             IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2010-IA-00310-SCT

JAMES CRAIG IRVING

v.

JOHNNIE EVANS IRVING


DATE OF JUDGMENT:              01/26/2010
TRIAL JUDGE:                   HON. PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED:     DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:        JOHN THOMAS LAMAR, JR.
ATTORNEYS FOR APPELLEE:        JOY W. GRAVES
                               MALENDA HARRIS MEACHAM
                               CHARLES E. WINFIELD
NATURE OF THE CASE:            CIVIL - DOMESTIC RELATIONS
DISPOSITION:                   REVERSED AND REMANDED - 08/18/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


                       CONSOLIDATED WITH

                       NO. 2010-CA-00355-SCT

JAMES CRAIG IRVING

v.

JOHNNIE EVANS IRVING

DATE OF JUDGMENT:              01/26/2010
TRIAL JUDGE:                   PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED:     DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:        JOHN THOMAS LAMAR, JR.
ATTORNEYS FOR APPELLEE:                    JOY W. GRAVES
                                           MALENDA HARRIS MEACHAM
                                           CHARLES E. WINFIELD
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               REVERSED AND REMANDED - 08/18/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Chancery Court of DeSoto County granted James Craig Irving and Johnnie Evans

Irving a divorce. James filed a Petition for Modification of his child-support payments,

based on the change of circumstances brought about by the loss of his job, which had

occurred three weeks prior to the chancellor’s entry of the Order upwardly modifying

James’s support obligations. The chancellor declared that res judicata prevented James, in

a subsequent petition for modification, from presenting evidence of his job loss occurring

before the entry of this Order.

¶2.    Aggrieved, James has appealed, alleging that the chancellor erred by ruling that res

judicata prohibits James from providing evidence of his job loss in his petition for

modification of child support. Finding that res judicata should not bar James from presenting

evidence of his job loss, we are constrained to reverse the chancellor’s findings and to

remand this case to the Chancery Court of DeSoto County.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3.    On January 29, 2002, the Chancery Court of DeSoto County granted James and

Johnnie a divorce. On November 5, 2008, Chancellor Vicki B. Cobb heard an action

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between James and Johnnie dealing with an alleged arrearage of child support. On November

14, 2008, James lost his employment but failed to inform Chancellor Cobb about this change

in his circumstances. Chancellor Cobb signed her Order upwardly modifying James’s child

support payments on December 3, 2008, nunc pro tunc to November 5, 2008. This Order

instructed James to begin making payments on December 1, 2008.

¶4.    On January 14, 2009, Johnnie filed a Petition for Contempt seeking to enforce the

December 3, 2008, Order, entered nunc pro tunc to November 5, 2008,1 as well as a portion

of the divorce decree, requiring the parties to share uncovered medical or dental expenses for

their children. On April 1, 2009, James filed a Motion to Dismiss, Affirmative Defenses,

Answer to the Petition for Contempt, and Counter-Petition for Modification in which he

sought, inter alia, a modification of his child-support obligations because of his loss of

employment on November 14, 2008.

¶5.    After the May 26, 2009, hearing on the Petition for Contempt, Chancellor Percy L.

Lynchard, Jr. entered an Order on May 27, 2009, finding James in contempt and ordering

him to pay past-due child-support obligations as well as one-half of his children’s dental

expenses and attorney’s fees. Before the chancellor had entered this Order, James requested

the chancellor to dismiss his Counter-Petition for Modification without prejudice.

¶6.    On May 29, 2009, James purged himself of contempt by paying the overdue amounts

he was obligated to pay under the May 27, 2009, Order of Contempt, and again filed a




       1
       For clarity’s sake, we note that Chancellor Cobb, not Chancellor Lynchard, entered
the December 3, 2008, Order, nunc pro tunc to November 5, 2008.

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Petition for Modification, requesting that his child support obligations be reduced because

of his loss of employment.

¶7.     On June 24, 2009, Johnnie filed a Response to Petition for Modification and raised

the defense of res judicata. On July 3, 2009, Johnnie filed a Motion to Dismiss on the same

res judicata grounds, arguing that the change in circumstances upon which James had based

his request for modification had occurred prior to the entry of the December 2008 Order

modifying his child-support obligation and, therefore, res judicata barred James from

litigating that change in circumstances.

¶8.     On July 8, 2009, the chancellor granted Johnnie’s motion to dismiss, in part,2 finding

sua sponte that James could not litigate regarding an alleged material change in

circumstances that had occurred before the December 3, 2008, Order, because James had

failed to act timely under Mississippi Rule of Civil Procedure 59(a). On July 21, 2009, the

chancellor entered an Order reflecting his findings from the July 8, 2009, hearing.

