IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-01293-COA
THOMAS WAYNE COLBERT, JR. APPELLANT/ CROSS-APPELLEE
v.
MING XIAO COLBERT APPELLEE/ CROSS-APPELLANT
DATE OF JUDGMENT: 10/17/2022 TRIAL JUDGE: HON. JOHN C. McLAURIN JR. COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JENNIFER LEIGH BOYDSTON ATTORNEYS FOR APPELLEE: JOHN S. GRANT IV BROOKE TRUSTY GRANT NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 02/25/2025 MOTION FOR REHEARING FILED:
EN BANC.
McCARTY, J., FOR THE COURT:
¶1. A wife petitioned for separate maintenance from her husband, and also asked for child
support for their two children. The husband counterclaimed for a divorce. The trial court
ultimately denied the husband’s request but granted the wife’s request for separate
maintenance and child support.
¶2. The husband appealed, arguing an antenuptial agreement barred separate maintenance.
Both parties have appealed the child support awarded by the trial court; the husband argues it is too high, while the wife protests it is too low.
¶3. Since the husband never presented his argument about the antenuptial agreement to
the trial court, we find the argument is procedurally barred. However, because the amount
of child support awarded did not follow longstanding requirements as to the calculation of
income and deviation from statutory guidelines, we affirm in part and reverse and remand
in part.
BACKGROUND
¶4. Ming and Thomas Colbert were married in the fall of 2013. The month before they
married, the two entered into an antenuptial agreement.1 In the core of the document was this
passage:
Although Tom and Ming are entering into their contemplated marriage with every intention to remain married for as long as each shall live, both recognize that such marriage may not be as successful as both hope, and that a divorce, annulment, separate maintenance proceeding or other legal proceeding to dissolve the marriage between Tom and Ming could occur.
[T]he parties do hereby agree in the event of any such legal proceeding involving a divorce, annulment, separate maintenance or similar proceeding, Tom shall not be entitled to any greater rights with regard to the income or assets of Ming than Tom would have in the event of the death of Ming and Ming shall not be entitled to any greater rights with regard to the income or assets of Tom than is provided for in Paragraph 9 below.
(Emphasis added). Both parties signed. As litigation would later show, the document was
negotiated in several ways, including those more favorable to Ming than originally proposed,
1 For the purposes of this appeal, we will refer to the document interchangeably as an antenuptial agreement, prenuptial agreement, or “prenup.”
2 such as requiring Tom to provide health insurance for Ming during their marriage.
¶5. Over the years two children were born into the marriage, and Tom was very successful
in business. But as the prenup contemplated, the marriage was not as successful as the
couple hoped. Tom filed for divorce in 2015, but the couple eventually reconciled.
However, during the pendency of that divorce, Ming sought to have their prenup declared
invalid. Her motion was still pending when the divorce case was dismissed in 2017.
¶6. In 2021, Ming filed for separate maintenance from Tom, alleging that he had
“physically abandoned and separated himself from the marriage.” Instead of asking for a
divorce, Ming requested that the chancery court “command[] Tom to return to the marital
relationship and provide support and maintenance to Ming and the minor children[.]”
¶7. Tom forcefully responded, first arguing the couple’s prenuptial agreement governed
any request for separate maintenance. But he did not allege the agreement barred separate
maintenance in general, instead only “affirmatively assert[ing] that the [agreement] be
applied and enforced in this matter as applicable.” Secondly, he filed a counterclaim
demanding a divorce from Ming on the basis of habitual cruel and inhuman treatment,
“including spousal abuse,” and because her actions led to “the proximate cause of the
separation of the parties.”
¶8. The case proceeded through what can only be described as a massive amount of
litigation. The very first filing after Tom’s counterclaim for divorce was his motion seeking
a declaratory judgment “that the Prenuptial Agreement between the parties is valid,
3 enforceable[,] and effective.” The motion included dozens of pages of emails showing the
negotiation of the agreement between Tom and Ming, including prior deposition testimony
relating to its drafting and signing and discussions underpinning its terms.
