December 2, 2014
JEREMY MOSELEY, APPELLANT
TIFFINY (MOSELEY) SMITH, APPELLEE
OF JUDGMENT: 05/21/2013.
FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. TRIAL
JUDGE: HON. SANFORD R. STECKLER. TRIAL COURT DISPOSITION:
AWARDED APPELLEE A $36,036.18 JUDGMENT BASED ON
APPELLANT'S CONTEMPT OF FINAL JUDGMENT OF DIVORCE.
APPELLANT: R. HAYES JOHNSON JR.
APPELLEE: THOMAS E. PAYNE, JAMES L. FARRIOR III.
LEE, C.J., ROBERTS, CARLTON AND MAXWELL, JJ. LEE, C.J.,
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON
AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.
As part of the property-settlement agreement incorporated in
their divorce judgment, Jeremy Moseley was required to hold
his ex-wife, Tiffiny Smith, harmless for any debt associated
with their 1998 Chevy Camaro, which Moseley got to keep. But
Moseley did not meet this requirement. Instead, he had his
car debt discharged in federal bankruptcy, which led the bank
to go after Smith, who was ordered to pay the remaining debt
Despite this clear failure to abide by the hold-harmless
provision, Moseley argues he should not have been found in
contempt and ordered to reimburse Smith. Citing both his
bankruptcy discharge and the statute of limitations, he
asserts the hold-harmless provision was no longer enforceable
by the time Smith filed her contempt action.
We find neither reason creates a barrier to Smith's
contempt action. First, the only debt discharged in the
bankruptcy was Moseley's debt to the bank. The discharge
order did not cover Moseley's separate debt to
Smith, arising out of the hold-harmless provision in the
divorce judgment, as Moseley neither listed this debt on his
bankruptcy schedules nor otherwise notified Smith he had
filed bankruptcy. Second, Smith's contempt action was
timely. Smith's action sought enforcement of a provision
of the property-settlement agreement, which by operation of
statute became a part of the chancery court's final
judgment of divorce. Because her action was " founded
on [a] judgment . . . rendered by [a] court of record in this
state," the seven-year statute of limitations
applied. And because Smith filed for contempt
within seven years of learning that the bank was pursuing her
for the remaining debt on the Camaro, her contempt complaint
was not barred by the statute of limitations.
Because we also find the record supports the amount of the
contempt judgment, $36,036.18--the amount Smith had to pay
the bank, plus attorney's fees and expenses to make her
On September 7, 2000, the Harrison County Chancery Court
entered a final judgment of divorce for Moseley and Smith.
This judgment incorporated their property-settlement
agreement, which gave Moseley " exclusive use and
possession of the 1998 Chevrolet Camaro" in exchange for
requiring he be " solely responsible
for the payment of all debt, insurance and taxes associated
with said vehicle." Moseley also had " to hold
[Smith] harmless for any debt associated with said
Less than a year later, Moseley, who had moved to Arizona,
filed for Chapter 7 bankruptcy in Arizona. Moseley had listed
Trustmark National Bank as a secured creditor for "
monies owed on 1998 Camaro." But Moseley did not
indicate on his bankruptcy schedule that Smith was a
co-debtor on the Camaro. Nor does the record show he
separately listed Smith as an unsecured creditor, based on
the hold-harmless provision, or otherwise notified his
ex-wife about the bankruptcy. Moseley received a
bankruptcy-discharge order on July 3, 2001.
Trustmark eventually sued Smith to collect the remaining debt
owed on Moseley's Camaro. While Trustmark filed its
collection action on September 19, 2003, Smith was not served
with process until September 2006, when she returned from
active service in the United States Air Force. On October 4,
2007, Trustmark received a final judgment against Smith for
$15,252.96, plus interest accruing from September 19, 2003,
at a rate of 11.4%.
Three and a half years later, on February 25, 2011, Smith
filed a complaint against Moseley for contempt, asserting
Moseley had violated the divorce judgment's provision
that he would hold her harmless for any debt associated with
Moseley moved to dismiss. He claimed any obligation related
to the Camaro had been discharged by his 2001 bankruptcy. He
also asserted Smith's claim was barred by the three-year
statute of limitations to enforce contracts or,
alternatively, the seven-year statute of limitations to
enforce judgments, as their final divorce judgment had been
entered eleven years earlier.
The chancellor denied Moseley's motion to dismiss on
September 6, 2012. In doing so, he found the seven-year
statute for actions founded on a judgment applied. And
because this action was based on Trustmark's 2007
judgment against Smith, the complaint for contempt was
timely. Finally, the chancellor found the discharge of
Moseley's debt to Trustmark did not affect his obligation
to Smith to hold her harmless for the debt.
