IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-IA-01158-SCT

DEBORAH GAYLE THORNTON WEST

v.

CHARLES TIMOTHY WEST

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 7/8/2002

TRIAL JUDGE: HON. FRANKLIN C. McKENZIE, JR.

COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: PATRICK F. McALLISTER

WILLIAM B. PEMBERTON, II

ATTORNEYS FOR APPELLEE: JOHN V. ESKRIGGE

JAMES A. BECKER, JR.

EDWARD L. CARLISLE

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: REVERSED AND REMANDED - 12/02/2004

MOTION FOR REHEARING FILED: 8/25/2004

MANDATE ISSUED:

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Treating Deborah Gayle Thornton West's Motion for Clarification as a Motion for

Rehearing, the Motion for Rehearing is granted. The prior opinion is withdrawn, and this

opinion is substituted therefor.

¶2. This family law case concerns a property settlement agreement between former spouses

Charles Timothy W est (Tim) and Deborah Gayle Thornton West (Debbie). Over five years1 The provisi ons which Tim states are ambiguous are, in pertinent

part, as follows:

ARTICLE II. It is the in

tention of the Husband and the Wife to benefit and

share equally the employment and business income of Husband without regard

to the marital status of the parties to each other o r to a third party. Husband

shall pay to W ife bi-weekly periodic payments of One-half of husband's income,

which at present is $1,458.54

. . . beginning May 1, 1994, and one-half of net

monthly Director's fee which is $500.00, and continuing until the earliest to

occur of the death of either or if the parties should divorce t hen this support

would become fixed, lump sum installment alimony based upon the present

amount together with one-half of increases, payable until Wife's seventh [sic]

(70) birthday, which payments will not be terminated, reduced or otherwise

affected by the remarriage of either party but will terminate up on the death of

the Wife, if prior to age seventy (70). The bi-weekly payments shall increase

or decrease annually in accordance with the Husband's total salary to provide for

bi-weekly payments equal to one-half (1⁄2) of Husban d 's monthly salary from

West Quality Food Service, Inc. or substituted business/employer. For purposes

of this agreement, Husband's "monthly salary" shall be defined as the gross

2 after the court approved the property settlement agreement and the parties had abided by its

terms, Tim stopped complying with the agreement. Debbie brought a contempt action against

Tim, and after a bench trial the chancellor court voided certain provisions of the agreement,

ordering that the parties resubmit the alimony issue to the court. Debbie sought an

interlocutory appeal which this Court granted.

FACTS

¶3. Tim and Debbie were married on Ju ly 28, 1979. They had three children during their

marriage. Tim and Debbie divorced in November 1994 after filing a Joint Complaint for

Divorce that incorporated a property settlement agreement. Over five years after the divorce,

Tim stopped paying wha t was due pursuant to the property settlement agreement. Debbie then

filed a contempt proceeding. Tim argued that the alimony and division of marital assets

provisions in the property settlement agreement were ambiguous. 1taxable salary or wages paid to husband from West Qualit y Food Service, Inc.,

or substituted bu siness/employer, less amounts withheld from such salary or

wages for payment o f premiums on insurance covering the minor children of the

parties. . . .

ARTICLE III (H). Husband agrees and hereby acknowledges that Wife

is entitled to and shall be vested w ith one-half (1⁄2) of all existing marital assets,

including, b ut not limited to, stocks, limited partnerships and business assets.

Both parties also acknowledge, h owever, the existing contractual restrictions on

the major bu siness assets of Husband which presently prevent immediate

transfer. Husband agrees to promptly transfer one-half (1⁄2) of those assets as

and when they become restricted; or if they are sold, co nveyed, transferred,

surrendered, exchanged, or otherwise disposed of by Husband, then Husband

will immediately pay one-half (1⁄2) of the proceeds, remun erations or other

considerations to Wife.

* * *

Husband acknowledges, and it is the intention of both parties, to make a

present transfer to Wife of one-half (1⁄2) vested equitable ownership interest in

said p r operties as a division of marital assets, while married, and this Agreement

constitutes an existing equitable lien to Wife of one-half (1⁄2) of said properties.

3 ¶4. In the middle of the trial, th e chancellor wrote to counsel informing them of his initial

thoughts on the case. He stated:

1. The Property Set tlement Agreement in this case can only be described

as "[a] [ i]nvitation to [l]itigation." It is ambiguous and contradicts itself

in certain respects.

2. Mrs. Wes t's claim that she is entitled to alimony based upon K-1 filings

where no actual cash distribution was received by Mr. West is ludicrous

and will not be sustained by the Court.

3. As to division o f "marital assets," the [a]greement fails to define what

they are. The term "marital assets" is now clearly defined by F erg uson

and Hemsley and t

heir progeny. Prior to those cases, Mississippi was a

"title state."

