DIVORCE F*A*I*L

November 14, 2011 § Leave a comment

One of the most valuable service you can render your clients is to convince them that it is indeed difficult to get a divorce in Mississippi without an agreement therefor.

Most clients present facts that would fall generally in the ballpark of habitual cruel and inhuman treatment (HCIT), if anything. And yet, HCIT is not an easy ground upon which to obtain a divorce. The Mississippi Supreme Court’s stringent definition of the ground has really not changed since its pronouncement more than eighty years ago:

“Conduct only as endangers life, limb, or health, or creates a reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse, or such unnatural and infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible for him or her, as the case may be, to discharge the duties thereof.”  Russell v. Russell, 128 So. 270, 272 (Miss. 1930)

In the decades following Russell, Mississippi trial and appellate courts in practice allowed the HCIT divorce where the chancellor was satisfied that the parties “need to be divorced from each other,” even when the offending conduct was less than that defined. In essence, HCIT became an incompatibility ground.

In 1984, however, the MSSC returned to a strict adherence to the Russell standard in Gallaspy v. Gallaspy, 459 So.2d 283, 285 (Miss. 1984). Since then, the appellate decisions reflect the stricter standard, and your case will F*A*I*L if  it does not measure up.

To complicate matters, there is the requirement of corroboration.

As for the facts supporting the ground, there is a breathtaking scope of opinions showing what has not passed muster as HCIT. Here is a sampling:

