Abandonment of the Marriage
September 12, 2016 § 5 Comments
Sarah Young Estes and Joe Howard Estes married in 2006, after a six-month courtship. Each had children by previous relationships.
Sarah had a separate home she owned before the marriage, and she allowed her children and minor grandchildren to live in it. She worked a revolving schedule as a caregiver for sick and elderly. She also lived in Joe’s home. So she divided her time among the three.
Shortly after the marriage, Joe suffered a series of medical calamities that resulted in amputation of his leg, as well as surgery to unblock neck arteries. Due to her work and grandchild-care duties, it was left to Joe’s family to care for him. It was disputed in the proof as to just how much time and attention she devoted to Joe after his medical condition worsened.
In January, 2007, Sarah filed an unsuccessful petition to have Joe subjected to involuntary mental commitment.
A month later, Joe filed for a restraining order against Sarah. In March, 2007, she filed for divorce. The parties agreed to mutual injunctions, and a final trial date was set for the divorce trial. In May, 2007, Joe shot and killed himself.
Joe died testate, but the will made no provision for Sarah. She filed for a widow’s allowance and contested the will. The chancellor granted her a $12,000 widow’s allowance and a child’s share worth nearly $69,000. The executor appealed, and the COA reversed and remanded, concluding that Sarah was not entitled to a widow’s allowance because she was not living with Joe at the time of his death. The case was remanded for a determination whether Sarah had deserted and abandoned the marriage, which would disqualify her for a child’s share if so. On remand the chancellor found that she had not deserted and abandoned the marriage, and that she was, indeed, entitled to a child’s share. The executor again appealed.
In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down April 19, 2016, the COA reversed and rendered. Judge Ishee wrote for the majority:
¶18. When determining whether a spouse clearly deserted and abandoned a marriage, Mississippi caselaw provides a spectrum of factual scenarios for comparison. Most notably, Tillman v. Williams, 403 So. 2d 880 (Miss. 1981), serves as a benchmark case providing guidelines for determining abandonment. In Tillman, Narvel Tillman challenged the will of his wife, Ada Broadnex Tillman, after her death, and petitioned the trial court to recognize him as an heir to the estate. Id. at 880. The Tillmans were married for approximately twenty-nine years at the time of Ada’s death, but had been separated for approximately fifteen or twenty years. Id. Neither party had made any attempt to divorce the other or remarry. Id. Specifically, “[t]here was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce.” Id. Ultimately, the Mississippi Supreme Court stated: “A thorough review of the record reveals that not only was an abandonment uncertain, . . . [t]here was, at most, just a separation proven. As stated, there [were] no marriage or divorce proceedings by either party . . . .” Id. at 882.
¶19. In sum, to prove desertion or abandonment in cases such as this, a clear indication that one party is no longer committed to a marriage is necessary. While we recognize that separation alone is not proof enough that a marriage has been abandoned, Mississippi courts have recognized qualifying indicators to include filing for divorce, filing for remarriage, and evidence of bigamy. See id.; Rowell v. Rowell, 170 So. 2d 267, 271-72 (Miss. 1964).
¶20. Here, it is undisputed that Young filed the first petition for divorce between the parties in March 2007. The chancery court cited the possibility that Estes’s petition for a restraining order against Young may have incited Young to file for divorce. The chancery court further stated that it could not determine that Young “willfully left and had the intention of permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.”
¶21. We find the chancery court’s conclusions to be in conflict with the evidence. A summary of the undisputed chronological series of pertinent events during the parties’ nine month marriage consists of the following: (1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon his release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings. Regardless of any other factors present in this case, the most glaring evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.
¶22. As such, we find that the chancery court abused its discretion in determining that Young did not desert and abandon her marriage to Estes. In doing so, we reverse and render the chancery court’s award to Young of a child’s share of Estes’s estate.
You can take this case as a reminder that, if the proof establishes that the spouse has deserted and abandoned the marriage, she or he loses the right to revoke the will and assert a claim to a child’s share. That is a fact determination.
What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative. From the recitation of facts in the decision, I am not convinced that the testimony was as clear-cut as spelled out in ¶21, above.
The Better Chancery Practice Blog 
[…] Sarah Estes had not abandoned or deserted her dying husband so as to bar her from renunciation. You can read my take on the case at this link. I made this statement in that […]
Why didn’t the appellate court follow its own standard of review of the chancellor’s finding of facts? If it changed the standard, as the appellate court, it would be helpful to explain why and what the new standard will be so that we can follow that, otherwise the reversal is merely a difference of opinion on the facts.
As you know, a trial judge takes several factors into consideration when “deciding the facts.” One important factor is viewing the demeanor of a witness. The appellate courts, however, sometimes “reweigh” the evidence even though the appellate court did not view the demeanor of the witnesses. When the appellate court reads a cold printout of a transcript, they cannot properly assess credibility because we all know that a witness can use all of the “right words” but still not be credible. I believe a trial judge, when rendering an opinion, should comment on the record about the credibility of each witness and the appellate courts should give great weight to the trial judge’s assessment of the credibility of a witness.
In federal Article II proceedings (before an ALJ), the ALJ does precisely this: “I find Smith’s testimony more credible because he had a calm demeanor, while Jones fidgeted, was caught in several contradictions in cross examination, and Smith’s testimony was consistent with the documents. Jones had no explanation for why the documents disagreed with their testimony.”
I don’t think it’s an awful suggestion.
No amount of recitation by the trial court will ever force the appellate courts to obey the standard of review. Some appellate judges respect it; some don’t.