148 So. 3d 1052
Miss. Ct. App.2014Background
- Harold L. Russell Sr. (Leo) and Gracie Russell divorced in 1978; the divorce decree required Leo to pay $2,500/month permanent alimony.
- Leo filed for termination/reduction of alimony in 2006 (dismissed without prejudice) and again in 2011 (subject of this appeal).
- In May 2012 the chancellor reduced payments to $1,553/month to account for $947/month in Social Security benefits Gracie received based on Leo’s earnings.
- Leo retired in 2010 and asserted retirement and reduced income constituted a material, unanticipated change warranting termination or further reduction.
- The chancellor found no substantial, unforeseeable change and that Leo retained sufficient assets/income (noting home purchase, ~$10,000/mo expenses, limited remaining debt) and denied modification; Leo’s motion to reconsider was denied.
- The chancellor excluded an expert medical deposition taken after discovery deadlines; the accountant’s expert testimony was admitted. Leo appealed both rulings.
Issues
| Issue | Plaintiff's Argument (Russell) | Defendant's Argument (Russell) | Held |
|---|---|---|---|
| Whether alimony should be terminated or reduced | Retirement and income reduction are material changes not anticipated in 1978; justify termination/reduction | No unforeseeable, material change; Leo retains sufficient resources; retirement was foreseeable | Affirmed: chancellor did not abuse discretion; no substantial unforeseeable change shown |
| Whether chancellor erred excluding expert deposition | Dr. Wade-Hamme’s deposition was necessary and exclusion prejudiced Leo | Deposition taken after discovery deadline; admission would prejudice Gracie | Affirmed: exclusion not an abuse of discretion under discovery rules; no special circumstances shown |
Key Cases Cited
- Phillips v. Phillips, 45 So. 3d 684 (Miss. Ct. App. 2010) (standard of appellate review in domestic relations matters)
- Peterson v. Peterson, 129 So. 3d 255 (Miss. Ct. App. 2013) (alimony modification requires chancellor discretion and reasonableness)
- Holcombe v. Holcombe, 813 So. 2d 700 (Miss. 2002) (modification requires unforeseeable, material change since decree)
- Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) (factors to consider in setting alimony)
- Skinner v. Skinner, 509 So. 2d 867 (Miss. 1987) (periodic alimony generally terminates on death or remarriage)
- Poole ex rel. Poole v. Avara, 908 So. 2d 716 (Miss. 2005) (purpose of discovery rules: avoid trial by ambush)
- Tunica County v. Matthews, 926 So. 2d 209 (Miss. 2006) (admission/suppression of evidence reviewed for abuse of discretion)