4. Assuming that

Mrs. West became vested with an equitable interest in

50% of Mr. West's ownership of stock or other interest in the family4 business as a marital asset, I question whether she could claim

entitlement to a sum greater than th e value of those interests as of the

date of the agreeme nt. Any enhanced value after the date of that

agreement would not constitute a "marital asset."

5. Although the alimony provision of the agreement mentions business

income, it goes on to specify salary or wages, bonus and di rector fees as

t he specific items to be included. As a general rule of contract

construction, specific language controls and limits gene ral language

within a contract.

6. Although the Court has not yet seen the specific restrictions o n transfer

of Mr. West's stock in the family business, the Court is very familiar

with those type restrictions. And if those restrictions are as broad as

some I have prep ared as a lawyer, Mrs. West will never realize anything

out of that stock ownership unless t hose businesses are sold by consent

of all the stockholders.

¶5. After a trial on the controversial provisions, the chancery court entered its judgment,

finding certain provisions of the agreement were conflicting and confusing, that it was unable

to resolve the differences, that there was no meeting of the minds between the Wests as to the

alimony provision of the agreement, and that, in the absence of an agree ment between the

parties, the issue should be presented anew to the court.

¶6. Tim filed a Motion for Amendment to Jud gment, to Make Additional Findings, and/or

for a New Trial

on Certain Issues. Debbie then filed a Motion for Entry of Findings and

Co nclusions, to Alter or Amend Judgment or, Alternatively, for a New Trial. Debbie then filed

a Motion for Certification Pursuant to M.R.C.P. 54(b), Alternatively, for Leav e to File an

Interlocutory Appeal Pursuant to M.R.A.P. 5. The chancery court issued an interlocutory order

denying Debbie's Motion for Rule 54(b) Certification, her Motion for Interlocutory Appeal,

and Tim's Motion for a New T rial. The trial court also stated in its interlocutory order that the

provisions in question we r e "unconscionable, constitute[d] illegal escalation clauses, [were]2 Debb ie raises the related issues of whether the trial court erred in concluding that the

alimony and division of marital property assets provisions of the pro perty settlement

agreement are ambiguous, unconscionable, and contain illegal escalation clauses. These issues

are subsumed into the general issue of whether the trial court erred in voiding the alimony and

division of marital assets provision of the property settlement agreement.

5 incapable of understanding, an d [were] unenforceable due to the confusing, ambiguous, and

contradictory language contained therein."

¶7. We granted Debbie's petition for permis sion to appeal from the interlocutory order.

See M.R.A.P. 5.

STANDARD OF REVIEW

¶8. Our standard of review for all appeals involving domestic re lations matters is limited.

We will not disturb the findings of a chancellor unless the chancellor was " manifestly wrong,

clearly erroneous, or an err oneous legal standard was applied." P erkins v. Perkins

, 787 So.

2d 1256, 1260 (Miss. 2001).

DISCUSSION

¶9. Debbie raises six issues in her appeal. First, whether the trial court erred in voiding the

alimony and division of marital as sets provisions of the property settlement agreement. 2

Second, whether the trial court erred in failing to determine that $411,000 in corporate loans

made to Tim were d istributions to which Debbie was entitled under the property settlement

agreement. Third, whether the trial court erred in failing to determine that Tim breached his

obligation to Debbie under their pre-divorce death benefit agreeme nt. Fourth, w hether Debbie

is entitled to attorneys fees for the contempt action and subsequent appeal. Fifth, whether the

trial court lacked jurisdiction to determine alimony and division of marital assets anew in the6

absence of the p arties' voluntary written consent. And sixth, whether the trial court erred in

granting Tim's motion to quash Debbie's subpoenas of West Quality documents.

I. Validity of the Property Settlement Agreement

A. Does Rule 60 Apply?

¶10. Mississippi Rule of Civil Procedure 60(b) al lows relief " [ o]n motion and upon such

terms as are just" from a judgment o r order in a limited number of circumstances including any

"r eason justifying relief from the judgment." M.R.C.P. 60(b)(6) (emphasis added). Debbie

argues that Rule 60 does not all ow Tim to challenge the chancery court's judgment over five

years after it was entered. However, Tim's Counterclaim for Relief was merely a response to

Debbie's contempt ac tion, not a motion for relief from a judgment or order, and we therefore

find that Rule 60 is wholly inapplicable to this case

.

B. Ambiguity

¶11. Both parties make numerous arguments about whether the agreement is ambiguous.

Debbie argues that the parties simply agreed to equally divide Tim's business and employment

income so that both parties would receive the same annual net income. Tim argues the

property settlement agreement provisions are ambiguous and offers a s an example the

provision that, u

p on the divorce of the parties, the periodic alimony will change to lump sum

installment alimony; yet the amount of the lump sum is not specified.

¶12. "[S]ettlement agreements entered into by divorcing spouses and judicially approved

under our Irreconcilable Differences Divorce Act becom e a part of the decree and enforceable

as such as though entered by the court following contested proce edings.” Bell v. Bell , 572 So.

