More on Evidence of Prior Conduct in a Modification Case

September 2, 2014 § Leave a comment

As a rule, in a modification the chancellor is prohibited by the principle of res judicata from considering evidence of conduct that predates the judgment sought to be modified. It’s a concept that we have talked about here before

The COA case of Summerlin v. Eldridge, handed down August 19, 2014, is the most recent case to deal with the issue.

In their divorce in May, 2011, Mike and Tamara Summerlin agreed to a custody arrangement under which Mike would have custody of daughter Madison, and Tamara would have custody of the two younger children, Haley and Grace.

In August, 2011, Tamara filed for modification, seeking custody of Madison, and, apparently, asking for MIke to have custody of Haley. An agreed judgment was entered changing custody of Madison from Mike to Tamara, and custody of Haley from Tamara to MIke.

After that the parties swapped salvoes of pleadings for contempt and modification, and, in February, 2012, the chancellor left custody as the parties had previously agreed. They subsequently agreed that Mike would regain custody of Madison. That left only custody of Grace as a contested issue.   

The case came to trial, and the chancellor, in October, 2012, awarded custody of all three children to MIke. 

Tamara appealed, arguing that the chancellor erred in considering conduct of hers that predated the August, 2011, order, which had been the last modification order entered before the final modification judgment resulting from the trial.

The COA found no error. Here’s what Judge Fair’s opinion stated:


¶8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶13) (Miss. 2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.

¶9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.

So, two points:

  • In order for the bar of res judicata to operate, the four identities must be present. In this case, the prior modification judgment(s) did not create a bar as to testimony involving custody of Grace, because Grace was not part of the subject matter of the prior judgment(s). The bar does not exist from the date of the last order or judgment entered, but rather exists when the four identities come together in one order or judgment. In this case, the last order or judgment in which the four identities were present as to Grace was the divorce judgment, and the testimony at trial to which Tamara objected was post-divorce-judgment.
  • The reason why the testimony is offered appears to make a difference. Here it was not considered substantively by the trial judge, but was only considered as impeachment of Tamara’s and her current husband’s testimony. The COA did not cite any case specifically so holding, but you may want to cite this decision to support such an argument next time you have this issue come up. 



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