The Proof is in the Pudding
April 6, 2015 § Leave a comment
Two recent COA decisions are flip sides of the same coin that you can not get a divorce on the ground of HCIT unless it is supported by substantial, corroborated proof.
The COA affirmed the chancellor’s R41(b) dismissal of a divorce action in Pittman v. Pittman, handed down March 24, 2015. Judge James expounded for the unanimous court:
¶11. A party seeking a divorce on the ground of habitual cruel and inhuman treatment bears the burden of proving his ground by a preponderance of the evidence. Hoskins v. Hoskins, 21 So. 3d 705, 707 (¶6) (Miss. Ct. App. 2009). We have defined habitual cruel and inhuman treatment as:
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.
Id. (quoting Kumar v. Kumar, 976 So. 2d 957, 961 (¶5) (Miss. Ct. App. 2008)). In addition, the Mississippi Supreme Court has held that “[h]abitual cruel and inhuman treatment may be established only by a continuous course of conduct . . . . [S]uch conduct must be habitual, that is, done often enough or so continuously that it may reasonably be said to be a permanent condition.” Holladay v. Holladay, 776 So. 2d 662, 677 (¶64) (Miss. 2000). Thus, the evidence required to support granting a divorce on the ground of cruel and inhuman treatment requires “more than mere unkindness, rudeness, or incompatibility.” Id.
¶12. In granting Ty’s motion for an involuntary dismissal, the chancellor, viewing the evidence fairly, found that the evidence presented did not meet the elements of cruel and inhuman treatment. The chancellor noted that, although Propst [the wife] claimed that Ty [the husband] forced her into bankruptcy, Propst testified that she was represented by counsel. The chancellor found there was no evidence that Ty coerced Propst into bankruptcy. As to physical abuse, the chancellor noted that Propst made general allegations of abuse without specificity, except regarding the occasion in which Ty grabbed her from behind when she attempted to leave his house with important papers and the occasion outside Propst’s accountant’s office when Ty forcefully took papers from Propst. However, the chancellor noted that at no time were the police called, nor were medical records produced documenting abuse.
¶13. “This Court must give great deference to the factual findings of the chancellor that are supported by substantial evidence.” Wilbourne v. Wilbourne, 748 So. 2d 184, 187 (¶5) (Miss. Ct. App. 1999). Upon reviewing the record of the proceedings below, we find that there is sufficient evidence to support the chancellor’s finding that Propst is not entitled to a divorce on the ground of cruel and inhuman treatment. Propst failed to demonstrate a continuous course of conduct that was so unkind, unfeeling, or brutal as to endanger her, or put her in reasonable apprehension of danger to life, limb, or health. Gallaspy v. Gallaspy, 459 So. 2d 283, 285 (Miss. 1984). Furthermore, many of her complaints were uncorroborated, except the incident at the Barn that was corroborated by Tyler. Nevertheless, even if taken as true, the complained of incidents are remote and isolated events and fail to rise to the level of conduct that is habitual or so continuous that it may reasonably be said to be a permanent condition.
¶14. We agree with the chancellor that the parties likely have irreconcilable differences; however, “mere incompatibility is not enough to show habitual cruel and inhuman treatment.” Id. “Habitual cruel and inhuman treatment is not the catch-all category to permit a divorce . . . [and,] [a]bsent an agreement . . . that would permit an irreconcilable differences divorce, neither party is entitled to be granted a divorce without providing the proof necessary to support the grounds that are alleged.” Crenshaw v. Crenshaw, 767 So. 2d 272, 276 (¶14) (Miss. Ct. App. 2000). Accordingly, we find that the chancellor did not abuse his discretion by dismissing Propst’s complaint for divorce on the ground of habitual cruel and inhuman treatment. This issue is without merit.
The other case is Walker v. Walker, also decided March 24, 2015. In that case, the COA reversed the chancellor’s ruling that granted a divorce, finding that it was unsupported by substantial evidence, and that the evidence was uncorroborated.
The takeaway is that you need to be sure that the conduct complained of was: (a) habitual, meaning regularly recurring and not isolated incidents; and (2) cruel and inhuman, meaning more than unkindness, with a discernible effect on the complaining party. And there must be corroboration. And all of that is at a minimum. There are some wrinkles, so before you go crashing off into court on an HCIT case, be sure to research the case law.