2d 841, 844 (Miss. 1990) (citation omitted). When the Irreconcilable Differences Divorce7

Act has been complied wi th, the custody, support, alimony, and property settlement agreement

becomes a part of the final decree for all intents and purposes. S witzer v. Switzer

, 460 So. 2d

843, 845 (Miss. 1984 ). If the agreement is sufficient to comply with the statute, that is

enough to render it a part of the final decre e of divorce as if the decree h ad been rendered by

the chancery court following a contested divorce proceeding. Id . at 846.

¶13. “[P]roperty settlement agreements are contractual obligations.” In re Estate of Hodges

,

807 So. 2d 438, 442 (Miss. 2002). The provisions of a property settlement agreement

executed prior to the dissolution of marriage must be interpreted by courts as any other

contract. I

d

. at 445. In E ast v. East

, 493 So. 2d 927, 93 1-32 (Miss. 1986), we held “[a] true

and genuine property settlement agre ement is no different from any other contract, and the

mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree,

does not change its character."

¶14. We have delineat ed a three-tiered process for contract interpretation. P ursue Energy

Co rp. v. Perkins , 558 So. 2d 349, 351 (Miss. 1990). First, we look to the "four corners" of

the agreement and review the actual language the parties used in their agreement. I d. at 352.

When the lan

g uage of the contract is clear or unambiguous, we must effectuate the parties'

intent. I d. However, if the language of the contract is not so clear, we will, if possible,

"harmonize th

e provisions in accord with the parties' apparent intent." I d. Next, if the parties'

intent remains uncertain, we may discretionarily employ canons of contract construction. I d.

at 352-53 (citing numerous cases delineating various canons of c ontract construction8

employed in Mississippi). Finally, we may also consider parol or extrinsic evidence if

necessary. Id. at 353.

¶15. The three-t

iered approach is not a "rigid 'step-by-step' process." I d. at 351 n.6. "Indeed,

overlapping of steps is not inconceivable." I d. We further note that, when examining the

contra ctual provisions of property settlement agreements, special deference is afforded such

agreements. As we have stated:

In p r operty and financial matters between the divorcing spouses themselves,

there is no question, that absent fraud or overreachin g, the parties should be

allowed broad latitude. When the parties have reached agreement and the

chancery court has appr oved it, we ought to enforce it and take a dim view of

efforts to modify it, as we ordinarily do w hen persons seek relief from their

improvident contracts.

Speed v. Speed , 757 So. 2d 221, 224-25 (Miss. 2000).

¶16. The alleged uncertai nty in Tim and Debbie's property settlement agreement can

primarily be dealt with by analyzing the agreement under the first and third tiers of Mississippi

contract construction process. First, in looking at the "four corners" of the agreement, we note

that the general purpose of the agreement was for Tim to provide one-half of his various forms

of income to Debbie, regardless of their marital status to each other or to a third party. As to

marital property, the agreement states that Debbie is entitled to one-half of all existing marital

assets, including, bu

t not limited to, stocks, limited partnerships, and business assets. This

provis ion clearly manifests an intent that Tim and Debbie equally share all marital assets.

Other provisions of the property settlement agreement equitably divide the parties' respective

entitlements to the marital dwelling, husband’s residenc e, automobiles, household furnishings,

and personal effects.9

¶17. The only remaining assets within the par ties’ definition of marital assets are Tim’s

interests in various West family businesses. During the course of the marriage and at the time

of div orce, Tim owned stock interests in West Quality Food Services, Inc. a nd Coastal Express,

Inc. He also held limited partnership interests in West Leasing Company, West Brothers

Leasing Company, and West Family Leasing Company. Pursuant to the terms of the property

settlement agreement, Debbie is enti tled to equally share these assets, and she is authorized

to review financial information (including any corporate documents relating to distribution or

salary) which

would positively or negatively affect her agreed entitlement to his various forms

of income.

¶18. But even if, as Tim argues, certain portions of the proper ty settlement agreement are

ambiguous, analysis under the th ird tier of the Mississippi contract construction process allays

almost all questions about the alleged uncertainty in the contract. Nothing demonstrates the

overall clarity of Tim and Debbie's agreement more plainly than t he simple fact that they

managed to comply with the agreed property settlement agreement for over five years before

Tim decided he would no longer respect the agreement. However vague, unintelligible, and

contrar y to his original intent Tim may now try to cast the substantive provisions of the

property settlement agreement , the extrinsic evidence of his compliance with the provisions

for nearly a decade eviscerates this argument of any credibility.

¶19. Reading the agreement as a whole and considering the inten tions of the parties, we find

that the Wests’ property settlement agreement is unambiguous inasmuch as it ad dresses the

marital property, Tim's income, and Debbie's access to financial information regarding Tim's

various forms of income. However, what remains unclear is whether the trial court ordered10

an award of lump sum or peri odic alimony. As noted above, Tim points out that one of the

provisions of the agreement states that, upon the divorce of the parties, the periodic alimony

will change to lump sum installment ali mony; yet the amount of the lump sum was not

specified. Instead, the trial court ordered Tim to pay Debbie alimony that, rather than awarding

a fixed amount, gave Debbie a percentage based upon Tim's income at the time of the payment.