¶9. The motion had two sections. First, he argued the agreement was not procedurally
invalid; specifically, that Ming understood it, did not sign under duress, and had independent
counsel, among other arguments. Second, Tom argued the agreement was not substantively
unconscionable. Notably, Tom’s motion did not argue that the antenuptial agreement barred
the separate maintenance action or that the agreement preempted the litigation.
¶10. Subsequently, Ming filed a Motion to Declare Prenuptial Agreement Null, Void, and
Unenforceable. In this motion, Ming raised a variety of duress and unconscionability attacks
on the agreement, such as that “Tom selected Ming’s attorney and paid Ming’s attorney for
his representation,” that she “was not versed in nor understood the laws of the United States
of America and the State of Mississippi,” that she was in the United States from China on
a student visa, and that she was “not fluent in the English language and did not understand
the terms and provisions” of the antenuptial agreement. In response, Tom characterized the
process to draft the agreement as “a four-month negotiation process,” and he dismissed her
concerns as “a number of abstract grievances.”
¶11. The trial court conducted a multi-day hearing regarding the validity of the antenuptial
agreement, during which it heard from several witnesses. Among them were Ming, Tom,
the lawyer who served as Ming’s attorney in the prenup process, and a financial expert. At
4 the conclusion of the hearing, the trial court ruled from the bench that it “finds that the
Prenuptial Agreement is binding [and] will be enforced as written.” The trial court instructed
counsel for Tom to prepare an order. The chancellor then said, “[W]e’ll just have to step
back and see where we’re going to go from here” in the case. The order denying the motion
to declare the antenuptial agreement void simply stated the “Motion was not well taken and
the same should be and is denied,” and that the prenup was declared valid.
¶12. At no point in this hearing or at the conclusion of presenting of evidence did counsel
for Tom argue that the prenup barred separate maintenance or that the proceedings should
be stopped immediately. So a week later, the trial court proceeded to hear evidence
regarding Ming’s claim for separate maintenance. After testimony, counsel for Tom
informed the trial court, “[W]e’d like to present a motion to dismiss.” He did not argue that
the antenuptial agreement barred separate maintenance. Instead, counsel for Tom focused
on what he argued was an element that could not be proven to meet the standard for separate
maintenance since one has to prove “a separation without substantial fault of the requesting
party.” Counsel for Tom further argued Ming was partially at fault, so she was not entitled
to the relief; he also argued Tom had not acted in a way that warranted separate maintenance.
All told, the thrust of the motion to dismiss was that the predicates for separate maintenance
were not met, not that separate maintenance was barred due to the prenup.
¶13. The trial court ultimately denied the motion to dismiss and granted Ming’s request for
separate maintenance. In turn, the trial court refused to grant Tom a divorce for habitual
5 cruel and inhuman treatment, finding there was not enough proof to support it.
¶14. Ming’s attorney signaled he was ready to call a witness to testify as to child support,
but the chancellor told him, “I really don’t need you to. [Tom is] under a temporary order
to pay $7,000 in separate maintenance, which is combined spousal support and child
support.” The chancellor further reasoned that “[t]here’s been not one word that him paying
that amount of money every month creates a financial hardship on him or that he is in any
way unable to pay it,” and “[i]n fact, all the financial evidence corroborates the fact that he’s
well able to pay it[.]”
¶15. When queried by Ming’s attorney whether this order was for both “child support and
separate maintenance,” the chancellor responded, “[I]t’s all in one. I mean, it’s a package
deal.” The final judgment from the trial court reflected this bench ruling: “Tom shall pay
separate maintenance in the amount of $7,000 per month, which is combined spousal support
and child support, and which is due and payable on the fifteenth of each month.”
¶16. Tom appealed from this judgment, and Ming cross-appealed.
DISCUSSION
¶17. On appeal, Tom raises four issues. First, he argues that “Ming waived the right to
receive separate maintenance” by virtue of the prenup; that the child support did not conform
to the statutory guidelines; that the child support was too high; and the trial court’s handling
of proof raised a procedural matter.
