author: PIERCE, Justice,

text:
    Sandra Ann Craft IRBY v. ESTATE OF Henry Edward IRBY, Deceased, by Gloria Dean Irby MARSHALL, Executrix.
    No. 2007-CA-00689-SCT.
    Supreme Court of Mississippi.
    April 23, 2009.

      John G. Holaday, Prentiss M. Grant, attorneys for appellant.
    Christopher A. Tabb, Brandon, Lisa Anderson Reppeto, Jackson, attorneys for appellee.
    Before GRAVES, P.J., DICKINSON and PIERCE, JJ.
   PIERCE, Justice,

for the Court.

¶ 1. This case comes to the Court on appeal from the Rankin County Chancery Court, in which a final judgment was entered granting Sandra Ann Craft Irby and Henry Edward Irby, M.D., a divorce on the ground of irreconcilable differences.

FACTS AND DISPOSITION BELOW

¶ 2. On May 18, 2005, after twelve years of marriage, Sandra filed a complaint for divorce in chancery court against her husband, Henry, on the grounds of habitual cruel and inhuman treatment and/or habitual drug use as provided by Mississippi Code Section 93-5-1; or, alternatively, based on irreconcilable differences as provided by Section 93-5-2. Henry answered the complaint and counterclaimed for divorce on July 6, 2005. Henry denied that Sandra was entitled to a divorce on any of the stated fault grounds, or a divorce based on irreconcilable differences, and in his cross-complaint asked for a divorce on the ground of habitual cruel and inhuman treatment. Sandra timely answered and denied that Henry was entitled to a divorce on his alleged fault ground.

¶ 3. Both parties received notice in January 2006 that trial was scheduled for May 4, 2006. On May 3, 2006, Sandra filed a motion for continuance on the basis that Henry would object to all documents Sandra failed to produce in a timely manner, as well as to all witnesses not identified in a timely manner for discovery. The chancellor denied the motion, and ruled that the trial would begin the following day as scheduled.

¶ 4. Shortly after the start of the trial on May 4, the parties filed with the court their Consent of Parties to Divorce on Irreconcilable Differences, jointly asking the court to grant them a divorce on the ground of irreconcilable differences. The parties submitted to the trial court the following issues for determination:

1. All matters of real and personal property, including but not limited to the houses, land, condominiums, business property, retirements and any 401Ks accumulated during the marriage.
2. Attorney fees.
3. Alimony.
4. The equitable division of any marital assets.
5. Payment of debts.
6. The division of tax refunds/liabilities, including the lien of the Internal Revenue Service on record in Rankin County.
7. Mineral rights and oil & gas lease revenues including amounts in suspense by Denbury Resources.
8. The Back Clinic.
9. Entitlement to an order prohibiting Henry from conduct calculated or designed to harass, threaten, or intimidate Sandra or cause bodily harm to Sandra.
10. Entitlement to life insurance.
11. Cash held in the registry of the court.

¶ 5. At the conclusion of day two of the trial, the judge ordered the trial continued to May 16, 2006, in order to complete testimony in the matter. On May 11, 2006, due to her attorney’s admission into the hospital, Sandra, pro se, moved for continuance. The motion was granted, and trial was continued to June 13, 2006. On June 5, 2006, due to her attorney’s withdrawal from the case, Sandra, again pro se, requested another continuance. The chancellor approved the continuance, and ordered that trial be set for final hearing on August 22 and 23, 2006.

¶ 6. On July 21, 2006, Sandra, through new counsel, filed a motion to allow her to reopen the case and requested another continuance. The chancellor approved the motion. Trial was continued until September 14, 2006, and ultimately concluded on that date.

¶ 7. The court entered its final judgment on December 19, 2006, ruling that the parties were entitled to a divorce based on irreconcilable differences.

¶ 8. On December 29, 2006, Sandra filed a motion to reconsider. Before the trial court issued its ruling, Henry died on February 6, 2007. On March 28, 2007, Sandra filed a motion to declare the final judgment void, as afforded by Rule 60(b) of the Mississippi Rules of Civil Procedure. That motion was denied. Aggrieved, Sandra appeals to this Court raising the following assignments of error:

I. THE TRIAL COURT ERRED WHEN IT EXCLUDED DOCUMENTS OFFERED AT TRIAL BY SANDRA DUE TO AN ALLEGED DISCOVERY VIOLATION.
II. THE TRIAL COURT ERRED WHEN IT DENIED SANDRA’S MOTIONS TO CONTINUE THE TRIAL.
III. THE TRIAL COURT ERRED WHEN IT EXCLUDED AN EXPERT WITNESS OFFERED BY SANDRA AT TRIAL.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN THE EQUITABLE PROPERTY DISTRIBUTION SET FORTH IN ITS FINAL JUDGMENT.
A. The trial court erred in finding that Sandra was responsible for any portion of the IRS taxes owed by Henry.
B. The trial court erred in finding that Sandra acquired as a marital asset approximately $75,000.00 in a home she owned prior to the marriage.
C. The trial court erred in finding that Sandra acquired approximately $193,000.00 in a personal injury lawsuit.
D. The trial court erred in finding that Sandra spent for her own personal use approximately $225,091.08 of Henry’s money which he acquired from a personal injury lawsuit.
E. The trial court erred in failing to allot Henry value in the equitable distribution for the tractor and bulldozer.
F. The trial court erred in accepting Henry’s speculative value of the Back Clinic at $128,000.00.
G. The trial court erred in failing to consider funds in Henry’s bank accounts in relation to the equitable distribution.
H. The trial court erred in giving Henry the 1928 Willis Knight vehicle purchased by Sandra.
V. THE TRIAL COURT ERRED WHEN IT DENIED SANDRA’S MOTION TO DECLARE JUDGMENT NULL AND VOID.

STANDARD OF REVIEW

¶ 9. The findings of a chancellor in domestic relations matters will not be disturbed by this Court unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Montgomery v. Montgomery, 759 So.2d 1238 (Miss.2000). For questions of law, the standard of review is de novo. Duncan v. Duncan, 774 So.2d 418, 419 (Miss.2000) (citation omitted).

DISCUSSION

I. DID THE TRIAL COURT ERR WHEN IT EXCLUDED DOCUMENTS OFFERED AT TRIAL BY SANDRA DUE TO AN ALLEGED DISCOVERY VIOLATION?

II. DID THE TRIAL COURT ERR WHEN IT DENIED SANDRA’S MOTIONS TO CONTINUE THE TRIAL?

III. DID THE TRIAL COURT ERR WHEN IT EXCLUDED AN EXPERT WITNESS OFFERED BY SANDRA AT TRIAL?

¶ 10. Issues I, II, and III arise from and/or relate to the same grievance and will be addressed together. Sandra contends that the trial court excluded numerous documents, along with an expert witness, based on either untimely production or untimely notification under the rules of discovery. Sandra asserts that this ruling was prejudicial to her case, as it prevented her from using evidence concerning her contributions to the marital assets and Henry’s dissipation of vast amounts of money due to gambling. Sandra maintains that, instead of excluding the documents and the expert witness, the chancellor had every opportunity to grant a continuance of the trial in order to allow Henry time to review the documents and to prepare for her expert witness.

¶ 11. This Court reviews a trial judge’s decision to impose sanctions for discovery abuses under an abuse-of-discretion standard. Ladner v. Ladner, 436 So.2d 1366, 1371 (Miss.1983). The decision will be affirmed “unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990) (citation omitted). The decision to grant or deny a continuance is left to the sound discretion of the chancellor, “and will not be reversed unless there is shown a manifest abuse of discretion.” Rives v. Rives, 416 So.2d 653, 656 (Miss.1982).

A. Document Admission.

¶ 12. The record shows that the parties engaged in protracted discovery throughout this case. On May 2, 2006, two days before trial, Sandra produced approximately 1,700 pages of documents as supplementation to discovery. The matter was not brought to the trial court’s attention until the day before trial when Sandra moved for a continuance to allow Henry additional time to review the documents, which the trial court denied. The record is unclear as to exactly what the documents consisted of, but indicates that a number of them apparently were records from various casinos that were to be used as evidence to establish Henry’s alleged problem with gambling.

