IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00790-COA DENNIS L. PEARSON APPELLANT

v. PATRICIA S. PEARSON BROWNING APPELLEE
DATE OF JUDGMENT: 11/05/2013 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: DUSTIN NORMAN THOMAS ATTORNEY FOR APPELLEE: E. FOLEY RANSON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: AW ARDED RETIREMENT BENEFITS AND ATTORNEY’S FEES TO APPELLEE FOR CONTEMPT ACTION DISPOSITION: AFFIRMED – 08/16/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. D e n n i s L

. P e a r s o n appeals the judgm ent o f the Jackson C o unty Chancery C o u r t
stem m ing f

rom his contem

p t action. Dennis a rgues: (1) the chancellor’s entry of the October 13, 2005 agreed order of m o dif ication was invalid because neither Dennis nor his attorney signed the order; (2) h is oral agreem ent to transf er an interest in land to his ex-wif e was void

as a m atter of

law; and (3) the chancellor should have recused him self

. ¶2. Finding no error, we af f irm

. FACTS ¶3. On April 30, 2002, Dennis and Patricia S. Pearson Browning were granted a divorceon the ground of irreconcilable dif f erences. The chancellor incorporated their a g r e e m ent that covered child custody , child support, a nd prop e r t y d i vision, am ong other things, into the judgm ent. O n M a y 22, 2013, P atricia f i led a com

plaint f or contem

pt against Dennis f

or f ailure to a bide by the original divorce agreem ent. This appeal s tem s f rom that proceeding. ¶4. In order to give context to the current appeal, it i s neces s a r y t o b r i e f l y d i s c u s s a previous trial and a

ppeal between the parties. Af ter the parties’ divorce, they f iled com peting claim s f or contem pt and were granted a m odif ication to their 2002 agreem e nt in open court

on August 1 6, 2005. The chancellor d irected that, within t en d ay s, the parties present an order consistent with the a greem ent that was r ead into the record. The entry of the order was delay ed by Hurricane Katrina, which struck the Mississippi Gulf Coast on A ugust 29, 2005. Prior to its entry , the order w as signed by Patricia and her attorney ; however, neither Dennis

nor his a ttorney signed the order, despite b lanks provided f or them to do so. The o rder was signed by the chancellor on October 13, 2005. ¶5. Dennis later i n s t i t u t e d a n a c t i o n f or c ontem

pt against P atricia on June 14, 2007, relating to custody and f

inancial m atters. Dennis am ended h is com plaint to include Patricia’s f ailure to ref

inance the m arital h om e and f a ilure to pay one-half of the m edical b ills of their

m inor child, as required by th e original divorce decree. Patricia subm i tted a counterclaim arguing that Dennis had f

ailed to deliver her a quitclaim deed to their m arital hom e a nd f ailed

to pay her portions of his civil service retirem ent, am ong other things. On February 2, 2009, all of Dennis’s claim s were dism issed by the chancellor, and the trial continued on Patricia’s

2claim s only

. The c hancellor ruled in f avor of Patricia. Dennis appealed that decision to this Court. This Court reversed and rendered the ch a n c e l lor’s judgm ent without prejudice because D ennis was never prope r l y sum m oned to trial. Pearson v. Browning , 106 So. 3d 845, 852 (¶¶40-41) (Miss. Ct. App. 2012). ¶6. Turning back t o the current proceedings, o n May 2 2, 2013, Patricia f iled a com

plaint f or contem pt based on the original divorce decree of the p arties. On Novem ber 5, 2013, the chancellor again ruled in f avor of Patricia. Dennis now appeals that decision. S TANDARD OF REVIEW ¶7. “Appellate r eview o f dom estic[

- ] r e l a t i o n ma tters is lim ited. W e will not reverse unless the chancellor abused his discretion, was m anif estly in error, or applied an erroneous legal standard.” Day v. Day , 28 So. 3d 672, 674 (¶4) (Miss. Ct. App. 2010) ( internal citation

om itted). DISCUSSION
I. Agreed Order of Modification ¶8. Dennis argues that the October 13, 2005 “agreed” m odif ication order w a s i n v a l id because he d id not agree to i ts term s and that neither h e nor his attorney signed the order, as requ i r e d b y U n if

orm Rule of C hancery C ourt 5.03. Rule 5.03 states: “Every consent Judgm ent m

ust be approved a nd signed b y counsel f or a l l parties t o the suit who m ay be represented by counsel and interested in or af f ected thereby b e f

o r e b eing presented to the Chancellor f

or his signature. The Court m ay also require the parties to sign.”

