                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-01220-SCT
KENNETH K. STEINER, JR.
v.
GRACE FROST STEINER
                                   ON MOTION FOR REHEARING
DATE OF JUDGMENT:                                   06/28/1999
TRIAL JUDGE:                                        HON. W. HOLLIS McGEHEE, II
COURT FROM WHICH APPEALED:                          ADAMS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                             THOMAS M. McNEELY, JR.
ATTORNEY FOR APPELLEE:                              PAMELA A. FERRINGTON
NATURE OF THE CASE:                                 CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                        AFFIRMED - 06/28/2001
MOTION FOR REHEARING FILED:                         02/21/2001; denied 7/26/2001
MANDATE ISSUED:                                     7/19/2001

      EN BANC.

      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 The original opinion is withdrawn, and this opinion is substituted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 DELAYAND
      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. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995) (citing Thurman v.
Thurman, 559 So.2d 1014, 1017 (Miss. 1990)). The change must also be "one that could not have been
anticipated by the parties at the time of the original decree." Tingle v. Tingle, 573 So.2d 1389, 1391
(Miss. 1990). See also Yancey v. Yancey, 752 So.2d 1006, 1010 (Miss. 1999).

¶16. The chancellor must consider what has become known as the Armstrong factors in initially
determining whether to award alimony, the amount of the award, and in deciding whether to modify periodic
alimony, comparing the relative positions of the parties at the time of the request for modification in relation
to their positions at the time of the divorce decree. Tilley v. Tilley, 610 So.2d 348, 353-54 (Miss. 1992).
See also Anderson v. Anderson, 692 So.2d 65, 72 (Miss. 1997); Armstrong v. Armstrong, 618 So.2d
1278, 1280 (Miss.1993).

¶17. In the case sub judice, the court, nine years earlier, had approved the agreement which outlined the
respective rights, remedies, privileges and obligations of the parties who signed the agreement stating that
they had been fully informed of the other's assets, property, holdings, income and prospects. What must be
kept in mind concerning this divorce is that the property settlement agreement was just that, an agreed
payment whereby Kenneth contracted with his former spouse as part of an overall property agreement to
make payments of $900 per month for periodic alimony. That Kenneth might have made a bad deal does
not relieve him of his duty to live up to his end of the bargain.

      In property and financial matters between the divorcing spouses themselves there is no question that,
      absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have
      reached agreement and the chancery court has approved it, we ought to enforce it and take as dim a
      view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident
      contracts. Bell v. Bell, 572 So.2d 841, 844 (Miss.1990).

Speed v. Speed, 757 So.2d 221, 224-25 (Miss. 2000). Kenneth has alleged no fraud but stated in his
testimony that although he did make this agreement he did it because he felt like Grace was "entitled to have
something to help her get started and get her some kind of retirement benefit.... I felt she was entitled to at
least some help but it's gotten to the point where I cannot afford to do it." The record indicates that
Kenneth presented no evidence that Grace was guilty of fraud, mistake or overreaching. The record
revealed that Kenneth was financially able to make the alimony payments, that he fully understood the
agreement and voluntarily entered into the settlement after being fully advised by a lawyer, and that his
circumstances had not materially changed . Kenneth's primary income, at the time the agreement was made,
was from his disability benefits, and this fact has not changed. While Kenneth had argued that he did not
think he should have to pay the alimony out of his benefit payments, the chancellor concluded that he had
been doing so "all along." The chancellor found that Kenneth's income had increased approximately $1,900
and that his expenses had increased approximately $1,100. When the $900 alimony payments are
deducted from Kenneth's present gross income and added to that of Grace, the net result is $5,667.30 for
Kenneth and $3,284.08 for Grace. Even subtracting $2,100 for attendant care, Kenneth is left with a net of
$3,567.30 or about $283.22 more net income than Grace.

¶18. We are of the opinion that the chancellor was correct both as a matter of law and fact, and his
decision is affirmed. The chancellor has wide discretion in domestic cases, and our review on appeal is
limited. The purpose of this Court is not to retry the case. The chancellor has the benefit of viewing the
parties and hearing the parties' testimony and evidence as it is presented during the trial.

¶19. After reviewing the record, we conclude that there is sufficient evidence to support the chancellor's
decision. We are of the opinion that although the alimony payments Kenneth originally agreed to were high,
they are not so high as to be unconscionable and oppressive. As this Court said in Shaeffer v. Shaeffer,
370 So.2d 240, 243 (Miss. 1979), "if the original decree rendered in this cause were allowed to be
modified on the facts presented by this record, there would be no substance left to the rule that decrees . . .
touching the maintenance and alimony of the wife, may only be made upon a showing of a material or
substantial change in the after-arising circumstances of the parties." The chancellor did not err in his analysis
under our present case law. There is sufficient evidence to show that the chancellor did not abuse his
discretion. Accordingly, we find no merit to this issue.