¶ 13. When trial began the next day, Henry’s counsel, on his promise, objected to the first document Sandra attempted to introduce on the basis that it was untimely supplemented. A lengthy back-and-forth between counsel then ensued regarding all of the documents produced on May 2. In his ruling, the trial judge held that, even though the documents were not timely produced for discovery, he would not exclude them outright from the trial; instead, he would admit them individually during trial if admissible and properly authenticated. The record reveals, however, that because a number of the documents could not be authenticated, most were not allowed into evidence.

¶ 14. A trial court’s authority for imposing sanctions for discovery violations derives from two sources: Rule 37 of the Mississippi Rules of Civil Procedure and a trial court’s inherent power to protect the integrity of its process. Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 864 (Miss.2004) (citations omitted). Both Rule 37(e) and a trial court’s own authority provide our trial judges great flexibility with which to deal summarily with discovery abuses, whenever and however the abuse is brought to the attention of the court. See M.R.C.P. 37 cmt.; and Herrington v. Herrington, 660 So.2d 215, 219 (Miss.1994) (“Under the inherent power of courts to protect the integrity of their process, courts may impose sanctions without a court order.”) (citations omitted). As has been said by this Court, our procedural rules are “designed to assure to the maximum extent practicable that cases be decided on their merits,” and not decided based on one party’s unfair ambush. Harris v. Gen. Host Corp., 503 So.2d 795, 796-97 (Miss.1986).

¶ 15. While there is no clear indication of deliberate gamesmanship at play here, the failure to produce the documents in a timely manner was consequential nonetheless. The trial judge, faced with a decision of whether to grant a continuance at the expense of the nonfaulting party or whether to proceed forward provisionally, chose in his discretion what he believed was more in the interest of justice and fair play. Huff v. Polk, 408 So.2d 1368, 1371 (Miss.1982).

¶ 16. The record supports this finding. Sandra failed to provide the trial court with a reasonable explanation for not having produced these documents in a timely manner. The trial court’s decision on this point is affirmed.

B. Testimony of Expert Witness Tom Dial.

¶ 17. On day two of the trial, Sandra sought to proffer the testimony of Tom Dial, a private investigator, who supposedly had witnessed Henry’s visits to various casinos. Henry moved to exclude the investigator’s testimony on the basis that Dial’s investigative reports had not been produced until nine days before trial, on April 25, and that Sandra had not disclosed that he was to testify at trial until May 1, three days before trial.

¶ 18. The trial court heard arguments from both sides on the matter. According to the record, Sandra had disclosed at her deposition held on March 16, 2006, that she had a private investigator. The record shows that Sandra possessed the investigator’s reports for at least seven months prior to producing them on April 25.

¶ 19. The trial court found that Sandra had failed to timely provide the name of an expert witness and ruled that Dial would not be permitted to testify as to the contents of his investigative reports. At that point, Sandra again moved for a continuance to allow Henry additional time to prepare for her expert witness. That motion was denied.

¶ 20. Pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure, discovery responses are to be supplemented seasonably. There is no bright-line rule as to what amounts to seasonable supplementation. Eastover Bank for Sav. v. Hall, 587 So.2d 266, 272 (Miss.1991). Rather, “seasonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Bd. of Supervisors, 720 So.2d 190, 196 (Miss.1998).

¶ 21. We note at the outset that, even though Dial was designated as an expert witnesses, the record negates categorizing him as the type of expert contemplated by Rule 26(b)(4)(A)© of the Mississippi Rules of Civil Procedure. The record clearly shows that Dial, while maybe a witness with expertise, was foremost an “occurrence witness.” In other words, having directly observed Henry’s visits to casinos, conduct which Sandra alleges was detrimental to the marital estate, Dial was a witness to events at issue in this case. Thus, pursuant to Rule 26(b)(1) of the Mississippi Rules of Civil Procedure, both Dial’s identity and the subject matter of his proposed testimony were discoverable matters. See also Ladner v. Ladner, 436 So.2d 1366, 1372 (Miss.1983) (a party is entitled to a list of “occurrence witnesses” during discovery).

¶22. After having responded in her deposition that she had hired a private investigator, Sandra, without reasonable explanation, waited until three days before trial to disclose that the investigator was to testify as a witness. When Henry moved to exclude that testimony, Sandra again requested a continuance so as to allow Henry additional time to prepare. The trial judge denied her request for the same reason he denied her request with regard to the untimely supplemented documents. Based on the record, this Court cannot say that the trial court abused its discretion both by excluding Dial as a witness and denying Sandra’s request for a continuance. Issues I, II, and III are without merit.

IV. THE TRIAL COURT ABUSED ITS DISCRETION IN THE EQUITABLE-PROPERTY DISTRIBUTION SET FORTH IN ITS FINAL JUDGMENT.

¶ 23. Sandra avers that the trial court erred in the equitable distribution of the property of the parties, as there were a number of discrepancies between the trial court’s final findings and the testimony at trial. She maintains that the trial court’s findings are not supported by substantial credible evidence, and should be overturned.

¶ 24. For domestic matters on appeal, this Court is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

¶ 25. The division of marital assets is governed by Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921, (Miss.1994). The chancellor must first identify whether the property to be divided is marital or nonmarital. Hemsley, 639 So.2d at 915. The chancellor should then employ the following factors in arriving at an equitable division of marital assets:

(1) Substantial contribution to the accumulation of the property, with factors to be considered such as a) direct or indirect economic contribution to the acquisition of the property, b) contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage, and c) contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets; (2) degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; (3) market value and the emotional value of the assets subject to distribution; (4) value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and (8) any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 26. In the trial court’s findings of fact and conclusions of law, the value of the marital estate, supplied by both documentary and oral evidence, was described as follows:

1. Real Estate
Home and 280 Acres of Property on Stump Ridge Road Value: $ 1,525,000
Debt: $ 337,723
Equity: $ 1,205,000
Condominium at Orange Beach Value: $ 420,000
Debt: $ 160,000
Equity: $ 260,000
2. Automobiles
Chevrolet Value: $ 12,000
Debt: $ 9.050
Equity: $ 2,950
2001 Lincoln Navigator Value: $ 18,000
Debt: $ 8,500
Equity: $ 9,500
1927 Willis Knight Value: $ 10,000
Debt: $ 0
Equity: $ 10,000
2003 Cadillac Escalade Value: 25,000
Debt: 18,075
Equity: 6,925
1984 Ford F-150 Value: 1,500
Debt: 0
Equity: 1,500
3. Household Goods and Furnishings
Lawn Mower 1,000
Four-wheeler 1,000
Golf cart 2,000
Furniture (antique) 35,000
Jewelry-5,000
Equipment (business) 128,000
Guns 7,000
Remaining household furniture 85,000
Computer 150
4. Bank Accounts
Sandra Irby (Bank Plus) 14,000
Sandra Irby (Vision Bank) 2,500
Henry Irby (Bank Plus) 126
Henry Irby (Citizens Bank) 176
Henry Irby (Heritage Bank) 1,540
5. Mise. Property
Bulldozer Value: $ 20,000.00
Debt: $ 20,000.00
Equity: $ 0
Case Value: $ 30,000.00
Debt: $ 30,000.00
Equity: $ 0
Denbury Resources (Oil and Gas) Value: $ 56,000.00
Gold Master Mining Value: 0
Equity in home deeded by Sandra to daughter Melissa Breedlove in 2006 at 180 Landford Cove. Value: 75,000.00
AG Edwards Account (Sandra) Value: 2,583.06
6. Debts
Federal Land Bank (Home) $ 7,382.25
Federal Land Bank (Home) $ 40,984.86
Federal Land Bank (Home) $170,751.30
Federal Land Bank (Home) $118,605.52
Heritage Bank (Henry) $ 48,293.67
Heritage Bank (Henry) $ 9,780.00
American Express (Henry) $ 1,600.00
GMAC (Henry Cadillac Escalade) $ 18,075.00
Chase Mortgage (Orange Beach Condo) $130,000.00
Priority One Bank (equipment loan at Back Clinic) $ 62,000.00
Trustmark (Sandra Lincoln Navigator) $ 14,000.00
Vision Bank $ 43,000.00
7. Other Debts Not Listed Elsewhere
Taxes owed to Internal Revenue Service (plus interest arid penalties) $104,130.90