3¶9. Dennis argues that “ [ i]t is clear f rom looking at the transcript of August 16, 2005[ ,]

. . . that the agreem ent read into the record dif f ered f rom the a greem ent as later written in the October 1 3 , 2005 ‘Agreed Order.’” However, Dennis m akes n o s pecif ic argum ent regarding what is dif

f erent. The chancellor’s f

indings of f

act and conclusions of law on this i ssue state that the October 13, 2005 agreed order “is a m irror im age of the parties’ agreem ent as read into the record.” D ennis only com plains about the portion of the order granting Patricia all equity in the m arital hom e. However, Dennis c learly agreed t o this, as well a s t h e o t her provisions of

the order, during the August 16, 2005 hearing. ¶10. During the August 1 6 , 2005 hea r i n g, Dennis’s attorney stated into the record, “W e have reached an agreem ent r egarding all issues contained in the pleadings.” Counsel then proceeded to detail m odif ications to the visitation s chedule; the requirem ent that within sixty day s, Patricia would ref

inance the m arital hom e , Dennis would quitclaim his i nterest in the

m arital hom e to her, and she would b e responsible f or a ll m ortgage pay

m e nts on the hom e; the parties’ agreem ent to waive any contem p t issues regarding past-due bills or v i s i t ation; and each parent’s right to claim one child as a d ependent f or tax purposes. The p arties were then placed under oath and questioned by the chancellor about the m o dif i cations. Dennis’s testim o ny was as f ollows: Q. [ Dennis,] d id y ou understand what the attorney s read into the record as y our agreem ent? A. Yes, I do. Q. W as that y o ur agreem ent?

4A. That’s correct.

Q. Do y ou understand that this agreem ent will be put into writing a nd will becom e the court’s order? A. Yes, I do. Q. And y ou understand that f ailure to f ollow the agreem ent could result in a contem pt charge against y o u? A. I do. ¶11. In ruling on Dennis’s m otion to set aside the agreed order as invalid, the chancellor f ound Dennis’s signature on the agreed order u nnecessary as “surplusa g e , ” s ince the
agreem ent had b een read into the record and agreed to under o ath by both parties. Also, in f inding no m erit to Dennis’s a rgum ent that the order was inconsistent with the s ettlement
agreem ent read i nto the record, the chancellor stated in his f indings of f

act and conclusions of law: The next day af

ter the hearing (October 14, 2005), Dennis signed a Quitclaim Deed at a bank. T his act b y Dennis is consistent with the agreem ent of the parties in the transcript. This Quitclaim D eed transf ers Dennis and Patricia’s interest in the m arital hom e and property t o P atricia and her present h usband, Steven. Dennis n ow c laim s that the property was convey e d t o P atricia in exchange f

or Patricia waiving h er interes t i n t h e Thrif t Savings Plan and retirem ent. This is i nconsistent with the August 16, 2005 transcript, the October 1 3 , 2005 Agreed Judgm ent of Modif i c a t ion, and Dennis’s act of convey ance in signing the Quitclaim Deed one (1) day af t er the Judgm ent. ¶12. This Cou r t a d d r e s s e d a sim ilar issue i n M cDonald v. McDonald , 8 50 So. 2d 1182 (Miss. Ct. App. 2002), aff’d on cert. , 876 So. 2 d 296 (Miss. 2004). In McDonald , the wif e f iled f o r m odif i cation of the visitation schedule that was e stab l i shed at the tim e of her and

5her husband’s divorce. Id. at 1 185 (¶3). A h earing was held, and both parties agreed to the

new schedule. Id. at (¶4). However, the husband later ref used to s ign an agreed order. Id.

at (¶5). The wif

e f iled a “Motion f

or Entry of Agreed Order.” Id. The chancellor s igned and entered the order without the h u sband’s or his counsel’s signature. I d

. a t 1 1 8 6 ( ¶5). The husband appealed, arguing the “agreed” order was invalid, a s h e did not sign i t and did not
ag r e e with its term s . I

d. at 1188 (¶18). W e agreed with the husband “ that there m ust be

consent f or a consent decree.” I

d. at (¶21). However, w e a l s o noted that “[ a] consent judgm ent is in the nature of a contract,” and is binding as such. Id. at 1189 (¶25). Despite the husband later changing h is m ind, we f ound that at the relevant tim e f or consent—when the settlem ent term s were announced in open court—the h usband did agree to the settlem ent, and his agreem ent at that tim e was suf f icient to be contractually

binding. Id. ¶13. Specif

i cally , we held that the c i r c u m stances o f announcing in open court the settlem ent o f the d ispute that is the purpose f

o r that hearing, with a recital of the term s of the settlem ent into the record, f

ollowed by an agreem e n t t o e n d the hearing, ref lects an intention to be bound at that tim e. Absent any showing that the f inal written o rder did not ref lect the agreem ent announced in court, or any identif ication of a m atter cognizable under [ Mississippi] R

ule [ of C ivi l P r o c e d ure] 60 that could l ead to setting aside a consent decree af

t er [ its] being entered—and n either showing exists h ere—we f ind that the parties were bound by their agreem e nt even bef ore it was reduced to a f orm al written order. McDonald , 850 So. 2d at 1189 (¶¶25-26). ¶14. W h ile neither Dennis nor h is attorney signed the agreed order, the hearing transcript

