IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-00192-SCT DRAKE L. LEWIS

v. TONIA D. LEWIS PAGEL

DATE OF JUDGMENT: 01/08/2016 TRIAL JUDGE: HON. CARTER O. BISE TRIAL COURT ATTORNEYS: THOMAS W RIGHT TEEL DEAN HOLLEMAN COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: THOMAS W . TEEL ATTORNEY FOR APPELLEE: DEAN HOLLEMAN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 06/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. Tonia ( Lewis) Pagel ( “Tonia”) f iled f or divorce against Drake Lewis (“Drake”) in the Harrison County Chancery Court, Second Judicial District. An order of divorce was entered in 2008. This case is now on its third appeal to this Court. ¶2. Drake f

iled h is f irst appeal f

rom the order of divorce. Lewis v. Lewis , 54 So. 3d 233, 239 (Miss. Ct. App. 2009) ( Lewis I ) (rem anding w ith instructions f or valuing the m arital estate). On certiorari, t his Court af f irm ed in part a n d r eversed in pa r t , r e ma nding the case
to the chancery court. Lewis v. L ewis , 54 So. 3d 216, 218 (Miss. 2011) ( Lewis I I ) (f inding that “the chancellor should value Legacy 1[ , a m arital business,] w i t h o u t consideringgoodwill”). Af ter rem a nd, the chancellor issued his judgm ent and an order o n m odif ication

a nd c ontem

pt. Drake f

iled h is second appeal f

rom the judgm ent and the order. L e w i s v . Pagel , 172 So. 3d 162, 177 (Miss. 2015) ( Lewis III ) (rem anding on issue of child support). ¶3. Now, Drake appeals t wo i ssues. First, Drake argues that the order of divorce should be voided due t o a lack o f j urisdiction and that the chancellor erred i n f inding that he resided in Harrison County

. D rake claim s that he never resided in Harrison County and that it was an im proper venue f

or the suit. Second, Drake argues that the chancellor erred in entering

an o rder o f contem

pt a gainst him

. Finding n o e rror, we a f f irm the judgm ent of the chancellor on both issues.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶4. Drake and Tonia were ma r r i e d i n 1991. Tonia f iled f or d ivorce in A ugust 2006 in Harrison C ounty C hancery Court, Second Judicial District; an order o f divorce was entered on January

11, 2008. Jurisdiction Facts ¶5. On Septem

ber 22, 2014, at a hearing on a contem pt m o tion f

iled by Tonia, while the second a p p e a l was pending bef ore this C ourt, Drake f

iled a m o tion f

or a continuance and argued f or the f irst t im e in t h e l i t i g a t i o n that the divorce action was void f or lack of jurisdiction due to i m

p r oper venue under Mississippi Code Section 93-5-11. The chancellor granted the m otion f

or c ontinuance, and Drake f iled a Motion to Declare Prior Orders Void and to Dismiss Actions

. Drake’s counsel claim ed that he f irst becam e aware of

the lack of

2jurisdiction on Septem b er 22, 2014, when he and Drake w ere discussing the f a cts related to the contem

pt m otion. ¶6. In his f

iling, D rake argued that he and Tonia both resided in Jackson Co u n t y at the tim e of their separation and when Tonia f i led f or divorce i n Harrison County

. He also noted that he was served i n Jackson Co u n t y . I n a n af f idavit, Drake recognized that Tonia’s

com plaint f or divorce alleged that he resided at “Gulf Shores Villa, Atkinson R o ad, in Biloxi, Mississippi.” He argued, though, that this was the address of his aunt’s c o ndom inium and that he h ad never resided there. Further, he argued, af ter h is separ a t ion f

rom Tonia, he resided a t his business address in Jackson County

. W hile he conceded that he “spent som e nights away f

rom J a ckson County ,” he claim e d t hat he was a resident of the county f rom the tim e of separation through the entry of the d ivorce order in 2008 until he m o ved to Louisiana in 2009. ¶7. As evidence of his residence in Jackson County , Drake n o t e d t h a t h i s M i s sissippi driver’s license was issued in Jackson County f rom 2004 until 2008. He also pointed out that his business of

f ice—which h e a r g u e d he used as a prim ary residence—was in Jackson County

