The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 12/09/96
TRIAL JUDGE: HON. PAT H. WATTS JR.
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: TRIAL COURT MODIFIED PROPERTY SETTLEMENT AGREEMENT AND FOUND JOHN DILLING IN CONTEMPT FOR EXERCISING VISITATION WITH THE PARTIES' MINOR CHILD WHILE IN THE PRESENCE OF HIS GIRLFRIEND
DISPOSITION: AFFIRMED - 2/23/99
MOTION FOR REHEARING FILED:
¶1. The appellant, John W. Dilling, appeals from the judgment of the Jackson County Chancery Court which incarcerated him for five days in the Jackson County Jail for contempt of court and from that court's supplemental judgment which required Mr. Dilling to pay the mortgage payments on the Dillings' former marital home instead of the appellee, Denise L. Dilling, as the court had originally ordered in the judgment of divorce. In his appeal from the judgment of contempt and the supplemental judgment, Mr. Dilling presents for our review and resolution two issues, which we quote verbatim from his brief:
1. WHETHER THE LOWER COURT ERRED IN AMENDING/MODIFYING THE PROPERTY SETTLEMENT AGREEMENT SIGNED BY THE PARTIES.
2. WHETHER THE LOWER COURT ERRED IN FINDING THE APPELLANT IN CRIMINAL CONTEMPT OF COURT NECESSITATING THE IMPOSITION OF INCARCERATION.
¶2. Although she filed no cross-appeal, Ms. Dilling restates the issues as follows:
1. THE LOWER COURT PROPERLY MODIFIED/AMENDED THE PROPERTY SETTLEMENT AGREEMENT SIGNED BY THE PARTIES TO REFLECT THAT HUSBAND WAS TO PAY ALL HOUSE NOTES ON THE MARITAL HOME IN ACCORDANCE WITH MISSISSIPPI RULES OF CIVIL PROCEDURE 60.
2. THE LOWER COURT PROPERLY REFORMED THE PROPERTY SETTLEMENT AGREEMENT EXECUTED BY THE PARTIES.
3. THE CONDUCT OF THE APPELLANT WAS WILFUL AND CONTEMPTUOUS AND THE LOWER COURT WAS AUTHORIZED TO INCARCERATE THE APPELLANT FOR HIS FAILURE TO ABIDE BY THE TERMS OF THE COURT ORDER.
¶3. John W. Dilling and Denise L. Dilling were married on February 4, 1989 and continued to live as husband and wife until January 26, 1996. One child, Leigh Ann Dilling, a daughter, was born to the Dillings' marriage on September 24, 1990. The Dillings executed a "Child Support, Custody and Property Settlement Agreement" on March 29, 1996, a copy of which they filed with their joint complaint for divorce on April 8, 1996. Through their complaint, the parties requested a divorce on the grounds of irreconcilable differences pursuant to Section 93-5-2 of the Mississippi Code (Rev. 1994). On June 11, 1996, the chancery court rendered and entered its "judgment for divorce - irreconcilable differences" (judgment for divorce). In the judgment for divorce, the chancery court granted the Dillings a divorce on the grounds of irreconcilable differences and "ratified and approved" their agreement, which the court incorporated into and made a part of the judgment so that "the terms therein contained [were] as much a part [of the judgment for divorce] as if copied in full herein . . . ."The Dillings' agreement was drafted by Denise Dilling's attorney, who had divided the agreement into three sections delineated as "John W. Dilling Agrees as Follows," "Denise L. Dilling Agrees as Follows," and "Both Parties Agree as Follows." Denise Dilling agreed that she claimed no interest either in receiving alimony from her husband or in Mr. Dilling's retirement. She also agreed that Mr. Dilling would have sole ownership of the Jeep and the Volkswagen automobile.
¶4. Regarding their daughter's custody and visitation, the Dillings agreed to the following restriction:
3. That the parties shall have no one of the opposite sex spend the night that they are not married to, while the minor is in their custody.
The agreement also contained the following proviso:
4. It is understood that Barbara E. Harvey represents solely Denise L. Dilling and that John L. Dilling has been advised to seek counsel to protect his rights if he so desires.
Mr. Dilling sought no representation until after the chancery court entered the judgment of divorce and Ms. Dilling filed her complaint to hold Mr. Dilling in contempt.
¶5. For his part, John Dilling specifically agreed that Ms. Dilling would have custody of the minor child and that he would pay child support in the amount of $90 per week along with all medical, dental, and eye care expenses for the child. He agreed (1) that Ms. Dilling would have sole ownership of most of the furnishings in the marital home and of a 1988 Pontiac "Grand Am" automobile; (2) that he would repair the roof of the marital home before June, 1996; (3) that he would pay Ms. Dilling's attorney's fees, without the amount's being specified, and costs of court for the divorce no later than June 1996; (4) that he would maintain a life insurance policy in the amount of $30,000 with the Dillings' daughter listed as the beneficiary of the policy; and (5) that he would pay a debt owed to Singing River Hospital incurred for Ms. Dilling's care. The following paragraph, which we quote, was listed under John Dilling's covenants:
2. That the wife shall have exclusive use and possession of the marital home located at 4817 Fordham Drive, Gautier, Mississippi and shall pay all house notes which includes taxes and insurance thereon. That the wife shall have the right to live there for as long as she does not remarry. In the event that the wife remarries or the wife decides to move from said home then the parties shall sell said home and the husband shall receive Sixty Five (65%) of the proceeds from said sale with the wife receiving Thirty Five (35%) of said proceeds.
¶6. On August 14, 1996, Denise Dilling filed her "Complaint for Contempt, Modification, and for Other Relief" in which she asserted that John Dilling had "willfully, obstinately and contumaciously violated the terms of said agreement and Court order" by violating the provision proscribing overnight visitation with the minor child in the presence of a member of the opposite sex. Ms. Dilling's complaint also included this paragraph:
"Plaintiff [Ms. Dilling] would further show that the parties agreed that Defendant would be responsible for the payment of all house notes; however, the language of the Property Settlement Agreement is unclear as to the same and ...