Diane Rene Persons McCoy Forrest v. Kendall McCoy
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01760-COA
DIANE RENE PERSONS MCCOY FORREST
APPELLANT
v.
KENDALL MCCOY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
09/05/2007
HON. J. DEWAYNE THOMAS
HINDS COUNTY CHANCERY COURT
DIANE RENE PERSONS MCCOY
FORREST (PRO SE)
TRACY STIDHAM STEEN
STEPHANIE GEE BEAVER
CIVIL - DOMESTIC RELATIONS
MOTION FOR CONTEMPT DENIED
AFFIRMED: 10/21/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Diane Rene Persons McCoy Forrest filed a motion for contempt against Kendall
McCoy, alleging that McCoy failed to pay child support from December 1, 1987, to
December 2, 1988. The chancellor denied Forrest’s motion for contempt. Forrest appeals,
raising the following two issues:
I. Whether the chancellor erred by denying Forrest’s request for child support
awarded under a temporary order.
II. Whether the chancellor erred by denying Forrest’s request for fees incurred
in pursuit of this action.
Finding no error, we affirm the chancery court’s denial of Forrest’s motion for contempt.
FACTS AND PROCEDURAL HISTORY
¶2.
Forrest and McCoy were once married, and one child named Jason was born to this
union. While their divorce was pending, the chancellor entered a temporary order on
January 8, 1988, ordering McCoy to pay $450 per month for child support from December
1987 until further order of the court. The divorce was finalized in December 1988 and
incorporated a child custody and property settlement agreement, which provided that McCoy
would not exercise visitation rights and would not be obligated to make child support
payments.
¶3.
Sixteen years later, on October 19, 2004, Forrest filed a motion to modify child
support, requesting back child support and future child support payments. The chancellor
denied all requested relief. Forrest appealed the chancellor’s decision, but she failed to
appeal the denial of back child support. This Court reversed and remanded that action,
instructing the chancellor to only determine McCoy’s future child support obligations
retroactive to October 19, 2004, because Forrest failed to appeal the denial of back child
support. Forrest v. McCoy, 941 So. 2d 889, 891-92 (¶¶12-14) (Miss. Ct. App. 2006). On
remand, the chancellor ordered McCoy to pay $500 per month for child support retroactive
to October 2004 and $500 per month in future child support payments.
¶4.
On July 19, 2007, Forrest filed a motion for contempt against McCoy, alleging that
he failed to comply with the temporary order that was entered on January 8, 1988. The
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chancellor denied Forrest’s motion for contempt, stating that Forrest had previously sought
back child support, which included any support due under the temporary order, and she
failed to appeal the denial of the request.
ANALYSIS
¶5.
When supported by substantial evidence, “this Court will not disturb a chancellor's
findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an
erroneous legal standard.” Hensarling v. Hensarling, 824 So. 2d 583, 586 (¶7) (Miss. 2002)
(quoting Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss. 1994)).
I. Whether the chancellor erred by denying Forrest’s request for child
support awarded under a temporary order.
¶6.
Forrest argues that the chancellor erred by denying her request for child support for
the thirteen months covered by the temporary order. Conversely, McCoy argues that the
chancellor properly denied Forrest’s motion for contempt because Forrest failed to timely
appeal the issue of back child support when she appealed the denial of her motion to modify
child support. In rebuttal, Forrest contends that the temporary order addressed in her motion
for contempt is separate and distinct from her previous motion to modify child support from
the final judgment rendered in the divorce. Forrest maintains that although she was denied
back child support under her motion to modify child support, she is not precluded from
seeking the child support owed under the temporary order.
¶7.
It is important to note that Forrest is proceeding pro se in her appeal and does not cite
to any authority in support of her contentions. “Our supreme court has held that pro se
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parties should be held to the same rules of procedure and substantive law as represented
parties.” Asanov v. Hunt, 914 So. 2d 769, 771 (¶8) (Miss. Ct. App. 2005) (citing Dethlefs
v. Beau Maison Dev. Corp., 511 So. 2d 112, 118 (Miss. 1987)). Any failure to cite authority
in support of an argument precludes consideration of the issue on appeal. Boutwell v.