. Further, according to Drake, he was registered to vote in J a ckson County f r om 1996

to 2011. Lastly , he c laim ed t hat his m ail, d uring this tim e period, was delivered either to his

m arital residence or his business—both in Jackson County

. ¶8. In her response t o Drake’s m otion, Tonia argued that Drake lef t the m arital residence

on June 12, 2006, a n d m oved to B iloxi, M ississippi, i n Harrison County af ter their

3separation. 1 She noted that Drake did not answer her com plaint t hat alleged that he resided in H arrison County

. Tonia also claim ed that D r a k e , o n h i s Rule 8.05 f inancial disclosure

statem ent, f

iled on Septem

ber 29, 2 006, represented t o t h e chancery court—in his own handwriting—that his address was in Biloxi, Mississippi. See Miss. Unif . Chancery

Court
R. 8.05. In r esponse, D rake noted that he spent ten to f ourteen nights at the Biloxi address and put the address there “probably because he had stay ed t here when he draf ted it.” Further, Tonia noted that Drake adm itted in a 2007 deposition that he lived in Biloxi: Q. And where did y ou live prior to January of ‘07? A. I lived in Biloxi at an apartm ent. Q. And w hen is the last tim e y ou lived at Marina Road o r Ma r i na Drive, where the hom e is? A. June of

’06.
In her a f f idavit, Tonia claim ed that “[ d]uring his scheduled visitations, I brought the children

to him at t h[ e Harrison County ] residence w here they rem ained with him f or the weekend.” Tonia also cited her unref uted trial testim ony : Q. And at the tim e -- so the record will be clear, at the tim e y ou f iled y o ur com plaint f o r divorce in the Se c o n d J u d icial District, that is where Drake was living, correct? A. Yes. ¶9. At the hearing, on October 6, 2014, Drake explained his living situation:
Im m e diately a f

ter the separation, I spent m y t im e divided b etween m y aunt’s. My aunt h ad a one-bedroom apartm ent in Biloxi, a nd I spent s om e nights there

1 T h e en tire c ity o f B ilo x i, M ississip p i, rests w ith in th e S eco n d Ju d icial D istrict o f H a rriso n C o u n ty

. 4and s om e n ights at m y of f ice in G autier [ in Jacks o n C o unty ], and then som e of the tim e at Stephanie’s hom e in Jackson County in Ocean Springs. Drake also claim ed that his residence r em ained the m arital hom e s ince he paid the m ortgage

on the property , and he claim ed, “I spent, as I said bef ore, about equal t im es, probably m ore in Gautier at m y of

f ice t han any

where else.” Drake testif

ied that s ince 2005 he had never had

a ny v oting privileges, hom estead rights, or residences in Harrison County

. Tonia testif i e d that she never d elivered the children to t h e o f f i c e f or any w eekend visitation. She also claim ed that Drake had t old he r t h a t h e w a s going to “stay ” at his aunt’s apartm ent; when asked again, Tonia claim ed that Drake had said he “was going to live there.” ¶10. Af ter the hearing, the chancellor denied the m otion. The chancellor f ound that Drake “lef t t h e m arital h om e in June of 2006,

. . . m oved to Biloxi, Mississippi, Second Judicial District o f Harrison County , Mississippi [ a n d ]

. . . t ook up residence i n h is aunt’s condom inium .” Further, the chancellor noted that Drake’s Rule 8

. 0 5 disclosure listed his

m ortgage on the m arital hom e as his “previous household.” The chancellor wrote,

This Court is well aware that this is a f actual determ ination t hat it m ade bas e d u pon t he evidence presented to it, under oath, at the initial trial of this m atter. Propriety of

venue was established by the testim ony a t the f

irst trial. No objection to venue was m ade at the trial. No objection to venue was raised in the f irst appeal. No objection to venue was m ade at the retrial of this m a tter. No issue of

venue was raised in the second appeal.

. . . A g a in, there is the question of credibility

. For Drake Lewis t o n o w claim af ter having af

f irm atively led this Court t o f ind that it had proper venue because he never resided in Biloxi is unbelievable. He l ef t Tonia Lewis and Jackson County in June of 2 006 and m oved to Biloxi, and rem ained t here until he m o ved in with his param our in Ocean S prings, J a ckson County , Mississippi in January 2007.

