Can Homosexual Behavior be HCIT?

November 25, 2014 § 2 Comments

Rosie Jackson charged her husband Michael with habitual cruel and inhuman treatment based on allegations of Michael’s homosexual behavior, which he denied.

The allegations arose from three sources: (1) Rosie testified that in 2008, she received a call from Michael’s friend John, who complained that he wanted Michael to leave him alone, but John testified at trial that he and Michael had not had sexual contact; (2) Rosie said that one of Michael’s former students, James, told her that Michael had molested him 26 years earlier, and the individual did testify to that effect at trial; and (3) Alma Flowers, the Jacksons’ daughter overheard a 3-way conversation, without Michael’s knowledge, in which Michael solicited a man for oral sex.

Rosie testified that, after she confronted Michael about the allegations, Michael bullied and tried to intimidate her, and she experienced problems with blood sugar and blood pressure, sleeplessness, and anxiety, for which she was prescribed medication.

The chancellor found from the evidence that Rosie had proven Michael guilty of habitual cruel and inhuman treatment. Michael appealed, claiming that the judge erred in finding that Rosie was entitled to a divorce.

The COA affirmed on November 4, 2014, in Jackson v. Jackson. Judge Ishee’s opinion addressed the adequacy of proof to support the judge’s findings on grounds for divorce:

¶13. “The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law.” Jones v. Jones, 43 So. 3d 465, 469 (¶7) (Miss. Ct. App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1 (Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and inhuman treatment. In order to establish a divorce on such ground, the offended spouse 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.

Jones, 43 So. 3d at 469 (¶9) (citations omitted).

¶14. In reviewing whether the conduct reaches that of cruel and inhuman treatment, the chancellor must consider: “1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff.” Fisher v. Fisher, 771 So. 2d 364, 367 (¶10) (Miss. 2000) (internal quotations and citations omitted). The evaluation of the impact of the conduct on the plaintiff is subjective. Smith v. Smith, 90 So. 3d 1259, 1263 (¶11) (Miss. Ct. App. 2011) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). “The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id.

¶15. “The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection.” Fisher, 771 So. 2d at 367 (¶9). The chancellor granted Rosie a divorce based on a finding that Michael’s homosexual relations were such that they made the marriage revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual cruelty – whether Michael’s conduct was so unnatural and infamous as to make the marriage revolting to Rosie.

¶16. There has only been one case where the Mississippi Supreme Court has found that a homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court found that “[u]nnatural practices of [pederasty] are an infamous indignity to the wife . . . which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife.” Id. Since Crutcher, this Court has found that evidence of homosexual affairs, when combined with other misconduct, can justify a divorce based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So. 2d 681, 689 (¶¶27-28) (Miss. 2001).

¶17. The record here reflects it was not only alleged that Michael was involved in homosexual affairs, but that he had also molested a child. Rosie testified to learning about both allegations within rapid succession of one another. We find that the combination of this conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties. However, it is well settled that a spouse’s testimony regarding an offending spouse’s behavior must be corroborated when habitual cruel and inhuman treatment is asserted. Pace v. Pace, 16 So. 3d 734, 741 (¶31) (Miss. Ct. App. 2009) (citation omitted).

¶18. Rosie’s testimony was supported by both Flowers and James. Flowers corroborated the allegations of a homosexual affair by testifying to the conversation she heard where Michael solicited sexual favors from another man. In support of the child-molestation allegations, James gave detailed testimony regarding the molestation that occurred at the hands of Michael when James was only ten years old. In addition to relying on this testimony, the chancery court also relied on other statements made by Rosie. However, we will address the other testimony in Michael’s next issue. We find that Rosie’s testimony, coupled with the corroborating testimony of both Flowers and James, was sufficient alone to support that Michael’s conduct was cruel and inhuman.

¶19. Michael contends that, even if his conduct was found to be inhuman or cruel, Rosie failed to establish a causal connection between his conduct, the separation, and how it impacted her. We disagree. There is no longer a requirement that a specific act caused a separation but “[i]t is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce.” Fisher, 771 So. 2d at 367-68 (¶10). Rosie testified that, upon learning of these sexual allegations, she began to experience adverse physical reactions to learning about Michael’s sexual relationships and history. She also noted, once she confronted Michael, the atmosphere in the home changed and she gave examples of how Michael treated her.

¶20. Michael also asserts that, if his conduct were found to be true, Rosie condoned his behavior by remaining in the marital home for nearly a year after learning about the homosexual affairs and child molestation. The chancellor noted, however, that Rosie had already left the marital bedroom in 2007 and had not engaged in sexual relations since 1999. Further, she was living with her disabled sister, Marian, in the marital home that had been specifically been renovated to accommodate Marian’s disabilities. The chancellor also commented that Rosie may have been in financial duress since she had to take a second job to cover her expenses following the separation. In his final judgment, the chancellor acknowledged that there was no evidence presented by either party as to why Rosie waited to leave Michael. Nonetheless, the chancellor concluded that each of these factors played a role in his finding that Rosie had not condoned Michael’s conduct.

¶21. The chancellor found that the evidence, Michael’s conduct, and the impact it had on Rosie established a divorce on the ground of habitual cruel and inhuman treatment. Although Michael denied the allegations, and several witnesses testified on his behalf, the chancellor found Rosie’s testimony to be credible. The supreme court has held that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robinson v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (citing Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). For these reasons, we find Michael’s overall conduct sufficient to support a divorce based on habitual cruelty.

The COA found that the chancellor erred in allowing in Rosie’s testimony of the hearsay conversation with John, but that it was harmless error since the other testimony of Rosie, corroborated by James and Alma, was sufficient. The court also rejected Michael’s objection that James’s allegations were remote in time.

This case presents a classic analysis of the second prong of HCIT. It’s something you can try to apply when that first prong involving danger to life or limb simply does not exist.

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