Keller v. Keller

763 So. 2d 902, 2000 WL 626841
CourtCourt of Appeals of Mississippi
DecidedMay 16, 2000
Docket1999-CA-00874-COA
StatusPublished
Cited by5 cases

This text of 763 So. 2d 902 (Keller v. Keller) 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
Keller v. Keller, 763 So. 2d 902, 2000 WL 626841 (Mich. Ct. App. 2000).

Opinion

763 So.2d 902 (2000)

Timothy Lynn KELLER, Appellant,
v.
Cynthia Ann KELLER, Appellee.

No. 1999-CA-00874-COA.

Court of Appeals of Mississippi.

May 16, 2000.
Rehearing Denied July 25, 2000.

*903 David P. Oliver, Gulfport, Attorney for Appellant.

Robert O. Homes, Jr., Gulfport, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND MOORE, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Cynthia Ann Palmere Keller was granted a divorce from her husband Timothy *904 Lynn Keller, based on habitual cruel and inhuman treatment. On appeal Mr. Keller states that the evidence did not support this basis for divorce. Procedural error is also alleged since his discovery responses were admitted as substantive evidence at trial, and that there were defects in the "no collusion" affidavits attached to his former wife's original and amended complaints. We disagree and affirm.

FACTS

¶ 2. Cynthia Ann Palmere Keller and Timothy Lynn Keller were married in 1991. The couple lived in Biloxi with Mrs. Keller's son from a previous marriage, Nicky. No children were born to the Kellers. At trial, both the mother and the fourteen year old boy testified that Mr. Keller had frequently punished Nicky for minor transgressions by beating him with a belt, leaving bruises on his back, buttocks and legs. Mrs. Keller also testified that her husband frequently drank and stayed out late at night, that he was often cruel to her, and that he refused her sexual relations for the last year of their marriage. Mr. Keller did not testify.

¶ 3. In January 1998 Mr. Keller left the house never to return and moved into a Gulfport apartment. On July 20, 1998, Mrs. Keller filed a complaint for divorce, alleging adultery and cruel and inhuman treatment. She later amended it to include desertion for more than one year. At trial, she told the court that her husband had left after she refused his demand that she "get rid" of her son by giving custody to her former husband or her parents. She also testified that a woman named Jennifer Fiala resided with her husband, had become pregnant, but the child was lost by miscarriage. Fiala and a neighbor confirmed that the she and Mr. Keller lived together in the apartment.

¶ 4. At the beginning of the trial, the chancellor allowed the wife's attorney to introduce into evidence the transcript of the husband's deposition. Also introduced was a copy of Mr. Keller's answers to requests for admission. His counsel objected to both, but the objections were overruled. Mrs. Keller's counsel then used these discovery responses to question her about the statements that he had made in each, including a denial of any relationship with a woman named "Jennifer."

¶ 5. Toward the end of the first day of the two-day trial, Mr. Keller's attorney moved to dismiss on grounds of lack of subject matter jurisdiction, pointing out to the court that the affidavits of "no collusion" attached to both the complaint and amended complaint were not signed by her but only by a notary. This was said to violate the statutory form. Miss.Code Ann. § 93-5-7(7) (Rev.1994). The motion was denied, and the wife's attorney was ordered to file a second amended complaint with the proper affidavit and signatures before trial resumed the next morning. This was accomplished.

¶ 6. At the end of trial, the court found that the husband was "in fact guilty of adultery, but that adultery didn't have anything to do with the separation." Because he found that the separation was caused by "the habitual and continuous conduct on the part of Mr. Keller," the chancellor granted Mrs. Keller a divorce on grounds of habitual cruel and inhuman treatment. He also awarded to her $7,500 in lump sum alimony to help settle the couple's debts, along with $2,500 toward her legal fees.

DISCUSSION

I. Admission of deposition transcript, answers to requests for admission

¶ 7. Mr. Keller asserts that it was error for the court to allow his deposition and his answers to requests for admission to be introduced at the beginning of trial. He alleges that such material should be usable only as impeachment if he testifies. He argues that his wife at least should have first called him to the stand to determine *905 whether he testified consistently with the deposition.

¶ 8. Mrs. Keller did not call her husband as a witness nor did he testify on his own behalf.

¶ 9. The following rule controls use of deposition testimony at trial:

(a) Use of Depositions. At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Mississippi Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose.

M.R.C.P. 32(a) (emphasis added). There is no qualification in Rule 32(a) that the witness must either be unavailable or must first testify at trial for the deposition to be admissible.

¶ 10. The supreme court held that a plaintiff was entitled to have admitted into evidence portions of a deposition by one of the defendant's employees despite that the individual was available to testify:

The federal courts have routinely accepted this view ... holding the availability of the witness to testify is immaterial, and it is error to deny the admission of a deposition into evidence on this ground....

McMillan v. King, 557 So.2d 519, 525 (Miss.1990).

¶ 11. Mr. Keller would distinguish McMillan on the basis that his deposition was introduced at the beginning of his divorce trial, without any attempt to call him as a witness. Further, McMillan dealt with an employee rather than a party. These are accurate factual but irrelevant legal distinctions. The rule states that the deposition of a party is admissible for any purpose. It is silent and therefore creates no explicit limit on the timing of the admission.

¶ 12. An additional error is said to have occurred when Mrs. Keller, who was present at the deposition, was allowed to testify as to some of the statements that he made. Among her husband's deposition statements that Mrs. Keller recounted for the court was that he denied living with a "girl named Jennifer." Though this was redundant once the deposition itself was admitted, the chancellor was unlikely to be affected improperly by the repetition. There of course is no hearsay problem, as an admission by an opposing party is not hearsay. M.R.E. 801(d)(2).

¶ 13. Likewise, the answers to the requests for admission were properly admitted into evidence. In his responses Mr. Keller denied that since his separation he had resided with someone named Jennifer.

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Bluebook (online)
763 So. 2d 902, 2000 WL 626841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-keller-missctapp-2000.