¶9.     James timely filed both a Motion to Reconsider and an Amended Motion to

Reconsider. On November 17, 2009, the chancellor conducted a hearing on the Amended

Motion to Reconsider. On February 2, 2010, the chancellor ruled on the Amended Motion

to Reconsider and subsequently clarified his previous, July 21, 2009, Order by stating, inter

alia:

        The previous order rendered by this Court on July 21, 2009 granting
        [Johnnie]’s motion to dismiss [James]’s petition for modification shall be



        2
       Chancellor Lynchard granted Johnnie’s motion to dismiss to the extent that James
could not offer any evidence concerning events that occurred before December 3, 2008. The
chancellor clarified this in his declaratory judgment.

                                              4
       amended to make it a declaratory judgment reflecting that the only relevant
       evidence pertaining to the motion would be any evidence arising after the entry
       of the decree of December 3, 2008. To that extent, the order entered July 21,
       2009 shall be modified and the motion for reconsideration shall be granted
       only to that extent.

¶10.   James now appeals the chancellor’s July 21, 2009, Order that granted, in part,

Johnnie’s motion to dismiss James’s Petition for Modification; and he also appeals the

February 2, 2010, Order denying his amended Motion to Reconsider and declaring that he

could not offer evidence of events that occurred before December 3, 2008.

                                         DISCUSSION

¶11.    Generally, “[t]he chancellor’s findings will not be disturbed upon review unless the

chancellor was manifestly wrong, clearly erroneous or applied an incorrect legal standard.”

A.B. v. Y.Z., 60 So. 3d 737, 739 (Miss. 2011) (citing Miller v. Pannell, 815 So. 2d 1117,

1119 (Miss. 2002)). However, this appeal involves a question of law, which this Court

reviews de novo. Estate of Davis v. O’Neill, 42 So. 3d 520, 524 (Miss. 2010) (citations

omitted). We restate the critical issue before us for the sake of today’s discussion.

       WHETHER, UNDER THE DOCTRINE OF RES JUDICATA, THE
       CHANCELLOR ABUSED HIS DISCRETION BY REFUSING TO
       PERMIT JAMES TO OFFER EVIDENCE OF HIS JOB LOSS TO
       SUPPORT HIS PETITION FOR MODIFICATION OF CHILD
       SUPPORT.

¶12.   James identifies the four elements necessary to establish res judicata: identity of the

subject matter of the action; identity of the cause of action; identity of the parties to the cause

of action; and identity of the quality or character of a person against whom the claim is made.

Quinn v. Estate of Jones, 818 So. 2d 1148, 1151 (Miss. 2002) (citing Dunaway v. W. H.

Hopper & Assoc., Inc., 422 So. 2d 749, 751 (Miss. 1982) (other citations omitted)).

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¶13.   He argues that the four necessary identities for res judicata are not met in this case.

James points out that the chancellor entered the judgment modifying his child support

obligations on December 3, 2008, nunc pro tunc to November 5, 2008, and that he lost his

job on November 14, 2008, after the date upon which the Order had become operative

between the parties. James cites Green v. Myrick, 177 Miss. 778, 171 So. 774, 774 (1937),

for the proposition that courts “may by nunc pro tunc orders supply omissions in the record

of what had previously been done, and by mistake or neglect, not entered.” He also quotes

Griffith’s Mississippi Chancery Practice, 2000 edition: “When a judgment is entered nunc

pro tunc, it becomes operative between the parties as of the date when it should have been

entered.” James contends that the Order became effective against him on November 5, 2008.

Therefore, he argues that the issue of whether James’s job loss constituted a material change

in circumstances was not litigated, should not have been litigated, and thus could not be

barred by the doctrine of res judicata.

¶14.   James argues further that, while he could have filed a motion under Mississippi Rule

of Civil Procedure 59, this filing was not necessary. He points out that the petition for

modification originally was filed on April 1, 2009, and was filed again on May 29, 2009. He

cites Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990), providing that, if a motion for

relief from judgment is not designated as being brought under a particular rule, it cannot be

considered under Rule 59 if it is filed more than ten days after the entry of judgment, but can

be considered as having been brought under Rule 60(b).

¶15.   Johnnie responds, quoting the adage that “[e]quity aids the vigilant and not those who

slumber on their rights.” See Bridges & Shelson, Griffith’s Mississippi Chancery Practice

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§ 41 (2000 ed.). Specifically, Johnnie argues that James made no effort to notify the court

that James had lost his employment “either before the December 3, 2008 Order was entered

or, pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, after the entry of the

Order.”

