Pool v. Pool
| Docket Number: | 2006-CA-01237-COA Linked Case(s): 2006-CA-01237-SCT ; 2006-CA-01237-COA ; 2006-CT-01237-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-15-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Adultery - Continuance - M.R.C.P. 37(a) - Separate maintenance - Attorney’s fees Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Non Participating Judge(s): ROBERTS, J. Dissenting Author : IRVING, J., without separate written opinion. Procedural History: Dismissal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 05-31-2006 Appealed from: Lauderdale County Chancery Court Judge: Sarah P. Springer Disposition: COMPLAINT FOR DIVORCE DENIED AND SEPARATE MAINTENANCE GRANTED TO WIFE. Case Number: 04-150-S |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | THOMAS WILLARD POOL, JR. |
J. STEWART PARRISH |
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| Appellee: | SHERRY CLAY POOL | ROBERT JAMES BRESNAHAN |
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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: Adultery - Continuance - M.R.C.P. 37(a) - Separate maintenance - Attorney’s fees |
| Summary of the Facts: | Sherry Pool filed a complaint for separate maintenance against her husband, Thomas Pool, and Thomas filed a complaint for divorce. The court denied the divorce and ordered Thomas to pay Sherry separate maintenance and attorney's fees. Thomas appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance On the day of the hearing, Thomas moved for a continuance and to compel discovery on the basis that Sherry had failed to comply with his discovery request. The chancellor agreed that Sherry's responses did not meet Thomas’ discovery request but she declined to grant a continuance because discovery had been ongoing since 2004 and the bank statements had been available for inspection for over one year prior to the hearing. Thomas argues that the chancellor's failure to grant a continuance subjected him to trial by ambush because Sherry's failure to properly respond to his document request left him unprepared to combat the income and expense information on Sherry's financial statement. It has been held that a motion to compel discovery made two business days prior to trial did not afford reasonable notice under M.R.C.P. 37(a). Due to the lateness of Thomas' motion to compel, coupled with the fact that the hearing date was set two months previously by agreed order, the chancellor determined that the hearing should proceed with limitations on Sherry's presentation of evidence. This resolution of the matter was within the chancellor's sound discretion. Issue 2: Adultery One seeking a divorce on the grounds of adultery must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Both the inclination and opportunity prongs of the test must be met; in the absence of proof of an adulterous inclination, proof of opportunity will not establish adultery. The strongest evidence pertaining to adultery was the private investigator's videotape establishing that Sherry spent three consecutive nights with another man at his apartment. The videotape showed Sherry and the man retrieving various items from Sherry's car and bringing them into the apartment on the first evening. A later part of the videotape showed the man shirtless emerging from the apartment and glancing around for less than one minute. Sherry also glanced around when she left one morning. The videotape showed several instances where the curtains were moved aside so that the occupants could look out of the windows. The videotape did not show Sherry and the man exhibiting any signs of affection toward one other. Sherry testified that there was another woman in the apartment the entire time who was willing to testify that Sherry did not have sexual relations with the man. Given the evidence, the chancellor in this case did not manifestly err by finding that the circumstantial evidence presented by Thomas was consistent with a reasonable theory of innocence and did not constitute clear and convincing proof of adultery. Issue 3: Separate maintenance The chancellor may award separate maintenance when the parties have separated without fault by the wife and the husband has willfully abandoned the wife and refused to support her. To be denied separate maintenance on the basis of fault, the wife's misconduct must have materially contributed to the separation. Thomas argues that Sherry was clearly at fault for his departure from the marital home because she admittedly took the stress of her job out on him, she asked him to leave, and prior to this request she transferred assets into her own name. The overwhelming evidence adduced at the hearing was that the separation occurred because Thomas wanted to leave and, from the date of separation onward, he harbored no desire to reconcile. The chancellor's finding that Sherry's misconduct did not materially contribute to the separation and that she was entitled to separate maintenance is supported by substantial evidence. Issue 4: Attorney’s fees The chancellor awarded Sherry $5,000 in attorney's fees. Thomas argues the award was erroneous because the chancellor did not make an on-the-record examination of the McKee factors, Sherry is younger and in better health than Thomas, and Sherry is still working and has adequate funds with which to pay her attorney's fees. In general, attorney's fees will not be awarded in the domestic relations setting unless the requesting spouse establishes an inability to pay the fees. The sum awarded should be sufficient to secure the services of a single competent attorney. Here, the attorney's fees award was within the chancellor's discretion. The chancellor carefully reviewed the financial status of each party. The separate maintenance award, in combination with Sherry's income, was just enough to cover her monthly expenses and did not accommodate her payment of the attorney's fees she owed. Thomas clearly possessed the ability to pay Sherry's attorney's fees. Sherry's only liquid asset was the $20,000 account. Because the appellate court will generally award attorney's fees on appeal in the amount equal to one-half what was awarded in the lower court, Sherry is awarded $2,500 for her attorney's fees on appeal. |
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