A week later, Moseley filed a motion to reconsider. In this
motion, he suggested the seven-year statute of limitations
began running as soon as Smith learned Moseley had filed
bankruptcy in 2001 or, at the latest, by the time Trustmark
sued her in 2003 and served her with process. Because all of
these events occurred more than seven years before she filed
her complaint, he insisted it was untimely. Moseley also
urged the chancellor to recognize that his debt to Smith,
like his debt to Trustmark, had been discharged in
bankruptcy, as it was a non-domestic support obligation,
which, prior to the 2005 bankruptcy-code amendments, was
[¶12] In her response, Smith asserted that
Moseley failed to notify her of his 2001 bankruptcy. And
because she had been serving in the Air Force, Trustmark did
not serve her with process until March 2006, which was well
within seven years of her contempt complaint. Smith renewed
her request that the chancellor award her money damages and
other relief based on Moseley's " willful and wanton
After a hearing, the chancellor denied Moseley's motion
for reconsideration and granted Smith's request for
contempt-based damages. The chancellor awarded Smith
$36,036.18, which included the money and interest Smith had
paid Trustmark through wage garnishment, $4,000 for
attorney's fees, and $1,337.78 for travel and lodging to
attend a hearing in June 2011.
Moseley then filed a Rule 59 motion to alter or amend,
claiming Smith never presented any evidence to support the
chancellor's damage award. See M.R.C.P. 59(a),
(e). But the chancellor never addressed the damages issue, as
the motion to alter or amend was dismissed by agreed order.
Moseley then timely appealed. On appeal, he raises the same
defenses of statute of limitations and bankruptcy discharge.
He also claims the record did not support the amount of
damages awarded to Smith.
No Bankruptcy Discharge
We begin with the bankruptcy issue. Moseley seems to treat
his financial obligations involving the Camaro as a
singular debt--a debt he owed to Trustmark, which
was discharged in his Chapter 7 bankruptcy. But Moseley
actually had two debts connected to the Camaro--(1)
the debt to Trustmark bank to repay the car loan,
and (2) the contingent debt to Smith, which would
arise if Trustmark went after her for repayment of the car
loan. While Moseley listed the first debt to Trustmark on his
bankruptcy petition, he omitted his second debt to Smith. He
also failed to otherwise notify Smith that her rights as a
creditor may be affected by his bankruptcy petition. Thus,
his debt to Smith was not covered by his bankruptcy
discharge. See In re Hill, 251 B.R. 816,
821 (Bankr. N.D. Miss. 2000).
Separate Debt to Smith
In bankruptcy terms, the provision in the property-settlement
agreement that Moseley would hold Smith harmless for any debt
associated with the Camaro " create[d] a 'new'
debt, running solely between the former spouses." In
re Jaeger-Jacobs, 490 B.R. 352, 357 (Bankr. E.D. Wis.
2013) (citing In re Schweitzer, 370 B.R. 145, 150
(Bankr. S.D. Ohio 2007)). Under the version of the United
States Bankruptcy Code in effect during Moseley's 2001
bankruptcy, this type of debt was presumptively
non-dischargeable as a non-alimony debt " incurred by
the debtor in the course of a divorce or separation or in
connection with a separation agreement, divorce decree or
other order of a court of record[.]" In re
Clark, 207 B.R. 651, 655 (Bankr. E.D. Mo. 1997) (quoting
11 U.S.C. § 523(a)(15) (1994)).
But there was a catch. Prior to the 2005 amendments, the
creditor ex-spouse had to timely request the bankruptcy court
apply the presumption of non-dischargeability to the
hold-harmless-agreement debt. In re Clark, 207 B.R.
at 655. If the creditor ex-spouse failed to do this, then the
hold-harmless-agreement debt was discharged. But if the
ex-spouse creditor timely intervened, then the debtor
ex-spouse would have the burden to overcome the presumption
Id. at 655-56 (citing 11 U.S.C. §
523(a)(15)(A), (B) (1994)).
Lack of Notice
In light of this pre-2005 rubric, Moseley argues his debt to
Smith had been discharged because she " apparently did
not object" to discharge in the Arizona bankruptcy
court. Though Moseley carefully tries to avoid the
reason why Smith did not object, we cannot. Instead,
what is apparent from the record is that Smith did not object
because she was never notified she needed to object. And this
lack of notice leads to a lack of dischargeability.
See In re Hill, 251 B.R. at 821.