¶ 27. Having identified the marital property, the trial court found that an equitable distribution of the marital estate, based on the evidence submitted at trial, would require the following division:

Item Henry Sandra
2003 Cadillac Escalade $ 9,500.00
2001 Lincoln Navigator $ 8,000.00
1932 Chevrolet $ 2,950.00
1927 Willis Knight $10,000.00
Lawn Mower $ 1,000.00
Foui-wheeler $ 1,000.00
Golf cart $ 2,000.00
Computer O U5 7-1
AG Edwards Account (Sandra) CO OO LO OÍ
Equity in home deeded by Sandra to daughter Melissa Breedlove in 2006 at 130 Langford Cove, Brandon, Ms. $ 75,000.00
The Back Clinic $ 66,000.00
Non-antique Furniture $ 85,000.00
TOTAL: $24,000.00 $238,733.06

¶ 28. In its final judgment granting the parties a divorce based on irreconcilable differences, the trial court found that each party should have use, possession, and ownership of their personal property and jewelry. The trial court ruled that the real property (the property at Stump Ridge Road and the Orange Beach condominium) were to be sold, with the first $214,283.06 of net proceeds (after taxes) from the sales to be awarded to Henry, and the balance of the proceeds divided fifty percent to Henry, and fifty percent to Sandra. The obligations of the parties to Federal Land Bank, Vision Bank, and the IRS were found to be joint debts, and were ordered to be paid from the sale of the real property. The proceeds from the sale of the Orange Beach condo were to, first, pay the notes to Chase Mortgage, with the remaining balance to be divided equally. Henry was ordered to pay seventy-five percent of the federal tax lien, including seventy-five percent of all penalties and interest at the time of the payment, and Sandra was ordered to pay the remaining twenty-five percent, including twenty-five percent of all penalties and interest at the time of the payment. Henry was awarded exclusive ownership of the antique furniture inherited by him, together with his personal items, the 2003 Cadillac Escalade, the 1932 Chevrolet, the 1927 Willis Knight vehicle, and the golf cart. Sandra was awarded exclusive ownership of her personal items, the Back Clinic, non-antique furniture in the home, computer, four-wheeler, lawn mower, 2001 Lincoln Navigator, and her AG Edwards account. Finally, the trial court ordered that the funds from the Denbury Resources (oil and gas lease) account were to pay current the notes on the real properties to prevent foreclosure during their listings.

A.Sandra’s responsibility for twenty-five percent of a Federal Tax Lien of $104,130.90 (plus interest and penalties) due to a business owned by Henry.

¶ 29. In his finding of facts and conclusions of law, the trial judge found the federal tax lien that had been assessed against a business owned by Henry to be a joint debt. Though Henry owned the business, and was primarily responsible for incurring the lien, the trial court determined that both parties nonetheless enjoyed the fruits of this business and that the assets of both parties would have been reduced equally, had the taxes been paid timely. The trial court also found that both parties jointly spent the proceeds from a settlement that was received from a lawsuit filed to recover these taxes. The trial court therefore apportioned Sandra twenty-five percent of the debt.

¶ 30. Citing the Internal Revenue Code, Sandra argues that, because she cannot be held criminally responsible for Henry’s willful violation of the federal tax code, the tax debt cannot be considered a joint debt.

¶31. Under Mississippi law, tax liens and the consequences thereof to the marital estate fall under the Ferguson factors. Ferguson, 639 So.2d at 928. As was found by the trial court, while Sandra may not knowingly have been the cause of incurring the tax lien itself, she nonetheless bore some responsibility as far as the marital estate was concerned. In this Court’s opinion, the trial court’s decision that Sandra be responsible for twenty-five percent of this debt from her divided share of the marital estate is without error.

B. Did the trial court err in finding that Sandra acquired as a marital asset approximately $75,000.00 in a home she had owned prior to the marriage?

¶ 32. The trial court found the home at 130 Langford Cove to be a marital asset. Although Sandra had owned the home prior to the marriage, she began paying the mortgage with marital funds following the marriage. Based on her daughter’s testimony at trial, the court determined that there was $75,000.00 of equity in the home. In making its determination, the trial court took into consideration the fact that Sandra also had purchased a number of residential lots, including a condominium, with marital funds. She later sold these properties, and was unable to account for the proceeds. The record supports this finding.

C. The trial court’s finding that Sandra acquired approximately $193,000.00 in a personal injury lawsuit.

¶ 33. The trial court found that Sandra had acquired $193,000 from a personal injury lawsuit. Sandra correctly points out that the amount, as was stipulated to by Henry at trial, was actually $156,597.08. At trial, Sandra claimed that she had spent $111,657.57 out of her personal injury settlement award on marital debts incurred during the parties’ initial separation, and therefore sought a credit in that amount. The trial court concluded that Sandra was not entitled to a credit, as she had failed to provide the court with any accounting of these alleged expenditures.

¶ 34. That aside, the record also shows that the trial court did not take Sandra’s injury award itself into consideration in its equitable division of the marital assets. Thus, the misstated total was wholly inconsequential to the end result, and therefore harmless error.

D. Did the trial court err in finding that Sandra spent for her own personal use approximately $225,091.08 of Henry’s money which he acquired from a personal injury lawsuit?

¶ 35. The trial court found that Henry had received approximately $400,491.08 from a personal injury lawsuit. According to the record, Henry had placed the funds into a joint account with Sandra. Sandra thereafter removed the funds and placed them in a different account and put the name of her youngest daughter from another marriage on the account “POD” (paid-on-death). In June 2004, Sandra placed Henry’s name on the account, which at that point had a balance of $278,019.67. The following October, Henry removed $175,000 from that account and placed it into an account with another bank.

¶ 36. The trial court found that Sandra had spent $225,091.08 of Henry’s settlement. However, the trial court also made a Ferguson finding and concluded that the money from Henry’s settlement was a marital asset, dividing it evenly between the parties. Ferguson, 639 So.2d. at 928. Thus, similar to Sandra’s argument regarding her settlement award, the trial court’s finding on this point was inconsequential to the final division.

E. Whether the trial court erred in failing to allot Henry value in the equitable distribution for the tractor and bulldozer.

¶ 37. Due to the debt incurred on each item, the trial court assessed no value on either. The record supports this finding.

F. The trial court erred in accepting Henry’s speculative value of the Back Clinic at $128,000.00.

¶ 38. The only evidence presented to the trial court as to the value of the Back Clinic was the uncontroverted testimony of Henry. The chancellors of this state are not responsible for the evidence that is presented at trial. As the Court of Appeals has said, “it is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried.” Dunaway v. Dunaway, 749 So.2d 1112, 1118 (Miss.Ct.App.1999). Where a party fails to provide information, the chancellor is entitled to proceed on the best information available. Id. The value of the Back Clinic was a factual finding supported by credible evidence. Newsom, 557 So.2d at 514.

G. The trial court erred in failing to consider funds in Henry’s bank accounts in relation to the equitable distribution.

¶ 39. Sandra asserts that the chancellor did not consider all of Henry’s bank accounts, and that the actual amounts in the accounts listed in Henry’s financial statement submitted to the trial court were wrong.

¶ 40. According to the record, however, Sandra provided no evidence at trial to the contrary. Thus, this point is without merit. Dunaway, 749 So.2d at 1118.

H. The trial court erred in giving Henry the 1928 Willis Knight vehicle purchased by Sandra.

¶ 41. The trial court found the Willis Knight vehicle to be marital property and apportioned the asset to Henry as part of the equitable distribution of the property. Ferguson, 639 So.2d at 928. The record supports this finding.

¶ 42. In considering the Ferguson factors, we cannot say that the trial court manifestly erred in the division of the marital assets. Id.

V. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SANDRA’S MOTION TO DECLARE THE JUDGMENT NULL AND VOID.

