What Does it Take to Prove Habitual and Excessive Drug Use?
March 17, 2016 § 2 Comments
MCA 93-5-1 (Sixth) provides for a divorce on the ground of “Habitual and excessive use of opium, morphine or other like drug.” The burden of proof is clear and convincing evidence.
Brian Booker charged his wife, Amy, with habitual and excessive user of drugs in his divorce complaint. In 2011, following gastric-bypass, gallbladder, and multiple kidney-stone surgeries, along with esophageal stretching, Amy was prescribed Lortab for pain. Brian charged that her use was excessive.
The evidence showed that there were episodes where Amy became impaired while taking the medication. She ran up credit card debt. Her mother testified that she was addicted to the drug. Family members testified that they locked the meds in a closet; when Amy found the key she suffered either an overdose or seizure and checked into a rehab facility where she stayed only one night. She got a DUI, suffered a seizure during the stop and had to be taken to a hospital, and had no recollection of the event.
Amy denied being abusing or impaired by the drug, and some of her family members backed up her testimony. There was no medical or pharmaceutical testimony, and nothing in the record established that she had been diagnosed with addiction. There was no evidence that Amy was over-prescribed medications.
The chancellor found that Brian had failed to meet his burden of proof, and that Amy had proven that her use of the drug was based on valid prescriptions. He dismissed Brian’s complaint, and Brian appealed.
In Booker v. Booker, decided March 8, 2016, the COA affirmed. Judge Griffis laid out what is required to make a case on the Sixth Ground for divorce:
¶6. To prove the ground of habitual and excessive use of opium, morphine, or other like drugs, the supreme court has held:
A complainant must prove (1) that the guilty spouse’s use of drugs was habitual in that it was customarily and frequently indulged; (2) that the guilty spouse’s drug use was so excessive that [s]he did not have the ability to control h[er] appetite for drugs; and, (3) that the drugs used were morphine or opium or comparable . . . in effect.
Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983); see also Miss. Code Ann. § 93-5-1.
¶7. In Ladner, the court ruled that the “habitual” use of drugs “requires more than an occasional indulgence in drugs.” Ladner, 436 So. 2d at 1373. Rather, “the complainant [must] show that the defendant customarily and frequently uses drugs.” Id. The use of drugs must not only be “habitual” but also “excessive.” Id. at 1374. This element “requires an abuse of drugs.” Id. The supreme court has ruled:
[T]he guilty spouse must be so addicted to the use of drugs that [s]he cannot control h[er] appetite for drugs whenever the opportunity to obtain drugs is present. However, we consider it a justifiable excuse for such behavior where . . . the defendant is prescribed such drugs by a physician for legitimate reasons.
Id.
¶8. The Ladner court explained the “excessive” element through analysis of Rindlaub v. Rindlaub, 125 N.W. 479 (N.D. 1910). There, a wife sought a divorce from her husband on the ground of his drug use. Though the husband’s use was habitual, the court denied the divorce and found that because the drugs were taken to alleviate pain caused by health problems, “such a habit [was] reasonably and necessarily caused by conditions over which the victim had no control . . . .” Ladner, 436 So. 2d at 1374 (citing Rindlaub, 125 N.W. at 496).
¶9. Prescription-drug use was the issue in Ladner. “The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosages.” Id. at 1369. Ladner’s pharmacist also testified about the prescriptions that he filled. Id. at 1373.
¶10. In Lawson v. Lawson, 821 So. 2d 142, 145 (¶14) (Miss. Ct. App. 2002), this Court affirmed a divorce on the ground of habitual and excessive use of drugs. The Court ruled that the chancellor’s decision was based on evidence that the wife obtained drugs through “over-prescription by medical personnel” and by “simultaneously seeking treatment from multiple physicians, without sharing the fact that she was seeing and obtaining prescriptions from all of them.” Id. at (¶13). Professor Deborah Bell in her treatise, cites Lawson for the proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must include in the definition the “misuse” of prescription drugs.
¶11. Here, within this definition, Brian must prove that Amy’s use of Lortab and similar pain medications was “excessive.” The chancellor found that it was not. And the chancellor ruled that “[Brian’s] proof showed without question that in every instance of her use of Lortab, the medication had been prescribed by a doctor for her very legitimate health problems.”
The court went on to examine the trial judge’s rationale, and affirmed the conclusion that Brian had failed to meet his burden of proof.
This case is a reminder of several points: (1) if you do not meet your burden of proof, your client will be denied a divorce; (2) the burden of proof for every ground for divorce except HCIT is clear and convincing evidence; (3) this Sixth ground has three important elements, each of which must be proven by clear and convincing evidence, and if you fail on one, you fail on all.
The Better Chancery Practice Blog 
Good, it sounds like frequent tweeting about one’s bourbon consumption might not meet this test. (Not that any marital states, let alone flights from same, are on my itinerary.)
Ha!