                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CA-00524-SCT

CLARENCE SAMPLES

v.

SARA DAVIS


DATE OF JUDGMENT:                         09/12/2002
TRIAL JUDGE:                              HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED:                COVINGTON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   RENEE M. PORTER
ATTORNEY FOR APPELLEE:                    NANCY E. STEEN
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              VACATED AND REMANDED - 12/16/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE SMITH, C.J., EASLEY AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    On December 5, 1995, Clarence Samples (“Samples”) and Sara Davis (“Davis”) were

divorced by a judgment of Covington County Chancery Court, thereby ending a fourteen year

marriage. Two children were born to their union: Matthew Kyle Samples, born March 4, 1985,

and Samuel Asa Samples, born November 2, 1989. Pursuant to the agreement for custody and

maintenance of children and for settlement of property rights, which was ratified by and

incorporated into the judgment of divorce, Davis retained physical custody of the children.

Samples was awarded visitation and ordered to pay $300 per month in child support to Davis.

In addition to his child support payments, Samples was ordered to pay $100 per month toward
the medical insurance premiums on behalf of the children and one-half of all medical expenses

not covered by insurance.

¶2.    In June of 1997, Samples, citing Davis’s move to Oxford, Mississippi, filed for a

modification of the transportation provisions regarding visitation in the judgment of divorce.

Davis filed a cross-complaint for modification wherein she asked the Court to increase child

support from $300 to $700; Davis further asked the court to cite Samples for contempt and

decrease his visitation privileges.      On October 7, 1998, Samples filed a petition for

modification of child custody and child support based on the older child’s election; however,

after the child withdrew his election, Samples withdrew his petition.       The respective petitions

of the parties came on for hearing at which time the parties reached the agreement set forth

in the agreed judgment of modification entered in the general docket on October 23, 1998.1

¶3.    On October 7, 1999, Samples filed a motion for citation of contempt, to enforce

visitation, and reduce child support, wherein he asked the court to cite Davis in contempt due

to her failure to allow Samples visitation and telephone contact with the two children. Samples

further requested a decrease in child support due to a decline in income.          That motion was

evidently never served, and a motion to amend those pleadings was filed on February 11, 2000.




¶4.    On March 13, 2000, Samples filed an amended complaint incorporating his previous

claims for relief, but also seeking a modification of physical custody of the children.     On May

2, 2000, Davis answered the amended complaint denying that Samples was entitled to a


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         Among other things, Samples was required to pay more in child support and the visitation
scheduled was modified to one more feasible for the relatively long distance between the parties’
respective residences.

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modification of custody, and again counter-claimed to cite Samples in contempt.                    On

November 10, 2000, a petition for contempt and other relief was filed against Samples on

behalf of Davis by the Department of Human Services, based upon an alleged failure to pay

child support. A guardian ad litem was appointed for the children on February 23, 2001.

¶5.        On December 17, 2001, Samples filed an amended complaint seeking damages from

Davis based on alienation of affection and interference of business.       Davis answered Samples’

complaint denying that he was entitled to the relief requested and countered to dismiss and for

sanctions on March 26, 2002.

¶6.        Subsequently, on May 7, 2002, the parties came before the court for a trial on the

merits; however, no trial was held due to a possible settlement of the issues between the

parties.       Davis filed a motion for enforcement of settlement, or alternatively, for trial setting

and sanctions2 on July 3, 2002.        On September 12, 2002, the chancellor signed the judgment,

which was thereafter entered on the general docket on September 13, 2002.                   Although

signature lines for both parties and their respective attorneys appear on the Judgment under the

word “AGREED,” the only signature on the judgment was that of the chancellor.

¶7.        Samples timely filed a Mississippi Rule of Civil Procedure 59 motion on September

20, 2002, although mistakenly referred in the body of the motion “as per Rule 62,” thereby

asking the court to set aside the judgment and grant him a new trial because the agreement was

not dictated into the record or memorialized in writing.      The court denied the motion by order

filed on February 20, 2003.



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         That document reflects that the parties were before the Court on May 7, 2002, and reached a
settlement on that date; however, Samples refused to sign or approve the judgment.

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¶8.       Following the denial of his post-trial motion, Samples appeals and raises the following

issue on appeal:

          I. Whether the lower court committed manifest error and thus reversible error
          by approving and signing a consent judgment which was not approved or signed
          by Samples or his attorney.

                                          DISCUSSION

¶9.       In domestic relations cases, this Court’s scope of review is limited by the substantial

evidence/manifest error rule.   Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (Miss. 2002)

(collecting authorities).   This Court may reverse a chancellor’s finding only when it is

manifestly wrong, clearly erroneous or the chancellor applied an erroneous legal standard.

Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss. 1994). “In appeals from Chancery Court,

our scope of review is limited. We will not reverse a Chancellor's findings of fact where they

are supported by substantial credible evidence in the record.” Hammett v. Woods, 602 So.

2d 825, 827 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 80 (Miss. 1988)) (emphasis

added).     “This Court will not disturb the chancellor's opinion when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous,

or an erroneous legal standard was applied.”     Holloman v. Holloman, 691 So. 2d 897, 898

(Miss. 1996) (citations omitted) (emphasis added).     In order for this Court to say that the

chancellor has abused his discretion, there must be insufficient evidence to support his

conclusions. Tucker v. Tucker, 453 So. 2d 1294, 1296-97 (Miss. 1984).

