Samples v. Davis, No. 2003-CA-00524-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before SMITH, C.J., EASLEY and RANDOLPH, JJ.
• Citation: 904 So.2d 1061
• Parties: Clarence SAMPLES v. Sara DAVIS.
• Docket Number: No. 2003-CA-00524-SCT.
• Decision Date: 16 December 2004

904 So.2d 1061

Clarence SAMPLES
v.
Sara DAVIS

No. 2003-CA-00524-SCT.

Supreme Court of Mississippi.

December 16, 2004.

904 So.2d 1062

Renee M. Porter, Columbia, attorney for appellant

Nancy E. Steen, Hattiesburg, attorney for appellee.

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

904 So.2d 1063

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 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.

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

I.

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