¶ 43. Sandra avers that the proceedings of the divorce did not comply with the statutory requirements of Mississippi Code Section 93-5-2. She argues that, despite the parties having entered into a consent agreement to divorce on the ground of irreconcilable differences at the beginning of the hearing on May 4, 2006, the parties never withdrew the fault grounds stated in their original pleadings. Therefore, according to Sandra, pursuant to Section 93-5-2(5), which provides that “no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial ... [unless] the contest or denial has been withdrawn or cancelled by the party filing the same by leave and order of the court,” the final judgment awarding the parties a divorce on said grounds is void. Miss.Code Ann. § 93-5-2(5) (Rev.2004).

¶44. Henry’s estate (“Estate”) argues, however, that when read in its entirety, Section 93-5-2(5) is excepted by subsection (3) of the statute, which allows parties to consent to a divorce on the ground of irreconcilable differences and to stipulate to what issues they wish the court to decide for them. Miss.Code Ann. § 93-5-2(3) (Rev.2004). The Estate contends that the parties clearly consented to divorce on the ground of irreconcilable differences on the first day of the hearing, and submits that at no time did Sandra ask for leave to withdraw her consent, nor did she raise the issue in her Motion for Reconsideration, and that she wishes to do so now only because Henry has passed away.

¶ 45. At the beginning of the trial, a lengthy exchange occurred regarding discovery violations and the admissibility of evidence. The parties then requested a brief recess, following which Sandra and Henry jointly filed with the court a written instrument entitled Consent of Parties to Divorce on IiTeconcilable Differences. In open court, the trial judge read into the record that both parties had requested that a divorce based on irreconcilable differences be granted, and that they had agreed to submit to the court for its determination all matters of real and personal property, and all other things listed in the instrument.

¶ 46. Review of the document shows that each party, upon advice of counsel, voluntarily agreed to be bound by the court’s decision and understood that it would be a lawful judgment, and that the consent granted could not be withdrawn by either party without leave of the court. The document was signed by both parties and their attorneys. The record, however, contains no mention of an order being issued or requested allowing the parties to withdraw or cancel the contest or denial requested by each in their respective complaint and counter complaint for divorce. Nor did Sandra seek leave of court to withdraw her consent.

¶ 47. In denying Sandra’s motion to set aside the judgment as void, the chancellor reasoned as follows:

By the clear and unambiguous language of the statute, 93-5-2(5), a divorce on the grounds of irreconcilable differences may be granted only where and if contests or denials have been withdrawn or cancelled with leave and by order of the court. The exception to this is contained in the first 10 words of 93-5-2(5): “Except as otherwise provided in subsection (3) of this section....” It is the opinion of this court that in writing the statute in this manner, the legislature intended that when the parties execute a consent under subsection (3), the requirements of subsection (5) are not required. Logically, if the parties consent to a divorce on the ground of irreconcilable differences and meet the requirements of subsection (3), such an act necessarily shows and establishes that the parties intend to and do withdraw all contests and denials. It is the opinion of this court that the requirements of subsection (5) are applicable only where a divorce commences as a contested divorce with grounds asserted and is concluded with a written agreement containing adequate and sufficient provision for the custody and maintenance of any children and for the settlement of any property rights between the parties. Miss.Code Ann. § 93-5-2.
Moreover, assuming the plaintiff is correct in her motion and were the court to grant the plaintiffs motion, such would encourage parties to enter into a consent pursuant to subsection (3), await the decision of the trial court, and then assert that the judgment is void. Generally, matters not objected to contemporaneously with the occurrence cannot later be considered error. This court finds that the plaintiffs assertion that the parties, herself included, did not comply with subsection (5) should and had to have been made at the commencement of the trial, not after 3 days of proof and testimony, and because of her dissatisfaction with the decision of the trial court. Such a claim should and must be made at the time the alleged • error or failure occurred, not post judgment.

¶ 48. We agree. Section 93-5-2 governs divorces based on irreconcilable differences, and states in pertinent part as follows:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleading have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.
(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.
(6) Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in Section 93-5-1.

Miss.Code Ann. § 93-5-2 (Rev.2004).

¶49. The legislative purpose behind Section 93-5-2 “is to provide a less painful alternative to the traditional grounds for divorce which require[s] ... parties to publicly put on proof of sensitive private matters.” Grier v. Grier, 616 So.2d 337, 339 (Miss.1993). The statute expressly permits parties to “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Id. “The cornerstone of the process is mutual consent.” Id. To ensure that end, the statute contains certain conditions. Perkins v. Perkins, 787 So.2d 1256, 1261 (Miss.2001) (citations omitted). The chief of these conditions is, “that neither spouse contest its granting.” Id. (quoting Sanford v. Sanford, 749 So.2d 353, 357 (Miss.Ct.App.1999)).

¶ 50. Such was the understanding in Massingill v. Massingill, 594 So.2d 1173 (Miss.1992), in which the parties, having failed to prove a fault-based divorce, were granted a divorce based on irreconcilable differences, having pleaded that ground in the alternative. In reversing, this Court held that simply pleading the ground is not enough to satisfy the consent provisions required by subsection (3). Id. at 1176. These provisions are that the consent (1) must be in writing and signed by both parties; (2) must state that the parties voluntarily consent to permit the court to decide the issues upon which the parties cannot agree; (3) must specifically set forth the issues upon which the parties are unable to agree; and (4) must state that the parties understand that the decision of the court shall be a binding and lawful judgment. Id. at 1177. The Court found that, even though both parties had requested a divorce based on irreconcilable differences, the husband nonetheless had denied that the wife was entitled to a divorce on this ground, and had also filed a complaint claiming fault grounds. Id. at 1778. By virtue of subsection (5), there remained both a contest and denial. Id. The Court opined, “Accordingly, the facts negate any conclusion there was mutual consent to a divorce on the ground of irreconcilable differences.” Id. (citation omitted) (emphasis added). Without speaking any further on subsection (5), the MassingiU Court concluded on this point with the following:

[I]t is conceivable the required mutual consent in writing could have been accomplished by written stipulation, written agreement, or by some other viable means either prior to or during the last appearance before the chancellor.

Id.

¶ 51. In Perkins, this Court reversed a chancellor’s judgment granting a divorce based on irreconcilable differences as requested in a settlement agreement between the spouses for its failure to comply with a number of statutory requirements set forth by Section 93-5-2. Perkins, 787 So.2d at 1264-65. Though subsection (3) was not at issue, the Perkins Court’s opinion nonetheless expounded on some of Massingill’s implications. Id. at 1263. Of relevance was Perkins's treatment of a point argued by the appellee in countering the appellant’s charge that the appellee had failed to withdraw his original fault grounds. Id. at 1262. The appellee argued that subsection (5) was met when the settlement agreement was sighed. Id. Perkins responded only by saying that the Court interprets subsection (5) as pertaining to cases where irreconcilable differences had been pleaded in the alternative to fault grounds, which neither of the Per-kinses had done. Id. at 1262.

¶ 52. The Perkins Court then addressed the appellee’s main contention that each of the procedural shortcomings in the matter were technical flaws and should be considered harmless error, claiming that the appellant had failed to show prejudice. Id. at 1262-63. In so doing, Perkins acknowledged this Court’s volition, in some instances, to affirm a lower court’s judgment granting a divorce based on irreconcilable differences despite failure to follow certain procedural safeguards. Id. at 1262-64. However, the Court then expressly indicated this is not appropriate when a party’s substantive rights are at issue. Id. at 1264. Notably, Perkins also stated that “[h]ad either party pled irreconcilable differences as an alternative, this case would be in line with [Rounsaville v. Rounsaville, 732 So.2d 909 (Miss.1999)], and the parties could have agreed to a property settlement on the day of trial.” Id. at 1264. Rounsaville upheld a trial court’s decision to grant a divorce based on irreconcilable differences where, at the time of the granting of the divorce, the parties had not entered into a property settlement, nor had the trial court adjudicated the presented issues as required under the statute. Rounsaville, 732 So.2d at 911 (noting that, although this was error, it was harmless error since the appellant demonstrated no prejudice which would make the error reversible).

