Harrell v. Duncan

• Decision Date: 18 December 1991
• Docket Number: No. 90-CA-0585,90-CA-0585
• Citation: Harrell v. Duncan, 593 So.2d 1 (Miss. 1991)
• Parties: Marsha Trawick Duncan HARRELL v. William H. DUNCAN.
• Court: Mississippi Supreme Court

Page 1

593 So.2d 1

Marsha Trawick Duncan HARRELL v. William H. DUNCAN.

No. 90-CA-0585.

Supreme Court of Mississippi.

Dec. 18, 1991.

Mark A. Scarborough, Wilbourn Rogers & Scarborough, Meridian, for appellant.

Robert D. Jones, Jordan & Jones, Meridian, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

Marsha Duncan Harrell appeals from a judgment of the Chancery Court of Lauderdale County, in favor of her ex-husband, William Duncan, for $3440.00. The judgment was for overpayment of child support for the couple's daughter, Delita. Marsha alleges that the chancery court erroneously restricted the issues to be considered in determining whether a judgment was due either party. We agree, and reverse and remand.

I.

William Duncan and Marsha Duncan Harrell were divorced in 1981. Their marriage had produced two children: Delita, born October 9, 1965, and Rhonda, born October 12, 1969. Pursuant to the final decree of divorce, William was ordered to pay to Marsha $700.00 per month for child support and alimony. The portion of the award going to each type of support was not specified. Marsha also received exclusive use and possession of the family home, with William to make all house payments. The amount of the house payment was not specified in the final decree, but it appears to have been $225.00 per month.

Marsha remarried in March of 1986. She purchased the family home from William in August 1986, relieving him of the $225.00 monthly payment. William continued to make the $700.00 monthly payment until November 1, 1987.

In January 1988, William filed a motion to modify the terms of the final divorce decree. He asked for a reduction in the child support and for a judgment in the amount of any alimony he had paid to Marsha after her remarriage. The lower court found that the $700.00 monthly payment, after March of 1986, the date of Marsha's remarriage, consisted entirely of child support. William had never tried to designate any of the $700.00 payment as alimony on his tax returns. By that time Delita was twenty-two years old and a fifth-year college student. Rhonda was an eighteen year old college student. The court found that Delita was not emancipated, and fixed her support at $200.00 per month. The court also found that Rhonda was not emancipated and fixed her support at $300.00 per month.

William appealed to this Court. See Duncan v. Duncan, 556 So.2d 346 (Miss.1990). This Court affirmed the trial court's treatment of the $700.00 monthly payment as child support. It further found that the trial court had erred in ordering William to support Delita past the age of twenty-one. The support of Rhonda at the rate of $300.00 per month was affirmed. The opinion concluded with the sentence: "In accordance with the foregoing, this case is reversed and remanded for such further proceedings and judgment as may be required and as may be consistent with this opinion." Duncan, 556 So.2d at 348.

Duncan was decided by this Court on January 17, 1990. On January 24, the lower court issued an order apparently on its own motion, stating that the litigants should file their respective pleadings so that the chancery court might consider the "further proceedings and judgment" as ordered by this Court.

On February 12, 1990, William Duncan filed his Motion for Further Proceedings and for Judgment. He sought the following as relief: (1) child support from October 10, 1986 to October 31, 1986, prorated as between what was due for Delita and what was due for Rhonda; (2) child support of not less than $200.00 per month from November 1, 1986 to May 1, 1989; (3) reimbursement of $600.00 or the prorata amount as contained in the judgment of January 1988; (4) interest on these payments; (5) accrued costs for the motion and for the successful appeal by William; (6) reasonable attorney's fees and costs of the pending motion.

Marsha Harrell filed her response to the Supreme Court's opinion on February 9. She alleged that after William had filed his notice of appeal from the chancery court's decision to this Court, he was informed by his accountant that he could have treated his support payments as alimony for tax purposes. Harrell further alleged that Duncan had filed amended tax returns for the years 1984, 1985, 1986 and 1987. She alleged that this decision by Duncan forced her to file amended returns for the years 1984, 1985 and 1986, and subsequently resulted in a payment to the IRS of $4,140.78 in taxes, interest, and penalties, and a payment of $689.00 to the Mississippi State Tax Commission. Harrell argued that it was unfair to have the Mississippi Supreme Court adjudicate these support payments as child support, and then have Duncan subsequently claim them as alimony for tax purposes. Harrell asked that Duncan be ordered to pay to her $18,200.00 in back child support, or in the alternative to pay the tax liability, $4,829.78, which he had forced her to incur.

