Brennan v. Ebel
| Docket Number: | 2002-CA-01442-COA Linked Case(s): 2002-CT-01442-SCT ; 2002-CA-01442-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-23-2004 Opinion Author: King, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce - Recusal of judge - Falsified document - M.R.C.P. 60 - Periodic alimony - Credit for support - Lump sum alimony - Contributions after divorce Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS Writ of Certiorari: Denied Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 11-15-1999 Appealed from: Harrison County Chancery Court Judge: Thomas Wright Teel Disposition: APPELLEE AWARDED LUMP SUM ALIMONY, PERIODIC ALIMONY, AND CHILD SUPPORT. Case Number: 91-01071/100,356 |
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| Party Name: | Attorney Name: | |||
| Appellant: | James M. Brennan |
CHESTER D. NICHOLSON
GAIL D. NICHOLSON |
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| Appellee: | Terrilee (Brennan) Ebel | EDWARD F. DONOVAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce - Recusal of judge - Falsified document - M.R.C.P. 60 - Periodic alimony - Credit for support - Lump sum alimony - Contributions after divorce |
| Summary of the Facts: | This is the third appeal arising from the divorce of James Brennan and Terrilee Brennan Ebel. After the latest remand to the trial court, the court held that no modification of alimony was warranted, no recalculation of child support was warranted, the initial divorce decree had awarded Ebel a percentage of Brennan’s 401(k) plan, and the Supreme Court had affirmed the award of the percentage of Brennan’s 401(k) plan to Ebel. Brennan appeals. |
| Summary of Opinion Analysis: | Issue 1: Recusal of judge Brennan argues that the judge should have recused himself from the case, because his attorneys had represented an individual in a civil action against the chancellor's brother and same individual filed a bar complaint against the chancellor’s brother which resulted in a public reprimand. Although post trial motions for recusal are viewed with disfavor, they may be found meritorious if there is some reasonable excuse for the failure to recognize and raise the issue of partiality. In this case, there is none. The matters which Brennan now questions were known prior to trial. Issue 2: Falsified document Ebel conceded that she altered a document detailing a trust set up by her late father, and Brennan argues that the judgment should be vacated because of this. For relief to be granted under M.R.C.P. 60, a party must make some showing that he was justified in failing to avoid mistake or inadvertence. Here, there is insufficient evidence of deceit. Brennan had the opportunity to obtain a true copy of the document in question by obtaining it as a document in the public domain or by the execution of mutual authorizations for release of financial information. Issue 3: Periodic alimony Brennan argues that his decline in income was a material change in circumstances, which justified the elimination or modification of periodic alimony. The record shows that the chancery court viewed the evidence in this case under the correct legal standards and still found Ebel in need of assistance. Given the evidence in the record, the chancellor did not abuse his discretion. Issue 4: Credit Brennan argues that the court erred in determining that it would not allow credit to Brennan for support paid directly to the couple's daughter. The award of credit to a custodial parent ordered to pay child support to the non-custodial parent is premised upon the equitable principal of preventing unjust enrichment. Here, the evidence is sufficient to support the chancellor’s finding that the amount each parent had already paid for the support and education of the minor children had already worked equity. Issue 5: Lump sum alimony The Supreme Court's decision affirming the award of lump sum alimony was a final judgment on the matter, which was not subject to further litigation. Issue 6: Contributions after divorce Any error that may have arisen in giving Ebel a share in contributions made after divorce was cured when the chancery court amended its finding upon post trial motions. |
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