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

¶20. Kenneth argues that the chancellor erred in concluding that his veteran's disability payments could be
considered in the award of alimony. Kenneth argues the United States Supreme Court barred such a result
in Mansell v. Mansell, 490 U.S. 581, 109. S.Ct. 2023, 104 L.Ed.2d 675 (1989) in which the Court
interpreted the Uniform Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § § 1048 et seq.
The U.S. Supreme Court held in Mansell that "the U.S.F.S.P.A. does not grant state courts the power to
treat as property divisible upon divorce military retirement pay that has been waived to receive veterans'
disability benefits." 490 U.S. at 594-95.

¶21. Grace contends a more appropriate case for this Court to rely on is the U.S. Supreme Court's
decision in Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed2d 599 (1987). The Court held that
state courts can use contempt sanctions and a veteran can be incarcerated for failing to pay child support
even if the only source of those payments was the veteran's disability benefits. Rose also held that state
court jurisdiction in matters of child support and enforcement of support payments is not preempted by anti-
attachment statutes.

¶22. Mansell and Rose are not precisely on point with the instant case. Mansell applied to division of
marital property in a community property state, California, and not necessarily to alimony. Likewise, Rose
dealt with child support and not alimony. However, in Rose, the U.S. Supreme Court noted the purpose of
disability benefits was to provide compensation not just to the injured veteran but also to the veteran's
family. 481 U.S. at 630.

¶23. Even if this Court were to conclude that Mansell was directly applicable to this case, the result would
not necessarily be one favorable to Kenneth. An analysis of other jurisdictions demonstrates that some state
courts have narrowly applied Mansell. For example, the Court of Appeals of Virginia has allowed trial
courts to consider exempt military disability benefits in determining spousal support. Holmes v. Holmes,
375 S.E.2d 387 (Va. Ct. App. 1989). Thus, a trial court would be allowed to award an amount of spousal
support that exceeded the veteran's monthly non-disability income. The Court of Appeals of Wisconsin
concluded Mansell did not apply to the question of whether disability benefits "may be considered by the
court as a factor in assessing [the veteran's] ability to pay spousal maintenance." Weberg v. Weberg, 463
N.W.2d 382, 384 (Wis. Ct. App.1990) The Court of Special Appeals of Maryland also concluded that
VA disability benefits "may be considered as a resource for purposes of determining [one's] ability to pay
alimony." Riley v. Riley 571 A.2d 1261, 1265 (Md. Ct. Spec. App. 1990). Similarly, the Supreme Court
of Kentucky allowed a court to increase the amount of spousal support when there is an inequity in divorce
proceedings due to the payment of disability benefits to one spouse. Davis v. Davis, 777 S.W.2d 230
(Ky. 1989). Another example is the holding of the Court of Appeals of Arizona that Mansell did not
preclude the veteran's ex-wife from suing to enforce a separation agreement. Harris v. Harris, 991 P.2d
262, 264-65 (Ariz. Ct. App.1999). The Supreme Court of Arkansas applied a similar logic to that of
Davis but went even further. In Murphy v. Murphy 787 S.W.2d 684, 685 (Ark. 1990), that court held
that the decision in Mansell does "not preclude the trial court from ordering appellant to pay alimony, and
once awarded, the FSPA does not relieve a retiree from paying such alimony obligations."

¶24. The case that seems to most closely parallel the instant case is from the Court of Appeals of Iowa, In
re Anderson, 522 N.W.2d 99 (Iowa Ct. App.1994). That court affirmed an award of alimony by
expanding Rose to apply to alimony as well as child support, noting that "both are viewed as familial
support by the United States Supreme Court in Rose." Id. at 101.

¶25. We recognize that there are conflicting opinions such as Ex parte Billeck, 777 So. 2d 105 (Ala.
2000) and Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997) that interpret Mansell as not allowing
disability benefits to be applied in any way toward alimony. However, because neither Mansell nor Rose is
precisely on point with the instant case, the trial court would be justified in not relying on either case and
could not be said to have applied an erroneous legal standard. Indeed, a more equitable result is reached
by relying on Rose. Thus, it cannot be said the chancellor's decision was an abuse of discretion. This
assignment of error has no merit.

                                             CONCLUSION

¶26. This Court finds that the issues presented by Kenneth K. Steiner, Jr. are without merit. There was no
abuse of discretion in the recusal of the chancellors in the Seventeenth Chancery Court District. The
chancellor appropriately considered the factors necessary to modify the award of alimony which was
supported by substantial evidence. Military disability benefits were properly considered by the chancellor in
the award of alimony. We therefore affirm the judgment rendered by the Adams County Chancery Court.

¶27. AFFIRMED.

     PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, DIAZ AND
     EASLEY, JJ., CONCUR.