¶ 53. We find that the facts here differ from those which determined the outcome in both Massingill and Perkins, as the record in this case clearly shows mutual consent. Sandra and Henry fully complied with the procedural requirements set forth in subsection (3). Both, along with them attorneys, signed the written consent agreement; the agreement expressly stated that both parties voluntarily consented to permit the court to decide the issues upon which they could not agree; it specifically set forth those issues; and both expressly acknowledged their understanding that the decision of the court would be a binding and lawful judgment. The agreement was then read into the record in open court. This distinguishes this case from both Massingill and Perkins. Unlike what concerned the Court in those two cases, our appellant’s substantive rights are not in question.

¶ 54. It is well understood that divorce in Mississippi is governed by statute, and that its provisions must be strictly complied with. Perkins, 787 So.2d at 1264. The plain language of subsection (5) mandates that a contest or denial be withdrawn or canceled, by leave and order of the court, by the party who filed the contest or denial. This is a procedural safeguard which has existed within the framework of Section 93-5-2 since its promulgation. See e.g. Alexander v. Alexander, 493 So.2d 978, 979 (Miss.1986) (discussing Miss.Code Ann. § 93-5-2 (Supp.1985)). However, the exception clause, which was added in 1990 when the statute was amended to provide for “trial by mutual consent,” clearly indicates that subsection (5) should be read in conjunction with subsection (3). Once the parties fully and properly acceded to the procedural strictures of subsection (3), the safeguards provided by subsection (5) were no longer necessary.

¶ 55. The trial court’s decision denying Sandra’s motion to set aside the final judgment decreeing an irreconcilable-differences divorce is affirmed.

CONCLUSION

¶56. For the foregoing reasons, this Court affirms the judgment of the Rankin County Chancery Court.

¶ 57. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR.

      . According to the record, Henry propounded his discovery requests in July 2005. Sandra initially answered in December 2005, and supplemented as follows: 628 documents on April 4, 2006; 202 documents on April 25, 2006; and 1,700 documents on May 2, 2006. She provided Henry with a witness list on May 1, 2006.

      . The parties’ joint tax returns from the years 1995, 1996, 1997, and 1998 did make it into the record. Each return reported gambling income offset by an equal gambling loss, respectively as follows: 1995 — $314,746; 1996-$486,950; 1997-$285,360; 1998-$248,550.

      . Rule 26(b)(4)(A)(i) of the Mississippi Rules of Civil Procedure sets forth the proper procedure for obtaining the identity of an expert witnesses, not otherwise discoverable under subsection (b)(1) of Rule 26, which is through interrogatories, not depositions.

      . According to our calculation, the Equity total should read as $1,187,277.

      . According to the financial statements, the correct debt amount is $160,000, as is correctly denoted under the real estate valuation, supra.

      . Section 93-5-2 was amended in 1990 to provide for subsection (3), which Massingill termed the “trial by mutual consent” provision. Massingill, 594 So.2d at 1176; Miss. Code Ann. § 93-5-2 (Rev.2004).

      . Because the parties were not submitting any issues for the trial court to decide, subsection (3) did not apply.


source: Caselaw Access Project

author: RANDOLPH, Justice, DICKINSON, Justice, KITCHENS, Justice,

license: Public Domain

text:
    ROBINSON PROPERTY GROUP, L.P., a Mississippi Limited Partnership d/b/a Horseshoe Casino and Hotel v. Mary S. MITCHELL.
    No. 2008-CA-00256-SCT.
    Supreme Court of Mississippi.
    April 23, 2009.

      Joeanna Chandley Crawford, Robert Lewis Moore, Dawn Davis Carson, attorneys for appellant.
    Robert Q. Whitwell, Ashland, attorney for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Mary S. Mitchell filed a personal-injury suit against Robinson Property Group (“Robinson Property”), a Mississippi Limited Partnership, stemming from a trip-and-fall accident at the Horseshoe Casino in Robinsonville, Mississippi. A jury determined the value of Mitchell’s damages at $80,000, but deemed her thirty percent at fault. Thus, final judgment was entered in her favor for $56,000. Finding no error, this Court affirms.

FACTS

¶ 2. On March 29, 2006, Mitchell, a seventy-two-year-old resident of Memphis, Tennessee, and a group of her friends visited the Horseshoe Casino in Robinson-ville, Mississippi. After playing the slot machines, Mitchell walked over to the snack bar and ordered a sandwich. While awaiting her order, Mitchell decided to play her one remaining “fifty-cent coupon” on a nearby slot machine. As Mitchell approached the machine, the heel of her shoe caught on a metal plate, causing her to fall. This metal plate had a two-inch lip and formed the base for attaching a slot-machine seat to the floor.

¶3. The parties dispute whether the area in which the accident occurred was barricaded. Mitchell stated that several aisles were roped off, but she did not see any barricades around this particular area. A companion, Bettie Jolly, testified that she did not see any barricades. Both women, however, did notice that the seats in this area were in some disarray. Robinson Property insisted that the area had been roped off, and that Mitchell had failed to notice, or had blatantly ignored, the barricade.

¶ 4. Mitchell was transported to the emergency room at Baptist Memorial Hospital-DeSoto in Southaven, Mississippi, and then transferred to Methodist Le Bonheur Germantown Hospital in German-town, Tennessee. She suffered a broken ankle and underwent orthopedic surgery several days later.

¶ 5. Mitchell experienced additional complications from the injury. While hospitalized following her surgery, Mitchell contracted a staph infection in one eye and one arm. Thereafter, she was confined to a wheelchair for nearly six weeks. She described the pain as unbearable. Mitchell testified that she also had difficulty breathing and consulted both a lung specialist and a heart specialist for treatment. Additionally, she received psychological treatment for depression. Mitchell also testified that she missed a substantial period of work, and that when she returned to work, her hours at a local gift shop were reduced from eight hours a day, three days a week, to four hours a day, three days a week, due to her inability to stand for prolonged periods of time.

¶ 6. Mitchell filed suit against Robinson Property in the Circuit Court of Tunica County, Mississippi, which culminated in a jury verdict in her favor. Contested issues at trial included, inter alia, whether the area was barricaded and the accuracy of Mitchell’s purported medical expenses. Rather than submitting separate bills and records associated with her medical expenses, Mitchell offered a summary as evidence, thereby excluding documents which revealed Medicare payments. Attached to the summary was some supporting documentation. On cross-examination, Robinson Property confronted Mitchell regarding discrepancies between the summary and the attached bills. Robinson Property also pointed out that some of the bills failed to reflect the amount shown in the summary. Robinson Property contested whether attached bills for treatment of a urinary-tract infection, cholesterol check, routine blood work, and a $10,198 bill from the Sutherland Clinic which dated back to June 18, 1996, were related to the 2006 fall. Mitchell testified that she did not know how the inclusion of the Sutherland Clinic bill had occurred, as she had not seen the summary prior to taking the witness stand. Mitchell testified someone had made a mistake to include the entire bill, but that she had incurred some medical expenses at Sutherland Clinic attributable to the 2006 fall. On redirect, it was established that Mitchell’s counsel had prepared the summary, and Mitchell testified that any expense incurred at the Sutherland Clinic before her fall should be taken off her claim. Mitchell sought special damages, including lost wages, of $43,383.

¶ 7. After hearing all the evidence, the jury established Mitchell’s total damages at $80,000 and deemed her thirty percent at fault. Accordingly, the circuit court entered a final judgment in the amount of $56,000. Mitchell then filed a motion for additur, which the circuit court denied. Robinson Property filed a motion for new trial, asserting that the circuit court had erred in denying its motion for directed verdict and in refusing to allow impeachment of Mitchell regarding her assertion of financial devastation, relying on evidence it proffered during trial that a large portion of her medical expenses were paid by insurance. After a post-trial hearing, the circuit judge entered an order denying Robinson Property’s motion for new trial.

¶ 8. Robinson Property now appeals to this Court, raising the following assignments of error: (1) whether the circuit court erred in refusing to recognize an impeachment exception to the collateral-source rule, and (2) whether the circuit court abused its discretion in failing to grant Robinson Property’s motion for new trial.

DISCUSSION

I. Whether the circuit court erred in refusing to recognize an impeachment exception to the collateral-source rule.

¶ 9. This Court reviews a trial judge’s decision to admit or deny evidence under an abuse-of-discretion standard. See Whitten v. Cox, 799 So.2d 1, 13 (Miss. 2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)). If an error involves the admission or exclusion of evidence, this Court “ ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id.