5The chancellor f ound that Dr a k e ’ s m otion was f rivolous a nd awarded a ttorney ’ s f ees to Tonia. ¶11. In r esponse, Drake f iled a petition f

or interlocutory appeal with this C ourt. This Court denied Drake’s petition on Decem ber 10, 2 014. On F ebruary 1 8, 2016, Drake entered into three agreed orders that the Harrison County Chancery Court had subject-m atter jurisdiction over the divorce action. Contempt Facts ¶12. On May 19, 2015, the c hancellor granted Tonia’s m otion f o r contem pt a nd entered a judgm ent of contem

pt against Drake. The chancellor f ound that it had jurisdiction to enter
t h e j u d g me n t o f c ontem

p t a s Drake was not entitled to a s tay o f the proceedings while h e awaited r esolution o f his petition f or in t e r l o c u t o ry appeal. The chancellor r ecognized the im p lications o f l acking jurisdiction and stay e d entry of the judgm e nt until the resolution of the jurisdictional issue in the petition f or interlocutory

appeal. ¶13. Tonia sought a total contem pt award of $ 306,176.82. Of that award, $132,812 was due to Tonia as a portion of the equitable distribution of assets in the divorce d ecree entered in 2008. See Lewis III

, 172 So. 3d at 173–74. Tonia sought $5,000 in attorney ’s f ees and $60,000 in lum

p-sum alim ony that the chancel l o r h a d a w a rded her on February 15, 2013. See i d

. at 175–76. S he also sought $2,353.50 f or one of the children’s orthodontic expenses. ¶14. I n a n a l y z i n g D rake’s ability to pay , the chancellor recognized that D rake and h i s
current wif

e’s totaled i ncom e f

o r 2013 was $89,970. T he chan c e l l o r noted that Drake’s wif e’s incom e “was not to b e considered in establishing any obligation f o r [ D r a ke]” but

6realized that the “com bined incom e dem onstrat[ ed] what t h e c u r r e n t household incom e” was. Addressing Drake’s “true f inancial m eans,” the c h ancellor noted that if D rake chose to do

s o h e could sell his collector Chevrolet Corvette, various properties and an interest i n a n apartm ent com

plex. In a d d i t i o n, the chancellor recognized that D r ake had sold a property
appro x i ma tely one week bef ore the contem

pt h earing and paid his f a ther t he proceeds of $45,000. ¶15. Throughout the o rder, the chancellor em phasized the r ole of Drake’s f ather in Drake’s f inances. He recognized that the d ebts Drake claim ed to owe his f ather were “not truly debts owed by [ Drake] to his f ather,” as his f

ather was willing to f

orgive the de b t s i n o f

f e r s of settlem ent to Tonia. The chancellor also f ound that Drake “attem

pted to shield h is assets and dodge obligations by m oving properties into his f a ther’s nam e.” ¶16. As evidence of the f a ther’s involvem ent in Drake’s f inances, the chancellor noted that the f ather paid f

or D rake’s legal education, the no t e o n the house that Drake l ived in af ter obtaining his law de gree a nd several notes o n Drake’s other properties. Meanwhile, the chancellor recognized t hat Drake’s incom e had not increased despite his graduation f rom law school; eight y ears a f

ter the f iling of divorce Drake still earned the sam e approxim ate salary of $55,000 f

rom his f ather’s bu s i ness. Further, the chancellor f ound two m ortgages that Drake alleged to o we to h is f ather to be “a s ham .” The chancellor noted that the m ortgages lacked accom

pany ing prom i ssory notes. This is despite the f act that the chancellor lef t the hearing record open f

or a day t o allow Drake to e nter into evidence the prom issory notes f or the m ortgages. In addition, the chancellor noted that the m ortgages w ere entered into