  • Wife’s weight ballooned from 165 to 210 because she drank too much beer, but husband bought the beer for her and drank with her, and she was not exactly undernourished at the time when the parties tied the knot.  When husband would come home in the evenings a few minutes late, wife would cry and complain that he had been off somewhere with some other woman.  Husband said that wife’s treatment had caused him to become nervous and upset, and he had lost 11 pounds, but the court found that he was not at home enough for his health to have been materially affected by any habitual conduct on wife’s part.  Husband testified: ‘If I was a few minutes late getting home, she would be waiting and crying under the assumption that I had been out to see another woman, which was untrue;’ and further that she would not have supper prepared for him, and that he would sometimes have to cook his own supper and his own breakfast; and that she was indifferent to her own personal appearance.  The court pointed out, on the other hand, that wife had been able to hold a position of employment as cashier at a restaurant for a long period of time.  F*A*I*L: Skelton v. Skelton, 111 So.2d 392, 393 (Miss. 1959).
  • Wife complained about the marital residence that ‘the location wasn’t right’; it was ‘too far out of town’; she ‘would not make any choice in the selection of colors’; and ‘she said she was not going to live in that house.’  The parties had many differences, compounded by their son’s congenital hypospadias that required numerous, expensive surgeries that the husband resisted.  Wife complained that husband was not employed in a respectable job and was not making enough money; his friends ‘were not much’, and were not welcome in her house; she did not like his work and the hours were too long for what he was making.  They would quarrel. He would try to ‘shut up’ at first, and if that would not stop her he would walk out of the house. ‘She would run me off from the house.’ He and his son got along all right on minor corrections, but, if she did not agree, she would attempt to overrule him in the boy’s presence. Husband wanted his son’s condition to be corrected, but thought it could be done in the South nearer home and the doctor told him that it could be done here but she would not hear to this and said that she was going to continue with the doctors in New York. He said that the effect of her attitude and treatment were such that it was on his mind all of the time; he would neglect his work; he would forget things and have to re-do his work; and that this troubled him very much all of the time. ‘There were times when he did not think that he would be able to live any more.’ However, when she was away, there was no domestic trouble on his mind. He did not think that they could live together with reasonable happiness and satisfaction. He was willing to accept the full custody of the boy and contribute to his support within his means.  F*A*I*LTaylor v. Taylor, 108 So.2d 872, 873-874 (Miss. 1959).
  • Husband, an attorney, marries wife for the second time.  There are accusations of infidelity, a failed business, overspending, heavy debt, and hostility that ripens like a rotting peach into genuine mutual hatred.  F*A*I*LWilson v. Wilson, 547 So.2d 803, 804-805 (Miss. 1989).
  • Husband and wife have differences in religious views, wife is not as fastidious a housekeeper as husband would like, and wife is not demostrative enough to suit husband, so that husband is seriously unhappy in the marriage.  F*A*I*LMarble v. Marble, 457 So.2d 1342, 1343 (Miss. 1984).
  • Husband gave wife the “silent treatment.”  He has called her stupid on occasion and sometimes would not listen to her.  Wife complained that she suffered from stress. She took the position that husband’s conduct endangered her health and created apprehension of danger, to such an extent, that she felt the relationship was unsafe, even though she did admit, several times in the record, that husband never physically abused her.  F*A*I*LAyers v. Ayers, 734 So.2d 213, 214 (Miss. App. 1999).
  • Wife contended that husband’s conduct created a reasonable apprehension of danger, rendering the relationship unsafe for her, based on: (1) Husband threw her onto a bed to take her pants off; (2) husband punched a hole in the bedroom door and put a gun barrel into his mouth; (3) husband hit her several times during an altercation; and (4) husband hit the car windshield in front of the parties’ son. She also complained of husband’s abusive name-calling and his constant nagging and complaining about her make-up, clothes, and hair style.  Wife also argued that husband’s accusing her of being homosexual constituted “conduct so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage.” She cited Hibner v. Hibner,217 Miss. 611, 613, 64 So.2d 756, 757 (1953), for the proposition that false and malicious charges of adultery or immoral conduct which would “naturally tend to cause shame, humiliation or disgrace” would justify a divorce on the grounds of habitual cruel and inhuman treatment.  Wife conceded, however, that husband had never actually called her a lesbian, and there was no evidence that David ever accused her of being such to anyone else, other than “insinuating” it to the children by saying “[y]our mother loves another woman more than she loves you.”  The supreme court rejected wife’s argument that she was entitled to a divorce under Muhammad v. Muhammad, 622 So.2d 1239, 1250 (Miss.1993), cert. denied, 510 U.S. 1047, 114 S.Ct. 698, 126 L.Ed.2d 665 (1994), which held that a party is entitled to a divorce “if a spouse’s actions which cause deep personal misery that has no foreseeable end is the gravamen of the action for divorce by reason of habitual cruel and inhuman treatment.” That case involved a situation where the husband had moved the family into the community of an oppressive religious cult whose rules and social order were extremely oppressive to women and dictated virtually every facet of life, so that the wife had been “relegated … to a status and set of living conditions that would be unbearable to a great many, if not a majority, of the women living in our modern society.” Id. at 1250.  The appellate court found that her situation did not reach that level.  The chancellor had said that “[t]here is a great conflict in evidence in this case. And I’m sure that everyone that sat here and heard this case knows. There is almost irreconcilable conflict in many areas of the case …  most of the evidence in this case had to do with the parties fussing back and forth with each other with a few physical altercations. It seems to the Court that each party gave about as good as they got when they had these physical altercations. The Court is not impressed by the trips of either party to Magee General Hospital in order to try to bolster their case, which the Court believes was contrived on the part of both parties.”  F*A*I*LBowen v. Bowen, 688 So.2d 1374-1376-1378 (Miss. 1997).
  • Husband charged that wife was disinterested in having sex, and that they had gone six months without a sexual encounter.  Wife conceded lack of interest, but said that they had sex more frequently than husband claimed.  The parties had frequent, intense arguments over finances and wife’s spending habits.  F*A*I*LTackett v. Tackett, 967 So. 2d 1264, 1267 (Miss. App. 2007).
  • “Boorish, obnoxious and selfish behavior.”  Too much to catalog in this space. F*A*I*L: Talbert v. Talbert, 759 So.2d 1105, 1109 (Miss. 1999).
  • Controlling behavior by husband, clinical depression of wife, questions about whether wife was a lesbian, husband severly beat wife’s post-separation boyfriend.  F*A*I*L: Morris v. Morris, 804 So.2d 1025, 1029 (Miss. 2002).

The number of misfires has dwindled over the years as the “consent” divorce has come to the fore. Every now and then, however, an HCIT case comes through, raising with it the issue whether the ingredients of the Russell recipe are present in the case. Before you launch off into the treacherous waters of the HCIT divorce, consider the shoals, rocks and cross-currents that await your client. You might want to plot an alternate course.

In my opinion,. HCIT requires some creative thinking to make it work. You have to look at the totality of the circumstances and craft your case as strongly as possible to demonstrate the impact of the offending spouse’s behavior on the innocent spouse. Check out Judge Maxwell’s latest on the subject. It’s about as good an exposition on the subject as you will find.

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