Pool v. Pool

989 So. 2d 920, 2008 WL 131714
CourtCourt of Appeals of Mississippi
DecidedJanuary 15, 2008
Docket2006-CA-01237-COA
StatusPublished
Cited by11 cases

This text of 989 So. 2d 920 (Pool v. Pool) 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
Pool v. Pool, 989 So. 2d 920, 2008 WL 131714 (Mich. Ct. App. 2008).

Opinion

989 So.2d 920 (2008)

Thomas Willard POOL, Jr., Appellant
v.
Sherry Clay POOL, Appellee.

No. 2006-CA-01237-COA.

Court of Appeals of Mississippi.

January 15, 2008.
Rehearing Denied May 20, 2008.
Certiorari Denied August 7, 2008.

*922 J. Stewart Parrish, Meridian, attorney for appellant.

Robert James Bresnahan, Meridian, attorney for appellee.

Before KING, C.J., CHANDLER and CARLTON, JJ.

CHANDLER, J., for the Court.

¶ 1. Thomas Willard "Buddy" Pool (Buddy) and Sherry Clay Pool (Sherry) are married. Sherry filed a complaint for separate maintenance, and Buddy filed a complaint for a divorce. The Chancery Court of Lauderdale County denied the divorce and ordered Buddy to pay Sherry separate maintenance and attorney's fees. Buddy appeals, arguing that: (1) the chancellor abused her discretion in denying Buddy's motion for a continuance based upon a discovery violation, (2) the chancellor erred by dismissing Buddy's complaint for a divorce on the ground of adultery, (3) the chancellor erred by ordering Buddy to pay separate maintenance, and (4) the attorney's fees award was manifestly erroneous because Sherry had the ability to pay her own attorney's fees.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This case involves the parties' second marriage to each other. Buddy and Sherry were married in August 1966 and divorced in October 1980. They remarried on December 19, 1981. Buddy fully retired from public service in 2000, and Sherry worked as a hospital administrator. On or about October 10, 2003, Buddy told Sherry he was leaving her in two weeks' time. Buddy moved out on November 29, 2003, prompting Sherry's suit for separate maintenance. Buddy subsequently filed a complaint for a divorce on the ground of habitual cruel and inhuman treatment, and he twice amended the complaint to allege the additional grounds of adultery and constructive desertion.

¶ 4. On May 30 and 31, 2006, a hearing occurred on Sherry's claim for separate maintenance and Buddy's claim for divorce on the ground of adultery. Buddy withdrew the other asserted grounds for divorce. Buddy testified that the marital relationship began to decline after he retired. Buddy said Sherry continually nagged him about the quality of his housework and made unfounded accusations that he was seeing other women while she was at work. Buddy said this behavior by Sherry forced him to leave. Sherry admitted that she had been stressed at work and that this affected how she treated Buddy, but denied nagging him about the housework. Sherry testified that some problems in the marriage were caused by Buddy's absorption with maintaining his 1954 Kaiser Manhattan automobile. She said that, when Buddy told her he was leaving, she begged him on her knees not to do so and said she would go to counseling. According *923 to Sherry, Buddy replied that, after twenty-two years, she was not worth counseling.

¶ 5. Buddy did not leave in two weeks. Sherry testified that he rented an apartment and began re-titling jointly held assets in the names of himself and their daughter, Shelby Slade. Sherry also re-titled jointly held assets in her own name. She stated they were getting along better and, after a few weeks, she asked Buddy if he was still moving out. Sherry testified that Buddy became "ugly" with her and told her that she would be the first to know when he was leaving. She told him to leave that day, and Buddy moved out.

¶ 6. During the separation, Buddy and Sherry ate meals together on an occasional basis, and Sherry assisted Buddy after his prostate surgery. Buddy testified that Sherry told him she loved him on one or two occasions after he moved out. Sherry testified that Buddy had increasing memory problems and that she aspired to care for Buddy in his declining years. Buddy testified that he wanted a divorce. He denied having a sexual relationship with anyone else.

¶ 7. Buddy hired Bobby House, a private investigator, to conduct surveillance of Sherry's activities. House testified that he began conducting periodic surveillance of Sherry in May or June 2005 and ended it just prior to the hearing in May 2006. He testified that, during this time, the only incident worth reporting was that Sherry spent three consecutive nights in November 2005 at the apartment of Vince Miller, a former co-worker of Buddy's. House videotaped the outside of the apartment and captured Sherry and Miller coming and going, but he did not capture the two being affectionate with one another. Sherry denied having had sexual relations with Miller and insisted there was a third person in the apartment with them on all three nights who could verify that there were no sexual relations between Sherry and Miller.

¶ 8. The chancellor dismissed Buddy's claim for a divorce on the ground of adultery due to insufficient evidence establishing adultery. The chancellor found that Sherry was not materially at fault for the separation and granted her separate maintenance in the amount of $500 per month. Sherry was granted exclusive use and possession of the marital home and of her car. The chancellor also ordered Buddy to pay some of Sherry's expenses, such as her health, homeowners', and car insurance, property taxes on the home, and a portion of her medical expenses and repair costs on the home and car. The chancellor granted Sherry attorney's fees in the amount of $5,000, plus an additional $500 for the successful prosecution of a contempt motion that is not a subject of this appeal.

STANDARD OF REVIEW

¶ 9. This Court will affirm the decision of the chancellor when it is supported by substantial evidence unless the chancellor abused her discretion, the decision was manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Chapel v. Chapel, 876 So.2d 290, 293(¶ 8) (Miss.2004). We review all questions of law de novo. Townsend v. Townsend, 859 So.2d 370, 372(¶ 7) (Miss. 2003).

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN DENYING BUDDY'S MOTION FOR A CONTINUANCE.

¶ 10. Buddy's first set of interrogatories and requests for production of documents requested, among other things, that Sherry produce:

*924 All checks or bank statements pertaining to each bank, savings and loan, stock brokerage, or other banking institution account, other than checking accounts, in which any interest whatsoever is or was held or claimed by or for you or for your benefit, alone or with your spouse or any other person at any time from January 1999 through 2004, to-date and through the date thirty (30) days prior to the date of trial in this case.

Sherry served her discovery responses on April 29, 2005. The responses indicated that Sherry's bank statements for one account through November 14, 2003, and for a second account through July 16, 2003, were available for copying and inspection at the office of Sherry's attorney upon reasonable notice. The responses listed each bank statement that was available.

¶ 11. Buddy's attorney conducted his initial inspection of the documents in the week before the hearing. The documents consisted of the same bank statements listed in the discovery responses but they were not updated to within thirty days of the trial as requested. On the day of the hearing, Buddy moved for a continuance and to compel discovery on the basis that Sherry had failed to comply with the discovery request.

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Cite This Page — Counsel Stack

Bluebook (online)
989 So. 2d 920, 2008 WL 131714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pool-v-pool-missctapp-2008.