Nowhere does the record indicate Moseley listed
Smith as a creditor in his bankruptcy (or even co-debtor on
the Trustmark loan), which would have put her on notice to
intervene in the bankruptcy to prevent her right to be held
harmless from being discharged in the bankruptcy. Nor did
Moseley try to refute Smith's claim that she did not
learn about Moseley's bankruptcy until 2006, when she was
finally served with Trustmark's lawsuit against her.
Instead, the record shows Moseley never communicated to Smith
the fact he was discharging his debt to Trustmark in
bankruptcy, even though this action would greatly affect
Discharging his debt to Trustmark did not discharge
Smith's obligation to Trustmark as co-debtor.
See In re Jaeger-Jacobs, 490 B.R. at 357
(citing In re Clark, 207 B.R. 651, 657 (Bankr. E.D.
Mo. 1997)). This meant Moseley's contingent debt to Smith
to hold her harmless became an almost certainty, since she
would be the only remaining debtor Trustmark could pursue for
repayment. Thus, Smith--had she been notified--would have had
every incentive to timely intervene and take advantage of the
presumption of nondischargeability under pre-2005 section
Under federal bankruptcy law, " a debt is not discharged
if it was not scheduled in time for the creditor to timely
request a determination of dischargeability" and the
non-scheduled creditor further lacked " actual knowledge
of the bankruptcy case within time to file a
complaint[.]" In re Hill, 251 B.R. at 821.
Moseley has failed to allege, let alone prove, either (1) he
listed the hold-harmless debt owed Smith on his bankruptcy
petition, or (2) Smith had actual knowledge of his bankruptcy
within time to object to her debt being discharged. Thus, we
agree with the chancellor that Moseley's debt to Smith
based on the hold-harmless agreement was not
discharged by the 2001 bankruptcy order.
No Bar by the Statute of Limitations
Even if his obligation to Smith was not discharged in
bankruptcy, Moseley claims it was still unrecoverable due to
the statute of limitations. The application of the statute of
limitations is a question of law, which we review de novo.
ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (¶
10) (Miss. 1999). Though we do not defer to the
ruling, we do reach the same conclusion--the seven-year
statute of limitations applied, and Smith timely filed within
Seven-Year Statute of Limitations Applied
Smith based her action on a provision in the
property-settlement agreement. Since a property-settlement
agreement is a contract, Smith argues the three-year statute
of limitations for contracts should apply. See Miss.
Code Ann. § 15-1-49 (Rev. 2012). But a
property-settlement agreement, though "
quasi-contractual," is not simply a contract. Varner
v. Varner, 666 So.2d 493, 497 (Miss. 1995). Under
Mississippi's irreconcilable-differences statute, Moseley
and Smith's property-settlement agreement, upon approval
by the chancellor, became incorporated into the final
judgment of divorce. See Miss. Code Ann. §
93-5-2(2) (Rev. 2013). Section 93-5-2(2) " inject[ed]
the court into the process." Grier v. Grier,
616 So.2d 337, 340 (Miss. 1993). As a result, the
property-settlement agreement " is a court order."
Varner, 666 So.2d at 497.
For this reason, Smith's contempt action was not for
breach of contract. Rather, her action was to enforce a
judgment. And under Mississippi Code Annotated section
15-1-43, " [a]ll actions founded on any judgment or
decree rendered by any court of record in this state"
can be " brought within seven (7) years next after the
rendition of such judgment or decree[.]" Miss. Code Ann.
§ 15-1-43 (Rev. 2012).
The Mississippi Supreme Court has consistently held that this
seven-year statute applies to actions to recover past-due
alimony and child support, with the seven years starting from
the date the alimony or support became vested, and not the
date the judgment awarding alimony was entered.
E.g., Ladner v. Logan, 857 So.2d 764, 772
(¶ ¶ 26-27) (Miss. 2003) (past-due child support);
Rubisoff v. Rubisoff, 242 Miss. 225, 235, 133 So.2d
534, 537 (1961) (past-due alimony). In light of this, courts
assumed the seven-year statute also applied to actions to
recover property awarded in an irreconcilable-differences
divorce judgment. E.g., Carite v. Carite,
841 So.2d 1148, 1151 (¶ 5) (Miss. Ct.App. 2002) (citing
White v. Abel, 802 So.2d 98, 102 (¶ 12) (Miss.
Ct.App. 2001)). In fact, in Carite, no one
questioned that the seven-year statute of limitations
applied. While the statute of limitations was raised as a
defense, the only question was when did the
seven-year statute begin to run, not if it applied
instead of the three-year statute of limitations.