¶ 10. During the direct examination of Mitchell, the following exchange occurred:

[Mitchell’s attorney]: You have told the jury what expenses you have incurred. What are you asking the jury to give you in the way of compensation to compensate you for this injury?
[Mitchell]: Well, I just want the jury to determine that, except I would like to have the medical bills and my expenses, and, of course, that’s really just partial expenses. I couldn’t even think of everything that I have spent and the gas and the cost of everything, the going back and forth to physical therapy and all of that, but I think the jury would be fair in awarding whatever they feel would be right for something as serious as this.
[Mitchell’s attorney]: Do you think that ought to be a substantial sum of money, more than the $50,000 medical expenses you have?
[Mitchell]: Well, I would hope so. I had to — I bomived money to live on. I refinanced my house. I know that’s probably not a problem I’m supposed to bring up, but it has — it’s devastated me financially, too.

(Emphasis added). Additionally, the following exchange addressed Mitchell’s lost wages:

[Mitchell’s attorney]: As a result of this, did you lose some time from work while you were off with all of this surgery and so forth?
[Mitchell]: Oh, yes. I didn’t work again until — several months ago, I started back part-time.... I work four hours three days a week, and that’s about all I can stand on this ankle still, and it’s been a year and a half....
[Mitchell’s attorney]: Are you able to work a full eight-hour day now?
[Mitchell]: No, not yet.

¶ 11. Robinson Property argues that it sought to introduce evidence that the medical bills incurred by Mitchell were substantially paid by insurance for the purpose of impeaching her testimony, not to mitigate or reduce her damages. Robinson Property contends that Busick v. St. John, 856 So.2d 304 (Miss.2003), and Geske v. Williamson, 945 So.2d 429 (Miss.Ct. App.2006), both recognized an impeachment exception to the collateral-source rule. The circuit judge, however, denied Robinson Property’s request, relying upon McCary v. Caperton, 601 So.2d 866 (Miss.1992), and held that there was no impeachment exception to the collateral-source rule.

¶ 12. It has long been established in our state that, under the collateral-source rule, “a defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason of the fact that the plaintiff has received compensation for his injury by and through a totally independent source, separate and apart from the defendant tortfeasor.” Cent. Bank of Miss. v. Butler, 517 So.2d 507, 511-12 (Miss.1987) (citations omitted). Compensation or indemnity received by the plaintiff from a collateral source such as insurance:

cannot be set up by the [defendant] in mitigation or reduction of damages
The wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him. Under this general rule, insurance in behalf of the injured person cannot be set up the wrongdoer in mitigation of the loss.

Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951) (quoting 25 C.J.S. Damages, § 99) (emphasis added). See also Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 728 (Miss.2005).

¶ 13. Prior to Busick, this Court had not recognized an impeachment exception to the collateral-source doctrine. See Busick, 856 So.2d at 309 (citing, e.g., McCollum v. Franklin, 608 So.2d 692, 695 (Miss.1992); Eaton v. Gilliland, 537 So.2d 405, 408 (Miss.1989); Cent. Bank of Miss., 517 So.2d at 511; Star Chevrolet Co. v. Green by Green, 473 So.2d 157, 162 (Miss.1985); Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d 1328, 1332-33 (Miss.1981)). In Busick, this Court noted that several states have recognized a limited impeachment exception to the collateral-source rule. See Busick, 856 So.2d at 309-10 (citing, e.g., Warren v. Ballard, 266 Ga. 408, 467 S.E.2d 891, 893 (1996); Corsetti v. Stone Co., 396 Mass. 1, 483 N.E.2d 793, 801 (1985); Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569, 570 (1983); Hack v. State Farm Mut. Auto. Ins. Co., 37 Wis.2d 1, 154 N.W.2d 320, 325 (1967)). There, the:

evidence related to Busick’s health insurance was admitted to impeach her testimony that she suffered permanent injuries as a result of the accident. Bu-sick testified that she ceased physical therapy because she could no longer afford it. The fact that she spent only $45 on that therapy discredited her testimony.

Busick, 856 So.2d at 310 (emphasis added). This Court held that “[t]he testimony was not solicited for the purposes of mitigating her loss or reducing damages owed to Busick.” Id. Therefore, this Court held there was “no reversible error ... in allowing this testimony with an appropriate limiting instruction.” Id.

¶ 14. While “impeachment exception to the collateral-source rule” has been the terminology used by some courts, that phrase is a bit misleading and may cause confusion. An “exception” is defined as “[o]ne that is excepted, esp. a case not conforming to normal rules.” Webster’s II New College Dictionary 390 (3d ed.2001). The “collateral-source rule” is in no way excepted or excluded by the impeachment of testimony. The rule remains unchanged, and a defendant may not use payments received from a third party to mitigate or reduce a plaintiffs damages. See Coker, 52 So.2d at 357. The misnomered “exception” pertains to impeachment of false testimony by evidence of collateral-source payments. Therefore, correctly stated, the issue is whether a defendant may cross-examine the plaintiff regarding collateral-source payments, for the narrow purpose of impeaching false testimony, as approved by the 2003 Busick Court. See Busick, 856 So.2d at 310.

¶ 15. It is a given, requiring no citation, that courts should never condone false testimony. When a witness falsely swears that he or she paid, as opposed to incurred, medical expenses when, in fact, the medical expenses were paid by a third party, the aforementioned principle is violated. Therefore, to the extent that courts of this state have held that evidence of collateral-source payments may not be introduced for the purpose of impeaching false or misleading testimony, those decisions are expressly overruled. See Corsetti, 396 Mass. at 17, 483 N.E.2d 793 (quoting Goldstein v. Gontarz, 364 Mass. 800, 812, 309 N.E.2d 196 (1974)) (“in some circumstances, evidence of collateral source income may be admissible, in the discretion of the trial judge, ‘as probative of a relevant proposition, say “control” or credibility of a particular witness.’”) (emphasis in original). Permitting evidence of collateral-source payments for the narrow purpose of impeaching false or misleading testimony is consistent with the Mississippi Rules of Evidence. Rule 607 provides that “[t]he credibility of a witness may be attacked by any party....” Miss. R. Evid. 607. Therefore, an attack upon the credibility of a witness through the impeachment of false or misleading testimony is permissible. However, any evidence to be admitted under Rule 607 must always first be deemed relevant, see Mississippi Rule of Evidence 401-402, and then filtered through Rule 403. Moreover, as in Bu-sick, granting a limiting instruction may be appropriate, so as to avoid jurors being led “to consider plaintiffs’ claims unimportant or trivial or to refuse plaintiffs’ verdicts or reduce them, believing that otherwise there would be unjust double recovery.” Corsetti, 396 Mass. at 17, 483 N.E.2d 793 (quoting Goldstein, 364 Mass. at 809, 309 N.E.2d 196).

¶ 16. Today’s decision also comports with the mandate articulated in our rules of evidence. Rule 102 provides that our rules of evidence shall promote the “growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” Miss. R. Evid. 102. The benefits derived from permitting such inquiry are minimally two-fold. First, it eliminates the judicial conundrum of allowing known false testimony to be considered by a jury. Second, it eliminates jury consideration of an illusory element of damages premised on false testimony.

¶ 17. We can agree with the separate opinion of Justice Kitchens that evidence of collateral-source payments “is not relevant upon the inquiry as to whether one party has wronged another.” (Concurring-In-ResulNOnly Opinion at ¶ 32). No less true, however, is that the veracity of any party is relevant, which is the crux of this Court’s decision, i.e., the condemnation of false testimony. Justice Kitchens’s suggestion that today’s decision abrogates the rule is unclear, as the Busick Court decided this issue six years ago. See Busick, 856 So.2d at 310. The cases relied upon by Justice Kitchens predate Busick. Moreover, Vance v. Hervey, 253 Miss. 751, 179 So.2d 1 (1965), cited in Justice Kitchens’s separate opinion, provides additional rationale for permitting evidence of collateral-source payments for the narrow purpose of impeaching false or misleading testimony in Busick-type cases. In Vance, “[t]he plaintiff was permitted to testify on cross-examination, over the objection of his attorney, that he had received weekly insurance benefits from January 1963 through July 1964 for the first injury, and this is assigned as error.” Id. at 754, 179 So.2d 1. While acknowledging that Coker and Ethridge v. Goyer Company, 241 Miss. 333, 131 So.2d 188 (1961), “pronounce sound law,” this Court held that:

they have no application to the case at bar for the reason the plaintiff opened the subject of the industrial or first injury by introducing evidence in regard thereto. He cannot now complain of cross examination on the very matter he has introduced and which extends the evidence to show that compensation payments were made.

