Thomas Wayne Colbert, Jr. v. Ming Xiao Colbert

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-01293-COA

THOMAS WAYNE COLBERT, JR. APPELLANT/
CROSS-APPELLEE

v.

MING XIAO COLBERT APPELLEE/
CROSS-APPELLANT

DATE OF JUDGMENT: 10/17/2022
TRIAL JUDGE: HON. JOHN C. McLAURIN JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JENNIFER LEIGH BOYDSTON
ATTORNEYS FOR APPELLEE: JOHN S. GRANT IV
BROOKE TRUSTY GRANT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS-APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART - 02/25/2025
MOTION FOR REHEARING FILED:

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. A wife petitioned for separate maintenance from her husband, and also asked for child

support for their two children. The husband counterclaimed for a divorce. The trial court

ultimately denied the husband’s request but granted the wife’s request for separate

maintenance and child support.

¶2. The husband appealed, arguing an antenuptial agreement barred separate maintenance.

Both parties have appealed the child support awarded by the trial court; the husband argues
it is too high, while the wife protests it is too low.

¶3. Since the husband never presented his argument about the antenuptial agreement to

the trial court, we find the argument is procedurally barred. However, because the amount

of child support awarded did not follow longstanding requirements as to the calculation of

income and deviation from statutory guidelines, we affirm in part and reverse and remand

in part.

BACKGROUND

¶4. Ming and Thomas Colbert were married in the fall of 2013. The month before they

married, the two entered into an antenuptial agreement.1 In the core of the document was this

passage:

Although Tom and Ming are entering into their contemplated marriage with
every intention to remain married for as long as each shall live, both recognize
that such marriage may not be as successful as both hope, and that a divorce,
annulment, separate maintenance proceeding or other legal proceeding to
dissolve the marriage between Tom and Ming could occur.

[T]he parties do hereby agree in the event of any such legal proceeding
involving a divorce, annulment, separate maintenance or similar proceeding,
Tom shall not be entitled to any greater rights with regard to the income or
assets of Ming than Tom would have in the event of the death of Ming and
Ming shall not be entitled to any greater rights with regard to the income or
assets of Tom than is provided for in Paragraph 9 below.

(Emphasis added). Both parties signed. As litigation would later show, the document was

negotiated in several ways, including those more favorable to Ming than originally proposed,

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For the purposes of this appeal, we will refer to the document interchangeably as
an antenuptial agreement, prenuptial agreement, or “prenup.”

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such as requiring Tom to provide health insurance for Ming during their marriage.

¶5. Over the years two children were born into the marriage, and Tom was very successful

in business. But as the prenup contemplated, the marriage was not as successful as the

couple hoped. Tom filed for divorce in 2015, but the couple eventually reconciled.

However, during the pendency of that divorce, Ming sought to have their prenup declared

invalid. Her motion was still pending when the divorce case was dismissed in 2017.

¶6. In 2021, Ming filed for separate maintenance from Tom, alleging that he had

“physically abandoned and separated himself from the marriage.” Instead of asking for a

divorce, Ming requested that the chancery court “command[] Tom to return to the marital

relationship and provide support and maintenance to Ming and the minor children[.]”

¶7. Tom forcefully responded, first arguing the couple’s prenuptial agreement governed

any request for separate maintenance. But he did not allege the agreement barred separate

maintenance in general, instead only “affirmatively assert[ing] that the [agreement] be

applied and enforced in this matter as applicable.” Secondly, he filed a counterclaim

demanding a divorce from Ming on the basis of habitual cruel and inhuman treatment,

“including spousal abuse,” and because her actions led to “the proximate cause of the

separation of the parties.”

¶8. The case proceeded through what can only be described as a massive amount of

litigation. The very first filing after Tom’s counterclaim for divorce was his motion seeking

a declaratory judgment “that the Prenuptial Agreement between the parties is valid,

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enforceable[,] and effective.” The motion included dozens of pages of emails showing the

negotiation of the agreement between Tom and Ming, including prior deposition testimony

relating to its drafting and signing and discussions underpinning its terms.