¶20. In Mississippi there are four types of alimony: periodic, lu mp sum, rehabilitative, and

reimbursement. G uy v. Guy

, 736 So. 2d 1042, 1046 (Miss. 1999). W e must look to the

substance, rather than the label, to determine whether alimony is periodic or lump sum.

Hubbard v. Hubbard , 656 So. 2d 124, 129 (Miss. 1995).

¶21. Periodic ali

mony is monthly alimony awarded on the basis of need. S ee generally

Cun ningham v. Lanier , 589 So. 2d 133, 136-37 (Miss. 1991). As a general rule, periodic

alimony has no fixed termination date; instead, it automatically terminates at the d eath of the

obligor or the remarriage of the obligee. E ast

, 493 So. 2d at 931. Periodic alimony may be

modified or even terminated subsequent to the decree awarding alimony in the event of a

material change of circumstances. T aylor v. Taylor

, 392 So. 2d 1145, 11 47 (Miss. 1981).

However, we have previously stated that “[w]here a party is unable to comply with a divorce

decree, he should with reasonable promptitude, make the f act known to the court by proper

petition and have the decree modified or suspended, and not wait until he has been cited for

contempt .” Brown v. Gillespie , 465 So. 2nd 1046, 1048 (Miss. 1985). Failure to petition the

court requires, in response to the citat ion for contempt, that the party make out a clear case

of inability. I

d

. (citing Redding v. Redding

, 167 Miss. 780, 1 50 So. 776 (1933)). The11

alimony only vests when payment becomes due. B rand v. Brand

, 482 So. 2d 236, 237-38

(Miss. 1986).

¶22. Lump sum is a fixed and irrevocable amount, used either as alimony or as a part of

property division. W

ray v. Wray

, 394 So. 2d 1341, 1345 (Mis s. 1981); S mith v. Little

, 834

So. 2d 5 4, 57-58 (Miss. Ct. App. 2002). It may be payable in a single lump sum or in fixed

periodic installments and is a final settlement between husband and wife. C reekmore v.

Cree kmore , 651 So. 2d 513, 518 (Miss. 1995). A specific period of time for which payments

are to run and a fixed sum of money are t wo characteristics of lump sum alimony. I d. Even

though a situation in which payments of lump s um alimony "may give said payments a

superficial similarity to payments of periodic alimony,

. . . said fact does not ch ange the vested,

no n-modifiable nature thereof.” M cDonald v. McDonald

, 683 So. 2d 929, 931 (Miss. 1996).

Unless i t is clear from the record what sort of alimony award is given, we must construe the

alim ony as being periodic and not lump sum. I n re Estate of Hodges

, 807 So. 2d at 442;

Hubbard v. Hubbard

, 656 So. 2d 124, 130 (Miss. 1995); Sharplin v. Sharplin

, 465 So. 2d

1072, 1073 (Miss. 1985).

¶23. As Tim points out, the trial court's original orde r refers to the award as lump sum in

name, but then appears to describe a periodic alimony award. Whether the award is lump sum

or periodic is of utmost importance in the instant action, because it determ ines which legal

stan dard applies. That is, knowing which type of alimony has been given indicates that either

(1) Tim's conduct was possibly excusable in the case of periodic alimony if he can prove there

was a materi

a l change in circumstances which clearly resulted in an inability to pay; or (2)3 In accord with this holding and o u r case law regarding periodic alimony, the chancellor

must now determine whether Tim's refusal to comply with the agree ment was excusable due

to a material chang e in circumstances. T aylor v. Taylor

, 392 So. 2d 1145, 1147 (Miss. 1981).

12 Tim's refusal to pay was positively inexcusable in the case of a lump sum award, because the

agreement then constitutes an irrevocable, vested interest to which Debb ie was entitled,

regardless of any change in circumstances. In light of the fact that the original order and the

record do not clarify what type of award the tria l court gave, we must resolve this ambiguity

by deeming the alimony award as periodic.

¶24. Tim and Debbie entered into a court-approved contract re garding the disposition of their

m arital property, and they peaceably abided by it for over five years. The language of the

property settlement agreement, intent of the agreement, and parol evidence of the parties'

conduct demonstrat

e that the language of the contract is unambiguous in regard to the

provisions covering the marital property , Tim's income, and Debbie's access to financial

information regarding Tim's various forms of income. I n regard to the provisions which

confuse the issue of what type of alimony awar d Debbie was actually given, we find the

chancellor was correct inasmuch as he found those p rovisions to be ambiguous, but incorrect

in wholly eviscerating the alimony and division of marit al assets provisions. That limited part

of the property settleme nt agreement which is unclear we resolve with the application of case

law which deems the award periodic alimony. 3

C. Unconscionability

¶25. The chance llor concluded that the provisions in question were unconscionable but

stated no reasons for this conclusion. Tim's allegations of unconscionability are principally13

based on his argument that, despite the fact that he agreed to give Debbie 50% of his diverse

forms of income, the reality is that as a result of tax conseque nces, he is shouldering more

than his share of the pecuniary burden under the agreement.

