Sidney Kelton Pace v. Melanie Jean Pace
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00380-COA
SIDNEY KELTON PACE
APPELLANT
v.
MELANIE JEAN PACE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/25/2008
HON. RANDY GRANT PIERCE
JACKSON COUNTY CHANCERY COURT
DAVID A. ROBERTS
MARK H. WATTS
RAY T. PRICE
CIVIL - DOMESTIC RELATIONS
APPELLANT FOUND TO BE IN ARREARS
IN PAYMENTS DUE UNDER AGREED
JUDGMENT
AFFIRMED - 11/24/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Sidney Pace and Melanie Pace were granted a divorce on the ground of irreconcilable
differences on December 4, 2002; the judgment of divorce incorporated a written agreement
concerning custody and property settlement. Thereafter, on July 7, 2005, Melanie filed a
complaint for contempt in the Chancery Court of Jackson County, alleging that Sidney was
in arrears on his agreed payments. Sidney responded and asked the chancery court to find
the agreement unconscionable and, therefore, unenforceable. The chancery court held a
hearing on the matter and refused to find Sidney in contempt. In the judgment, the chancery
court modified some provisions of the agreement but, for the most part, left it intact.
Aggrieved, Sidney appeals and presents the following issues for consideration:
I.
Whether it was error to refuse to find the property settlement agreement
to be unenforceable based on its unconscionability and ambiguity.
II.
Whether it was error to order payment of the arrearage on the mortgage,
property taxes, and property insurance.
III.
Whether it was error to refuse to modify the property settlement
agreement to clarify the ambiguous terms.
IV.
Whether the chancery court’s ruling was ambiguous and unenforceable.
Finding no error, we affirm.
FACTS
¶2.
Melanie and Sidney were married on June 7, 1986, and they had three children during
their marriage, all of whom were minors at the time of the proceeding in chancery court.
Melanie and Sidney separated on or about May 29, 2002, and on December 4, 2002, they
were granted a divorce on the ground of irreconcilable differences.1 The parties had
previously signed an agreement for custody and property settlement (the Agreement), which
was signed by Sidney on September 17, 2002, and by Melanie on September 24, 2002. The
Agreement was incorporated into the final judgment of divorce.
¶3.
Sidney did not consult an attorney before signing the Agreement, despite the fact that
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Testimony revealed that Sidney was seeing another woman, who was pregnant with
his child.
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he was a doctor and had the financial means to do so. The Agreement provided that the
parties would share joint legal custody of the three minor children, with Melanie receiving
primary physical custody and Sidney receiving visitation. In pertinent part, the Agreement
included the following provisions: (1) Sidney shall pay $1,500 or twenty-two percent of his
income per month in child support; (2) Sidney shall maintain medical, health, dental, and
optical insurance through his employer for Melanie and the three children, and Sidney shall
be responsible for any costs not covered by that insurance; (3) Sidney shall be responsible
for the payment to obtain school uniforms; (4) Sidney shall be responsible for the payment
of the daycare expenses; (5) Sidney shall be responsible for the payment of the children’s
college expenses and extracurricular activities; (6) Sidney shall maintain $500,000 worth of
life insurance for the benefit of Melanie and the children; (7) Sidney shall be allowed to
claim the children for tax purposes; (8) Melanie shall be awarded all assets and interest that
Sidney has or may acquire in his professional associations or corporations; (9) Melanie shall
be awarded the marital home in Ocean Springs, Mississippi, with Sidney to be responsible
for the remaining indebtedness, taxes, and insurance on the home; (10) Melanie shall be
awarded the 1999 GMC Suburban, and Sidney shall purchase Melanie a new vehicle every
four years and be responsible for payments of said vehicles; (11) Sidney shall be awarded
the home in Pascagoula, Mississippi, and the 1999 Jeep Wrangler; (12) Melanie shall waive
any interest in Sidney’s medical practice; (13) Sidney shall pay Melanie $1,500 per month
in alimony, to increase to $4,500 per month if Melanie “is fired, quits, laid off, or her
position of employment with [Sidney’s] office and/or company is terminated for any reason
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. . .,” with alimony to survive Sidney’s death or Melanie’s remarriage; and (14) each party
shall waive any right to the other party’s retirement.
¶4.
Following the parties’ divorce, Sidney made payments of $6,000 per month to
Melanie. According to Sidney, this represented $1,500 in alimony, $1,500 in child support,
and $3,000 for Melanie’s household expenses – items such as the mortgage and car payment
that he had agreed to pay. Sidney contended that he paid more than he was required to pay
under the Agreement. However, Melanie claimed that he was in arrears in his payments for
the mortgage, taxes, and insurance because she thought the $6,000 per month represented
$4,500 in alimony and $1,500 in child support. Sidney did not make any payments for the
school uniforms or for daycare, but Melanie admitted that she never sent him a bill for those
expenses. Also, Sidney never added Melanie as a beneficiary to the $500,000 life insurance
policy that he maintained for the children, and Melanie never executed a release of her claims
to Sidney’s retirement.