¶9. The motion had two sections. First, he argued the agreement was not procedurally

invalid; specifically, that Ming understood it, did not sign under duress, and had independent

counsel, among other arguments. Second, Tom argued the agreement was not substantively

unconscionable. Notably, Tom’s motion did not argue that the antenuptial agreement barred

the separate maintenance action or that the agreement preempted the litigation.

¶10. Subsequently, Ming filed a Motion to Declare Prenuptial Agreement Null, Void, and

Unenforceable. In this motion, Ming raised a variety of duress and unconscionability attacks

on the agreement, such as that “Tom selected Ming’s attorney and paid Ming’s attorney for

his representation,” that she “was not versed in nor understood the laws of the United States

of America and the State of Mississippi,” that she was in the United States from China on

a student visa, and that she was “not fluent in the English language and did not understand

the terms and provisions” of the antenuptial agreement. In response, Tom characterized the

process to draft the agreement as “a four-month negotiation process,” and he dismissed her

concerns as “a number of abstract grievances.”

¶11. The trial court conducted a multi-day hearing regarding the validity of the antenuptial

agreement, during which it heard from several witnesses. Among them were Ming, Tom,

the lawyer who served as Ming’s attorney in the prenup process, and a financial expert. At

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the conclusion of the hearing, the trial court ruled from the bench that it “finds that the

Prenuptial Agreement is binding [and] will be enforced as written.” The trial court instructed

counsel for Tom to prepare an order. The chancellor then said, “[W]e’ll just have to step

back and see where we’re going to go from here” in the case. The order denying the motion

to declare the antenuptial agreement void simply stated the “Motion was not well taken and

the same should be and is denied,” and that the prenup was declared valid.

¶12. At no point in this hearing or at the conclusion of presenting of evidence did counsel

for Tom argue that the prenup barred separate maintenance or that the proceedings should

be stopped immediately. So a week later, the trial court proceeded to hear evidence

regarding Ming’s claim for separate maintenance. After testimony, counsel for Tom

informed the trial court, “[W]e’d like to present a motion to dismiss.” He did not argue that

the antenuptial agreement barred separate maintenance. Instead, counsel for Tom focused

on what he argued was an element that could not be proven to meet the standard for separate

maintenance since one has to prove “a separation without substantial fault of the requesting

party.” Counsel for Tom further argued Ming was partially at fault, so she was not entitled

to the relief; he also argued Tom had not acted in a way that warranted separate maintenance.

All told, the thrust of the motion to dismiss was that the predicates for separate maintenance

were not met, not that separate maintenance was barred due to the prenup.

¶13. The trial court ultimately denied the motion to dismiss and granted Ming’s request for

separate maintenance. In turn, the trial court refused to grant Tom a divorce for habitual

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cruel and inhuman treatment, finding there was not enough proof to support it.

¶14. Ming’s attorney signaled he was ready to call a witness to testify as to child support,

but the chancellor told him, “I really don’t need you to. [Tom is] under a temporary order

to pay $7,000 in separate maintenance, which is combined spousal support and child

support.” The chancellor further reasoned that “[t]here’s been not one word that him paying

that amount of money every month creates a financial hardship on him or that he is in any

way unable to pay it,” and “[i]n fact, all the financial evidence corroborates the fact that he’s

well able to pay it[.]”

¶15. When queried by Ming’s attorney whether this order was for both “child support and

separate maintenance,” the chancellor responded, “[I]t’s all in one. I mean, it’s a package

deal.” The final judgment from the trial court reflected this bench ruling: “Tom shall pay

separate maintenance in the amount of $7,000 per month, which is combined spousal support

and child support, and which is due and payable on the fifteenth of each month.”

¶16. Tom appealed from this judgment, and Ming cross-appealed.

DISCUSSION

¶17. On appeal, Tom raises four issues. First, he argues that “Ming waived the right to

receive separate maintenance” by virtue of the prenup; that the child support did not conform

to the statutory guidelines; that the child support was too high; and the trial court’s handling

of proof raised a procedural matter.

¶18. On cross-appeal, Ming argues that “[t]he child-support award should be reversed and

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remanded because the chancellor did not make any findings” regarding how much Tom

made, whether the amount was reasonable, or why the chancellor deviated from the statute.

