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Childers v. Childers

July 23, 1998

JAMES WILLIAM CHILDERS
v.
VICKY LYNN SIMMMONS CHILDERS



Before Sullivan P.j., Roberts And Waller, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice

DATE OF JUDGMENT: 02/05/97

TRIAL JUDGE: HON. JOHN C. ROSS, JR.

COURT FROM WHICH APPEALED: ALCORN COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART

¶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 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 motion to modify requesting the court to allow him to relitigate issues that were litigated and determined in the original action for divorce.

ΒΆ7. 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 ...


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