¶26. A contract may be either procedurally or substantively unconscionable. Procedural

unconscionability goes to the formation of the contract. E ast Ford, Inc. v. Taylor

, 826 So.

2d 709, 714 (Miss. 2002). Substantive unconscionability occurs when the terms of the

agree ment are so one-sided that no one in his right mind would agree to its terms. I n re

Johnson , 351 So. 2d 1339, 1341 (Miss. 1977).

¶27. Tim makes no concrete allegations that he was mislead in the formation of the

agreement. Furthermore, Tim's general allegations of procedural unconscionability are not

convincing to us since he is a sophisticated businessperson who was repres ented by counsel

at the time he signed the agree ment. Substantively, the terms of the property settlement

agreement are less than desirable, but we cannot s ay that no spouse in his or her right mind

would agree to what is, at worst, a begrudging but generous offer on Tim's part to provide

alimony to Debbie after divorce. The terms are neither procedurally nor substantively

unconscionable.

D. Escalation Clause

¶28. The chancellor also concluded that the pertinent provisions "constitute[d] illegal

escalation clauses."

Though the chancellor did not explain his conclusion, we assume that his

qualms regarded the provision that "bi-weekly payments shall increase or decrease annually in

accordance with the [h]usband's total salary . . . ." Tim argues, as he did in regard to14

unconscionability, that he nev er intended the tax consequences of the property settlement

agreement to result in Debbie getting a better deal out of the agreement.

¶29. We have held that "escalation clauses should be inc luded in property settlement

agreements." S

peed

, 757 So. 2d at 225 (citing Wing v. Win g , 549 So. 2d 944 (Miss. 1989)).

Escalation clauses in property settlement agreements are enforceable absent fraud,

overreaching, or mistake, even though one party may, in the future, find that he or she entered

into the agreement imprudently. Speed , 757 So. 2d at 227.

¶30. The property settl ement agreement appropriately contained an escalation clause,

protecting both Debbie and Tim in the case that Tim's salary fluctu ates during the prescribed

time for payment of alimon y. Tim has presented no hard evidence of fraud, overreaching, or

mistake. He may have entered into the agreement improvidently, but even if he did so,

improvid ent decisions do not provide a basis with which to characterize an escalation clause

as being illegal.

¶31. This agreement reflects a de liberate and thorough division of the Wests’ marital assets.

It is largely unambiguous, and the conflicting provisions which are ambiguous we resolve by

holding that the alimony award is periodic. The agreement is not unconscionable, and it does

not contain an

illegal escalation clause. To find otherwise circumvents the express language

of the agreement. The chancellor erred by failing to appropriately enforce the property

settlement agreement.

II. The $411,000.00 Loan, Death Benefit Agreement, and Attorneys Fees

¶32. Debbie argues that in erroneously findi ng the property settlement agreement

unenforceable, the chancellor consequently failed to address property settlement agreement-15

related issues inclu

ding whether, under the property settlement agreement, Debbie was entitled

to a portion of the $411,000.00 in "loans" from West Quality to Tim

, w hether Tim breached

his obligati

o n to Debbie under a pre-divorce death benefit agreement, and whether Debbie was

entitled to attorneys fees on her contempt action and for fees she incurred on appeal.

¶33. In Mississip pi, "an appellant is not entitled to raise a new issue on appeal, since to do

so prevents the trial court from having an opportunity to address the alleged error." C rowe v.

Smith

, 603 So. 2d 301, 305 (Miss. 1992). We decline to rule on issues the trial court has not

addressed and abstain from any d iscussion regarding the death benefit agreement or attorneys

fees. However, we later discuss the issue of the $411,000.00 "loan" from West Quality to Tim

in conjunction with our discussion of the chancell or's grant of the Motion to Quash the

subpoenas duces tecum served by Debbie.

III. Jurisdiction

¶34. Debbie argues that the chancellor lacked jurisdiction to try the issues in question, either

initially or anew, without the parties' express written consent. She cites Mississippi Code

Annotated Section 93-5-2(3) for the pr oposition that, without her written consent, the trial

court had no right to interpret a property settlement agreemen t which it had already approved.

Debbie misinterprets the c onsent requirement of the irreconcilable differences statute. The

written consent requirement addressed in the statute requires that a court have the written

cons ent in the o riginal irreconcilable divorce action before deciding property rights between

the couple. Miss. Code Ann. § 93-5-2(3) (Rev. 2003). This issue is without merit.