¶19. In short, Tom and Ming both agree the child support awarded did not conform to

precedent or our statute. We agree and reverse and remand on this point. We decline to

review the other issues raised and find Tom’s argument that the antenuptial agreement bars

separate maintenance is procedurally barred. We also sua sponte address the sealed record

in this case.

I. The argument that the antenuptial agreement bars separate
maintenance is procedurally barred.

¶20. Tom argues the language of the antenuptial agreement between Ming and him

forecloses an award of separate maintenance.

¶21. “An antenuptial agreement is a contract and should be interpreted just like any other

contract.” Bowman v. Bowman, 332 So. 3d 317, 321 (¶5) (Miss. Ct. App. 2021). “Contract

interpretation involves a two-step inquiry,” where we first “must determine whether a

contract is ambiguous and, if not, enforce the contract as written.” Id. (internal citation and

quotation mark omitted). We use a de novo standard to review whether a contract is

ambiguous. Id.

¶22. “Second, in the event of an ambiguity, the subsequent interpretation presents a

question of fact for the fact-finder which we review under a substantial evidence/manifest

error standard.” Id. “If the terms of a contract are subject to more than one reasonable

interpretation, their meaning presents a question of fact for the fact-finder.” Id.

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¶23. Tom’s first issue on appeal is that the prenup bars separate maintenance. Ming

strongly counters that his position is procedurally barred. Ming points out how Tom

generally sought for the trial court to enforce the agreement but never specifically argued it

precluded separate maintenance. In rebuttal, Tom attempts to circumvent the issue by stating

that he had “asked that the Agreement be applied and enforced.”

¶24. But Tom fails to point to a single line in the thousands of pages of this record where

he in fact asked the chancellor to foreclose a grant of separate maintenance. As set out

above, the first filing after Tom’s answer and counterclaim for divorce was a “Motion for

Declaratory Judgment” regarding the antenuptial agreement. But that filing only generally

requested a finding that the prenup was valid. It did not ask the trial court to declare that

Ming’s claim for separate maintenance was totally barred. During the hearing of this matter,

Tom’s lawyer also argued Ming’s claims should be involuntarily dismissed. However, the

claimed basis for the dismissal was not that the prenup barred separate maintenance but that

Ming’s own conduct barred it, or the situation did not warrant separate maintenance. And

at the close of a hearing successfully defending against Ming’s attempt to have the agreement

declared void, Tom never argued that the agreement barred separate maintenance.

¶25. This Court has recently contemplated a dispute over insurance proceeds where a party

“present[ed] a detailed argument why interest should be awarded, citing the statute and

precedent.” In re Est. of Green, 396 So. 3d 169, 174 (¶21) (Miss. Ct. App. 2024). “Yet this

statute and related cases were not argued below.” Id. at (¶22). In filings below, the party

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“devoted only three sentences to why interest should be awarded,” and in arguments to the

trial court, the party “did not present statute or precedent warranting a grant of interests on

the return of the [insurance] policies.” Id.

¶26. Citing well-established law, we found “this argument procedurally barred on appeal.”

Id. at 175 (¶24). For “[i]t is a well-settled rule that a trial judge will not be found in error on

a matter not presented to the trial court for a decision.” Id. at 174 (¶23) (internal quotation

mark omitted). The fundamental problem is that we cannot review something that does not

exist: “Absent a motion preserving a claim of error we have no ruling of the trial court for

review on that particular point.” Id. at 175 (¶23) (internal quotation mark omitted). “Issues

raised for the first time on appeal are procedurally barred from review as they have not first

been addressed by the trial court.” Griffin v. State, 824 So. 2d 632, 635 (¶7) (Miss. Ct. App.

2002); Williams v. Williams, 309 So. 3d 560, 567 (¶39) (Miss. Ct. App. 2020) (applying the

procedural bar where a party argued for the first time on appeal that the report of a guardian

ad litem contained hearsay because “[t]he well-recognized rule is that a trial court will not

be put in error on appeal for a matter not presented to it for decision”).