¶5.
After hearing from the parties, the chancellor, for the most part, upheld the terms of
the Agreement. However, the chancellor did find that: (1) Melanie waived the provision
granting her an interest in Sidney’s business; (2) Melanie waived the provision ordering
Sidney purchase her a new car every four years; and (3) Sidney’s obligation to pay alimony
would cease upon his death or Melanie’s remarriage. The chancellor found that there had
not been a material change in circumstances that would warrant a reduction in alimony
payments because Sidney’s income had increased since the divorce; the chancellor also
ordered Sidney to pay the arrearage on the marital home expenses: the mortgage, insurance,
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and taxes. The chancellor found that Sidney was not in willful contumacious contempt of
court but did order him to pay $2,500 in attorney’s fees to compensate Melanie for having
to file the contempt action.
STANDARD OF REVIEW
¶6.
This Court’s standard of review in a domestic relations matter provides that a
chancellor is “vested with broad discretion, and this Court will not disturb the chancellor’s
findings unless the court was manifestly wrong, the court abused its discretion, or the court
applied an erroneous legal standard.” Pulliam v. Smith, 872 So. 2d 790, 793 (¶5) (Miss. Ct.
App. 2004) (citing Andrews v. Williams, 723 So. 2d 1175, 1177 (¶7) (Miss. Ct. App. 1998)).
DISCUSSION
I.
¶7.
Property Settlement Agreement
Sidney first argues that the Agreement that he and Melanie signed was unenforceable
because it was unconscionable and ambiguous. He describes the Agreement as “one such
as no man in his senses and not under a delusion would make on the one hand, and as no
honest and fair man would accept on the other . . . .” Warren v. Warren, 815 So. 2d 457, 461
(¶14) (Miss. Ct. App. 2002) (quoting In re Will of Johnson v. Robinson, 351 So. 2d 1339,
1341 (Miss. 1977)). Sidney claims that he had no choice but to sign the Agreement, which
had been drafted by Melanie’s attorney, and Sidney had little time to study it or read it
carefully. Furthermore, Sidney notes that he “was in the unfortunate position of having a
pregnant girlfriend and a hostile wife.”
¶8.
Generally, a chancery court may modify an award of periodic alimony if there has
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been a material change of circumstances that “occurred as a result of after-arising
circumstances not reasonably anticipated at the time of agreement.” Dix v. Dix, 941 So. 2d
913, 916 (¶15) (Miss. Ct. App. 2006) (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss.
1995)). However, the supreme court has also stated that “[p]roperty settlement agreements
are fixed and final, and may not be modified absent fraud or contractual provision allowing
modification.” Weathersby v. Weathersby, 693 So. 2d 1348, 1352 (Miss. 1997) (citing
Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993); Brown v. Brown, 566 So. 2d 718, 721
(Miss. 1990); East v. East, 493 So. 2d 927, 931-32 (Miss. 1986)). In Weathersby, the
supreme court stated that:
In property and financial matters between the divorcing spouses themselves,
there is no question that, absent fraud or overreaching, the parties should be
allowed broad latitude. When the parties have reached agreement and the
chancery court has approved it, we ought to enforce it and take as dim a view
of efforts to modify it, as we ordinarily do when persons seek relief from their
improvident contracts.
Weathersby, 693 So. 2d at 1351 (quoting Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990)); see
also Kelley v. Kelley, 953 So. 2d 1139, 1143 (¶9) (Miss. Ct. App. 2007) (noting that a
property settlement agreement incorporated into the divorce decree is not subject to
modification except in limited situations).
¶9.
Sidney first notes that “[w]here a property settlement agreement is entered into in
contemplation of a divorce on the ground[s] of irreconcilable differences, there is more at
work than general contract law.” Warren, 815 So. 2d at 461 (¶13) (quoting Grier v. Grier,
616 So. 2d 337, 340 (Miss. 1993)). He also bases his argument on the fact that a chancellor
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has discretion to modify a property settlement agreement “where he finds it is necessary to
protect the parties because the courts are not used as tools ‘for implementing unconscionable
contracts which are not fair to either party.’” Id.
¶10.
