IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00820-COA
HAROLD LEO RUSSELL, SR. APPELLANT
v.
GRACIE COCHRAN RUSSELL APPELLEE
DATE OF JUDGMENT: 04/15/2013
TRIAL JUDGE: HON. H. DAVID CLARK II
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
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. Harold 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 petition 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 parties, 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 therefore 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
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terminate or modify his alimony payments.
¶5. In his first assignment of error, Leo argues that the chancellor erred 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 were 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 amount,
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).
¶7. “The general rule has been that periodic alimony terminates upon death or
remarriage.” Skinner v. Skinner, 509 So. 2d 867, 869 (Miss. 1987) (citing Wray v. Wray, 394
So. 2d 1341, 1344 (Miss. 1981)). When considering a party’s petition to modify or terminate
an award of periodic alimony, a chancellor must first determine whether “an unforeseeable
and material change in circumstances occurred since entry of the initial divorce decree.”
Peterson, 129 So. 3d at 257 (¶7) (citing Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11)
(Miss. 2002) (“The change in circumstance must not be anticipated by the parties at the time
of the original decree.”). If no unforeseeable and material change has occurred, then a
modification of the alimony award is improper. Id. However, where a substantial
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unanticipated change has occurred, the chancellor should consider the Armstrong 1 factors to
determine the proper amount of alimony. Id. at (¶8).
¶8. In the present case, Leo argues that his retirement and the resulting reduction 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 event 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 denying 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 chancellor 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 received
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.
1
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
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¶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 reasonably
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 warranted.
¶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 event occurred since Leo’s
retirement was reasonably foreseeable at the time of the parties’ divorce. Because the record
contains substantial evidence to support the chancellor’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
inadmissible the deposition testimony of one of his expert witnesses, Dr. Joyce Wade-
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Hamme. “Our well-established standard of review for the trial court’s admission or
suppression of evidence, including expert testimony, is abuse of discretion.” 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 found 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
period 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 objection,
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 certified 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 noted that he specifically
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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 suffered 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.
¶18. Rule 1.10(A) of the Uniform Chancery Court Rules provides that, “[a]bsent special
circumstances[,] the court will not allow testimony at trial of an expert witness who was not
designated as an expert witness to all attorneys of record at least sixty days before trial.” In
addition, our caselaw recognizes that “[t]he purpose of the strict discovery rules is . . . to
avoid trial by ambush and to ensure that all parties involved have a reasonable time for trial
preparation.” Poole ex rel. Poole v. Avara, 908 So. 2d 716, 725 (¶19) (Miss. 2005) (citation
omitted). Based on our review of the record and applicable caselaw, we find no abuse of
discretion by the chancellor’s refusal to admit into evidence Dr. Wade-Hamme’s deposition
testimony. See Tunica Cnty., 926 So. 2d at 212-13 (¶5). As the record reflects, Leo failed
to depose Dr. Wade-Hamm within the time limits set by the chancellor even though the
chancellor extended the discovery deadline. We therefore cannot say that the chancellor’s
ruling amounted to an abuse of discretion or was arbitrary or clearly erroneous. See id.
Accordingly, this argument lacks merit.
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¶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.
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