7between D rake and his f ather thirty -f

ive day s a f

t er the chancellor h ad d enied Drake’s m otion f or reconsideration of

the chancellor’s judgm ent af ter rem and. ¶17. In light of h is fi n d i n g s, t he c hancellor f ound that Drake’s “ actions constitute[ d] willf ul and c ontum acious contem pt.” He f ound t hat Drake had the present ability to pay and sim ply ref used to pay

the judgm ent of

contem pt. In addition to Drake’s present ability to pay , the chancellor also observed that Drake had the $132,812 in h is possession when the distribution originally was ordered in the 2008 divorce d ecree. F urther, the chancellor recognized that Drake’s of

f e rs of settlem e n t “included no of f e r to pay [ Tonia] any cash

. . . only

. . . real property , som e of

which carried m ortgages.” ¶18. The chancellor e nte r e d t h e j udgm ent of c ontem pt against Drake in the am ount of $197,812 with i nterest on the judgm ent set at 2.5 percent. As part of the judg me n t , the chancellor awarded Tonia attorney ’s f ees but specif

i cally excluded any recovery f or the t im e Tonia’s counsel spent def e nding D rake’s venue objection. He a lso set the p urge am ount at $25,000. Af

ter the ruling, Tonia f

iled a m otion under Mississippi Rule of Civil Procedure 59, arguing tha t t h e c h a n c ellor’s stay of the May 2015 judgm ent was in error as Drake’s interlocut o r y p e t i t i o n h a d been denied by t his Court in 2014. Tonia requested that the chancellor reconsider t h e c ontem pt judgm ent and incarcerate Drake “ until h e purge[ d] him self of the f ull am ount owed to Tonia.” ¶19. O n January 5 , 2016, the chancellor held a hearing on Tonia’s Rule 59 m o t i o n . O n January 11, 2016, the chancellor recognized t hat this Court had denied Drake’s interlocutory petition on Decem

ber 10, 2 0 14. The chancellor f urthe r o r d e r e d t h e parties to set a date to

8hear the child-support i ssue that this Court had r em anded in A ugust 2015 i n its resolution of

the second appeal. See Lewis III , 172 So. 3 d at 177. The chancellor also ordered Drake to
pay the purge am ount o f $25,000 pursuant to the May 2 0 1 5 j u d g m e nt on the date of the hearing on child support. Also, t he chancellor o r d e r e d Drake to pay Tonia an additional $2,000 in attorney ’s f

ees. ¶20. The hearing on child support was set f or February 18, 2016. O n February 1 , 2016, Tonia f iled f or contem p t f or support due to her since the May 2015 judgm ent. Drake f iled his notice of

appeal on February

4, 2016. According to the notice, D rake appeals f rom the judgm ent on January

11, 2016. ¶21. A f t e r t h e f iling of the notice of appeal, the parties entered three agreed orde r s o n February 1 8 , 2 0 1 6

. The f irst order recognized that Drake had tendered a check f or $35,509.48 t o the chancery court c lerk and directed the clerk to disburse the f unds to Tonia. The ord e r also noted t hat Drake was pay ing Tonia the purge am ount and attorney ’s f ee judgm ent of January 1 1, 2016, with the rem aining am ount to be credited t oward the May 19, 2015, contem

p t j udgm ent. The second order entered judgm e nt a gainst Drake f or $ 30,000 f

or the l um p-sum alim ony owed b etween March 2 015 a nd February 2016 a nd f or $1,564.32 f

or attorney ’s f

ees that were ordered as a result of Drake’s 2014 venue o bjection. This second order reserved ruling on the issue of contem pt in relation to t hese a m ounts owed b y Drake. The third order m erely recognized that D rake h ad tendered p ay m e n t o f $ 3 5 , 5 09.48 to the chancery court clerk to be disbursed to Tonia.

9STANDARD OF REVIEW

¶22. “This C ourt will not disturb the f indings of a chancellor unles s t h e c h a n c e llor was

m anif estly wrong, clearly erroneous or a n erroneous legal standard was applied.” White v. White , 2 6 So. 3d 342, 346 (Miss. 2010) ( quoti n g R .K. v. J.K. , 946 So. 2 d 764, 772 (Miss. 2007)). Further, we “will not reverse a Chancery C ourt’s f i ndi n g s . . . w here there is substantial e vidence supporting those f indings.” Madden v

. R h o d e s , 626 So. 2d 608, 616 (Miss. 1993). W e also recognize that the chancellor “ being the o n l y one to hear the testim o ny of witnesses and observe their dem eanor, is to j u d g e their credibility

. He is best able to determ i ne the veracity of their testim ony , and this C ourt will not underm ine the chancellor’s authority by replacing his judgm e nt with its own.” I d