¶27. As in those cases, this issue was simply not raised below, meaning there is no ruling

from the trial court that we can review. The trial court did not grant or deny a motion to

dismiss on the theory the antenuptial agreement barred separate maintenance, so there is no

decision for this Court to review; as such, relief was not requested. To the extent Tom argues

there are some insinuations of his contention below, as in Estate of Green, they were not

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meaningfully developed—despite litigation spanning nine volumes of clerk’s papers, six

supplemental volumes, nine volumes of transcript, and over 1,700 pages of exhibits.

¶28. This issue was simply not developed below, and we cannot put a trial court in error

for a matter not presented to it. Accordingly, we find Tom waived his argument that the

antenuptial agreement bars a grant of separate maintenance.

II. The child support award was not supported by sufficient findings.

¶29. Both sides attack the trial court’s grant of a “package deal” for spousal support and

child support, arguing the trial court did not follow precedent or statute to ascertain the

amounts due by Tom. Tom argues in his principal brief that the amount of $7,000 was too

much. In Ming’s cross-appeal, she argues the amount was “almost certainly too low.”

¶30. In Tom’s response brief, he argues that the trial court “simply picked a number ‘out

of the air,’ so to speak,” as to the amount of child support and that this is “reversible error.”

Tom further acknowledged that on appeal, he and Ming had “reached the same conclusion,”

which was “that the chancellor did not follow the statutory procedure, and that this failure

is reversible error.”

¶31. The fact that Tom and Ming agree does not in itself warrant reversal, but both are

correct that the trial court did not distinguish how child support was calculated, how a

deviation from the statutory guideline was reached, or what the actual amount of child

support was, as distinguished from the award of separate maintenance. Therefore we agree

that this ruling must be reversed and remanded.

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¶32. State law establishes “child-support award guidelines” that have a “rebuttable

presumption” of correctness. Miss. Code Ann. § 43-19-101(1) (Rev. 2023). Per the

guidelines, a parent who is required to pay child support for two children is assessed a

payment of 20% of his or her monthly adjusted gross income. Id. The statute defines how

to calculate the AGI of the payor. Miss. Code Ann. § 43-19-101(3).

¶33. If the parent has an AGI of more than $100,000 a year, “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.” Miss. Code Ann. § 43-19-101(4) (emphasis added). “By making a

written finding on the record that the application of the guidelines would be unjust or

inappropriate, the rebuttable presumption of the appropriateness of an award pursuant to the

guidelines may be overcome.” Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997).

¶34. In her cross-appeal, Ming argues that the trial court did not follow the statute in three

ways: by not determining Tom’s adjusted gross income, by not applying the guidelines to the

AGI, and by not explaining a deviation from the guidelines, if any.

¶35. As one authority has concluded, “[t]he absence of required findings of fact is the most

common reason for reversal of child support awards.” Deborah H. Bell, Bell on Mississippi

Family Law, §13.04[1][b], at 491 (3d ed. 2020). As our appellate courts have repeatedly

declared, “without an express finding of fact as to the payor’s income, it cannot be said that

the child-support guidelines were either followed or not followed.” Foreman v. Foreman,

223 So. 3d 178, 187 (¶29) (Miss. Ct. App. 2017) (internal quotation marks omitted). In that

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case, we lamented that “[t]he record does not indicate which documentation the chancellor

relied upon when calculating the child-support award.” Id. So “we conclude[d] that the

chancellor failed to make an express finding of fact as to [the father’s] income.” Id.

¶36. In Foreman, we “affirmed as to the finding that child support is warranted” but

remanded for the trial court “to make an express finding with regard to [the father’s] current

income.” Id. at (¶30). We reach the same conclusion here.