Vance, 253 Miss. at 755, 179 So.2d 1 (citations omitted). See also Crosby v. Keen, 200 Miss. 590, 593-94, 28 So.2d 322, 323 (1946) (quoting 31 C.J.S. Evidence, § 190) (“[tjhe party who first introduces improper evidence cannot object to the admission of evidence from the adverse party relating to the same matter. However, the admission of such evidence is not a matter of absolute right, but rests in the sound discretion of the court....”) (emphasis added). False testimony is always improper evidence.

¶ 18. In the case sub judice, the learned circuit judge conducted a very thorough analysis regarding Mitchell’s testimony, its putative prejudicial effect upon Robinson Property, and the applicable law. The circuit judge found that, although Mitchell had testified about medical bills, she also had testified about nonmedical expenses. He concluded that he could not “say with confidence that the plaintiff was attributing her financial difficulties directly to her medical bills.” As such, the circuit court “did not believe the plaintiffs comment was unduly prejudicial toward the defendant.” Additionally, the circuit judge expressed some uncertainty following his analysis of the caselaw on whether to allow impeachment of Mitchell, “find[ing] [him-jself without clear guidance.” If Busick’s failure to overrule prior contrary holdings created any uncertainty, today’s decision should make it clear that a witness may, under very limited circumstances, be cross-examined on collateral-source payments. Each case involves a fact-specific inquiry. Under these particular facts, this Court concludes that the circuit court correctly applied the law when it refused to admit evidence of Mitchell’s health insurance and Medicare coverage.

II. Whether the circuit court abused its discretion in failing to grant Robinson Property’s motion for new trial.

¶ 19. This Court reviews the denial of a motion for new trial for abuse of discretion. See Poole v. Avara, 908 So.2d 716, 726 (Miss.2005). This Court “will not set aside a jury’s verdict and order a new trial unless we are convinced that the verdict was contrary to the substantial weight of the evidence so that justice requires that a new trial be granted.” Id. at 727 (citing Jesco, Inc. v. Whitehead, 451 So.2d 706, 714 (Miss.1984) (Robertson, J., specially concurring)).

¶20. In considering a motion for new trial, this Court has set forth the following list of factors that a trial court should weigh and consider:

(1) Has the search for the true facts proceeded as far as it reasonably may under the peculiar facts and circumstances of the case?
(2) To what extent would it be unfair to the party in whose favor the verdict was returned in effect to give that party’s adversary a second bite at the apple?
(3) Considering the evidence, is there a substantial basis for believing that the jury disregarded their oaths and failed to follow the instructions of the Court in reaching its verdict? Put another way, is it substantially apparent that the jury’s verdict is the product of passion, prejudice or any other arbitrary factor?
(4) Assuming arguendo that the verdict is unjust (by reference to the underlying facts of the transaction or occurrence, the complete truth of which we will never know), what is the impact of that “injustice” upon the party against whom the verdict has been returned?
(5) If .a new trial is ordered, will the party in whose favor the verdict has been returned be deprived of some fair advantage he enjoyed in the first trial?
(6) Are there any other factors present, peculiar to the particular case or the parties, that would render just or unjust the grant or denial of a new trial?

Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 60-61 (Miss.2004) (citing Jesco, Inc., 451 So.2d at 715-16).

¶ 21. Robinson Property argues that the circuit judge failed to weigh these factors as a whole. Primarily, it asserts that, by refusing to admit the evidence of Mitchell’s insurance coverage, the circuit court did not permit the “true facts” to proceed as far as reasonably necessary. See id.

¶ 22. The circuit judge entered a thorough order denying Robinson Property’s motion for new trial. After examining the relevant caselaw and noting the lack of clear guidance, the circuit judge acknowledged that he could not state with confidence that he was correct in refusing to admit the proposed impeachment evidence. But he added that even if he had erred, a new trial was not required. He found that Mitchell’s credibility was substantially impeached by Robinson Property’s “vigorous attack” surrounding the “debacle involving the errant $10,000 [in] medical expenses appearing in the plaintiffs medical expense summary.... ” He also was of the opinion that the size of the verdict compared to the requested medical expenses suggested that Mitchell’s credibility had been called into question.

¶ 28. This Court finds that the circuit court did not abuse its discretion in denying a new trial.

CONCLUSION

f 24. The circuit court did not err in excluding evidence of Mitchell’s insurance payments, nor did it abuse its discretion in denying a new trial. Therefore, this Court affirms the Circuit Court of Tunica County’s final judgment and denial of Robinson Property’s motion for new trial.

¶ 25. AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., RANDOLPH AND LAMAR, JJ. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY WALLER, C.J.

DICKINSON, Justice,

concurring:

¶ 26. I have attempted without success to understand the concern voiced by my learned colleague, Justice Kitchens, who opines that today’s majority opinion “makes access to previously forbidden evidence of collateral-source payments exceedingly effortless.” I agree with my friend on the point, but hasten to state that, in my judgment, access to such evidence should, indeed, be effortless. After all, it comes into play only where the plaintiff has lied on the witness stand. Our rules — whether of ancient or more recent vintage — should never protect a liar.

¶ 27. The subject of my friend’s concurring opinion is the following issue as framed by Justice Randolph: “Whether a defendant may cross-examine the plaintiff regarding collateral-source payments, for the narrow purpose of impeaching false testimony.” One would hope the issue is rarely presented but, when it is, my firm view is that neither rule nor statute nor this Court’s precedent should prevent the lie from being exposed.

¶ 28. Furthermore, I question my friend’s prognostication that today’s decision will savage cases where plaintiffs make “benign references to financial hardship.” That is precisely what happened in the case before us today, and the majority correctly concludes that the plaintiffs testimony was acceptable, and that the trial judge’s exclusion of the collateral-source payments was eminently correct.

CARLSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

KITCHENS, Justice,

Concurring in Result Only:

¶ 29. I agree with the majority that “the circuit court correctly applied the law when it refused to admit evidence of Mitchell’s health insurance and Medicare coverage.” Maj. Op. at 247. But in my judgment, that correct application stemmed from our long-held principle that parties may not adduce evidence that damages have been mitigated by collateral-source payments. I can endorse neither the abrogation nor the weakening of that wise rule. Therefore, I join today’s judgment in result only.

¶ 30. Let us be under no illusions regarding the impact of today’s pronouncement. The majority opinion’s aim is no “narrow purpose,” Maj. Op. at 245, and Mississippi’s longstanding collateral-source rule does not “remain[] unchanged” by today’s judgment. Id. This decision makes access to previously forbidden evidence of collateral-source payments exceedingly effortless and overlooks major implications that may open the door to the rule’s demise.

¶ 31. As early as 1854, the U.S. Supreme Court recognized the principle, long ago crafted of necessity by English courts, see Yates v. Whyte, 4 Bing. N.C. 272, 1838 WL 3741 (1838), as “a doctrine well established....” Monticello v. Mollison, 58 U.S. 152, 155, 17 How. 152, 15 L.Ed. 68 (1854). “The contract with the insurer is in the nature of a wager between third parties, with which the trespasser has no concern.” Id.

¶ 32. The policy considerations girding the collateral-source rule are legion, but perhaps chiefly ranked among them all is the recognition that such evidence simply is not relevant upon the inquiry as to whether one party has wronged another. Until recently, this Court has held consistently that the collateral-source rule does not yield even to considerations of a witness’s veracity. See Ethridge v. Goyer Co., 241 Miss. 333, 338, 131 So.2d 188 (1961) (evidence of collateral-source payments not permitted even “to contradict testimony that the plaintiff gave in the trial ... ”). See also Vance v. Hervey, 253 Miss. 751, 755, 179 So.2d 1 (1965) (rule of Ethridge is “sound law”).