Sidney would further have this Court find overreaching based on this Court’s citation
to the Florida District Court of Appeals’ definition of the concept, which we stated as
follows:
“[T]hat which results from an inequality of bargaining power or other
circumstances in which there is an absence of meaningful choice on the part
of one of the parties.” Schreiber also stated that “overreaching involves the
situation where one party, having the ability to force the other into an unfair
agreement, does so.”
Lowrey v. Lowrey, 919 So. 2d 1112, 1119 (¶27) (Miss. Ct. App. 2005) (quoting Schreiber
v. Schreiber, 795 So. 2d 1054, 1057 (Fla. Ct. App. 2001)). However, Sidney neglects to
include this Court’s later citation to Schreiber, where we stated as follows:
[T]he Florida District Court of Appeal held that an agreement was not the
product of overreaching where it was definitely one-sided and unfair, but that
alone did not equate to overreaching absent a sufficient showing that the
settlement agreement resulted from an inequality of bargaining power or other
circumstances such that there was no meaningful choice on the part of the
disadvantaged party.
Id. at 1121 (¶35) (citing Schreiber, 795 So. 2d at 1057). In Lowrey, this Court went on to
summarize the wife’s situation that evidenced overreaching, such as the fact that: the wife
did not have an attorney; she could not afford an attorney; the husband threatened to see her
in court if she hired an attorney; the husband threatened that he would “destroy her”; the
husband threatened that she would never live in that town again or see her children again;
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and the wife signed the property settlement agreement at the law office of the husband’s
brother and attorney. Id. at (¶37).
¶11.
We find nothing similar in the circumstances in the present case except for the fact
that Sidney did not hire an attorney before signing the Agreement. We do not hold this factor
against Melanie because Sidney was a successful doctor who certainly had the financial
means to hire an attorney. The chancellor also found that Sidney had the intelligence to fully
read and understand the Agreement before signing it. In the final judgment, the chancellor
concluded that:
The Court is quite aware that Dr. Pace entered into an onerous agreement. As
the evidence indicated, Dr. Pace was motivated to obtain a divorce, and
according to Ms. Pace, Dr. Pace promised to take care of her and the children
[by] entering into the property settlement agreement. This Court is mindful
that the Agreement provided Ms. Pace with more in monthly support from Dr.
Pace than likely would have been awarded had this matter been litigated before
a chancellor. However, Dr. Pace entered into this Agreement of his own free
will and accord and must live by the terms thereof.
The fact that he “was in the unfortunate position of having a pregnant girlfriend and a hostile
wife” affords Sidney little sympathy or grounds to constitute overreaching.
¶12.
Sidney’s reliance on Duncan v. Duncan, 815 So. 2d 480, 484 (¶13) (Miss. Ct. App.
2002) is similarly misplaced. In Duncan, the chancery court granted a divorce on the ground
of uncondoned adultery, and the court made the determination as to the financial award. Id.
at 482 (¶1). Duncan is distinguishable from the present situation in which the parties were
granted an irreconcilable differences divorce and signed a property settlement agreement.
¶13.
In Lowrey, this Court stated that:
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Our standard of review dictates that this Court must enforce a settlement
agreement connected to a divorce action as long as that agreement received
approval by the chancery court. There are two exceptions to our mandate to
enforce an approved settlement agreement: this Court may not enforce such an
agreement if the moving party demonstrates either fraud or overreaching.
Lowrey, 919 So. 2d at 1118 (¶23) (citations omitted). We find no evidence of such fraud or
overreaching in the present case. Accordingly, this Court must enforce the Agreement into
which the parties voluntarily entered and which was approved by the chancery court. We
find that this issue is without merit.
II.
¶14.
Arrearage
Sidney next takes issue with the chancellor’s ruling that ordered him to pay the
arrearage on the mortgage, insurance, and taxes for the marital home. To support his
argument, he claims that he should only be obligated to pay $1,500 per month in alimony
instead of the $4,500 per month that Melanie alleges he owes. Sidney argues that the
Agreement contained a condition precedent that needed to be met in order for the alimony
payments to increase – that Melanie no longer work at Sidney’s office. According to Sidney,
Melanie never really worked for him; therefore, she was not entitled to increased alimony
because she never stopped working for him. Under Sidney’s reasoning, he was not in arrears
on any payments because he had been paying $6,000 per month, which included $1,500 for
child support, $1,500 for alimony, and $3,000 for other expenses such as the mortgage, taxes,
and insurance on the former marital home.
¶15.
The provision of the Agreement with which Sidney takes issue provides the following:
It is understood and agreed between the herein parties that in the event
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Melanie Jean Ward Pace is fired, quits, laid off, or her position of employment
with Sidney Kelton Pace’s office and/or company is terminated for any reason
whatsoever, then the amount of permanent, periodic alimony, shall be
increased to four thousand five hundred dollars ($4,500.00), per month.