. “For q uestions of law,

we em ploy a de novo standard of review and will only r everse f or an erroneous interpretation

or application of t he law.” Boyd v. Tishom ingo Cty. Dem ocratic Exec. Com m . , 912 So. 2d 124, 128 (Miss. 2005) (citing In re Mun. Boundaries o f City of Southaven , 864 So. 2d 912, 917 (Miss. 2003)). ANALYSIS
I. Jurisdiction Findings ¶23. The chancellor f

ound that Harrison County w as the proper venue f or the divorce, a s Drake r e s i d e d i n Harrison County at the tim e Tonia f iled the d ivorce petition. Substantial evidence f

rom the record supports this f inding. ¶24. Venue over a contested divorce proceeding is governed by Mississippi Code Section 93-5-11, which provides in relevant part:

1 0. . . If the def endant b e a resident of this state, the com p laint shall be f

iled in the county in w hich such def endant resides or m ay be f ound at the tim e, or in the county of the residence of the p a r t i e s a t t he tim e of separation, if the plaintif f be still a resident of

such county

when the suit is instituted. Miss. Code Ann. § 93-5-11 (Re v . 2 0 1 3 )

. W e recognize that “that t he word ‘residence’ as used in d ivorce s t atutes i s sy n ony m ous with ‘dom icile.’” D unn v. D unn , 577 So. 2d 378, 380 (Miss. 1 991) (citing Bilbo v. Bilbo , 180 Mi s s . 5 3 6 , 5 4 6, 177 So. 772, 775 (1938)).
Dom icile r equires (1) an a ctual residence and (2) “the bona f ide intention of rem aining there, if not perm anently , at least indef initely .” Sm ith v. Sm ith , 194 Miss. 431, 12 So. 2d 428, 429 (194 3 )

. “ T h e f

o u n dation of dom icile i s intent.” S tubbs v. Stubbs , 211 So. 2d 821, 825 (Miss. 1 968). “‘[ A]s a dom icile m ay be acquired by a longer or shorter residence, depending
upon the circum stances of the case, its true basis and f oundation m

ust be the intention, the

quo ani m o o f e vidence.’” Hale v. State Dem ocratic Exec. Com m ., 168 So. 3 d 946, 952 (Miss. 2 015) (quoting H airston v. Hairston , 27 Miss. 704, 719 (18 5 4 ) ) ( e m p hasis in original). ¶25. Here, D rake listed h is address on his initial 8.05 statem ent as Harrison County

. He also listed his m ortgage pay m ent on the m arital hom e as his “previous household.” Also , Drake t estif

ied in an 2007 deposition that he lived in Harrison C ounty bef ore J anuary of 2007. Further, D rake’s residence was e stablished at trial by Tonia’s u nref uted testim ony . In addition, Tonia testif

ied t hat when Drake lef

t the m arital h om e in Jackson County , he packed his truck with his belongings and lef t to live at his aunt’s condom inium in Harrison County

. Drake also of ten would keep the children on w e e k e n d v i s itations at the condom inium

.
1 1¶26. It is clear throughout the divorce proceedings that the c h ancellor did not f ind Drake

to be a credible witness. In his o rder deny in g D r a ke’s m otion to dism iss, the chancellor wrote, “Again, there is the question of credibility

. F o r Drake L ewis t o now claim af ter having af f irm atively led this Court to f i nd that it had proper venue because he never resided in Biloxi is unbelievable.” See also Lewis I , 54 So. 3d a t 2 35 ( “[ T]he chancery c ourt noted th a t i t h a d ‘the opportunity to observe the dem eanor of the w itnesses, and to judge their credibility [ , and] that [ Drake] is not a credible witness. He m a d e ef f orts to hide assets and incom e.’”). All of this evidence supports the chancellor’s f inding that Drake was dom iciled in Harrison County

. ¶27. Althoug h D r a k e d i s a grees with the chancellor’s f inding and interpretation of the evidence, we give def

erence to a chancellor’s f i nding that is supported by subs t a n tial evidence. The chancellor is in the best position to j udge the credibility of the witnesses, and here the chancellor f

ound D rake not credible. Also, while Drake d id not update his Jackson County driver’s license or voter’s r egistration during the tim e he resided in Harrison County ,

a f inding o f dom icile depends o n the f acts and c ircum stances of each case. Here, s u bstantial evidence supports the chancellor’s f inding t hat Drake resided in Harri s on County with the intention to rem ain there when the divorce was f iled.
II. Waiver ¶28. In ad d ition t o residing i n H arrison County , Drake waived his o bjection to im proper

venue by not tim ely raising it. Under Mississippi law, it is a “basic prem ise that venue m ay be waived.” Belk v. State Dep’t of Pub. Welfare , 473 So. 2d 447, 451 (Miss. 1985).

