Steiner v. Steiner, 1999-CA-01220-SCT.

• Decision Date: 28 June 2001
• Docket Number: No. 1999-CA-01220-SCT.,1999-CA-01220-SCT.
• Citation: 788 So.2d 771
• Court: Mississippi Supreme Court
• Parties: Kenneth K. STEINER, Jr. v. Grace Frost STEINER.

788 So.2d 771

Kenneth K. STEINER, Jr. v. Grace Frost STEINER.

No. 1999-CA-01220-SCT.

Supreme Court of Mississippi.

June 28, 2001.

Thomas M. McNeely, Jr., Natchez, for Appellant.

Pamela A. Ferrington, Natchez, for Appellee.

EN BANC.

ON MOTION FOR REHEARING

COBB, Justice, for the court:

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. Grace Frost Steiner filed for divorce in the Adams County Chancery Court against her husband of 28 years, Kenneth K. Steiner, Jr. Following discovery, a Judgment of Divorce on the ground of irreconcilable differences was entered. Pursuant to the property settlement agreement executed by the parties and incorporated into the final Judgment of Divorce, Kenneth agreed to pay $900 per month for alimony. Eight years later, Kenneth filed a complaint for Modification and Termination of Alimony. On Motion of Recusal filed by Grace, the chancellors of the district recused themselves, and a special chancellor was appointed by this Supreme Court to hear the matter. At the hearing on Kenneth's modification complaint, after he had presented his case, Grace moved for a dismissal. The chancellor dismissed Kenneth's complaint, finding that he had failed to prove a substantial and material change of circumstances. Aggrieved by the chancellor's decision, Kenneth appeals to this Court raising the following issues:

I. WHETHER RECUSAL BY CHANCERY JUDGES SOLELY ON THE FACT THAT AN ATTORNEY IS ONE OF THE PARTIES IS SUBJECT TO ABUSE AND DELAY AND SHOULD ONLY BE CONSIDERED ON A CASE-BY-CASE BASIS.

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THERE HAD NOT BEEN A MATERIAL CHANGE OF CIRCUMSTANCES TO MODIFY AN ALIMONY AWARD.

III. WHETHER THE VETERANS DISABILITY PAYMENTS WHICH ARE THE SOLE INCOME OF THE VETERAN CAN BE ALIENATED OR SEIZED FOR ALIMONY UNDER STATE LAW IN VIOLATION OF THE ANTI-ALIENATION FEDERAL STATUTE THUS VIOLATING THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION.

¶ 3. We find nothing in the record to indicate error on the part of the chancellor below. The findings were based on substantial evidence, and the chancellor's decision is affirmed.

FACTS

¶ 4. Grace and Kenneth Steiner had been married twenty-eight years at the time the divorce action was filed. One child was born to their marriage, Kenneth K. Steiner, III, who was beyond the age of majority and attending college at the time of the divorce. The divorce was granted solely on the ground of irreconcilable differences. Kenneth was represented by counsel and is himself an attorney. Both parties signed the property settlement agreement; their signatures were notarized, and their respective attorneys each signed the agreement as approved. Kenneth agreed to pay Grace alimony in the amount of $900 per month until she remarried or until the death of either party. Kenneth further agreed to pay all college and living expenses for their adult son until he graduated and began working. Both parties agreed that Kenneth would have the use, possession, and control of the matrimonial domicile, that he would pay the mortgage, taxes, and insurance on the property and that he would assume the costs of upkeep and repairs.

¶ 5. After eight years of compliance without modification, Kenneth sought to modify the property settlement agreement by terminating his obligation to pay alimony, offering the following circumstances as the bases for the requested modification:

1. His medical and personal care expenses had increased by approximately $1,100 per month since the divorce.

2. He was continuing to pay the mortgage, taxes, insurance, and upkeep on the house;

3. He had other debts;

4. His health had deteriorated;

5. Grace's income had increased;

6. His income had increased by approximately $1,900 per month; and

7. His income was derived from military disability benefits.

¶ 6. The chancellor found that Kenneth had failed to show that a substantial and material change in circumstances had occurred since the divorce and thus the property settlement agreement, which was made a part of the Judgment of Divorce, would not be modified. In his bench ruling the chancellor reserved the issue of whether federal law cited by Kenneth prohibited enforcement of the Judgment. The court allowed counsel additional time within which to submit briefs and applicable case law. Kenneth had advanced the theory that federal law prohibited the payment of alimony from veteran's disability benefits. After considering the submissions of both parties, the chancellor ruled that Kenneth's argument was not well taken and dismissed his complaint for modification pursuant to M.R.C.P. 41(b).