Id.; see also Nicholas v.
Nicholas, 841 So.2d 1208, 1212 (¶ 10) (Miss.
Ct.App. 2003) (applying the seven-year statute of limitations
to a non-alimony provision in the property-settlement
But four years after Carite, this court made a
distinction between a claim to recover past-due alimony and a
claim that a non-alimony provision in the property-settlement
agreement had been violated. D'Avignon v.
D'Avignon, 945 So.2d 401, 408 (¶ 24) (Miss.
Ct.App. 2006). Because the supreme court had held that a
property-settlement agreement must be interpreted
like any other contract, this court concluded a
property-settlement agreement must be enforced like
a contract too. So this court said the three-year statute of
limitations applied, even though property-settlement
agreements are incorporated into the chancellor's
judgment. Id. (citing West v. West, 891
So.2d 203, 210 (¶ 13) (Miss. 2004)). Moseley asks us to
draw the same conclusion here and apply
D'Avignon to find Smith's action was barred
because it was not filed within three years.
[¶28] But in revisiting this issue, we are
confronted with section 93-5-2(2) and the supreme court cases
that have discussed the effect of that statute on the
enforceability of property-settlement agreements.
And as the supreme court has said, " there is more at
work than general contract law." Grier, 616
So.2d at 340.
Under section 93-5-2(2), a property-settlement agreement is
not enforceable unless approved by the chancellor and
incorporated into the divorce decree. E.g., Bell
v. Bell, 572 So.2d 841, 844 (Miss. 1990); Sullivan
v. Pouncey, 469 So.2d 1233, 1234 (Miss. 1985); see
also Ash v. Ash, 877 So.2d 458, 460 (¶ 11)
(Miss. Ct.App. 2003) (citing Joiner v. Joiner, 739
So.2d 1043, 1045 (¶ ¶ 9-12) (Miss. Ct.App. 1999)).
In other words, what makes a property-settlement agreement
enforceable is not that it is a contract, but rather that it
is a " court-approved contract" --one that "
become[s] a part of the decree and enforceable as such as
though entered by the court following contested
proceedings." Bell, 572 So.2d at 844.
So, unlike a breach-of-contract action that requires the
plaintiff to first prove there was an enforceable contract,
to enforce a property-settlement agreement, the ex-spouse
merely has to point to the divorce judgment. Though
property-settlement provisions differ from alimony and
child-support provisions in the sense they are
non-modifiable, they are nonetheless enforceable as part of
the divorce judgment. Thus, we abandon our previous
conclusion in D'Avignon, 945 So.2d at 408
(¶ 24), and instead hold that the seven-year statute of
limitations for actions founded on judgments applies to
all provisions in a property-settlement agreement
incorporated into a divorce judgment, not just those that
pertain to alimony and child support. See Miss.
Code Ann. § 15-1-43.
Because Smith's action is to enforce a court-entered
judgment, and not merely a private contract, she had seven
years to file her contempt action once the seven-year statute
of limitations began to run.
Smith's Contempt Action Was Timely Filed
This leads to Moseley's next argument--that even with
seven years to file, Smith still waited too long. He claims
that, because the divorce judgment was entered in September
2000, Smith had to file her action by September 2007.
But " [t]he statute of limitations on a right to compel
a monetary judgment in a domestic action begins to run on the
date on which the payment is due and payable."
Carite, 841 So.2d at 1151 (¶ 5) (emphasis
added) (citing White, 802 So.2d at 102 (¶ 12)).
For example, the seven-year statute of limitations to recover
alimony payments runs from the month each payment vested, not
the date of divorce. E.g., Schaffer v.
Schaffer, 209 Miss. 220, 226, 46 So.2d 443, 444 (1950);
Nicholas, 841 So.2d at 1212 (¶ 11). We
recognize that in most cases property awards become due and
payable when the divorce judgment is entered. But here, at
the time of their divorce, Smith did not yet have a vested
right to indemnification from Moseley. It was only when
Trustmark went after her for the unpaid Camaro debt that
Moseley's obligation to hold Smith harmless became "
due and payable," triggering Smith's right to
[¶34] So we find the earliest Smith could
have sought enforcement of the hold-harmless provision--and
the earliest possible date the seven-year statutory period
could have begun--was in September 2006. This was when Smith
was served with process and suffered her first harm based on
the unpaid Camaro debt. As Smith filed for contempt less
than seven years from this date, we find her action was not
barred by section 15-1-43's seven-year statute of
Finally, Moseley argues that even if Smith's action was
timely, it still must be sent back to the chancery court
because the record does not support the amount of damages
awarded. But we see no reason to reverse.