¶ 33. To the credit of my colleagues with whose judgment I part ways today, the decision in the instant case does not automatically allow admission of such evidence. Rather, today’s judgment purports to grant its blessing only upon “evidence of collateral source payments ... introduced for the purpose of impeaching false or misleading testimony....” Maj. Op. at 17. Were such evidence admissible in a vacuum, then I would concur fully. But any contention that such evidence will not be procured with the intent and effect of informing jurors that a plaintiffs damages were covered by insurance is not rooted in reality. Indeed, one would find impossible the task of suggesting with sincerity that some attorneys will not assiduously ferret out such evidence at every opportunity for precisely that purpose. The majority makes available an outright circumvention of the collateral-source rule with the simple, possibly pretextual, question of whether the plaintiff in any given case has suffered personal financial hardship. If the answer is yes, as it almost always would be, then the examining attorney has positioned his or her client to offer proof of collateral-source payments.

¶34. I find the majority’s reliance on our decision in Busick v. St. John, 856 So.2d 304 (Miss.2003), to be misplaced. In Busick, this Court noted the existence of an impeachment exception in some jurisdictions but ultimately avoided the collateral-source issue by correctly noting that the issue had not been preserved for appellate review by way of a timely objection at trial. Id. at 309-310. Busick did not, either explicitly or implicitly, create the rule of law to which the majority purportedly adheres. If Busick stands for any broadly applicable principle of law at all, it is that evidence of collateral-source payments survives appellate review only when the aggrieved party did not lodge a timely objection thereto. Id. at 310.

¶ 35. One of the central policy foundations supporting the collateral-source rule is that any alternative would punish parties with the foresight and care to protect themselves and others by carrying health coverage. Today’s decision has great potential to punish such foresight.

¶ 36. This decision also ignores the implications presented by subrogation, which is contractually required by most contemporary health insurance policies and plans, as well as by government programs such as Medicare and Medicaid, and by our state’s workers’ compensation statute. When all or some portion of a plaintiffs claim-related medical costs have been paid by third parties such as these, a plaintiff who is awarded money damages in civil litigation must reimburse that third party from his or her recovery of those same components of claim-related damages.

¶ 37. In a trial, it likely would benefit the tortfeasor for jurors to get the impression that the plaintiff was attempting to “double dip” by asking for a verdict that included medical costs already paid on the plaintiffs behalf by a third party, such as the plaintiffs health insurance carrier. For jurors to be so misled, whether unintentionally or otherwise, would be patently unfair, and the prevention of this sort of injustice provides another compelling reason to maintain inviolate Mississippi’s well-established collateral-source rule. Justice would best be served by retention, without exception, of this wisely conceived, time-tested rule that precludes jurors from being informed that a plaintiffs medical costs had been defrayed, in whole or in part, through third-party payments, unless, of course, we also should hold that, if a jury were given such information, a plaintiff would then be allowed to make the jurors privy to the realities of subrogation.

¶ 38. Similarly, it would seem only fair, in the interest of full disclosure, to inform jurors of defendants’ applicable liability insurance so that they would know that a defendant would not be caused to suffer personal financial hardship by an adverse verdict. By analogy to today’s decision, a plaintiffs attorney could ask a defendant, “Would you suffer personal financial hardship if you had to pay the plaintiffs medical bills, lost income, and other proven damages?” This would open the door to the plaintiffs being able to reveal to the jury that the defendant would be relieved of personally paying those damages because they would be paid by funds from a collateral source, namely the defendant’s liability insurance carrier, up to the limits of the defendant’s applicable coverage. It is apparent that the majority’s tinkering with this venerable old rule may have ramifications far beyond its application to the instant case.

¶ 39. Even without the policy concerns that support my conclusion, I still would not be comfortable joining this decision because the majority does little to explain how and when evidence of collateral-source payments may be adduced. Notwithstanding the majority’s contention that the collateral-source rule “remains unchanged” by its decision, Maj. Op. at 245, “the purpose of impeaching false or misleading testimony” at which today’s judgment is aimed is an exceedingly vague standard. Id. Undoubtedly, some trial courts will apply this new rule narrowly and allow evidence of collateral-source payments only when the plaintiff has stepped squarely in a hole of its own digging. Conversely, other trial judges will enthusiastically leap astride the horse loosed from its stable by today’s majority and heap heretofore forbidden evidence upon a plaintiffs most benign references to financial hardship.

¶ 40. To the extent that my friends in the majority contend that my conclusion violates evidentiary concerns and Biblical concerns alike, see Conc. Op. at 248, n. 5-6 (Dickinson, J.), my colleagues, for whom I have the deepest respect, have reached their conclusion by way of an oversimplified view of the real-world effects today’s decision will have. The Court reaches its conclusion with insufficient consideration of the practical implications thereof, the inevitable real-world effects thereof in this state’s trial courts, and the unfair disadvantage at which plaintiffs are placed thereby. The fullness of today’s judgment is a slippery slope upon which I am compelled not to step. Therefore, I concur in its result but nothing more.

WALLER, C.J., JOINS THIS OPINION IN PART.

      . At post-trial motion hearings, Mitchell’s counsel explained that his office had flooded just prior to trial, and in his haste to obtain replacement copies of Mitchell's medical bills, he inadvertently included the entire bill from the Sutherland Clinic.

      . Justice Kitchens’s lack of confidence in our trial judges to control the admission of evidence and fears of their "heap[ing] heretofore forbidden evidence” into trial (Concurring-In-Result-Only Opinion at ¶ 39), is misplaced. Our system of justice is dependent upon trial judges properly applying evidentiary rules.

      . Specifically, the circuit judge stated, "[h]is-torical precedence suggests] that there is no impeachment exception to the collateral source rule. However, more recent cases contain language seemingly suggesting that evidence introduced for purposes other than to reduce the monetary award for the plaintiff, such as impeachment, is properly admitted.”

      . See footnote 3 supra.

      . “Ye shall know the truth, and the truth shall make you free.” John 8:32.

      . "These rules [of evidence] shall be construed ... to the end that the truth may be ascertained and proceedings justly determined." Maj. Op. at ¶ 16 (citing Miss. R. Evid. 102).

      . By arguing, on one hand, that today's judgment is rooted firmly in prior precedent but, feeling, on the other hand, the need to overrule prior case law expressly, the majority appears to concede, at the very least, that the relevant language in Busick on which today’s decision rests is not emphatic. I agree. However, whatever direction can be gleaned from the ambiguity strongly suggests that, ultimately, the Busiclc Court rejected the encroachment upon the collateral-source rule adopted today. Paragraph 16, in which the Busick Court spoke its final words regarding the issue now before us, finds no error in the impeachment evidence presented in that case, but that paragraph does not indicate clearly whether the conclusion is reached because of a procedural bar or because of a newly recognized exception. See id. at 310. Paragraph 15 is clearer, though. It begins by reiterating Mississippi's long-held recognition that the collateral-source rule stands without exception. Then-Presiding Justice Smith briefly, almost casually, mentioned that some states have recognized this single exception. Id. at 309-310. And then, as quickly as it mentioned this point, the majority dropped the issue from its discussion. The Busick opinion did not suggest that the exception was being adopted, that it should be adopted, or even that existing Mississippi law appeared to support its adoption. Indeed, the only pronouncement of Mississippi law therein was the recognition that this Court has never permitted any exception to the collateral-source rule. Id. at 309. Also, to the extent that the Busiclc Court found permissible evidence of collateral-source payments, it so found only under the unusual set of facts of that case, in which the plaintiff's attorney asked for a limiting instruction in lieu of requesting a mistrial. Id. at 308-09. For these reasons, my view is that the portion of Busick on which today’s majority opinion depends is dictum and limited to that case’s facts. I concede that this conclusion alone does not foreclose the Court from proceeding down the trail embarked upon today, but we should at least recognize that we do so without regard for the principles of stare decisis.