BEFORE ROY NOBLE LEE, PRATHER and GRIFFIN
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Robert A. Nobile has appealed from a judgment of the Chancery Court of Adams County holding valid the covenant and contract executed by Robert A. Nobile and Charlotte B. Nobile, his former wife, providing that Robert A. Nobile would not appeal to the Mississippi Supreme Court from a decree divorcing Charlotte B. Nobile from him. Charlotte B. Nobile has filed a motion here seeking dismissal of this appeal. That motion will be considered along with the appeal.
There are two questions presented to the Court, which follow:
WAS THE COVENANT/CONTRACT NOT TO APPEAL A VALID AND BINDING INSTRUMENT?
DID THE LOWER COURT ERR IN GRANTING CHARLOTTE B. NOBILE A DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT, I.E., WAS THE LOWER COURT MANIFESTLY WRONG IN HOLDING THAT THE FACTS SUPPORTED THE GROUND FOR DIVORCE?
If the first question is answered in the affirmative, then the motion to dismiss the appeal should be sustained and it will not be necessary to reach the second question.
Charlotte B. Nobile filed suit for divorce against Robert A. Nobile on June 4, 1984. Involved in the suit were property issues and custody of and support for children. The lower court bifurcated the divorce from the other issues and separately tried the divorce issue. On November 2, 1984, the lower court entered a judgment divorcing Mrs. Nobile from Mr. Nobile. The latter appealed to the Mississippi Supreme Court, but, after conferences between the parties and their attorneys, on the 18th day of January, 1985, the parties arrived at and executed a covenant/contract wherein appellant contracted, covenanted and agreed to surrender and release any right to any appeals then existing or which might thereafter arise in any way touching upon or relating to the final decree of divorce and all of the issues contained therein, saving only the issues between the parties of property distribution as provided in the decree dated November 2, 1984.
In consideration of the dismissal with prejudice of the said appeal by the appellant, and his covenant not to prosecute any other appeals from the divorce decree dated November 2, 1984, appellee contracted, covenanted and agreed to enter upon good faith negotiations to settle and compromise all of the issues remaining to be settled between the parties then unresolved by that final decree of divorce and to forbear her prosecution of property and money claims which she then alleged that she had against appellant, pending said negotiations. (See Appendix I for full Covenant/Contract).
Attached to the instrument were copies of the November 2, 1984, decree, and the voluntary dismissal of appeal signed by appellant. (See Appendix II)
The order of dismissal of appeal was prepared by John Mulhearn, attorney for appellant. Lucien C. Gwin, attorney for appellee, drew the covenant not to appeal, which was reviewed with Mr. Mulhearn prior to its execution and prior to the entry of the order of dismissal of the appeal with prejudice.
Thereafter, appellant employed other counsel to enter into settlement negotiations with appellee of the matters still left unresolved and described in the covenant/ contract. Settlement proposals were exchanged between the attorneys in good faith efforts to negotiate a settlement between the parties pursuant to the covenant/ contract and they worked out final settlement documents which were agreeable with the parties. On the date the settlement documents were to be executed, May 14, 1985, the attorneys for ...