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CHARLIE WHITE, JR. v. FRANKIE SARALYN (WALTON) WHITE

APRIL 15, 1987

CHARLIE WHITE, JR.
v.
FRANKIE SARALYN (WALTON) WHITE



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ.

DAN LEE, JUSTICE, FOR THE COURT:

Appellant, Charlie White, Jr., appeals the divorce and alimony granted by the chancellor below in favor of Appellee, Mrs. Frankie Saralyn Walton White. Judgment of Divorce was granted November 27, 1984, on the grounds of habitual cruel and inhuman treatment pursuant to Miss. Code Ann. 93-5-1 (1972). Appellant appeals assigning three errors made by the chancellor:

I. THE CHANCELLOR ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS APPELLANT'S PLEADINGS, AND IN OVERRULING APPELLEE'S MOTION TO SET ASIDE ORDER DISMISSING APPELLANT'S PLEADINGS.

 II. THE CHANCELLOR ERRED IN THAT THE ALIMONY, CHILD SUPPORT, THE AUTOMOBILE AWARDED AND THE ORDER REQUIRING APPELLANT TO PAY THE INTERNAL REVENUE SERVICE AND THE MISSISSIPPI STATE TAX COMMISSION WERE CLEARLY AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 III. THE CHANCELLOR ERRED IN AWARDING $5,000 IN ATTORNEY FEES, WHICH WERE EXCESSIVE AND CLEARLY UNSUPPORTED BY THE EVIDENCE.

 We reverse for the unwarranted imposition of the most severe of discovery sanctions.

 FACTS

 Appellant and Appellee were married on July 30, 1970. A child, Carlyle Creswell White, was born February 13, 1979.

 Appellee filed her bill of divorce on December 18, 1981. Appellant answered and filed a similar complaint January 21, 1982, also seeking a divorce on grounds of habitual cruel and inhuman treatment.

 The couple separated on October 30, 1981, and they have remained continuously separated. Appellant's lack of compliance with discovery requests and the propriety of the sanctions arising therefrom presents the major issue on appeal.

 Discovery commenced and on July 8, 1982, Appellee filed a Request for Production of Documents. This request went unanswered and on October 14, 1982, the chancellor granted Frankie's motion to compel production. Counsel for Appellant was substituted on October 28, 1982. However, Appellant apparently did not comply with the chancellor's order, and on December 7, 1982, Appellant was held in contempt of court for failure to produce the documents.

 On December 9, 1982, Appellant filed a response to the request for production of documents. However, it is not complete and Appellant acknowledges it is confusing because the answers are mismatched to the requests. But interrogatories were taken and a box of records were tendered to counsel for Appellee which were rejected in that form.

 Little else occurred until Appellee began a second round of discovery on May 20, 1984, by noticing her intent to depose Appellee, attaching a request for further production of documents to be made at the deposition.

 Appellant did not appear to be deposed and did not produce the documents. The chancellor found Appellant in contempt on July 10, 1984. The chancellor's order stated Appellant could purge the contempt by paying $250 in attorney's fees, by paying $35 in stenographer's fee and by appearing for a deposition in Jackson on July 14 with the requested documents. Appellant did not appear to be deposed and did not produce the documents.

 A second contempt order was entered August 9, 1984. The trial court ordered Appellant to pay $250 in attorney's fees and $15 court costs as well as fees remaining unpaid. Appellant was ordered to appear with the requested documents on August 10, 1984, to be deposed. This he did. Appellee

 apparently was satisified with the substance of Appellant's belated discovery compliance. Appellee made no further discovery requests nor sought further to compel discovery.

 However, on September 24, Appellee filed a motion to dismiss Appellant's pleadings for failure to comply with discovery requests and court orders. This motion was set for hearing on November 1, 1984.

 In the interim, on October 5, 1984, Appellant was again held in contempt, but this order only related to his continued failure to pay accumulated attorney's fees.

 On November 1, 1984, the chancellor granted Appellee's motion to dismiss Charlie's pleading as a sanction for Appellant's discovery violations. On November 19, 1984, Appellant moved the chancellor to set aside this order. Appellant sought this relief noting that he complied, ultimately, with discovery requests. This motion was overruled and Appellant's pleading was dismissed. The divorce was heard as uncontested on November 21, 1984 and the chancellor granted Appellee a divorce on grounds of habitual cruel and inhuman treatment. Most of the testimony focused on the parties' financial status. The chancellor awarded Appellee $600 per month alimony, $600 per month child support and $150,000 lump sum alimony. The chancellor awarded Appellee attorney fees of $5,000 to be paid by Appellant, along with the couple's ...


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