¶16.   Accordingly, Johnnie contends that James’s failure to raise his alleged material

change in circumstances – his loss of employment – that occurred before December 3, 2008,

now precludes him from asserting this “same event as a material change in circumstances

justifying a modification of his child support obligation.” In support of this argument,

Johnnie cites Leiden v. Leiden, 902 So. 2d 582, 585 (Miss. Ct. App. 2004), for the well-

known rule that, in Mississippi, modification of child support will occur only if there has

been a material change in circumstances “since the entry of the decree [and] that such change

was unforeseeable at the time of the decree . . . .” Johnnie adds that, obviously, James

foresaw his termination of employment because it had occurred before the entry of the Order

on December 3, 2008. Johnnie also responds to James’s argument that James’s Petition for

Modification was proper under Mississippi Rule of Civil Procedure 60. First, Johnnie points

out that James’s pleadings failed to mention Rule 60, and, alternatively, given that James sat

on his rights after entry of the December 3, 2008, Order, James did not file his pleadings

within a “reasonable time” as required by Rule 60. See Miss. R. Civ. P. 60(b). Johnnie points

out that James “did not attempt to bring this matter to the Chancellor’s attention until 4 ½

months after the loss of his job and 4 months after entry of the child support Order.”

Accordingly, Johnnie posits that “[t]his is exactly the situation that is designed to be




                                              7
prevented by Mississippi law related to child support orders and vesting of support payments

as they become due and payable each month and the related doctrine of res judicata.”

¶17.   This Court finds that res judicata should not bar James from presenting evidence of

his job loss, which occurred after the effective date of the Order.3 This Court has stated that

“[n]unc pro tunc signifies now for then, or in other words, a thing is done now, which shall

have [the] same legal force and effect as if done at [the] time when it ought to have been

done.” In re D.N.T., 843 So. 2d 690, 697 n.8 (Miss. 2003) (quoting Black's Law Dictionary

964 (5th ed. 1979)) (emphasis added). This Court has further articulated that

       [n]unc pro tunc means ‘now for then’ and when applied to the entry of a legal
       order or judgment it does not refer to a new or fresh (de novo) decision, as
       when a decision is made after the death of a party, but relates to a ruling or
       action actually previously made or done but concerning which for some
       reason the record thereof is defective or omitted. The later record making does
       not itself have a retroactive effect but it constitutes the later evidence of a prior
       effectual act.

Thrash v. Thrash, 385 So. 2d 961, 963-64 (Miss. 1980) (emphasis added).

¶18.   Because the December 3, 2008, Order clearly states that Chancellor Cobb entered it

nunc pro tunc to November 5, 2008, this Court looks to November 5, 2008, for purposes of

res judicata. See Henderson v. Henderson, 27 So. 3d 462, 464 (Miss. Ct. App. 2010) (two

years after divorce decree erroneously had not been filed in chancery clerk’s office,




       3
         Chancellor Cobb entered the December 3, 2008, Order nunc pro tunc to November
5, 2008. James alleges in his brief that on November 5, 2008, Chancellor Cobb “issued an
oral opinion modifying the decree of divorce and increas[ing] the amount of child support
the petitioner was to pay to the sum of $1,050.00 per month. The Order was not entered until
December 3, 2008.” In her brief, Johnnie does not contest whether or not Chancellor Cobb
issued an oral opinion from the bench on November 5, 2008. The transcript of the hearing
before Chancellor Cobb is not in the record before us.

                                                8
chancellor entered divorce decree nunc pro tunc, and effective, as to the date chancellor

signed, not entered, the decree).

¶19.   Notably, in recent years, the Court of Appeals has stated that “[r]es judicata precludes

a party from litigating claims that were raised or could have been raised by the party’s prior

child support modification petition.” Howard v. Howard, 968 So. 2d 961, 973 (Miss. Ct.

App. 2007) (citing Miss. Dep’t of Human Servs v. Shelby, 802 So. 2d 89, 95 (Miss. 2001))

(citations omitted) (emphasis added). Because the decree became legally effective as of

November 5, 2008, due to the nunc pro tunc Order, James could not have brought this

evidence to the chancellor’s attention before the effective date of the Order, and this subject

matter has never been before the chancellor. Accordingly, James’s evidence of his job loss

is not barred by res judicata. See Dunaway, 422 So. 2d at 751(citations omitted).

                                      CONCLUSION

¶20.   The order upwardly modifying James’s child-support payments was effective as of

November 5, 2008, and James’s job loss occurred after this legally effective date.

Accordingly, the July 21, 2009, order granting in part Johnnie Evans Irving’s motion to

dismiss James Craig Irving’s petition for modification; and the February 2, 2010, order

denying James Craig Irving’s amended motion to reconsider and declaring that James Craig

Irving could not offer evidence of events occurring before December 3, 2008, are reversed,

and these consolidated cases are remanded to the Chancery Court of DeSoto County for

further proceedings consistent with this opinion.

¶21.   REVERSED AND REMANDED.




                                              9
     WALLER, C.J., DICKINSON, P.J., RANDOLPH, KITCHENS, CHANDLER,
PIERCE AND KING, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.




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