¶18. On cross-appeal, Ming argues that “[t]he child-support award should be reversed and
6 remanded because the chancellor did not make any findings” regarding how much Tom
made, whether the amount was reasonable, or why the chancellor deviated from the statute.
¶19. In short, Tom and Ming both agree the child support awarded did not conform to
precedent or our statute. We agree and reverse and remand on this point. We decline to
review the other issues raised and find Tom’s argument that the antenuptial agreement bars
separate maintenance is procedurally barred. We also sua sponte address the sealed record
in this case.
I. The argument that the antenuptial agreement bars separate maintenance is procedurally barred.
¶20. Tom argues the language of the antenuptial agreement between Ming and him
forecloses an award of separate maintenance.
¶21. “An antenuptial agreement is a contract and should be interpreted just like any other
contract.” Bowman v. Bowman, 332 So. 3d 317, 321 (¶5) (Miss. Ct. App. 2021). “Contract
interpretation involves a two-step inquiry,” where we first “must determine whether a
contract is ambiguous and, if not, enforce the contract as written.” Id. (internal citation and
quotation mark omitted). We use a de novo standard to review whether a contract is
ambiguous. Id.
¶22. “Second, in the event of an ambiguity, the subsequent interpretation presents a
question of fact for the fact-finder which we review under a substantial evidence/manifest
error standard.” Id. “If the terms of a contract are subject to more than one reasonable
interpretation, their meaning presents a question of fact for the fact-finder.” Id.
7 ¶23. Tom’s first issue on appeal is that the prenup bars separate maintenance. Ming
strongly counters that his position is procedurally barred. Ming points out how Tom
generally sought for the trial court to enforce the agreement but never specifically argued it
precluded separate maintenance. In rebuttal, Tom attempts to circumvent the issue by stating
that he had “asked that the Agreement be applied and enforced.”
¶24. But Tom fails to point to a single line in the thousands of pages of this record where
he in fact asked the chancellor to foreclose a grant of separate maintenance. As set out
above, the first filing after Tom’s answer and counterclaim for divorce was a “Motion for
Declaratory Judgment” regarding the antenuptial agreement. But that filing only generally
requested a finding that the prenup was valid. It did not ask the trial court to declare that
Ming’s claim for separate maintenance was totally barred. During the hearing of this matter,
Tom’s lawyer also argued Ming’s claims should be involuntarily dismissed. However, the
claimed basis for the dismissal was not that the prenup barred separate maintenance but that
Ming’s own conduct barred it, or the situation did not warrant separate maintenance. And
at the close of a hearing successfully defending against Ming’s attempt to have the agreement
declared void, Tom never argued that the agreement barred separate maintenance.
¶25. This Court has recently contemplated a dispute over insurance proceeds where a party
“present[ed] a detailed argument why interest should be awarded, citing the statute and
precedent.” In re Est. of Green, 396 So. 3d 169, 174 (¶21) (Miss. Ct. App. 2024). “Yet this
statute and related cases were not argued below.” Id. at (¶22). In filings below, the party
8 “devoted only three sentences to why interest should be awarded,” and in arguments to the
trial court, the party “did not present statute or precedent warranting a grant of interests on
the return of the [insurance] policies.” Id.
¶26. Citing well-established law, we found “this argument procedurally barred on appeal.”
Id. at 175 (¶24). For “[i]t is a well-settled rule that a trial judge will not be found in error on
a matter not presented to the trial court for a decision.” Id. at 174 (¶23) (internal quotation
mark omitted). The fundamental problem is that we cannot review something that does not
exist: “Absent a motion preserving a claim of error we have no ruling of the trial court for
review on that particular point.” Id. at 175 (¶23) (internal quotation mark omitted). “Issues
raised for the first time on appeal are procedurally barred from review as they have not first
been addressed by the trial court.” Griffin v. State, 824 So. 2d 632, 635 (¶7) (Miss. Ct. App.