¶37. We reverse the combined award of $7,000 per month for both spousal support and

child support. On remand, the trial court should:

1. Calculate Tom’s monthly adjusted gross income, which we note includes “all

potential sources” reasonably available to him per section 43-19-101(3)(a).2

2. Apply the child support guidelines to Tom’s adjusted gross income.

2
The statute sets that AGI “shall be calculated” by calculating the below information
before subtracting deductions:

[A]ll potential sources that may be reasonably be expected to be available to
the absent parent including, but not limited to, the following: wages and salary
income; income from self-employment; income from commissions; income
from investments, including dividends, interest income and income on any
trust account or property; absent parent’s portion of any joint income of both
parents; workers’ compensation, disability, unemployment, annuity and
retirement benefits, including an Individual Retirement Account (IRA); any
other payments made by any person, private entity, federal or state
government or any unit of local government; alimony; any income earned
from an interest in or from inherited property; any other form of earned
income; and gross income shall exclude any monetary benefits derived from
a second household, such as income of the absent parent’s current spouse[.]

Miss. Code Ann. § 43-19-101(3)(a) (emphasis added).

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3. Determine if a guideline deviation is warranted; and, if so, provide a written

finding as to why.

¶38. Having arrived at the amount of child support, the trial court is to then separately

calculate the amount of separate maintenance due to Ming, if any.

¶39. Accordingly, we will reverse and remand in part for proceedings in accord with this

opinion.

III. The sealing of the record was not in accord with precedent.

¶40. We sua sponte raise the issue of the seal over this case. We have previously held:

Our Constitution mandates that “[a]ll courts shall be open,” Miss. Const. art.
3, § 24, and “Mississippi law favors public access to public records.” Estate
of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are
considered to be public records, unless otherwise exempted by statute.” Id. at
(¶15). In addition, a court may, within its discretion, determine that court
filings or information contained therein “should be declared confidential or
privileged” and sealed from public disclosure. Id. at (¶16). However, before
sealing an entire case, a trial court should first “conduct the balancing test set
out in Estate of Cole,” supra. Smith v. Doe, 268 So. 3d 457, 464 (¶27) (Miss.
2018); accord Butler Snow LLP v. Estate of Mayfield, 281 So. 3d 1214, 1220
(¶¶27-29) (Miss. Ct. App. 2019). That test balances the claimed private interest
in confidentiality against the public interest in open courts. Estate of Cole, 163
So. 3d at 924, 929 (¶¶11, 32-33).

Fulgham v. Morgan & Morgan PLLC, 363 So. 3d 980, 988 (¶24) (Miss. Ct. App. 2019).

¶41. In Fulgham, we found that “the chancery court did not conduct any balancing test or

any analysis of [the law firms’] request to seal the entire case. The order sealing the case was

simply entered following an ex parte hearing.” Id. at (¶25). But it was “not clear that the

court file in this case contains any privileged attorney-client communications or confidential

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client information.” Id.

¶42. For the mere “fact that a few specific filings may contain privileged or confidential

information does not warrant sealing the entire case from public view.” Id. Instead,

“specific documents can be redacted or filed under seal as necessary.” Id. We ultimately

determined that the trial court abused its discretion in sealing the whole file without “first

balanc[ing] the asserted private interest in confidentiality against the public interest in open

courts and transparent judicial proceedings.” Id. at 989 (¶27).

¶43. Just as in that case, here there was no consideration of the Estate of Cole test. During

a motion hearing, one of the attorneys for Tom asked for an affidavit of a financial analyst

to be sealed; Ming’s lawyer did not object. The trial court inquired if the file itself was

sealed; Ming’s lawyer said, “You can seal the whole file for all I care, judge,” and Tom’s

attorney agreed. The trial court then proceeded to seal the whole file.

¶44. This sequence of events leading to the sealing of this case does not conform to our

constitution or precedent. Upon remand, the trial court is directed to consider and apply the

applicable test and, pursuant to that review, make a written finding and in its discretion

“determine what, if any, part of the record should be sealed or redacted under the Supreme

Court’s decision in Estate of Cole.” Id.

CONCLUSION

¶45. Tom’s argument that the antenuptial agreement bars a grant of separate maintenance

was not presented to the trial court, so we find the issue is procedurally barred and affirm in

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part. However, since the required findings of fact were not made as to child support, we

reverse and remand in part. We also remand for the trial court to apply the applicable test

for the sealing of a public record.

¶46. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE, EMFINGER AND WEDDLE, JJ., CONCUR. ST. PÉ, J.,
NOT PARTICIPATING.

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