Harold Leo Russell, Sr. v. Gracie Cochran Russell

148 So. 3d 1052, 2014 Miss. App. LEXIS 564, 2014 WL 4977499
CourtCourt of Appeals of Mississippi
DecidedOctober 7, 2014
Docket2013-CA-00820-COA
StatusPublished
Cited by4 cases

This text of 148 So. 3d 1052 (Harold Leo Russell, Sr. v. Gracie Cochran Russell) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harold Leo Russell, Sr. v. Gracie Cochran Russell, 148 So. 3d 1052, 2014 Miss. App. LEXIS 564, 2014 WL 4977499 (Mich. Ct. App. 2014).

Opinion

*1053 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 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).

*1054 ¶ 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 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.

¶ 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] *1055 of the parties, not only today but over the years, no reduction in alimony is warranted.

¶ 12.

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Bluebook (online)
148 So. 3d 1052, 2014 Miss. App. LEXIS 564, 2014 WL 4977499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-leo-russell-sr-v-gracie-cochran-russell-missctapp-2014.