1 2¶29. Section 159 of t he Mississipp i C o n stitution vests subject-m atter jurisdiction in the

chancery courts over divorce proceedings. M iss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi C ode Section 93-5-11. Section 93-5-11 was am ended by the Legislature in 2005 t o include new language on the t ransf er of

venue: “Transf

er o f venue shall b e governed by Rule 8 2(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see a lso 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of

Civil Procedure provides: (d) Im p rop e r V e n ue. W hen an a c tion is f iled lay i ng v enue in t he wrong county , the action shall not be dism issed, but the c ourt, on tim ely m otion, shall transf er the action t o the court in which i t m i ght properly have been f iled and the case shall proceed as though originally f iled therein. The expenses of the transf er shall be borne by the plainti f f

. The plaintif

f shall have the right to select the court to which the action shall be transf erred in the event t he action m ight properly

have been f

iled in m ore than one court. M.R.C.P. 82 (em

phasis in o riginal). Further, t he Rules provide the procedure f or c ontesting im p roper venue. M.R.C.P. 12(b). W e have not applied the l anguage o f Section 93-5-11 directly af ter its 2005 am endm ent. ¶30. W e recognize that bef ore the 2005 am endm ent this Cour t c o n s i s t e n t l y f ound that Section 93-5-11 could not be waived as it vested subject-m atter jurisdic t i o n o ver divorce actions in the chancery courts. See Cruse v. Cruse , 202 Miss. 4 97, 499, 32 So. 2 d 355, 355 (1947) ( apply ing Section 2738); Price v. Price , 2 0 2 M i ss. 268, 272, 32 So. 2d 124,125 (1947) (a p p l y i ng Section 2738); Carter v . Carter , 278 So. 2d 3 94, 396 (Miss. 1973) (apply ing Section 2738) 2 ; M i ller v . Miller , 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark ,

2 S ectio n 2 7 3 8 o f th e M ississip p i C o d e o f 1 9 4 2 is th e statu to ry p red e cesso r o f S ectio n 9 3 -5 -1 1

. 1 3755 S o. 2d 31, 33 (Miss. Ct. A pp. 1999); Slaughter v. Slaughter , 8 69 So. 2d 386, 395 (Miss.

2004); see also Bush v. Bush , 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding

m erits of petition f or interlocutory

appeal). ¶31. Today , we overrule these past c ases to t he extent that they hold that Section 93-5-11 conf ers subject-m atter jurisdiction on c h a ncery c ourts. 3 Subject-m atter jurisdiction is
convey ed by the Mississippi Constitution. Section 93-5-11 governs t he venue of a divorce action a nd lim its the chancery court’s exercise of personal jurisdiction over the def endant. The Mississippi Rules of Civil P rocedure control the procedure to be utilized when venue is im proper. ¶32. Additionally , even if the v e nue argum ent was correct, t he appropriate rem edy would have been transf

er of the m a tter to Jackson County

. M .R.C.P. 82(d). Rule 82(d), explicitly incorporated by S ection 93-5-11’s am endm e n t, allows the c ourt t o transf er an action only “on tim ely m otion.” Id. ¶33. D r a k e ’ s mo t i on challenging venue—eight y ears af ter the initial com

plain t

— w a s untim e ly

. Tonia f

iled her com

plaint f or divorce in 2 006; the chancery court entered an order of divorce in 2008. Drake f irst raised the issue o f venue in 2014—six y ears af t er the entry of the judgm ent of divorce.

