Childers v. Childers

717 So. 2d 1279, 1998 WL 413785
CourtMississippi Supreme Court
DecidedJuly 23, 1998
Docket97-CA-00300-SCT
StatusPublished
Cited by25 cases

This text of 717 So. 2d 1279 (Childers v. Childers) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Childers v. Childers, 717 So. 2d 1279, 1998 WL 413785 (Mich. 1998).

Opinion

717 So.2d 1279 (1998)

James William CHILDERS
v.
Vicky Lynn Simmons CHILDERS.

No. 97-CA-00300-SCT.

Supreme Court of Mississippi.

July 23, 1998.

Tommy Dexter Cadle, Booneville, for Appellant.

*1280 Gerald R. McLemore, Corinth, for Appellee.

Before SULLIVAN P.J., and JAMES L. ROBERTS, Jr. and WALLER, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. This appeal arises from the February 5, 1997 dismissal of James' Motion for Contempt, Modification of Former Decree, Clarification of Support Provisions and for Equitable Division of Marital Assets in the Chancery Court of Alcorn County, Mississippi. The trial court rendered a final divorce decree based on irreconcilable differences on May 31, 1996, which addressed child custody and support, visitation rights, and disposition and division of all marital properties. No appeal was taken by either party.

¶ 2. On November 20, 1996, James filed his motion which is the subject of this appeal. Vicky Lynn filed her response setting forth the defense of res judicata to all issues except for the motion for citation of contempt. The chancellor addressed the motion for contempt as it relates to the payment of a MasterCard account as well as the issue of periodic reports that relate to the jointly owned dry cleaning business. Other than these two issues, the chancery court entered its final order dismissing the motion, without any further testimony, finding that no new issues had been presented by the pleadings to warrant a hearing.

¶ 3. Aggrieved by the lower court's opinion, James presents seven separate issues for this Court's consideration. However, the primary issue is whether the chancellor erred when he dismissed the motion, except for the motion for contempt, without a hearing and without the opportunity for James to present evidence on each issue.

I. Whether the Trial Court erred in not allowing Plaintiff a hearing on his Motion for Citation for Contempt, Modification of Former Decree, Clarification of Support Provisions, and for Equitable Division of Marital Assets.

¶ 4. James cites to Article 3, Sections 14 and 25, of the Mississippi Constitution in support of his argument that he was denied his right to due process when the trial court ruled on his motion without a hearing. He asserts that the chancery court had a responsibility to hear his claims and proof before ruling. In response Vicky Lynn contends that James has been provided his "due process" by a full evidentiary hearing on, not only the complaint for divorce filed by Vicky Lynn, but also on his counterclain for a divorce. She contends that all issues raised in this appeal had been previously litigated in the divorce hearing and are barred under the rule of res judicata. We disagree that all issues raised in James' pleadings are barred by res judicata.

¶ 5. The chancellor was in agreement with Vicky Lynn except for the issue of contempt on a MasterCard indebtedness. Although the final Order does not use the word res judicata it does state, "each request of James William Childers in his Motion was specifically dealt with in this Court's opinion and Judgment dated May 31, 1996, whereby the parties were granted a divorce and their properties divided." The final Order further stated, "James William Childers failed to do so [perfect his appeal following the last order dated August 2, 1996] and this Court will not now revisit each of these old issues."

¶ 6. Vicky Lynn quotes Walton v. Bourgeois to this Court for the proposition that "A final judgment on the merits of an action precludes the parties and their privies from relitigating claims that were or could have been raised in that action. We have labeled this rule res judicata." Walton v. Bourgeois, 512 So.2d 698 (Miss.1987); See also Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842 (1965) (affirming a chancery court decree dismissing the suit based on res judicata). In Pray this Court explained that "` [t]he rule [of res judicata] is often broadly stated in general terms that a judgment is conclusive not only on the questions actually contested and determined, but on all matters which might have been litigated and determined in that suit.'" Id. at 24, 179 So.2d at 844 (quoting 50 C.J.S. Judgments § 716 (1947)). This would include all issues pertaining to property division considered and ruled on after the divorce hearing. If James thought the final decree was incorrect he should have appealed to this Court within 30 days after the motion for reconsideration was denied. See Miss.R.App.P. 4(a) and (d). James did not do this, instead he filed a *1281 motion to modify requesting the court to allow him to relitigate issues that were litigated and determined in the original action for divorce.

¶ 7. James was afforded a full, complete hearing at which he was given the opportunity to call witnesses and to be heard by the lower court during the divorce proceedings on the issues relating to the equitable division of marital assets that he now presents to this Court on appeal. Accordingly, James was not denied due process of law, as required by both the U.S. Constitution and the Mississippi Constitution on these issues, for he was given an opportunity to be heard on the same issues he sought to modify a few months after the final decree was entered.

¶ 8. However, James did raise the issue of a material change of circumstances which if proven would warrant a modification of the divorce decree regarding child support. While the issues as they relate to property division are barred by res judicata, the request seeking modification of child support and clarification of visitation rights are new issues that require a hearing. Due Process is implicated, "If a full and complete hearing is not allowed by refusing the defendant his opportunity to present evidence, then the defendant is thereby deprived of due process." Weeks v. Weeks, 556 So.2d 348, 349-50 (Miss.1990) (citing Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976)).

¶ 9. In this case the chancellor found nothing new that required a hearing, other than the issue of contempt, but this determination was solely based on the pleadings. Summary judgment is not proper when it was not requested by either party and the motion for modification alleges a material change of circumstances. It makes no difference if the petition is filed 30 days, 90 days or 2 years after the divorce was granted. It was a denial of James' rights to due process for the Chancellor to deny his motion without holding a hearing where James is given the opportunity to provide factual support for the allegation in the pleading that there has been a material change in circumstances since the rendering of the former decree.

¶ 10. However, the trial court should be mindful that in regard to the issue of reducing child support obligations, "only [material] changes occurring after the original decree and not reasonable[reasonably] anticipated by the parties at the time of the agreement should be considered in the modification of child support." Shipley v. Ferguson, 638 So.2d 1295, 1298 (Miss.1994). In order for a chancellor to modify child support there must be a material change in the circumstances of the parties following the original decree. Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989); See also Clark v. Myrick, 523 So.2d 79 (Miss.1988) and Miss. Code Ann. 93-5-23 (1994). But first, James must have the opportunity to be heard regarding the issue of modification of child support.

II.

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Bluebook (online)
717 So. 2d 1279, 1998 WL 413785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childers-v-childers-miss-1998.