November 7, 2011 § 8 Comments

Habitual Cruel and Inhuman Treatment (HCIT) as a ground for divorce can be an elusive concept. It’s almost seems to be an “eye of the beholder” phenomenon.

In the case of Smith v. Smith, rendered November 1, 2011, by the COA, Judge Maxwell penned about as concise an exposition on the legal basis of the ground as you will find. Here is an excerpt from the opinion:

In Mississippi, one of the twelve fault-based grounds for divorce is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1 (Supp. 2011). To obtain a divorce on this ground, the plaintiff must show conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss. 1998). The plaintiff must prove one of these two prongs by a preponderance of the credible evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).

¶11. In reviewing a divorce based on cruelty, “[t]here is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Bodne v. King, 835 So. 2d 52, 59 (¶24) (Miss. 2003). Evaluating the impact on the offended spouse is a subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person. Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992). The plaintiff must show a casual connection between the defendant’s conduct and the impact on the plaintiff. Id. And the defendant’s cruelty must not be too temporally remote from the separation. See Richard, 711 So. 2d at 890 (¶23) (finding a divorce may be granted based on “habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs[.]”); see also Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][b]-[c] (2005) (explaining that a strict causal connection between the conduct and the separation is no longer a required element of proof).

¶12. Generally, the party alleging habitual cruelty must corroborate his or her own testimony. Shavers, 982 So. 2d at 403 (¶35). An exception is made in cases where corroboration is not reasonably possible because of the nature of the accusation. Bell § 4.02[8][d]; see also Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). “‘[C]orroborating evidence need not be sufficient in itself to establish [habitual cruelty],’ but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true.’” Jones, 43 So. 3d at 478 (¶30) (quoting Bell § 4.02[8][d]).

¶13. To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility. Robison v. Robison, 722 So. 2d 601, 603 (¶5) (Miss. 1998). Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct. See Curtis v. Curtis, 796 So. 2d 1044, 1047 (¶8) (Miss. Ct. App. 2001). When there is no violent conduct involved, we review the facts on a case-by-case basis, taking into account the frequency and severity of the conduct, as well as the impact on the plaintiff. See Bell § 4.02[9][b]. “There are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Jackson v. Jackson, 922 So. 2d 53, 57 (¶8) (Miss. Ct. App. 2006).”

*   *   *

 “Our supreme court has observed “[t]he words ‘unnatural and infamous’ have not been precisely defined by precedent because the plain meanings of those words are sufficient.” To determine the plain meaning of words, we look to their dictionary definition. Gilmer v. State, 955 So. 2d 829, 834 (¶13) (Miss. 2007). The American Heritage Dictionary 1956 (3ded. 1992) defines “unnatural” as “[d]eviating from a behavioral or social norm[.]” “Infamous” means “[c]ausing or deserving infamy; heinous[.]” Id. at 924.

¶16. In McIntosh v. McIntosh, 977 So. 2d 1257, 1267 (¶¶37-38) (Miss. Ct. App. 2008), this court found a wife’s conduct relating to the parties’ finances amounted to habitual cruelty under the “unnatural and infamous” prong. The wife in McIntosh forged her husband’s name to savings bonds, cashed them without notifying him, and pretended to help him look for them afterward. We found: “Such acts certainly qualify as conduct that could have rendered the marriage revolting . . . and could have made it impossible . . . to discharge the duties of marriage.” Id. at 1267 (¶38). In Jones, 43 So. 3d at 471-72 (¶10), 473-74 (¶¶15-16), 477-78 (¶¶26, 29), we found a husband’s substantial gambling losses—when combined with his verbal abuse and sexual demands—rose to the level of habitual cruel and inhuman treatment. Though proof of the gambling losses was limited, the wife testified the losses were $100,000. Id. at 471 (¶10).”

*   *   *

¶22. Habitual cruelty may be found from a series of acts, ‘such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.'” Jackson, 922 So. 2d at 57 (¶8).

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  • angela says:

    Judge I was just informed about your blog and it is so helpful to me. Keep up the good work!!

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  • […] you have it. Habitual adultery can amount to HCIT and defeat a defense of condonation if it meets the basic requirements of HCIT. Share this:TwitterLike this:LikeBe the first to like this […]

  • Jak Smith says:

    Judge: the Smith v Smith(no relation to me) was my case. We tried it for EIGHTEEN days! We proved the gambling losses 3 different ways. They covered that well in the opinion. While we all know that gambling, in and of itself, is not a ground of divorce, the point I tried to make to the trial judge and as Appellee in the appeal, was that when it becomes conduct that destroys the marriage and/or when coupled with other conduct, as in McIntosh and Jackson, it can be a ground of divorce under the second prong of HCIT. I was delighted to see that the court affirmed the trial judge, Jacqueline Mask. The Husband in Smith, spent every dime he could get his hands on from their business and gambled it all away. When coupled with all his other conduct, of which there was quite a bit, the trial court basically said “enough is enough” and granted the divorce. This case should give us divorce lawyers in the trenches a little better option to get a divorce when there has been nothing physical between the parties. Jak Smith

    • Larry says:

      What I thought was interesting about this case was the argument that gambling does not constitute a ground for divorce. That seems to miss the point. It’s the conduct in toto and its effect on the other spouse that add up to the grounds.

      The significance of this case to me is that it gives more authority for a “totality of the circumstances” approach. I would like to think I would have ruled the same as Judge Mask in the same case.

      • Jak Smith says:

        That is what the appellant tried to do, i.e., couch the entire case as if this was a simple case of “gambling” and not a broader approach that gambling or hunting or anything, if carried to an extreme, can be a cause of divorce. It is the effect it has on the marriage, not just simple conduct. Jak

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You are currently reading JUDGE MAXWELL’S PRIMER ON HCIT at The Better Chancery Practice Blog.


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