3 In 2 0 0 6

— a f

t e r S ectio n 9 3 -5 -1 1 w a s a m en d ed

— t h is C o u rt, in d i cta, f

o u n d t h at S ectio n 9 3 -5 -1 1 ’s v en u e req u irem en t co n f erred su b j ect-m atter j u risd i ctio n o n th e ch an cery co u rts. National Heritage Realty , I n c . v . Estate of Boles , 947 S o. 2d 238, 248–49 (Miss. 2006) (apply ing Miss. C ode Ann. § 91-7-63(1)). W e d ecline t o f ollow this interpretation of Section 93-5-11 post-am endm ent. It appears the Boles Court d id not t a ke the am endm ent into account. 1 4¶34. It is uncontested in the record that Dr a k e d i d n o t a n s w e r T o n i a ’ s com plaint f or divorce. W h ile Drake was not required to do s o , he was perm itted to do so under Mississippi Rule of Civil P rocedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded t o Tonia’s com plaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary m atters, including several appeals, bef ore raising his venue objection once a contem pt judgm ent appeared im m inent. ¶35. Our f

inding of waiver is r einf

orced by D rake’s actions af ter f iling this appeal. Af

ter Drake noticed this appeal—in which he raises the issue of a l a c k o f s u b j ect-m atter jurisdiction bef

o re this Court—he entered three a greed orders t hat were approved as to f orm b y h i s counsel. Each order recognizes t hat the Harrison County Chancery Court ha s jurisdiction over both the subject m atter of the dispute and the parties involv e d in the dispute. 4 Theref

ore, we f i n d that Drake has waived his objection to venue by litigating in Harrison County

. III. Contem pt ¶36. W e wi l l n o t r e v e r s e the chancellor’s f inding of contem

pt unless the decision was

m anif estly wrong. L ewis III

, 172 So. 3d at 178 (citing Gutierrez v . Gutierrez , 153 So. 3d 703, 713 (Miss. 2 0 14)). “Contem pt m atters are com m itted to the substantial discretion of the trial court.” Gutierrez , 153 So. 3d at 713. ¶37. C i v i l c o n tem

pt is m eant to com

pel parties to obey orders of the court

. J o n e s v . Hargrove , 516 So. 2d 1354, 1357 (Miss. 1987).

4 It is n o ted th a t th e ap p ro v al o f th e o rd ers is o n l y as to “f o rm .” H o w ev er, th e o rd ers are ag reed (as o p p o sed to co n tested ) o rd ers. 1 5¶38. Civil contem pt is m eant to com

pel p arti e s t o o b e y o r d e r s o f the court. Jones v. Hargrove A num

ber of def enses are available to a party contesting contem

pt: [ A] party can a rgue that his or her violation of the court’s order was not willf ul or delibera t e a s t o be labeled “contum acious.” Another def ense t o civil contem pt is the p arty ’s h o nest inability to perf orm according to the dictates of the order or decree. But the def end a n t h as a duty to prove his inability with particularity

and not in general term s . Gutierrez , 153 So. 3d at 713 (internal citations om itted). ¶39. Here , t h e e v idence supports the c hancellor’s decision to h old D rake in contem pt. 5 Throughout the d i vorce p roceedings and subsequent hearings, the chancellor f ound several tim es that Drake w as not a credible witness. There is certainly t he sam e im plication within the order of contem

pt. The chancellor f

ound th a t i t a p p e a red that Drake had attem pted to shield his assets and dodge obligations. Further, the chancellor f ound i t necessary to analy ze Drake’s “true f

inancial m eans.” The chancellor specif ically f ound that Drake had the present ability to pay and h ad chosen not to do so. Drake owns a Chevrolet C orvette that has substantial value, several properties, and a one-f i f th i nterest in an apartm ent com plex that is valued at $135,000. H e did n o t liquidate any of these assets in order to pay Tonia. He did, however, sell o ne of his properties a week bef o re the contem

pt hearing and gave his f

ather $45,000 of the proceeds. A s f u r t her e vidence of both D rake’s current ability to pay the

contem pt and the chancellor’s assessm ent of his credibility , Drake, f a c ing incarceration, won the “jailhouse lottery ” and tendered $35,509.48 to Tonia.