IV

. Findings of Fact and Conclusions of Law4 After stating the general requirements for how Tim's income will be divided between

him and Debbie, the property settlement agreement provides that:

Wife shall be kept currently informed of the business affairs of all corporations,

partnerships and other business interest s in which Husband is currently

interested or involved as of the date of this Agreement for so long as Husband's

interest is maintai

ned, in whole or in part, including but not limited to corporate

minutes, equivalent partners hip information, personal net worth statements of

Husband; personal state and federal income tax returns . . . all major business

decisions and all proposals to sell or dispose of any interest in any such

business or related venture. It shall be deemed that Wife has been kept currently

infor med if periodic information is provided by such corporations, partnerships

or other business interests of the Husband at least quarterly, unless

circumstances dictate, and Wife requests, more frequent reporting of business

information. However, Husband shall not be obligated to provide information

which would breach any fiduciary duty of the Hus band to such corporations or

16 ¶35. Unless the evidence is overw helming, it is reversible error for the trial court to refuse,

upon request by a party to the litigation, to make spe cific findings of fact and separately state

the co nclusions of law on which its decision is based. Lowery v. Lowery

, 657 So. 2d 817, 819-

20 (Miss. 1995); see M.R.C.P. 52 (a) ("In all actio ns tried upon the facts without a jury the

court may, and shall upon the request of any party to the suit

. . . find the f acts specially and

state separately its conclusio ns of law[.]"). Debbie argues that the chancery court abused its

discretion by failing to enter findings of fact and conclusion s of law regarding its judgment and

subsequent order aft er both she and Tim requested that it do so. However, our reversal of the

chancellor's decision is dispositive of this issue, eliminat ing any need we may have otherwise

had to review his findings of fact and conclusions of law. We therefore decline to address this

issue.

V. Motion to Quash

¶36. Deb bie argues that Tim violated the property settlement agreement in failing to inform

her of a West Quality transaction resulting in a realizatio n of positive income for Tim. 4 In anpartnerships which are imposed by state law or other rule of law.

5 Debbie alleges that she did not receive this document until "shortly before trial," but

nothing in the document indicates when she received it.

17 itemized response to D ebbie's request for financial information regarding Tim's assets, dated

September 13, 1996, Tim's attorney stated that his only corporat e loan from West Quality was

for the purchase of a vehicle. However, a December 31, 1999 document mentioned a

$439,211.00 debt owed by Tim to West Quality without specifying the source of liability.

Furtherm ore, in a West Quality Food Services schedule of notes receivable for officers and

employee s, listed under Tim's name were $411,000.00-worth of loans going back to

December 16, 1994, a month after Tim and De bbie agreed to the property settlement

agreement. 5

¶37. After unsuccessfully attempting to obtain financial in formation regarding Tim's

involvement in the West Family business by way of routine discovery, Debbie issued

subpoenas duces tecum to the West family business entities reg arding twenty-nine categories

and 17,000 pages of financial informati on, including "[e]ach loan made to and each loan

obtained from each stockholder." The West entities filed a joint motion to quash Debbie's

subpoenas and set hearing one week before trial. At the hearing before the trial judge, Debbie's

attorney attempted to mention the necessity of, among other pieces of informatio n, the

documents regarding potentially misleading "loans." The following discussion ensued:

MR. PEMBERTON [Debbie's attorney]: We want to know what Tim West

makes, and the r eason that we need to know everything that's on there is to

ensure that certain entries that are made in the presentations given to us are

uniform throughout the accounting for all of the share holders. If he is receiving

[special] treatment, Your Honor.18

THE COURT: Why don't you just ask them that question? . . .

MR. PEMBERTON: We would prefer to see the source.

THE COURT: Well, I understand you would prefer to see all th at. But you ask

that question first before you file a subpoe n a asking for all of this detailed

information . . .

¶38. Pemberton then told the court that e veryone he had deposed, including Tim, had been

unable to provide him with the informati on. As Pemberton attempted to explain the necessity

of the documents in regard to the loan, Tim's attorney interrupted to say:

MR. BECKER: Your Honor, might I remark that David [Childress], the chief

financial officer of the compa nies, has been deposed for about a half day. He

explained how the payments were made, that they we re all on an equal basis, et

cetera, insofar as what they did. . . . We've given them all the records, all of his

income tax returns, everything else that he would be relying on, what the IRS

relies on, what these people are relying on inso far as payments made to him,

benefits he received. They have it all.

M R. PEMBERTON: That is incorrect, Your Honor. Insofar as the

characterization of what he's -

THE COUR T: Let me just tell you right now, let me tell you right now. I've told

you what you're

entitled to know from Mr. Becker's client. You can depose the

company's chief financial

officer and get the information you want to get about

the sala ry of Tim West, the dividends he makes, whether or not he has

transferred any interest in the shares of stock in the company on their books.

