LIMIT: ONE DIVORCE PER CUSTOMER

March 12, 2012 § Leave a comment

Lane and Cristal Kimbrough appeared before a special chancellor to present their case for divorce. The case was apparently bifurcated, with the court hearing first only the divorce grounds, and the remaining issues to be tried later.

As for divorce grounds, Cristal charged Lane with habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed that Cristal had been guilty of habitual cruel and inhuman treatment and adultery.

At trial, after having heard the proof only on the grounds for divorce, the special chancellor dismissed all of the pled grounds and held that the parties were divorced “one from the other on the grounds of desertion.” The basis for his ruling was that both parties had recognized that the marriage was broken by virtue of having filed for divorce against each other, and they had in essence lived separate and apart within the same residence for more than two years, “abandoning the marital relationship.”

Both parties appealed.

In Kimbrough v. Kimbrough, decided by the COA February 28, 2012, the COA reversed and remanded, saying that “The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error.” Judge Russell, writing for the majority, stated:

“The Mississippi Supreme Court has held that a chancery court may not grant a divorce based on each party’s fault-based grounds. Hyer v. Hyer, 636 So. 2d 381, 383-84 (Miss. 1994). This Court has stated: “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983 (¶23) (Miss.App. 2000).

The court reversed and vacated the trial court’s judgment, declining to address any other issues.

Judge Griffis dissented for the reason that the COA should not have accepted and ruled on the appeal at all, since the trial court’s judgment disposed of less than all the issues pending (i.e., custody, child support, equitable distribution, etc.). He agreed that, if the COA should keep the appeal, the chancellor’s grant of a mutual divorce should be reversed, but he would have held that Cristal should have been granted a divorce based on the record.

Quite often lawyers present agreed Irreconcilable Differences divorce judgments granting both parties a divorce. That does not fly in the face of Hyer and Garriga because Irreconcilable Differences is not a fault-based ground.

In fault-based cases, however, the court can grant only one divorce per case. Mutual divorces are forbidden.

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