At trial, Melanie testified that she had performed various work for Sidney at his medical
clinic. At the time the parties signed the Agreement, Melanie was no longer working for
him; therefore, the condition precedent had already been satisfied.
¶16.
The amount of the arrearage totaled $87,889.33, which included the following
expenses for the former marital home: $62,466 for the mortgage, $10,633.33 for taxes, and
$14,790 for insurance. These amounts were documented by Melanie at trial. The chancellor
found that Sidney was able to pay the amount of alimony that he agreed to pay and further
found that his income had actually increased since the time he signed the Agreement. Sidney
agreed that he would pay $4,500 per month in alimony to Melanie if she was no longer
working for him. We find no abuse of discretion or manifest error in the chancellor’s ruling
that Sidney was responsible for the arrearage claimed by Melanie. Accordingly, this issue
is without merit.
III.
¶17.
Refusal to Modify the Property Settlement Agreement
In his third allegation of error, Sidney argues that the chancellor erred by failing to
clarify the provisions of the Agreement in which Sidney agreed to pay for medical costs
incurred by Melanie and the children and in which he agreed to pay for the children’s college
expenses. He cites error with the chancellor’s refusal to apply Duncan, 815 So. 2d at 484
(¶14) in this case. On appeal, Sidney again cites Duncan, but he cites no other authority to
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support his position.
¶18.
As previously stated, Duncan addressed an equitable division of marital assets and the
corresponding award of alimony as determined by the chancellor. The present case involved
an agreement to which both parties voluntarily agreed, and which the chancellor merely
approved. The chancellor refused to apply Duncan for that very reason, and we find no error
with the chancellor’s ruling. This issue is without merit.
IV.
¶19.
Ambiguity of the Chancery Court’s Judgment
Lastly, Sidney takes issue with the chancellor’s order that Sidney continue to pay the
balance of the mortgage on the marital home, as was agreed. Sidney argues that the
chancellor’s judgment was vague in that it did not take into consideration the fact that
Melanie had refinanced the mortgage. According to Sidney, the judgment failed to state
“when the obligation would end or the amount due.”
¶20.
We disagree with Sidney’s assessment of the chancellor’s judgment. The chancellor
clearly specified that:
The Court finds that Ms. Pace refinanced said home in order to receive a
portion of the equity from the marital home for family expenses. This Court
finds that Dr. Pace is not required to pay said amount of equity realized from
the refinancing of the marital domicile, but he is responsible for the balance
outstanding at the time of the parties’ divorce. Thus, Dr. Pace is responsible
for the amount of the house payment that existed at the time he agreed to the
property settlement agreement.
Thus, Sidney’s argument is contradicted by the chancellor’s judgment, which clearly
provides that Sidney is only responsible for the amount of the mortgage outstanding at the
time he signed the Agreement. This issue is without merit.
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¶21. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND
MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE
WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.
CARLTON, J., DISSENTING:
¶22.
I respectfully dissent. I submit that Sidney and Melanie Pace’s property settlement
agreement is ambiguous and riddled with conflicting terms and is, therefore, unenforceable
due to ambiguity. Simply put, the contradictions and ambiguity prevent this Court from
ascertaining the parties’ intent. Moreover, a plain reading of the agreement fails to reflect
that there was a meeting of the minds as to the terms. For example, the agreement provides
that Melanie shall be awarded all assets and interest that Sidney has or may acquire in his
businesses, professional associations, or corporations. Then, the agreement later states that
Melanie shall waive any interest in Sidney’s medical practice and business. These terms
stand in conflict with one another, and as a result, the chancellor modified certain provisions
of the agreement. However, modification of such an ambiguous contract results in a contract
written by the court, and it is not the purpose of the courts to make contracts for parties.
HeartSouth, PLLC v. Boyd, 865 So. 2d 1095, 1109 (¶41) (Miss. 2003) (citations omitted).
¶23.
Further, since the agreement fails to reflect a meeting of the minds, “[a] court cannot
‘draft a contract between two parties where they have not manifested a mutual assent to be
bound.’” Ivison v. Ivison, 762 So. 2d 329, 336 (¶23) (Miss. 2000) (quoting A. Copeland
Enterprises v. Pickett & Meador, Inc., 422 So. 2d 752, 754 (Miss. 1982)). I respectfully
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submit that due to the ambiguity and conflicting terms of the agreement, the parties’ intent
cannot be ascertained, and the agreement fails to reflect mutual assent as to the terms.
Hence, I would find the property settlement agreement unenforceable due to such ambiguity.
Accordingly, I must dissent from the majority’s holding to affirm the chancellor’s judgment.
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