Boutwell, 829 So. 2d 1216, 1223 (¶29) (Miss. 2002). Despite this procedural bar, we will
address the merits of Forrest’s argument.
¶8.
In her motion to modify child support filed on October 19, 2004, Forrest requested
child support for the past sixteen years and child support until Jason turns twenty-one years
old. The motion did not specifically mention the temporary order. However, Forrest’s claim
for “child support for the past sixteen years” covers October 1988 to October 2004,
encompassing the time the temporary order was in effect.
¶9.
When a court of competent jurisdiction has entered a final judgment on the merits of
an action, the doctrine of res judicata precludes a party from relitigating claims that were
actually litigated and determined or could have been litigated and decided in a prior action.
Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶12) (Miss. 2000) (citing Childers v. Childers, 717
So. 2d 1279, 1280 (¶6) (Miss. 1998)). This Court previously found that Forrest failed to
appeal the denial of back child support for a sixteen-year period, which included the time
covered by the temporary support order. Thus, Forrest is now precluded by res judicata from
raising a claim for back child support due under the temporary order. See Forrest, 941 So.
2d at 891 (¶12). Therefore, we affirm the chancellor’s denial of Forrest’s motion for
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contempt for back child support.
¶10.
This decision is made without any prejudice to Jason’s right to recover unpaid child
support on his own behalf. See id. at 892 (¶13) (citing Owen v. Wilkinson, 915 So. 2d 493,
496 (¶10) (Miss. Ct. App. 2005)). “[T]o bar the child because of a parent’s failure to timely
assert the child’s claim for support is to deprive the child of that support which belongs to
him for reasons over which he has no control.” Owen, 915 So. 2d at 496 (¶10) (quoting
Wilson v. Wilson, 464 So. 2d 496, 499 (Miss. 1985)). Therefore, although we find that
Forrest is barred from bringing this claim, Jason may still pursue any back child support if
there is such due. See id.
II. Whether the chancellor erred by denying Forrest’s request for fees
incurred in pursuit of this action.
¶11.
Forrest argues that the chancellor erred by not awarding her fees incurred in pursuit
of this action because she is financially unable to pay the court costs. In return, McCoy
requests that this Court assess sanctions against Forrest because McCoy believes that
Forrest’s lawsuit is frivolous.
¶12.
First, addressing Forrest’s claim, it is within the trial court’s discretion to award a
party fees and court costs. Weston v. Mounts, 789 So. 2d 822, 827 (¶21) (Miss. Ct. App.
2001). “When the court denies a spouse’s petition for contempt, no award of attorney’s fees
is warranted.” Id. (quoting Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995)). The
chancellor denied Forrest’s request for fees because McCoy was not found to be in contempt
of court, and we affirm.
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¶13.
Regarding McCoy’s request for sanctions, Mississippi Rule of Appellate Procedure
38 provides, “[i]n a civil case if the Supreme Court or Court of Appeals shall determine that
an appeal is frivolous, it shall award just damages and single or double costs to the appellee.”
See also Little v. Collier, 759 So. 2d 454, 459 (¶22) (Miss. Ct. App. 2000). With that in
mind, we find that Forrest’s appeal is not frivolous. Thus, we deny McCoy’s request to
impose sanctions against Forrest.
CONCLUSION
¶14.
We find that Forrest’s request for child support awarded under the temporary order
is, in essence, a request for back child support. Since Forrest failed to appeal the denial of
back child support in her previous lawsuit against McCoy, she is now precluded from
relitigating this issue. We also find that the chancellor properly denied Forrest’s request for
court costs and fees, and we decline to assess sanctions against Forrest because we do not
find her lawsuit to be frivolous. Therefore, we affirm the chancellor’s denial of Forrest’s
motion for contempt.
¶15. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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