¶10.      According to Mississippi Uniform Chancery Court Rule 5.03, “Every consent Judgment

must be approved and signed by counsel for all parties to the suit who may be represented by

counsel and interested in or affected thereby before being presented to the Chancellor for his

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signature. The Court may also require the parties to sign.” (Emphasis added). Furthermore,

according to Mississippi Uniform Chancery Court Rule 3.09, “Oral agreements of counsel

made in the presence of the Court must be recorded by the court reporter or an Order entered

in accordance therewith approved by counsel.             All other agreements should be reduced to

writing and filed among the papers in the case.”

¶11.    Samples alleges that he was denied due process of law and a trial by the lower court.

Samples further alleges that the chancery court entered a judgment–one disguised as an agreed

judgment–that was not approved as to form or agreed to by either himself or his attorney and

without any record or authority to support the same.

¶12.    In Guilford County v. Eller, 146 N.C. App. 579, 553 S.E.2d 235 (2001), the North

Carolina Court of Appeals was faced with a similar issue of whether it was error for the trial

court to sign and enter a written judgment not consented to by all parties.            In its opinion, the

court stated:

        A consent judgment is a contract of the parties entered upon the records of a
        court of competent jurisdiction with its sanction and approval. It is well-settled
        that “‘[t]he power of the court to sign a consent judgment depends upon the
        unqualified consent of the parties thereto; and the judgment is void if such
        consent does not exist at the time the court sanctions or approves the
        agreement and promulgates it as a judgment.’” “[A] consent judgment is
        void if a party withdraws consent before the judgment is entered.” If a
        consent judgment is set aside, it must be set aside in its entirety. The person
        who challenges the validity of a consent judgment, bears the burden of proof to
        show that it is invalid.

Id. at 581, 236 (citations omitted) (emphasis added).

¶13.    In discussing a similar issue as in the present case, the Court of Appeals has stated:

        ¶ 24. The issue this raises is whether a party can through counsel first agree to
        a judgment and then, prior to the entry of the order reflecting that judgment,


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       withdraw his consent. What caused the withdrawal of consent to become
       apparent here is that Mr. McDonald's signature on the order was sought. Had the
       special chancellor himself prepared the order and entered it without seeking the
       parties' signature, so long as it properly reflected the agreement stated in
       open court, Mr. McDonald would have been limited to making an argument
       under Rule 60(b) that mutual mistake, fraud, or some other adequate ground
       permitted the modification of the order. M.R.C.P. 60; Dunn v. BL Development
       Corp., 747 So. 2d 284, 285 (Miss. Ct. App. 1999). Should these sorts of
       limitations on challenging the order apply even prior to its formal entry?
       ¶ 25. A consent judgment is in the nature of a contract. Parker v. Parker, 434
       So. 2d 1361, 1362 (Miss. 1983); Guthrie v. Guthrie, 233 Miss. 550, 553, 102
       So. 2d 381, 383 (1958). Here, a settlement was announced in open court and
       all that remained was to reduce its orally stated terms to writing for judicial
       signature. We consider that question under traditional contract rules:
       Whether contracting parties are bound by an informal agreement prior to the
       execution of a contemplated formal writing is a matter of intention to be
       determined by the surrounding facts and circumstances of each particular case.
       WRH Properties, Inc. v. Estate of Johnson, 759 So. 2d 394, 397 (Miss. 2000)
       (quoting Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F. Supp. 1176, 1189
       (N.D. Miss.1970)). We find that the circumstances of announcing in open
       court the settlement of the dispute that is the purpose for that hearing, with
       a recital of the terms of the settlement into the record, followed by an
       agreement to end the hearing, reflects an intention to be bound at that time.
       ¶ 26. Absent any showing that the final written order did not reflect the
       agreement announced in court, or any identification of a matter cognizable under
       Rule 60 that could lead to setting aside a consent decree after being
       entered--and neither showing exists here--we find that the parties were bound
       by their agreement even before it was reduced to a formal written order.

McDonald v. McDonald, 850 So. 2d 1182, 1189 (Miss. Ct. App. 2002) (emphases added),

aff’d, 876 So. 2d 296 (Miss. 2004). The McDonald Court went on to rule that McDonald was

bound by the agreement because the terms of the agreement were announced in open court

and dictated into the record.

¶14.   Although the issue presented in the case sub judice and McDonald appear similar at

first glance, the two cases are distinguishable. In McDonald, although McDonald never signed

the judgment and it was signed by the chancellor after McDonald withdrew his consent, the


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Court of Appeals ruled against McDonald because the terms of the agreement were

announced in open court and recorded by the court reporter.                In the case sub judice, no

terms were ever announced in open court and recorded by the court reporter; furthermore, no

agreement was signed by Samples or his attorney.               There is no transcript in this matter

memorializing the alleged agreement; given the fact that there is no transcript, there is no

record of the terms to which Samples allegedly agreed, i.e., in the absence of a record, we are

without proof of substantial credible evidence to support the chancellor’s order.           According

to Mississippi Uniform Chancery Court Rules 3.09 and 5.03, if there was an oral agreement,

it should have been recorded by the Court reporter or reduced to writing and approved by

Samples’ counsel.     Neither of these methods were employed.             Therefore, we will in effect

“wipe the slate clean and put the parties back where they were prior to trial.” Massingill v.

Massingill, 594 So. 2d 1173, 1177 (Miss. 1992).

                                            CONCLUSION

¶15.    If parties reach an agreement, the agreement containing the terms should be signed by

the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.

Here, there is no record of any terms of the agreement or any signature on the judgment, which

showed that the parties had reached an agreement to resolve all outstanding issues.

Consequently, the judgment of the Chancery Court of Covington County, Mississippi, is

vacated, and this case is remanded for further proceedings consistent with this opinion.

¶16.    VACATED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.



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