December 27, 2011 § 1 Comment

If you prove adultery, can that get your client a divorce on the ground of habitual cruel and inhuman treatment (HCIT)?

In the COA case of Johnson v. Johnson, decided December 13, 2011, Willie Johnson argued that the chancellor improperly granted his wife, Hazel, a divorce on the ground of HCIT because the only proof against him was that he had committed adultery, which had been condoned. He contended that adultery is a separate and distinct ground, and that, since he had proven a complete defense to adultery, it was error for the trial court to grant his wife a divorce on another ground.

It’s an interesting argument, because condonation is an absolute defense against an act of adultery, but it’s much more difficult to apply against HCIT, which involves recurring (habitual) conduct.

Judge Griffis stated the opinion of the court:

¶24. While Willie might be correct that adultery alone cannot support a finding of habitual cruel and inhuman treatment, a pattern of adultery, when combined with other cruel and inhuman conduct, can support such a finding. Id. at 368 (¶¶12-13). In Fisher, the Mississippi Supreme Court held that the husband’s several acts of adultery and few acts of physical violence supported a finding of habitual cruel and inhuman treatment. Id.

¶25. Likewise, in this case, there was substantial evidence that Willie had committed several acts of adultery and that he had, on at least one occasion, committed an act of physical violence. Willie fathered at least two – possibly three – children out of wedlock with two different women during his marriage to Hazel. His affair with Jones spanned almost two decades – beginning in approximately 1991 at Utica Junior College and continuing up until the entry of divorce in 2010. Also, Hazel’s testimony and the hospital records indicate Willie physically assaulted her in their former marital home in May 2004. We find these facts are sufficient to establish that Willie’s conduct was cruel and inhuman.

¶26. We also find Hazel has shown the requisite impact on her physical or mental health. The hospital records indicate that she suffered bruises and lacerations following the incident in May 2004. Also, Willie’s affair with Jones caused significant stress for Hazel. Jones became possessive, jealous, and threatening. She made harassing phone calls to Hazel, damaged property in Hazel’s garage, and scattered Hazel’s wedding photographs on the street in front of Hazel’s house. Hazel testified that as a result of that behavior, she felt terrified and would often barricade herself inside her home.

¶27. Lastly, we do not find Hazel had condoned Willie’s adultery. Hazel did continue in the marriage after she learned about Willie’s affairs, but the evidence indicates she expected him to end the affairs and recommit to the marriage. She forgave him for his past indiscretions, but she did not consent to live in a marriage with a habitually unfaithful husband. This is not a case where isolated acts of adultery were forgiven by the other spouse. Rather, Willie’s adultery was habitual and continuous.

¶28. In Smith v. Smith, 40 So. 2d 156, 157 (Miss. 1949), the supreme court rejected the husband’s argument that his wife had condoned his habitual cruel and inhuman treatment by continuing in the marriage. The court distinguished a “single act” from “courses of conduct,” suggesting that it is more difficult to establish condonation of the latter. Id. The supreme court stated: “The effort to endure unkind treatment as long as possible is commendable and the patient endurance by the wife of her husband’s ill-treatment should not be allowed to weaken her right to a divorce.” Id. Likewise, in Lindsey v. Lindsey, 818 So. 2d 1191, 1195

(¶¶17-18) (Miss. 2002), the supreme court found the doctrine of condonation inapplicable under the facts of the case. The husband had forgiven his wife for her past acts of adultery, but the wife proceeded to commit adultery again. “Condonation can be avoided if . . . the marital offense is repeated.” Id. Based on these authorities, we find Hazel had not condoned Willie’s habitual adultery.

So there you have it. Habitual adultery can amount to HCIT and defeat a defense of condonation if it meets the basic requirements of HCIT.

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