5 D rak e’s ap p eal is p ro ced u rally p ro p er. T o n ia’s arg u m en t t h at D rak e sh o u ld h av e ap p ealed th e M ay 2 0 1 5 j u d g m en t o f co n tem p t in stead o f th e Jan u ary 2 0 1 6 j u d g m e n t is w i th o u t m erit sin c e th e Jan u ary 2 0 1 6 j u d g m en t w as e n tered in resp o n se to T o n ia’s R u le 5 9 m o tio n to am e n d th e M ay 2 0 1 5 j u d g m en t. S ee M .R .C .P . 5 9 ( e). 1 6¶40. The chancellor a lso em phasized that D rake’s f

ather was heavily involved in Drake’s f i n a n ces. Drake’s f

a ther paid f

or Drake’s legal education, the m ortgages on sev e r a l o f Drake’s properties, and the m ortgage on the house where Drake lived. Drake’s f ather also

em ploy e d D r a k e a t the s am e salary despite Drake’s advanced degree and collected rental

m an a g e m e nt f

ees on several of Drake’s properties. In addition, the chancellor also determ ined that two o f the d ebt s t hat Drake purportedly owed his f ather w e r e n ot genuine debts. ¶41. Bey ond these f

ind i n g s , the chancellor a lso recognized that Drake h ad the $132,000 when h e was ordered to p a y it to Tonia i n 2008. Further, g iven the cha n c e l l or’s determ ination that Drake had t he p resent ability to pay , this f inding i s not necessary to af f irm the chancellor’s overall f inding of contem p t. ¶42. W e also h old that Drake’s o f f ers of judgm ent to Tonia were inef f ective to negate the judgm ent of contem

pt. Dr a k e was ordered to pay Tonia cash. He never of f ered her cash, only a com

bination of real and personal property with m uch of the real property encum bered by m o r tgages. It was Drake’s duty to convert e nough assets into cash to pay Tonia; Tonia is not obl i gated under Mississippi law t o accept an o f f er o f judgm e nt com

prised of real property

. ¶43. W h ile we d o not discourage f uture settlem ent n egotiations between parties, an of f er
to settle a prior, court-ordered duty is by its very n ature an o f f er to do som ething other than what the court ordered. As such, an a dverse party is under no duty or o b ligation to accept the settlem ent.

1 7¶44. Drake also argues that he does not have enough m onthly incom e to pay the contem pt judgm ent against him

. As sup port, Drake n otes t hat he was unable to m ake his m onthly
pay m ents of $1,460 in child support or his lum p-sum a l im ony pay

m ents of $2,500 to Tonia, which total $3,960. D rake n otes that his m onthly i ncome , a c c o r ding to his Rule 8.05 f inancial statem ent, is $3,727.56. ¶45. Drake cites D avis v. Da v i s , 268 So. 2d 913, 915–16 (Miss. 1972), arguing that he

s h o u l d not be f

ound in contem

pt, as he d oes not have enough incom e to m eet the ordered obligations tha t com

prise the c ontem

pt judgm ent. W e f

i nd that Drake’s r eliance on Davis is m isp l a c ed. In Davis , this Court f ound that “[ t]he proof that the husband only earned $550.00 per m onth was not c ontradicted” and t hat, af ter m onthly support, the husband only had $85 of

incom e lef

t f or his own expenses. Id . at 915. ¶46. Here, there is evidence that Drake’s incom e is not l im ited to only his m onthly salary

. It is u n disputed that Drake’s f ather pay s the m ortgage on the house w here Drake lives. Further, t he chancellor f

ound it necessary to a n aly ze D r a k e ’ s “true f

inancial m eans” and questioned the extent of D rake’s f ather’s involvem ent in D rake’s f inances. Drake m ade no
attem pt t o satisf

y h i s o bligations and has not liquidated any of his assets to pay Tonia. Also, while Drake’s spouse has no duty to help Drake satisf y h is obligations, h is spouse does have

a separate incom e with w h i c h s h e m ay contribute to the couple’s joint dom estic expenses. Lastly , this Court already has rem anded this case on the issu e o f a djusting Drake’s childsupport obligations. See Lewis III , 172 So. 3d at 177–78. A hearing on reducing Drake’s child support had not y et taken place as of Drake’s appeal.

1 8¶47. Af

ter a review of the record, we af f irm the chancellor’s judgm ent of contem pt. The record c onta i n s s u f

f icient evidence to support the chancellor’s f indings t hat Drake has the present ability

to pay what he owes to Tonia and willf ully chose not to do so. CONCLUSION ¶48. W e af

f irm the chancellor’s f

inding that Drake resided in Harrison C ounty a t the tim e of the f iling of the divorce a nd f

ind that Drake waived any objection to im

proper venue by litigating the divorce in Harrison County . W e also af f irm the judgm ent of

contem pt. ¶49. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.

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