William Duncan responded with a motion to strike the response of Marsha Harrell. He alleged that the only matters which could be taken up were those that were remanded to the chancery court from the Supreme Court, and Marsha's response was an attempt to raise new matters through improper pleadings.

William Duncan's motion to strike was heard on March 26, 1990. Duncan introduced a copy of Duncan v. Duncan, the Supreme Court mandate following the decision, the chancery court's order of January 24, 1990, and a copy of Marsha Harrell's response. The chancery court then allowed argument on the motion. The lower court found that the hearing on remand was restricted by this Court's mandate, that the issues Marsha Harrell was attempting to raise were beyond that mandate, and would have to be raised, if at all, in a separate proceeding. It granted the motion to strike.

A hearing on William Duncan's motion for further proceedings was held on April 3, 1990. The parties stipulated that Duncan had paid child support of $200.00 per month from February 1, 1988 through May of 1989, and that he also paid $600.00 as ordered by the court in the final judgment of February 1988. William Duncan was called as a witness. Duncan's testimony mirrored his request for relief in his motion.

The chancery court found that Marsha Harrell should pay to William Duncan the sum of $3440.00. This judgment represented child support paid for Delita Duncan from February 1987 through May 1988 ($200.00 per month for sixteen months or $3200.00) plus 40% (Delita's share) of a $600.00 payment ordered by the court for support not paid in the fall of 1986 ($240.00). The judgment was to bear interest at 8% from January 17, 1990. The request for attorney's fees was denied.

II.

Marsha Harrell argues that the trial court erred when it struck her response, an attempt to raise William Duncan's tax practices as an issue in the case. The trial court apparently felt that it was restricted by this Court's mandate to the issues litigated in Duncan v. Duncan.

This Court, in Haines v. Haines, 98 Miss. 830, 54 So. 433 (1910), reversed and remanded, "for decree in accordance with the opinion of this Court." On return to the chancery court, there was an attempt to amend by the plaintiff/appellee to present an entirely new and additional basis for their claim. The defendant/appellant objected, saying that any issues outside the original pleadings were res judicata and barred. This Court reversed, finding:

When a judgment or decree appealed from is by this court reversed and remanded to the trial court, such court has full power to allow any amendment to be made to the pleadings which it had power to allow before the judgment or decree appealed from was rendered. The remanding of a case to the trial court is for the purpose of having it tried de novo, and such a court has the same power to allow amendments to the pleadings when a cause is remanded with direction to enter a judgment or decree in accordance with the opinion of this court that it has when a cause is remanded without any such direction. If on the trial in the court below the pleadings and proof present the same case that was before this court on the appeal, the judgment or decree of the court should be in accordance with the directions given it by this court; but, should the pleadings and proof then present a different case, the judgment or decree should be made to conform thereto. Wailes v. Cooper, 25 Miss. 421; Hanserd v. Gray, 46 Miss. 75; Taylor v. Wright, 54 Miss. 722; Canning Co. v. Ott, 88 Miss. 771, 41 South. 378.

The former judgment of this court is res judicata of the case as then presented; but the new matter contained in the amended bill, not being before the court, was not embraced in the judgment then rendered. Canning Company v. Ott, 88 Miss. 771, 41 South. 378.

Haines, 98 Miss. at 839, 54 So. at 433-34; see also Middleton v. Davis, 105 Miss. 152, 62 So. 164 (1913) (citing Haines ); Seals v. St. Regis Paper Co., 236 So.2d 388 (Miss.1970) (plaintiff allowed on remand to amend pleadings to charge newly discovered evidence and ask for punitive damages). Suffice it to say in the case sub judice, we have a new matter not before the Court in Duncan I.

Closely related to the preceding argument is the doctrine of "the law of the case." In Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 142 So.2d 200 (1962), Gulf Naval, an export partnership, filed suit to be allowed to leave the Wood Naval Stores Export Association. The case eventually reached this Court, which made certain rulings concerning a fine imposed by the Association on Gulf Naval, labelling the fine "liquidated damages." The case was then settled. Subsequently, the Association filed suit against Gulf Naval. Gulf Naval attempted to assert that this Court's ruling, as to the fine as being liquidated damages, was part of the law of the case, and could not be re-litigated. This Court differed, stating:

The opinion of this...