Groundless
August 9, 2016 § 6 Comments
Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.
After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.
In her case in chief, Lonnie presented testimony that Les:
- Was uncommunicative, controlling, and belittling.
- Was unwilling to spend time with her or to schedule family vacations.
- Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
- Refused to give her compliments or to acknowledge her contributions to their life.
- Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
- Refused to give her money to buy groceries because he might not like the food she bought.
- Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”
Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.
For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.
The chancellor ruled that Lonnie had failed to prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.
In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.
I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.
What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).
Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”
I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.
People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.
I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.
The Better Chancery Practice Blog 
Yes, it’s one of the Dakota’s.
The post may run into the problem that the MSSC could take the view that if the Legislature won’t change the law, it’s not for the courts to do so.
That’s the reality of it. For many years, though, it was fairly common for chancellors t assess the situation and decide that the parties would be better off divorced, whether or not the proof met today’s stringent test. I know this for a fact because I saw it happen in court myself. That was back in the day when chancellors were rarely reversed in divorce cases. I don’t see why we could not return to that broader standard. But, hey, I get to muse over such improbabilities. It’s up to someone else to do the heavy lifting. Thanks as always for your comment and konk on the head with reality.
Ha, rarely am I accused of being in touch with reality! Thanks, Judge! I agree we would be a lot better off with a more humane system.
I thought Mississippi was the only state left that did not have any form of unilateral no-fault divorce. I was in court today and heard a man trying to get a divorce without a lawyer. He thought if he waited long enough after serving her it would be granted. He tried to convince the judge that she had agreed to it verbally and was supposed to come to court but didn’t ever sign anything. With legal aid these folks are just out of luck. It’s a sad state of affairs.
If I heard Professor Bell correctly last week, there are only 2 states, including MS, that require mutual consent for a no fault type divorce rather than allowing a unilateral divorce.