (claims for medical expenses that could have been

sought in an earlier contempt proceeding are res judicata in subsequent contempt action).

In this case, the parties announced a settlement of the issue of the property division at the

beginning and at the end of the hearing of Katherine’s first contempt action, and the parties

had failed to submit anything further to the chancery court on that issue as ordered.

Accordingly, the chancery court’s December 21, 2018 order resolved the issue which was

not preserved nor appealed. Consequently, Katherine was barred from raising anything

further about the property division in the second contempt action and the chancery court did

not err in not considering it.

II. Whether the chancery court erred in finding Katherine in
contempt of court and determining that she was not entitled to an
award of attorney’s fees.

¶50. Katherine argues that the chancery court made no finding that she willfully and

deliberately ignored an order of the court and, therefore, she should not have been held in

contempt. We disagree and find that there is substantial evidence in the record to support the

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chancery court’s ruling that both Jim and Katherine were in contempt of the divorce

judgment, and therefore, it correctly denied any award of attorney’s fees.

¶51. “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 we are.” Mabus v. Mabus, 910 So. 2d 486, 491 (¶20)

(Miss. 2005) (citing Cumberland v. Cumberland, 564 So. 2d 839, 845 (Miss. 1990)). In

other words, “[a] citation for contempt is proper when the contemn[o]r has willfully and

deliberately ignored the order of the court. This Court will defer to the chancellor’s ability

to view the witnesses, determine their credibility, and review the exhibits before the chancery

court.” Doyle v. Doyle, 55 So. 3d 1097, 1110 (¶44) (Miss. Ct. App. 2010) (citation and

internal quotation marks omitted).

¶52. A reviewing court will not reverse the chancery court’s contempt finding if it is

supported by substantial evidence. Doyle, 55 So. 3d at 1113 (¶56). “Additionally, where the

chancellor has made no specific findings, we will proceed on the assumption that he resolved

all such fact issues in favor of the appellee.” Ferrara v. Walters, 919 So. 2d 876, 881 (¶8)

(Miss. 2005) (citing Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)).

¶53. In this case, although the chancery court made specific findings that Jim had not

abided by the court’s orders, it also found that Katherine was in contempt as well. There is

substantial evidence in the extensive record before us that supports the chancery court’s

finding that Katherine, too, had violated the judgment of divorce. The children testified that

Katherine had disparaged Jim in their presence, violating Article I, Section 1.3 of the

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PSCCSA. One even saw her make an obscene gesture to him. Katherine failed to inform

Jim of several school activities, including KMB’s spelling bee and KMB’s large number of

absences, violating Article I, Section 1.9 of the PSCCSA. Katherine had prevented Jim from

having custody of all the children for the two hours he was allowed on his birthday, violating

Article I, Section 1.2(d) of the PSCCSA. Katherine had attempted to take items from the

home (an iron gate and her bicycle) before the parties had divided the personal property,

violating Article III, Section 3.5(f) of the PSCCSA. Concerning that division, Katherine

refused to participate in the agreed-upon division of the marital property as announced to the

chancery court, again violating Article III, Section 3.5(f) of the PSCCSA, which required the

parties to make a good faith effort at dividing the property.

¶54. Although a party who successfully prosecutes a contempt action may be entitled to

attorney’s fees, Mabus, 910 So. 2d at 489 (¶8), “[w]hen the court denies a spouse’s petition

for contempt, no award of attorney’s fees is warranted.” Weston v. Mounts, 789 So. 2d 822,

827 (¶21) (Miss. Ct. App. 2001) (quoting Varner v. Varner, 666 So. 2d 493, 498 (Miss.

1995). “The fact that a successful petitioner is eligible for an award of attorney’s fees [in a

contempt action] does not automatically entitle him [or her] to an award.” Suess v. Suess,

718 So. 2d 1126, 1129-30 (¶13) (Miss. Ct. App. 1998). In Day v. Day, 28 So. 3d 672, 677

(¶23) (Miss. Ct. App. 2010), the chancery court declined to award attorney’s fees even

though the wife had proven her husband to be in contempt on some issues. We found no

error and noted that the chancellor was not uncritical of the wife on other issues. Id. at (¶25).

We said, “[i]t is the function of the chancellor to weigh all of the facts and assess the

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circumstances and to award attorney’s fees accordingly.” Id. at (¶24). See also Hartley v.

Hartley, 317 So. 2d 394, 395 (Miss. 1975) (“It is especially true in divorce cases that

circumstances alter cases and that the chancellor should have wide authority and discretion

in setting appropriate attorney’s fees after carefully considering the facts of each case.”).

Because the chancery court found that Katherine was also in contempt of court, we find no

abuse of discretion by the chancery court in denying Katherine’s request for attorney’s fees.

Conclusion

¶55. Due to Katherine’s breach of the settlement agreement she reached in her first motion

for contempt concerning the manner and method of the division of personal property, and

because of her failure to submit to the chancery court proof of the items she claimed were

inherited or gifted, the chancery court did not err in declining to undertake division of the

parties’ remaining items of personal property. Moreover, there was sufficient evidence in

the record of Katherine’s own failure to comply with orders of the chancery court to support

a finding that she was in contempt and not entitled to attorney’s fees. Accordingly, we affirm

the judgments of the chancery court in this matter.

¶56. AFFIRMED.

CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY,
SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, C.J.,
NOT PARTICIPATING.

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