STANDARD OF REVIEW

¶ 7. Our scope of review in domestic relations matters is limited. "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss. 1997) (citing Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994)). "In other words, on appeal this Court is required to respect the findings of fact by the chancellor supported by credible evidence and not manifestly wrong." Id.

DISCUSSION

I. WHETHER RECUSAL BY CHANCERY JUDGES SOLELY ON THE FACT THAT AN ATTORNEY IS ONE OF THE PARTIES IS SUBJECT TO ABUSE AND DELAY AND SHOULD ONLY BE CONSIDERED ON A CASE BY CASE BASIS.

¶ 8. Kenneth argues that the chancellor's recusal, solely on the fact that Kenneth was an attorney was a tactic used primarily for delay purposes and was thus an abuse of discretion. Kenneth asserted that there was no evidence of any special relationship or connection between himself and the chancellor, thus a reasonable person would not have harbored any doubts about the judge's impartiality. Grace asserts that it was a policy of the chancellors in the Seventeenth Chancery Court District to recuse themselves in contested matters when one party was a practicing attorney in the district.

¶ 9. "The decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards." Bryan v. Holzer, 589 So.2d 648, 654 (Miss. 1991). "Canon 3(C)(1) requires the disqualification of a judge when `his impartiality might reasonably be questioned, including but not limited to instances where ... he has a personal bias or prejudice concerning a party.'" McFarland v. State, 707 So.2d 166, 180 (Miss.1997). "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Id. "A presumption exists that the judge, sworn to administer impartial justice, is qualified and unbiased, and where the judge is not disqualified under the constitutional or statutory provisions, `the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion.'" Id.

¶ 10. "Most chancellors adhere to an unwritten rule not to hear the personal divorce suits of lawyers who routinely practice before their courts." Robinson v. Irwin, 546 So.2d 683, 685 (Miss.1989). "This Court commends such a practice, and it would be wise for appointing authorities and local lawyers to adhere to such practice." Id. Canon 2 of the Code of Judicial Conduct states: "A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." In the comments following the Canon there is a statement which reads: "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant scrutiny." Id.

¶ 11. There was no evidence presented that the chancellor was connected with Kenneth other than that Kenneth was a practicing attorney. The record does not indicate an attempt to delay the court proceedings, contrary to Kenneth's argument. The proceedings appear to have occurred in a timely manner, taking a little less than nine months from time of filing for modification, through discovery, recusal and trial. Further, this Court has stated that we do not recognize inconvenience as a factor to be considered when deciding a recusal motion. Collins v. Joshi, 611 So.2d 898, 902 (Miss.1992).

¶ 12. We find no manifest error in the judgment of the chancellor to follow the common practice of the district. The chancellor did not abuse his discretion; and therefore, we affirm with regard to the recusal of the chancellor.

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THERE HAD NOT BEEN A MATERIAL CHANGE OF CIRCUMSTANCES TO MODIFY AN ALIMONY AWARD.

¶ 13. Kenneth argues that there had been a material change of circumstances in his financial and health conditions since the time of the divorce. However, in response to questions from the chancellor, it was acknowledged that the evidence presented proved that Kenneth's income had increased more than his expenses and that his adult son no longer had college expenses. Although Kenneth's physical condition had deteriorated, it had not affected his financial status because disability benefits were his primary source of income. That fact had not changed since the original agreement. He asserts that Grace's income had increased and that her standard of living had gone up while his had gone down.

¶ 14. Grace asserts that any changes in Kenneth's income and/or lifestyle were foreseeable at the time of the agreement. The chancellor agreed. He also found that no material change in circumstances had been presented that would allow the modification.

¶ 15. Support agreements for divorces granted on the ground of irreconcilable differences are subject to modification. The modification can occur only if there has been a material change in the circumstances of one or more of the parties....