Hammers v. Hammers
| Docket Number: | 2002-CA-01671-COA Linked Case(s): 2002-CT-01671-SCT ; 2002-CA-01671-COA ; 2002-CA-01671-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-03-2004 Holding: Affirmed in part and reversed and rendered in part. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Custody - Alimony - Equitable division of marital property - Exclusion of expert testimony - Uniform Chancery Court Rule 1.10 - Attorney’s fees - M.R.E. 611 Judge(s) Concurring: King, C.J., Bridges, P.J., Irving, Myers and Chandler, JJ. Judge(s) Concurring Separately: Lee, J. Non Participating Judge(s): Southwick, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-06-2002 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: GRANTED DIVORCE, AWARDED MOTHER PHYSICAL CUSTODY, AWARDED CHILD SUPPORT, DIVIDED THE MARITAL ASSETS 50/50, AWARDED ATTORNEY'S FEES Case Number: 00-6-906 L |
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| Party Name: | Attorney Name: | |||
| Appellant: | Timothy Bun Hammers |
KAY FARESE TURNER |
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| Appellee: | Stephanie Evonne (Gilliam) Hammers | JOHN THOMAS LAMAR |
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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: Irreconcilable differences - Custody - Alimony - Equitable division of marital property - Exclusion of expert testimony - Uniform Chancery Court Rule 1.10 - Attorney’s fees - M.R.E. 611 |
| Summary of the Facts: | Stephanie Hammers and Timothy Hammers were granted a divorce on the ground of irreconcilable differences. The chancellor found that the best interests of the children would be served by awarding Stephanie primary physical custody of the parties’ two minor children, with the parties having joint legal custody, and ordered Timothy to pay $1,316.30 a month in child support. The chancellor determined that a payment of the sum of $337,741.82 was necessary to convey Stephanie her one-half share of the marital estate. Timothy was ordered to immediately pay Stephanie $150,000, with the balance to be paid over ninety-six months in equal installments. The chancellor also awarded Stephanie rehabilitative alimony in the amount of $65,000, payable in ninety-six monthly installments of $677, and her attorneys' fees in the amount of $51,174.60. Timothy appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody Timothy argues that the court erred in finding that the factors of continuity of care, parenting skills, employment and responsibilities of that employment, and the stability of the home environment of each parent favored Stephanie. The chancellor considered the decision on custody as a close question. The evidence presented at trial discussed both positive and negative characteristics that both parents must work to improve to ensure that they properly raise their children. The chancellor is in a much better position to determine what is in the best interest of the children than is the appellate court. Given the evidence, there was credible evidence to support the chancellor’s decision as to which parent had the continuity of care. There was ample evidence for the chancellor to determine that continuity of care before the separation was a better indicator to determine what was in the best interest of the children. With regard to which parent had the best parenting skills during the marriage, Timothy’s argument goes to the credibility of the witnesses which is best determined by the chancellor. With regard to employment, there was credible evidence to support the chancellor’s finding. With regard to stability of home environment, Timothy is correct that the chancellor erred in his consideration of this factor. The evidence was undisputed that both parents remained in the marital home after the separation and through the date of the chancellor’s ruling, and there was no evidence of discord or disagreement during the time of separation. This factor should have favored neither parent. Overall, however, there was credible evidence to support the chancellor’s award of custody to Stephanie. Issue 2: Alimony Timothy argues that the chancellor erred in his application of the factors in awarding alimony to Stephanie. However, the chancellor’s opinion clearly reflects that he considered the proper factors. Timothy also argues that Stephanie is not entitled to lump sum alimony because they did not have separate estates. Timothy would be correct if the chancellor had awarded lump sum alimony. While the chancellor’s ruling says the alimony is payable in lump sum form, the reasoning and description of the purpose of the award clearly indicates that the award was not lump sum alimony but rather was rehabilitative alimony. Issue 3: Equitable division of marital property Timothy argues that the chancellor failed to perform an analysis when equitably dividing the marital property of the parties. While the chancellor does not list each factor and analyze them one-by-one, his written opinion clearly reflects that he followed Ferguson in his equitable division of the parties' assets and made specific findings that elucidate his analysis of the relevant factors. Issue 4: Expert testimony Timothy argues that the chancellor erred in excluding his expert witness for failure to timely disclose under Uniform Chancery Court Rule 1.10, which provides that absent special circumstances no expert witness will be allowed to testify who was not designated as an expert at least sixty days before trial. Timothy argues that it was impossible for him to comply with the sixty day requirement of Uniform Chancery Court Rule 1.10 because he did not realize the need to obtain an appraisal of his business until after he saw the report of Stephanie's expert appraiser. However, rather than ask the court for an extension or for an amended scheduling order, Timothy waited almost ninety days to produce his expert information. Timothy had the opportunity to designate his own expert prior to the discovery deadline but waited until one week before the trial was scheduled to begin before he decided to designate an expert. Therefore, the chancellor was not manifestly wrong in refusing to allow Timothy to designate his expert witness one week prior to trial. Issue 5: Attorney’s fees While Stephanie was allowed additional time to present proof of her attorney's fees, Timothy was not allowed any additional time. Timothy argues that this violated his right to due process. Timothy did not articulate the prejudice or harm that he would suffer by the court's time limitation nor did he move the court for additional time or proffer into the record what evidence he would have presented with additional time. M.R.E. 611 is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process. Without an objection and proffer by Timothy, the appellate court cannot determine whether the evidence would have been material or relevant or whether its exclusion constituted prejudicial error. Timothy also argues that Stephanie was awarded fees for two attorneys and failed to offer proof of her inability to pay her attorneys. If a party is financially able to pay her attorney, then she is not entitled to an award of attorney's fees. In light of the equitable division of assets and the alimony ordered by the chancellor, Stephanie had the ability to pay her attorneys. Therefore, the chancellor erred in awarding attorney's fees. |
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