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ROBERT A. LADNER v. ALICE DIANNE McKAY LADNER

AUGUST 24, 1983

ROBERT A. LADNER
v.
ALICE DIANNE McKAY LADNER



BEFORE PATTERSON, ROY NOBLE LEE AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

This action is a bill for divorce and related matters filed by Alice Ladner against her husband, Robert A. Ladner, and it is based on habitual and excessive use of drugs by her husband. Robert Ladner cross-filed against his wife for divorce, and for related matters, on the ground of habitual drunkenness. The First Judicial District of Hinds County Chancery Court granted Mrs. Ladner a divorce as well as her other requests, except attorney's fees. From such decree Mr. Ladner appeals to this Court on all affirmative relief granted his wife, and Mrs. Ladner cross-appeals regarding denial of her attorney's fees.

The assignments of error by Mr. Ladner raise the following issues:

 (1) The chancery court improperly admitted evidence offered by the appellee which was not disclosed through discovery requests.

 (2) The chancery court erred in admitting testimony from a pharmacist since such information was allegedly privileged.

 (3) The chancery court improperly granted a divorce to appellee on the ground of habitual and excessive use of opium, morphine or other like drugs.

 Mrs. Ladner assigns the denial of her attorney's fees and suit money as an abuse of discretion by the trial judge.

 STATEMENT OF FACTS

 Alice McKay Ladner and Robert A. Ladner were first married on October 7, 1961. They adopted one child, Robert McKay Ladner, who was fourteen years old at the time of this trial. Mr. and Mrs. Ladner were subsequently divorced in 1973. These parties remarried in 1974, and at that time Mrs. Ladner had been assured by her husband's doctor that Ladner was free of drugs and alcohol. About six weeks after the remarriage of the parties, Robert Ladner began suffering from severe depression. He was described as being incapable of driving, working, or functioning generally. Robert Ladner, assisted by his wife, sought and secured medication from several doctors for his condition. These medications included barbiturates and amphetamines among other drugs. Some of the other drugs noted were Dalmane, Libriam, Ativan, Nolundar, Mellaril, Sinequan, Vivactil, Talwin, and Tylenol No. 3 with Codeine, and were taken daily from 1974 to the time of separation in varying amounts. The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosage.

 The use of the drugs, although prescribed, affected Mr. Ladner's attitudes, actions, work habits, and family and social relationships. The work habits of Mr. Ladner became diminished with increased drug usage. He worked on an average of two days per week at his father's insurance business, his usual days being Monday and Tuesday from 8:00 a.m. to 10:30 a.m. and other short irregular times through the remainder of the week. However, Mr. Ladner claimed that he sold insurance by phone from his home on other business hours. His wife denied this and recounted his activities at home as being hyperactive in the morning after taking Ritalin, and as being "immobile and non-functioning after taking his tranquilizers at the latter part of the day." His non-business hours were spent at home in idleness or in agitation. Alice Ladner testified of efforts to help her husband and to allocate his drug dosage, but without success or help from her husband.

 Social contacts with friends became nil. Only his family members came to visit the house. Additionally, Mr. Ladner thought people were following him. Household valuables disappeared from the household without explanation. The son's savings account was spent by Robert Ladner to pay bills. However, Mr. Ladner continued to receive an income in 1980 of approximately $23,000 from his father's business.

 Mrs. Alice Ladner was the household manager. She performed most of the duties and responsibilities for the child and home. On occasion she had worked and earned $800 per month. However, she testified about a heart condition and of medical advice to terminate her work. She, nonetheless, did have a small "flea-market" business which she hoped would yield a future return. She testified of her husband being violent and abusive to her in the presence of their son.

 The child, Robert, was nervous. He did not have friends to visit him at home and was inclined to psychologically based physical complaints.

 Mrs. Ladner testified that because of her husband's excessive and habitual use of the drugs and of the effects of the drugs on him she was forced to separate on September 1, 1980, and file this divorce bill. She charged as grounds habitual and excessive use of opium, morphine, or other like drugs and drunkenness on drugs. She additionally requested alimony, child custody of the parties' fourteen year-old son, child support, exclusive use of the home with all the personal property, life and medical insurance for herself and the child, and attorney's fees. Robert Ladner filed a cross-bill seeking a divorce on the ground of habitual drunkenness, together with a prayer for child custody and use of the home of the parties.

 After extensive pleadings, discovery and testimony, the chancery court entered an order granting Mrs. Ladner a divorce, custody of the minor child, and exclusive use of the home of the parties for herself and the child with its furnishings, except personal items of Mr. Ladner. Mr. Ladner was made responsible for both indebtednesses against the home. Child support of $200 and alimony of $200 monthly was ordered to be paid by Robert Ladner. The life and medical insurance of Ladner was ordered to be kept in full force and effect for the benefit of the child. Each party was held responsible for their own attorney's fees.

 LAW

 The first issue to be resolved is whether the chancellor improperly admitted evidence offered by the appellee which was not disclosed to the appellant pursuant to discovery requests. Specifically, the appellant objected to Mrs. Ladner's testimony concerning the list of drugs used by Mr. Ladner, and to testimony from Mrs. Norma Roach and Dr. Bruce Parks. We shall address each of these contentions separately.

 A.

 The basis of the objection to Mrs. Ladner's description of the drugs resulted from her failure to list the names of each individual medication during a pretrial deposition. After appellant's attorney stated his objection, Mrs. Ladner's attorney read parts of that deposition into the record. The record stated:

 Question: [by defense counsel] All right, now you say you've seen him take drugs. What drugs has he taken, Mrs. Ladner?

 Answer: I really can't remember.

 Question: All right, now, who can remember?

 Answer: It was an assortment of tranquilizers, Ritalin. Several years ago I stopped dispensing Robert's pills. I don't do that anymore. I think he's a grown man ...


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