You can get all that information by deposition. But insofar as this subpoena that

you have served on these companies, to me it's outrageous. I'm going to quash

the subpoena.

* * *

MR. PEMBERTON: We're saying we can't determine his total income from

th ose income tax records, that we need to look at the books and determine what

perks were provided to the office.19

THE COURT:

. . . [U]nless you can convince me that when they f u rnish that

information to you they're lying, then I'm not going to open that can of worms.

¶39. With scant documentation av ailable to prove the validity of Debbie's argument regarding

Tim's financial dealings, she was left to rely on te stimony from Tim and his witnesses. Tim

had no information to offer in the way of repayment terms or the interest rate on the alleged

loans. He did admit that he had made no payment on the loans, though he planned on paying

the m "someday." At one point during his testimony, Tim made an unsolicited comment which

she d light on his intentions for repayment as well as the possibility that a loan agreement might

not exist. He said, "I'm not going to sign off on a piece of paper anywhere and make intentions

to make payments to her or anybody else that I can't pay back. And I can't pay back money that

I don't have."

¶40. Tim claimed that the loans were merely intended to provide financial assistance to

Coastal Express, a struggling entity related to West Quality, and there was documentation to

back up his claims. After being reminded that Debbie had not been provided with the

documents to which Tim had referred, he replied, "[Y]ou know, you asked me for confidential

documents from a corporation and some of the Board members took offense to that."

¶41. At trial, Tim's expert also testified that the loans were merely used to provide extra

capital to Coastal Express. Contrary to Tim's testimony, David Childress, chief financial

officer of West Quality, testified that Tim had, in fact, made payments on the loan. He also

testified that payment for the loans would be charged against him with interest.

¶42. In its final judgment, the trial court stated:20

It is difficult for a [c]hancellor to perform an i n-depth study of the property

settlement agreements which come before them [si c ]. Chancellors do not have

the staff nor the time to gather information from the parties, analyze it, have it

reviewed by CPA's to determine its actual effect and then call the parties before

them to explain to them what they have agreed to.

¶43. The trial court subsequently held that the property settlement agreement was void,

ruling that the issue of alimony needed to be presented anew to the chancellor.

¶44. Trial court decisions regarding discovery are subject to review for abuse of discretion.

DeBlanc v. Stancil

, 814 So. 2d 796, 798 (Miss. 2002). We have held that a "[husband or] wife,

in respect of [his or] her right to maintenance or alimony, [are] within the protection of statutes

or the rule avoiding conveyances or transfers in fraud of creditors or other persons to whom

the maker is under

legal liability; and this is so irrespective of whether the conveyance or

transfer was made before, and in anticipation of the [husband or] wife's suit for maintenance

or alimony, o r pending the suit, or after a decree has been made in the [husband or] wife's

favor." B lount v. Blount

, 231 Miss. 39 8, 413-14, 95 So. 2d 545, 552 (1957). Although in the

past , this precedent has typically applied in cases where the conveyance of the property in

question originates with one of the spouses, we find that the law is applicable in a situation

where the offending spouse is on the receiving end of a conveyance of property to which the

other spouse appears reasonably entitled under a maintenance or alimony agreement.

¶45. Courts consider a vari ety of factors in determining whether an advance to a shareholder

is a dividend or a loan. A lterman Foods, Inc. v. United States

, 505 F.2d 873, 877 n.7 (5th Cir.

1974). These factors include

(1) the extent to which the shareholder controls the corporation; (2) the

earnings and dividend history of the corporati on; (3) the magnitude of the

advances; (4) whether a ceiling existed to limit the amount the corporation6 The Tax Court explained that "[s]inc e an S corporation's income is allocated to its

shareholders when realized by t he corporation, regardless of whether it is actually distributed

to the shareholders, the second factor under A lterman Foods, Inc. v. United State s , 505 F.2d

873, 877 (5th Cir. 19 74), which considers earnings and profits and dividend history, is not

generally applicable to S corporations." J ones v. Comm'r of Internal Reve nue , 74 T.C.M.

(CCH) 473 n.12 (1997).

21 advanced; (5) wheth

er or not security was given for the loan; (6) whether there

was a set maturity date; (7) whether the corpora tion ever undertook to force

repayment; (8) whether the shareholder was in a position to repay the advances;

and (9) whether there was any indication the shareholder attempted to repay the

advances.

Id. (citations omitted); see Estate of Sell v. Comm'r of Internal Revenue , 64 T.C.M. (CCH)

304 (1992) (citing Alterman factors); see also Crowley v. Comm'r of Internal Revenue

, 962

F.2d 1077, 1079 (1st Cir. 1992) (listing similar litany of factors to consider in determining

whether distribution constituted loan, rather than constructive dividend).

¶46. Although the Alterman factors have t raditionally been used in the context of

distributions to a shareholder in a C corporation, "wi th the exception of the second factor, the

factors are equally applicable to decide whether withdrawals by a shareholder of an S

corporation are loans or distributions that must be included in gross income." J ones v.

