HAROLD LEO RUSSELL, SR. v. GRACIE COCHRAN RUSSELL
NO. 2013-CA-00820-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
10/07/2014
HON. H. DAVID CLARK II
DATE OF JUDGMENT: 04/15/2013; COURT FROM WHICH APPEALED: SCOTT COUNTY CHANCERY COURT; ATTORNEY FOR APPELLANT: J. EDWARD RAINER; ATTORNEY FOR APPELLEE: EARL P. JORDAN JR.; NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS; TRIAL COURT DISPOSITION: DENIED APPELLANT‘S PETITION FOR MODIFICATION OF ALIMONY; DISPOSITION: AFFIRMED - 10/07/2014
BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.
¶1. Hаrold Leo Russell Sr. (Leo) appeals the Scott County Chancery Court‘s denial of his petition for modification of alimony. On appeal, Leo raises the following issues: (1) whether the chancellor erred by denying his pеtition to terminate or modify his alimony payments; and (2) whether the chancellor erred by refusing to admit into evidence certain deposition testimony. Finding no error, we affirm.
FACTS
¶2. Leo and Gracie Cochran Russell divorced in 1978. As a result of the divorce judgment, Leo was ordered to pay Gracie $2,500 each month in permanent alimony. In 2006, Leo filed his first petition for termination or reduction of his alimony payments. The chancellor dismissed the petition without prejudice. In 2011, Leo filed a second petition for termination or reduction of his alimony payments, which is the subject of the current litigation between the parties.
¶3. In an order entered in May 2012, the chancellor reduced Leo‘s monthly alimony payments to $1,553 after determining that Gracie received $947 each month in Social Security benefits from Leo‘s earnings. After hearing all the evidence and testimony presented by the рarties, the chancellor entered a final order in which he found that Leo failed to demonstrate a material change in circumstances or an inability to meet his alimony obligation. The chancellor therеfore denied Leo‘s petition for termination or modification of his alimony payments. Leo filed a motion to grant a new hearing or, in the alternative, to alter, amend, or otherwise reconsider the chancellor‘s final order. The chancellor denied Leo‘s motion. Aggrieved by the chancellor‘s ruling, Leo appeals to this Court.
STANDARD OF REVIEW
¶4. “This Court‘s standard of review in domestic relations matters is extremely limited.” Phillips v. Phillips, 45 So. 3d 684, 692 (¶23) (Miss. Ct. App. 2010). We will not disturb a chancellor‘s findings unless the findings were manifestly wrong or clearly erroneous or unless the chancellor applied an erroneous legal standard. Id. Where the record contains substantial evidence to support the chancellor‘s findings of fact, we will not reverse his decision. Id.
DISCUSSION
I. Whether the chancellor erred by denying Leo‘s petition to terminate or modify his alimony payments.
¶5. In his first assignment of error, Leo argues that the chancellor errеd by denying his petition to terminate or modify his monthly alimony payments. Leo asserts that the chancellor erroneously found no material change in his circumstances and that his retirement and reduction of income werе foreseeable at the time of the parties’ divorce.
¶6. With regard to our review of a chancellor‘s award of alimony, this Court has previously stated:
An award of alimony, if allowed, should be reasonable in amоunt, commensurate with the wife‘s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. The amount of an alimony award is largely within the discretion of the chancellor. Unless the chancellor is in manifest error and abused [his] discretion, we will not reverse.
Peterson v. Peterson, 129 So. 3d 255, 256-57 (¶5) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).
¶8. In the present case, Leo argues that his retirement and the resulting reduсtion in his income were unanticipated at the time the parties divorced in 1978. In his brief, Leo asserts the following:
[T]hough it may have been anticipated that at some time in the future [he] might retire and discontinue working, such an evеnt is not an event that the [c]ourt can hold [him] to with respect to [the] same being a “foreseeable future event” that will preclude a termination of alimony or a reduction of alimony at the time of retirement.
¶9. In dеnying Leo‘s petition to terminate or reduce his alimony payments, the chancellor found that retirement, by itself, proved insufficient to justify a modification. Although Leo had retired since the parties’ divorce, the chаncellor found that Leo still possessed sufficient assets and income to satisfy his alimony obligation. The chancellor noted that Leo‘s living expenses were approximately $10,000 a month and that Leo bought a new home about seven years earlier. Other than the remaining home payments, the chancellor found that Leo had finished paying all other significant debt.
