June 10, 2013 § Leave a comment
Separate maintenance is that peculiar neverland of the marriage where one is neither quite in a marital relationship, nor quite out of a marital relationship. It’s like limbo.
We are all familiar with the old maxim that, “Separate maintenance is a judicial command to resume cohabitation or to provide support.” The focus in most separate maintenance trials is almost always on the (usually) husband’s adamant refusal to return home to the wife, and the wife’s need for financial help.
That was the focus of the chancellor in the case of Paul Jackson v. Linda Jackson. After the trial, the chancellor noted Paul’s testimony that he had no intention of returning to the marital relationship, primarily due to a subsequent relationship, and accordingly zapped Paul with $600 a month, use of a house and land, proceeds of an income-tax refund check, and “other relief.”
Paul appealed, and in the case of Jackson v. Jackson, handed down from the COA on May 28, 2013, the appellate court reversed. Paul’s complaints on appeal were several-fold, but the one that hit the bulls-eye is in the following language from Judge Carlton’s opinion:
¶11. The factual findings of the chancellor are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error. Fore v. Fore, 109 So. 3d 137, 138 (¶6) (Miss. Ct. App. 2013); see also Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss. 1977) (finding that where the wife’s course of conduct was a material factor in causing the separation at least equal to, if not great than, that of the husband, the decree of separate maintenance was erroneous); Tackett v. Tackett, 967 So. 2d 1264, 1266-67 (¶¶8-10) (Miss. Ct. App. 2007) (finding that the record supported the award of separate maintenance since evidence showed the wife’s conduct did not materially contribute to the material separation). Additionally and significant to our review of this case, the power of the court to grant the equitable relief of separate maintenance must be based on the requisites of a separation without material fault of the petitioner or requesting spouse and willful abandonment of her by the husband with refusal to support her. See Rodgers, 349 So. 2d at 541; Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993); Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008). [Emphasis added]
All three prongs of separate maintenance must be present in order to prevail for the claiming party. There must be:
- Separation without material fault on the part of the requesting party, and
- Willful abandonment by the other party, and
- Refusal to support.
Until all three are met, there is no entitlement to separate maintenance.
In Jackson, the COA held that the chancellor had slid past the evidence of Linda’s fault, which the COA deemed considerable as well as material, and concentrated on Paul’s own misconduct and refusal to support. The COA found that Linda had failed to prove that she was without material fault:
¶16. We acknowledge that “[s]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010). Moreover, Linda bore the burden of proof to show more than Paul’s marital misconduct. “The granting of separate maintenance is premised upon the existence of a valid marriage contract” and premised upon a showing that “there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. [Fn 4] An award of separate maintenance arises from equitable principles, and equity requires that, as the requesting spouse, Linda show no significant conduct on her part negatively impacted the marriage or contributed to the separation. Linda failed to meet the evidentiary burden required to sustain a separate-maintenance award. Linda also failed in her burden to show that Paul refused to support her, as reflected in the omissions in her Rule 8.05 financial statement. Linda failed to disclose her free residence, real-property remainder interest, business interests, and other assets. We now turn to address jurisprudence applicable to separate maintenance and to the facts of this case.
Fn 4. See also Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1989).
¶17. In Rodgers [v. Rodgers], 349 So. 2d at 541, the Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment of her with refusal to provide support to her. [Fn 5] Rodgers, 349 So. 2d at 541. The Rodgers court explained that these two requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id. The court further explained that the law applicable to separate-maintenance awards includes no requirement that the requesting spouse be blameless. Id.
Fn 5. The application of equal-protection principles allows either spouse to seek the5 equitable remedy of separate maintenance. However, since Linda is the petitioner in this case claiming the entitlement, this opinion refers to the wife as the petitioner in its analysis.
¶18. As previously discussed, our jurisprudence establishes that in order for the court to equitably award separate maintenance, the misconduct of the abandoned spouse must not have materially contributed to the separation. See id. In Rodgers, the supreme court provided guidance explaining that the requesting spouse need not be blameless or without any fault before invoking the equity required for separate maintenance. Id. The supreme court explained that where a wife’s course of conduct is a material factor in the separation at least equal to, if not greater than, that of the husband, the decree of separate maintenance is erroneous. Id. The supreme court in Rodgers found such an award erroneous since the power of the chancery court to grant separate maintenance is based on a separation without fault on the wife’s part and willful abandonment of her by the husband with a refusal by him to support her. Id.
It’s simply not enough to show that the (in this case) husband has departed and won’t come home. The burden is on the requesting party to show that she was not materially at fault, and that he is refusing support. Without all three elements, the case fails.