Comm'r of Internal Revenue , 74 T.C.M. (CCH) 473 (1997) (footnote omitted). 6

¶47. Analysis of the alleged lo an in question under the A lterman factors reveals that, in

quashing Debbie's subpoena f o r documents regarding West Quality's financial dealings, the

chancellor made impossible a determination of whether or not the Wes t Quality transfer to

Tim was a loan or a

distribution. First, Tim owns 24% of West Quality, and the remaining

interests in the West businesses are owned by West family members. As noted above, the

second factor does not apply to West Quality since it is an S corporation. Third, a22

$411,000.00 advance is cer tainly one of great magnitude. Fourth, there is no documentation

in the record indicating whether a ceiling existed to limi t the amount the corporation advanced

Tim. Fifth, there is no documentation in the record regarding whether or not security was

given for the loan; although the Tim's testimony ind icates that security very likely was not

given. Sixth, there is no documentation in the record as to whether there is a set maturity date

for the loan; although T

im's testimony indicates that no such date exists. Seventh, there is no

documentation in the record as to whether the corporation has undertaken to forc e repayment;

although the testimony of Tim and his witnesses indicates that the corporation has not done so.

Eighth, Tim's testimony indicates that he i s not in a position to pay back the loan; however, his

1999 statement of financial condition states that his net worth is $5,123,764.00 This

evidences an ability to at least begin making some payments on the " loan." Ninth, Tim has

admitted he has made no attempt to pay back the advances from West Quality.

¶48. The chancellor abused his discretion in refusing to require disclosure o f the underlying

business documen

ts with respect to the loan. Simply ruling that Debbie could get all the

financial information sh

e needed by way of deposition did not satisfy her discovery requests.

In contentious p roceedings involving complex finances of such great magnitude, it is not

s ufficient to simply tell one party to rely on the self-interested assertions of their o pponent

and his witness es. Doing so eviscerates the aggrieved party of the ability to make a substantive

showing of its case.

¶49. As noted above, in light of the fact that the chancello r did not decide whether the

$411,000.00 was a loan or distribution, that issue is not before us and we dec line to rule on

it. We r everse the chancellor's dec ision to quash Debbie's subpoenas duces tecum and remand7 Mississippi Rule of Civil Procedure 26(b)(1) states that parties may obta in evidence

by way of discovery "regarding any matter, not privileged, which is rel evant to the issues raised

by the claims or defenses of any party." The rule also states that evidence is discoverable

which "appears reasonably calculat ed to lead to the discovery of admissible evidence." I d. We

note in accord with the agreement th at only if the financial information requested would

positively o r negatively affect Debbie's agreed entitlement to Tim's various forms of income

would it b e calculated to, in the words of the comment to Rule 26(b)(1), further the policy of

"favor[ing] limitations, rather than expansions, on permissible discovery."

23 to the trial court with instructions that it reconsider the motion to quash and rule as to each

of the twenty-nine categories of financial information, granting Debbie ac cess to those

documents revealing fina ncial information (including any corporate documents relating to

distribution or salary) which would positively or negatively affect her agreed entitlement to

Tim's various forms of income. We note that Debbie is still bound by the rules of relevance

in regard to discovery, and her requests for documentation should be evaluated by the trial

court in light of those standards. 7

CONCLUSION

¶50. We reverse the chancellor's decision voiding the property se ttlement agreement

provisions at issue an

d its conclusion that those provisions are unconscionable and contain

illegal escalation clauses. We also reverse the decision concluding the provisions are

ambiguous in their entirety, finding that the agreement is unambiguous in regard to the

provisions covering the marital property, Tim's income, and Debbie's acc e ss to financial

information regarding Tim's various forms of income; and the conflicting prov isions which are

ambiguous we resolve by holding that the alimony award i s periodic. We instruct the trial

court, on remand, to consider whet her Tim acted in contempt of the property settlement

agreement. In examining whether Tim was in contempt of the agreement, the trial court must24

consider, among other is sues: (1) whether there was a material change in circumstances which

clearly resulted in an inability to pay, justifying Tim's refusa l to pay periodic alimony to

Debbie ; (2) whether, under the property settlement agreement, Debbie was entitled to a portion

of the $411,000.00 in "loans" from West Quality to Tim; (3) whether Tim brea ched his

obligation to Debbie under a pre-divorce death benefit agreement; and (4) whether Debbie was

entitled to attorneys fe es on her contempt action and for fees she incurred on appeal. Finally,

we reverse the chancellor's decision to quash Debbie's subpoenas duces tecum and remand to

the trial court with instructions that it reconsider the motion to quash and rule as to each of the

twenty-nine categories of financial information, granting Debbie access to tho se documents

revealing financial information (including any corporate documents relating to distribution or

salary) which would positively or negatively affect her agreed entitlement to Tim's various

forms of income.

¶51. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR.

DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.