The Gift that Keeps on Giving

October 17, 2016 § Leave a comment

Is it habitual cruel and inhuman treatment (HCIT) to give a sexually transmitted disease to one’s spouse?

Becky Farris filed a complaint for divorce against her husband, Gene, on the ground of HCIT and, in the alternative, irreconcilable differences. In the course of the trial, Becky testified that she had contracted herpes from Gene. The chancellor granted a divorce on HCIT, and Gene appealed, claiming that it was error for the chancellor to grant a divorce on that ground.

In the case of Farris v. Farris, decided October 4, 2016, the COA affirmed the chancellor. Judge Wilson’s opinion sets out the pertinent facts and law. Here it is, quoted at length:

¶28. Gene argues that the chancellor erred by awarding Becky a divorce based on habitual cruel and inhuman treatment. Gene insists that the record is devoid of any evidence proving that Becky filed for divorce because she contracted herpes or that the disease made it impossible for her to continue in the marriage. He also argues that there is no evidence to corroborate Becky’s claim that he gave her herpes.

¶29. “Habitual cruel and inhuman treatment is conduct that either:(1)‘endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief,’ or (2) is so ‘unnatural and infamous’ as to render the marriage revolting to the non-offending spouse, making ‘it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.’” Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012) (quoting Mitchell v. Mitchell, 767 So. 2d 1037, 1041 (¶14) (Miss. Ct. App. 2000)). The party seeking a divorce must prove habitual cruel and inhuman treatment by a preponderance of the evidence. Richard v. Richard, 711 So. 2d 884, 888 (¶14) (Miss. 1998). “While the chancellor’s determinations of the events that preceded the divorce are findings of fact, [a] finding that . . . conduct rose to the level of habitual cruel and inhuman treatment as defined as a ground for divorce . . . is a determination of law, and is reversible where the chancellor has employed an erroneous legal standard.” Potts v. Potts, 700 So. 2d 321, 322 (Miss. 1997).

¶30. There is no published Mississippi case affirming a finding of habitual cruel and inhuman treatment based on exposure of one spouse to a sexually transmitted disease. In Moses v. Moses, 879 So. 2d 1043, 1048 (¶12) (Miss. Ct. App. 2004), this Court reversed the chancellor’s finding of habitual cruel and inhuman treatment based on a husband’s alleged transmission of herpes to his wife. We did so, however, because “[t]here was no credible evidence . . . that [the husband] transmitted to [the wife] any STD.” Id. Moreover, because the wife alleged that “she knowingly married [her husband] believing he infected her with herpes” prior to the marriage, she could not “later claim that such infection [was] grounds for habitual cruel and inhuman treatment.” Id. (emphasis added). In Buckley v. Buckley, 815 So. 2d 1260 (Miss. Ct. App. 2002), this Court held that “[t]he fact that one spouse causes another to contract an uncomfortable, embarrassing disease, which may affect the likelihood of that spouse again becoming married, must be included in the evaluations of fault and misconduct” for purposes of determining alimony. Id. at 1265 (¶28). In Buckley, the parties agreed to an irreconcilable differences divorce, so fault and misconduct were litigated only in the context of property distribution and alimony. See id. at 1261 (¶3).

¶31. A number of courts in other jurisdictions have held that exposing one’s spouse to an STD may be grounds for divorce. The Rhode Island Supreme Court held that “[i]t is difficult to imagine a worse or more insidious form of cruelty.” Wilson v. Wilson, 13 A. 102, 104 (R.I. 1888). The Iowa Supreme Court similarly held “that the communication by a husband of a venereal disease to his wife, knowingly, is good and sufficient cause for a divorce, and is cruelty of the most flagrant kind.” Holmes v. Holmes 170 N.W. 793, 794 (Iowa 1919). The Maryland Court of Appeals held that “if a spouse, although knowing he or she is afflicted with a venereal disease, yet continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty.” Kline v. Kline, 16 A.2d 924, 925 (Md. 1940). And the Supreme Court of Pennsylvania was simply unable “to imagine a more direct and palpable case of cruelty to a wife by a husband.” McMahen v. McMahen, 40 A. 795, 797 (Pa. 1898). There are many similar decisions from other states. See, e.g., Holden v. Holden, 116 P.2d 1003, 1005 (Idaho 1941) (“If [the husband] knowingly communicated [gonorrhea] to [his wife], that would constitute cruelty.”); Carbajal v. Fernandez, 58 So. 581, 581 (La. 1912) (stating that “all the courts agree” that knowing transmission of an STD to a spouse constitutes cruel treatment”); Holthoefer v. Holthoefer, 11 N.W. 150, 150 (Mich. 1882) (stating that knowing transmission of an STD by a spouse constitutes “extreme cruelty” and grounds for divorce); Darling v. Darling, 167 S.W. 1166, 1166 (Mo. Ct. App. 1914) (holding that knowing communication of gonorrhea to a wife was grounds for divorce); Cook v. Cook, 32 N.J. Eq. 475 (N.J. Ct. Ch. 1880) (holding that knowing communication of an STD to a wife was “extreme cruelty” and grounds for divorce); Cadle v. Cadle, 191 S.W.2d 561, 561-62 (Tenn. Ct. App. 1945) (holding that communication of a venereal disease would constitute cruel and inhuman treatment). While the most recent of the above-cited cases is more than seventy years old, we do not believe that knowingly exposing one’s spouse to an STD is any less cruel today, and we agree that it may be a form of habitual cruel and inhuman treatment.

¶32. Becky testified that she contracted herpes from Gene during the course of their marriage and first learned that she had the disease only a few months before their separation. Gene never denied that he had herpes; he only said that he did not know whether he had the disease because he had never been tested. In fact, Gene admitted that his first wife told him that she had herpes. Despite this, Gene never told Becky that he might have herpes until she told him that she had contracted the disease. The chancellor found Gene’s “actions of such an egregious nature that . . . each and every time he engaged in unprotected sex with [Becky] he was committing a continuous systematic cruel act upon her.” Given Gene’s own admissions, we cannot say that the chancellor’s factual findings were clearly erroneous or that she erred in granting a divorce on this ground.

¶33. Gene argues that Becky’s allegation was not corroborated by medical evidence, but Gene’s own admissions are sufficient corroboration to support the chancellor’s findings. See Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005) (explaining that a plaintiff’s allegations of cruel and inhuman treatment must be supported by independent corroborating evidence, but the “testimony of the defendant” may be sufficient corroboration); Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970). Gene also argues that there was no “evidence . . . linking Becky’s alleged diagnosis of herpes with the separation of the parties.” However, the law only requires Becky to show that Gene’s conduct was “a proximate cause of harm to [her] health and physical well being”—not that it was “the actual cause of the separation.” Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986). There was sufficient evidence for the chancellor to find that Becky met this burden.

¶34. Credibility determinations are made by the chancellor, not this Court. See, e.g., Irle v. Foster, 175 So. 3d 1232, 1237-38 (¶23) (Miss. 2015); McNeese v. McNeese, 119 So. 3d
264, 275 (¶32) (Miss. 2013). As relevant to this issue, the chancellor obviously found Becky’s testimony more credible, and there was sufficient evidence to support the chancellor’s findings of fact and finding of habitual cruel and inhuman treatment. Therefore, we cannot say that the chancellor erred in granting her a divorce on that ground.

So, until the MSSC speaks to the contrary, it is the law in Mississippi that knowingly, or in this case at least negligently, passing an STD to one’s spouse does constitute HCIT. It’s remarkable to me that after nearly 200 years of Mississippi jurisprudence that issue has never made it to the appellate level until now.

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