¶10. The chancellor also noted that Leo‘s other financial obligations resulting from the divorce, such as child support, had long since been fulfilled. In addition, the chancellor stated that Leo had received proper credit for the Social Security benefits Gracie reсeived from his past employment earnings. Therefore, based on the evidence presented by the parties, the chancellor found that Leo failed to demonstrate a substantial and material change in his circumstances.
¶11. The chancellor also discussed whether any changes in Leo‘s circumstances were unanticipated, stating, “There was no mention [made] at the time [of the parties’ divorce] . . . of what would transpire when one or the other party retired. Certainly it was foreseeable that [Leo] would retire, [but] it‘s not mentioned.” As the record reflects, Leo retired in 2010 after turning seventy-five. Although he found that Leo‘s retirement was a rеasonably foreseeable event at the time the parties divorced, the chancellor still considered the Armstrong factors. Concluding his analysis, the chancellor stated:
There has been no substantial and material change. The fact that [Leo] is retired was foreseeable. And even if you do a—well, it‘s impossible to do much of an analysis because we don‘t have beginning information [for 1978,] . . . but if you do an analysis under Armstrong and you look at the assets and the income[s]
of the parties, not only today but over the years, no reduction in alimony is wаrranted.
¶12. After reviewing the record and relevant caselaw, we find no abuse of discretion by the chancellor‘s denial of Leo‘s petition for modification of his alimony payments. See Peterson, 129 So. 3d at 256-57 (¶5). The chancellor found that no material change occurred and that Leo possessed sufficient financial resources to continue paying his monthly alimony obligation. The chancellor also found that no unanticipated evеnt occurred since Leo‘s retirement was reasonably foreseeable at the time of the parties’ divorce. Because the record contains substantial evidence to support the chancеllor‘s findings, we find no merit to this assignment of error.
II. Whether the chancellor erred by refusing to admit into evidence certain deposition testimony.
¶13. In his next assignment of error, Leo contends that the chancellor erred by finding inadmissiblе the deposition testimony of one of his expert witnesses, Dr. Joyce Wade- Hamme. “Our well-established standard of review for the trial court‘s admission or suppression of evidence, including expert testimony, is abuse of disсretion.” Tunica Cnty. v. Matthews, 926 So. 2d 209, 212 (¶5) (Miss. 2006) (citation omitted). “Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the] decision will stand.” Id. at 212-13 (¶5) (citation omitted).
¶14. The record reflects that the chancellor fоund Dr. Wade-Hamme‘s deposition testimony inadmissible because her deposition was taken after the discovery deadline passed. In his May 4, 2012 order, the chancellor extended discovery, beginning on April 18, 2012, for a periоd of ninety days. Trial on the parties’ matter began on August 24, 2012. However, after finding a need for additional evidence, the chancellor continued the trial to a later date. On December 5, 2012, the chancellor entered an amended order setting the parties’ final hearing for April 15, 2013.
¶15. On December 26, 2012, Leo‘s attorney filed a notice stating that Dr. Wade-Hamme‘s deposition would be taken on January 11, 2013. Gracie‘s attorney filed an objeсtion, asserting that the “deadline for commencing discovery has ceased[,] and this case is in the middle of trial.” On January 17, 2013, Leo‘s attorney filed a designation of expert witnesses that designated Dr. Wade-Hamme and a cеrtified public accountant as Leo‘s expert witnesses. The document provided that Dr. Wade-Hamme would testify about Leo‘s medical conditions and work capabilities.
¶16. When trial resumed on April 15, 2013, Gracie‘s attorney objected to the testimony of Leo‘s expert witnesses. After hearing the parties’ arguments, the chancellor admitted into evidence the expert testimony of Leo‘s accountant. The chancellor nоted that he specifically continued the trial for the purpose of obtaining the information provided by the accountant. The chancellor further found that Gracie had knowledge of this and therefore sufferеd no surprise or prejudice by the admission of the accountant‘s testimony.
¶17. With regard to Dr. Wade-Hamme‘s deposition testimony, however, the chancellor ruled it was inadmissible because the deposition was taken outside the time provided for discovery. As a result, Dr. Wade-Hamme‘s deposition was marked for identification purposes only. On appeal, Leo argues that the chancellor abused his discretion by refusing to admit Dr. Wade-Hamme‘s deposition into evidence and that the chancellor‘s decision greatly disadvantaged Leo‘s case.
¶19. THE JUDGMENT OF THE SCOTT COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.