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IN THE COURT OF APPEALS 08/20/96 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00955 COA

BILLY W. SMITH APPELLANT v. ZENA FAYE PHILLIPS SMITH APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOHN C. ROSS, JR. COURT FROM WHICH APPEALED: PRENTISS COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: DUNCAN LOTT ATTORNEY FOR APPELLEE: JOSEPH C. LANGSTON NATURE OF THE CASE: DOMESTIC: PROPERTY DISPUTE TRIAL COURT DISPOSITION: COMPLAINT DISMISSED

BEFORE FRAISER, C.J., BARBER, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: This suit began as competing complaints by Billy and Zena Smith to be granted a divorce from each

other. The complaints for divorce were denied, but additional disputes persisted regarding the effect of an antenuptial agreement on the control of certain assets while the marriage continued. In 1995 the Mississippi Supreme Court affirmed an earlier judgment entered in this cause. In subsequent trial court proceedings the chancellor determined that the 1995 decision was res judicata on the issue of Billy Smith's right to money that had been in a savings account he jointly held with his wife. Mr. Smith's complaint was dismissed. We find that the supreme court did not in fact resolve this issue. We reverse and remand.

FACTS Billy and Zena Smith were married in 1985. Prior to the marriage, they entered into an antenuptial agreement. The agreement provided that both parties would have "full, complete and absolute control and management of all [their] property" by "sale, inter vivos gift . . . so that all of said property shall be disposed of as [each] alone desires." The parties further relinquished any claims to each other's non-marital assets brought into the marriage. In 1991, Mr. Smith filed for divorce and Mrs. Smith counterclaimed for separate maintenance. Prior to filing for divorce, Mr. Smith filed a separate action to have his wife redeposit $38,750.00 she had taken from their joint savings account. Although he requested that this case be consolidated with the divorce case, they were not. A temporary restraining order was issued requiring that Mrs. Smith redeposit the money. She redeposited approximately $32,500.00, the rest having been spent. In the divorce action, both the requests for divorce and for separate maintenance were denied. However, the chancellor concluded that because the money in the savings account was jointly held, with rights shared by both parties to withdraw and deposit funds, Mrs. Smith was entitled to withdraw the money. The previous temporary restraining order was rescinded. The supreme court would later characterize this removal of the TRO as an "award" of the $32,500 to Mrs. Smith. Smith v. Smith, 656 So. 2d 1143, 1146 (Miss. 1995). Mr. Smith appealed to the supreme court. The supreme court affirmed the chancellor's findings on the divorce case. As a part of this affirmance, the court concluded that Mrs. Smith was entitled to withdraw from the account. Id. at 1148. However, the court held that permitting Mrs. Smith's withdrawal of the funds did not resolve her liability to Mr. Smith based on his potential ownership interest. Id. What was preserved for further litigation was that Mr. Smith "may be entitled to establish his interest in the proceeds of the account and establish a debt owing to him in proceedings brought for that purpose." Id. Based on that ruling, Mr. Smith returned to the chancery court to seek enforcement of the antenuptial agreement and to establish his interest in the proceeds of the money taken from the joint savings account. The chancellor dismissed the complaint, stating that "[t]he issue of Zena Faye Phillips Smith's withdrawal of the funds from the joint checking account has already been resolved by this Court and affirmed by the Supreme Court. The relief requested in the current complaint is res judicata." DISCUSSION Resolving the issues in this case requires determining the effect of the earlier supreme court decision.

There are two issues presented: whether an antenuptial agreement can be enforced in the absence of a divorce, and whether Mr. Smith was precluded by operation of res judicata from establishing his ownership interest in the withdrawn funds. The only rights asserted by Mr. Smith are under the antenuptial agreement. We are faced with the unusual issue of deciding whether the enforcement of an antenuptial agreement is contingent upon the dissolution of the union it contemplates. The supreme court was not explicit on the issue: In general, an antenuptial agreement is usually enforced at the time of dissolution of the marriage or at the time of death of a party. [citation omitted] However, legal observers recognize that breach of the agreement can give rise to an appropriate remedy. 1 Ann Oldfather, Janice E. Kosel, et al., Valuation and Distribution of Marital Property,

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Mississippi Law