6r e f

l e c ts that Dennis understood the agreem ent that was read into the record and that h e understood that the agreem ent would be put into writing a n d becom e the court’s order. His attorney m ade no objection at the hearing to the entry of the order. The suprem e court has f ound that proceedings recorded by a court reporter are suf f icient to prove agreem ent by the parties. S ee Samples v. Davis , 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (“If parties reach

an agreem ent, the agreem ent containing the term s s hould be s igned by the parties’ attorney (s)

or i n a p propriate cases, the parties, or recorded by the court reporter

. ” (Em phasis added)). Dennis has not p r o v i d ed any proof that the agreed order did not ref l ect the term s of the settlem ent agreem ent read into the record. Theref ore, the settlem ent agreem ent announced in court and later reduced to writing was s uf f icient evide n c e of the p arties’ consent to be bound. This issue is without m erit.
II. Statute of Frauds ¶15. Dennis next a rgues that because the October 13, 2005 m o dif ication order was invalid, h i s oral agreem ent a t the August 16, 2005 hearing to quitclaim Patricia his inter e s t i n t h e

m arital hom e is also invalid. He argues that without the signed m o dif ication order, the oral
agreem ent is void as a m atter of law, as it was n ever reduced to writi n g and violates the statute of f rauds. ¶16. This issue is p rocedurally barred, as it is being raised f or the f i r s t t i m e o n appeal. Fowler v. W

hite , 85 So. 3d 287, 293 (¶21) (Miss. 2012). Furthe r, a s w e h ave f ound the agreed m odif

ication order valid and enf orceable, this issue is without m erit.

7III. Recusal

¶17. Dennis argues that the chancellor was biased and erred in not recusing him self f rom hearing Dennis’s m otion. As evidence of bias, D ennis c ites to the chancellor’s com m ent involving whether a Mississippi Rule of Civil Procedure 81 sum m ons had been served. W ith regard to service of process, the chancellor m ade a com m ent that if Dennis was not served, he w a s “ g o i n g t o go ahead any way ,” a nd D ennis c ould take it up o n appeal. Dennis also points to the chancellor’s denial of his counsel’s pretrial o re tenus m otion to withdraw f rom the case, which was denied. Finally , Dennis cites to the c h ancellor’s denial of his ore tenus

m otion f o r t h e c h a n c ellor’s recusal, based on his belief that b ecause the chancellor had previously

been reversed on appeal, he could not be im p artial. ¶18. “[ A] judge m

ust disqualif

y when that judge’s ‘im

p artiality m ight b e q

uestioned by a reasonable person knowing all the circum stances including but not lim it e d t o instances where . . . the judge has a personal bias or prejudice concerning a party .’” Dillard’s Inc. v. Scott , 908 So. 2d 93, 98 (¶ 1 7 ) ( M i s s. 2005) (quoting Code of Judicial Conduct, Canon 3(E)(1)).
W e “presum e[ ] that a judge, sworn to adm inister im partial justice, is qualif

ied and u nbiased.
To overcom e the presum p tion, the evidence m

ust produce a ‘reasonable doubt’ about the validity of the presum

ption.” B redemeier v. Jackson , 689 So. 2d 770, 774 (Miss. 1997). W e review a judge’s ref

usal to recuse f

or m anif est error. Id. ¶19. W e f

ind Dennis h as not presented e vidence to overcom e the pre s u mp t i o n t h a t the chanc e l lor was q

u alif ied and u nbiased. Despite Dennis’s argum ent r egarding the

8chancellor’s com m ent on service of process, we note that the chancellor later determ ined that

Dennis had been properly s erved, and there was no f u rther discussion on the i ssue. Further, Dennis has presented no evidence, only speculation, that the chancellor w as biased because he denied Dennis’s counsel’s m otion to w ithdraw or because the chance l l o r p r e viously issued

an opinion in this m atter that was reversed on appeal. “ Mere speculation is not suf f icient to raise a reasonable doubt a s t o the validity of the presum ption that the trial judge w as qualif ied and unbiased.” Dillard’s , 908 So. 2d at 98 (¶21) ( c i tation om itted). W e f ind no evidence that the c hancellor’s im

partiality would be questioned by a reasonable person; theref ore, this issue is without m erit. ¶20. THE JUDGMENT OF THE C H A N C ERY C OURT OF J ACKSON COUNTY IS AFFIRMED. ALL COSTS OF T H I S A PPEAL A RE ASSESSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., B A R N ES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., NOT PARTICIPATING.

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