2002); Williams v. Williams, 309 So. 3d 560, 567 (¶39) (Miss. Ct. App. 2020) (applying the
procedural bar where a party argued for the first time on appeal that the report of a guardian
ad litem contained hearsay because “[t]he well-recognized rule is that a trial court will not
be put in error on appeal for a matter not presented to it for decision”).
¶27. As in those cases, this issue was simply not raised below, meaning there is no ruling
from the trial court that we can review. The trial court did not grant or deny a motion to
dismiss on the theory the antenuptial agreement barred separate maintenance, so there is no
decision for this Court to review; as such, relief was not requested. To the extent Tom argues
there are some insinuations of his contention below, as in Estate of Green, they were not
9 meaningfully developed—despite litigation spanning nine volumes of clerk’s papers, six
supplemental volumes, nine volumes of transcript, and over 1,700 pages of exhibits.
¶28. This issue was simply not developed below, and we cannot put a trial court in error
for a matter not presented to it. Accordingly, we find Tom waived his argument that the
antenuptial agreement bars a grant of separate maintenance.
II. The child support award was not supported by sufficient findings.
¶29. Both sides attack the trial court’s grant of a “package deal” for spousal support and
child support, arguing the trial court did not follow precedent or statute to ascertain the
amounts due by Tom. Tom argues in his principal brief that the amount of $7,000 was too
much. In Ming’s cross-appeal, she argues the amount was “almost certainly too low.”
¶30. In Tom’s response brief, he argues that the trial court “simply picked a number ‘out
of the air,’ so to speak,” as to the amount of child support and that this is “reversible error.”
Tom further acknowledged that on appeal, he and Ming had “reached the same conclusion,”
which was “that the chancellor did not follow the statutory procedure, and that this failure
is reversible error.”
¶31. The fact that Tom and Ming agree does not in itself warrant reversal, but both are
correct that the trial court did not distinguish how child support was calculated, how a
deviation from the statutory guideline was reached, or what the actual amount of child
support was, as distinguished from the award of separate maintenance. Therefore we agree
that this ruling must be reversed and remanded.
10 ¶32. State law establishes “child-support award guidelines” that have a “rebuttable
presumption” of correctness. Miss. Code Ann. § 43-19-101(1) (Rev. 2023). Per the
guidelines, a parent who is required to pay child support for two children is assessed a
payment of 20% of his or her monthly adjusted gross income. Id. The statute defines how
to calculate the AGI of the payor. Miss. Code Ann. § 43-19-101(3).
¶33. If the parent has an AGI of more than $100,000 a year, “the court shall make a written
finding in the record as to whether or not the application of the guidelines established in this
section is reasonable.” Miss. Code Ann. § 43-19-101(4) (emphasis added). “By making a
written finding on the record that the application of the guidelines would be unjust or
inappropriate, the rebuttable presumption of the appropriateness of an award pursuant to the
guidelines may be overcome.” Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997).
¶34. In her cross-appeal, Ming argues that the trial court did not follow the statute in three
ways: by not determining Tom’s adjusted gross income, by not applying the guidelines to the
AGI, and by not explaining a deviation from the guidelines, if any.
¶35. As one authority has concluded, “[t]he absence of required findings of fact is the most
common reason for reversal of child support awards.” Deborah H. Bell, Bell on Mississippi
Family Law, §13.04[1][b], at 491 (3d ed. 2020). As our appellate courts have repeatedly
declared, “without an express finding of fact as to the payor’s income, it cannot be said that
the child-support guidelines were either followed or not followed.” Foreman v. Foreman,
223 So. 3d 178, 187 (¶29) (Miss. Ct. App. 2017) (internal quotation marks omitted). In that
11 case, we lamented that “[t]he record does not indicate which documentation the chancellor
relied upon when calculating the child-support award.” Id. So “we conclude[d] that the
chancellor failed to make an express finding of fact as to [the father’s] income.” Id.
