Irving v. Irving
| Docket Number: | 2010-IA-00310-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-18-2011 Opinion Author: Carlson, P.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Modification of child support - Res judicata - Nunc pro tunc order Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Kitchens, Chandler, Pierce and King, JJ. Non Participating Judge(s): Lamar, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 01-26-2010 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: Granted Johnnie’s motion to dismiss, in part, 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). Case Number: 01-11-1530 |
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| Consolidated: Consolidated with 2010-CA-00355-SCT James Craig Irving v. Johnnie Evans Irving; DeSoto Chancery Court; LC Case #: 01-11-1530(PL); Ruling Date: 01/26/2010; Ruling Judge: Percy L. Lynchard, Jr. | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | James Craig Irving |
JOHN THOMAS LAMAR, JR. |
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| Appellee: | Johnnie Evans Irving | JOY W. GRAVES, MALENDA HARRIS MEACHAM, CHARLES E. WINFIELD | ||
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| Topic: | Modification of child support - Res judicata - Nunc pro tunc order |
| Summary of the Facts: | James Irving and Johnnie Irving were granted 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. James appeals. |
| Summary of Opinion Analysis: | James argues 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. 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. He argues that because the Order became effective against him on November 5, 2008, 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. Res judicata should not bar James from presenting evidence of his job loss, which occurred after the effective date of the Order. Nunc 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. Because the December 3, 2008, Order clearly states that the chancellor entered it nunc pro tunc to November 5, 2008, the Court looks to November 5, 2008, for purposes of res judicata. 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. |
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