The chancellor ordered Moseley to pay Smith
$36,036.18--$30,698.40 to reimburse Smith for having her
wages garnished to satisfy the Trustmark judgment, $4,000 in
attorney's fees, and $1,337.78 in travel expenses. The
$30,698.40 figure was based on the undisputed amount of the
Trustmark award, to which Smith attested in her affidavit
attached to her contempt complaint. Smith had been ordered to
pay the bank $15,262.96, plus 11.4% interest that had been
accruing since September 2003. Such an interest rate no doubt
doubled the amount Smith was obligated to pay in 2013, the
time she obtained her contempt judgment.
We also find the $4,000 award for attorney's fees and
$1,337.18 in travel expenses was reasonable. In contrast to
other family-law actions, where attorney's fees may be
awarded based on need, attorney's fees in contempt
actions are awarded " to make the plaintiff whole."
Bounds v. Bounds, 935 So.2d 407, 412 (¶ 18)
(Miss. Ct.App. 2006) (quoting Mabus v. Mabus, 910
So.2d 486, 490 (¶ 13) (Miss. 2005)). " When a party
is held in contempt for violating a valid judgment of the
court, then attorney's fees should be awarded to
the party that has been forced to seek the court's
enforcement of its own judgment." Id. (emphasis
added). Also here, two years before the chancellor's
final disposition, Moseley had entered an agreed order in
which he assumed responsibility for Smith's
attorney's fees and travel expenses in the event she
prevailed. So there is no doubt that awarding
attorney's fees and expenses to make Smith whole was
While there is no itemized bill of the legal services
Smith's attorney had rendered, the record shows the
amount of work he performed filing her contempt action,
responding to Moseley's motions, and attending a hearing
on Moseley's motion to reconsider. Under Mississippi Code
Annotated section 9-1-41 (Rev. 2014), " [i]n any action
in which a court is authorized to award reasonable
attorneys' fees," such as this contempt action, the
party seeking fees does not have " to put on proof as to
the reasonableness of the amount sought." Instead, the
court " shall make the award based on the information
already before it and the court's own opinion based on
experience and observation[.]" Id. Based on the
information before him, the chancellor determined a $4,000
fee award was reasonable. And we see no abuse of discretion
in this decision. The record also does not contain an
itemized list of travel expenses. But it does show Smith was
living in Illinois at the time she filed for contempt. In
light of the fact she had to travel to Harrison County,
Mississippi, to enforce the court's order, the award of
$1,337.18 for travel expenses is reasonable.
Because we find no abuse of discretion in the
chancellor's ordering Moseley to pay Smith $36,036.18, we
THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
Miss. Code Ann. § 93-5-2(2)
Miss. Code Ann. § 15-1-43 (Rev.
Actually, Moseley's initial response
was to file a motion to continue, so he could have more
time to prepare his bankruptcy-discharge defense. This motion
was resolved by agreed order, which gave Moseley additional
time " to prepare a brief on the issue of bankruptcy and
its effect on contempt." If the chancery court found in
favor of Moseley on the bankruptcy issue, Smith agreed her
contempt action would be dismissed. But if the court found in
favor of Smith on the bankruptcy issue, Moseley agreed to pay
her attorney's fees and travel expenses. After this
agreed order was signed, but before it was entered, Moseley
filed his motion to dismiss.
 The debtor could overcome the presumption
by establishing either:
[(A)] he or she does not have the ability to pay the
debt from his or her income or property that is not
reasonably necessary to be expended for the maintenance or
support of the debtor or a dependent of the debtor . . . [;
[(B)] discharging the debt would result in a benefit
that outweighs the detrimental consequences to a spouse,
former spouse, or child of the debtor.
In re Clark, 207 B.R. at 655 (quoting 11
U.S.C. § 523(a)(15)(A), (B) (1994)).
Of course, we maintain the supreme
court's long-stated principle that " provisions of a
property[-]settlement agreement executed prior to the
dissolution of marriage must be interpreted by
courts as any other contract." West, 891 So.2d
at 210 (¶ 13) (emphasis added).
Though the record is not entirely clear,
this also appears to be the date Smith returned from active
military service. And under the federal Servicemembers Civil
Relief Act, active military service automatically tolls the
running of any period of limitations. 50 App. U.S.C. §
526(a) (2012); see also In re Puckett, 137
So.3d 1264, 1273-74 (La. Ct.App. 2014). So even if the
seven-year limitations period were triggered earlier than
September 2006, this period would have been tolled during the
time Smith actively served.
 See note 3,