¶36. In Foreman, we “affirmed as to the finding that child support is warranted” but
remanded for the trial court “to make an express finding with regard to [the father’s] current
income.” Id. at (¶30). We reach the same conclusion here.
¶37. We reverse the combined award of $7,000 per month for both spousal support and
child support. On remand, the trial court should:
1. Calculate Tom’s monthly adjusted gross income, which we note includes “all
potential sources” reasonably available to him per section 43-19-101(3)(a).2
2. Apply the child support guidelines to Tom’s adjusted gross income.
2 The statute sets that AGI “shall be calculated” by calculating the below information before subtracting deductions:
[A]ll potential sources that may be reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.]
Miss. Code Ann. § 43-19-101(3)(a) (emphasis added).
12 3. Determine if a guideline deviation is warranted; and, if so, provide a written
finding as to why.
¶38. Having arrived at the amount of child support, the trial court is to then separately
calculate the amount of separate maintenance due to Ming, if any.
¶39. Accordingly, we will reverse and remand in part for proceedings in accord with this
opinion.
III. The sealing of the record was not in accord with precedent.
¶40. We sua sponte raise the issue of the seal over this case. We have previously held:
Our Constitution mandates that “[a]ll courts shall be open,” Miss. Const. art. 3, § 24, and “Mississippi law favors public access to public records.” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). In addition, a court may, within its discretion, determine that court filings or information contained therein “should be declared confidential or privileged” and sealed from public disclosure. Id. at (¶16). However, before sealing an entire case, a trial court should first “conduct the balancing test set out in Estate of Cole,” supra. Smith v. Doe, 268 So. 3d 457, 464 (¶27) (Miss. 2018); accord Butler Snow LLP v. Estate of Mayfield, 281 So. 3d 1214, 1220 (¶¶27-29) (Miss. Ct. App. 2019). That test balances the claimed private interest in confidentiality against the public interest in open courts. Estate of Cole, 163 So. 3d at 924, 929 (¶¶11, 32-33).
Fulgham v. Morgan & Morgan PLLC, 363 So. 3d 980, 988 (¶24) (Miss. Ct. App. 2019).
¶41. In Fulgham, we found that “the chancery court did not conduct any balancing test or
any analysis of [the law firms’] request to seal the entire case. The order sealing the case was
simply entered following an ex parte hearing.” Id. at (¶25). But it was “not clear that the
court file in this case contains any privileged attorney-client communications or confidential
13 client information.” Id.
¶42. For the mere “fact that a few specific filings may contain privileged or confidential
information does not warrant sealing the entire case from public view.” Id. Instead,
“specific documents can be redacted or filed under seal as necessary.” Id. We ultimately
determined that the trial court abused its discretion in sealing the whole file without “first
balanc[ing] the asserted private interest in confidentiality against the public interest in open
courts and transparent judicial proceedings.” Id. at 989 (¶27).
¶43. Just as in that case, here there was no consideration of the Estate of Cole test. During
a motion hearing, one of the attorneys for Tom asked for an affidavit of a financial analyst
to be sealed; Ming’s lawyer did not object. The trial court inquired if the file itself was
sealed; Ming’s lawyer said, “You can seal the whole file for all I care, judge,” and Tom’s
attorney agreed. The trial court then proceeded to seal the whole file.
¶44. This sequence of events leading to the sealing of this case does not conform to our
constitution or precedent. Upon remand, the trial court is directed to consider and apply the
applicable test and, pursuant to that review, make a written finding and in its discretion
“determine what, if any, part of the record should be sealed or redacted under the Supreme
Court’s decision in Estate of Cole.” Id.
CONCLUSION
¶45. Tom’s argument that the antenuptial agreement bars a grant of separate maintenance
was not presented to the trial court, so we find the issue is procedurally barred and affirm in
14 part. However, since the required findings of fact were not made as to child support, we
reverse and remand in part. We also remand for the trial court to apply the applicable test
for the sealing of a public record.
¶46. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER AND WEDDLE, JJ., CONCUR. ST. PÉ, J., NOT PARTICIPATING.