Denial of Divorce: What is the Standard of Review?

January 30, 2017 § Leave a comment

The recent COA decision in Gwathney v. Gwathney, decided January 10, 2017, is notable for the fact that it was an appeal from a chancellor’s decision denying the appellant a divorce. She had proceeded on the ground of habitual cruel and inhuman treatment (HCIT). You can read the decision for yourself. It’s instructive on the subject of what it takes to support a finding of HCIT.

The COA, by Judge Ishee, deferred to the chancellor’s findings of fact:

¶9. “[A]s the trier of fact, [the chancellor] evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Holladay [v. Holladay], 776 So. 2d [662] at 676 (¶62) [(Miss. 2000)]. We do not find that the chancellor was manifestly wrong or that he applied an erroneous legal standard. This opinion should not be construed as though a chancellor could never find cruel and inhuman treatment under the same or similar circumstances. Instead, we simply hold that it was within the chancellor’s discretion to consider the particular nuances of this case, weigh the evidence, and determine that the proof fell short of habitual cruel and inhuman treatment. To hold otherwise, we would have to improperly substitute our view for the chancellor’s. Because that would be beyond the scope of the standard of review, [Fn omitted] we affirm the chancellor’s judgment.

Fair enough. But it appears that there was some discussion among the judges as to whether the COA could act as “Super Chancellors” in a denial of divorce case, substituting its collective judgment for that of the trial judge who observed the demeanor and credibility of the witnesses. I say that because one judge, Wilson, “concurs in part and in the result without separate written opinion,” and because of the inclusion of a lengthy footnote at the end of the opinion that may have been intended to address Judge Wilson’s concerns. Here is the footnote (omitted above) in its entirety:

In Kumar v. Kumar, 976 So. 2d 957, 960 (¶13) (Miss. Ct. App. 2008), this Court stated that “[t]he chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law” that we review de novo. In so doing, we relied on Potts v. Potts, 700 So. 2d 321, 322 (¶10) (Miss. 1997), and Reed v. Reed, 839 So. 2d 565, 569 (¶13) (Miss. Ct. App. 2003). In Potts, the Mississippi Supreme Court cited Bland v. Bland, 629 So. 2d 582, 586 (Miss. 1993), and held that a chancellor’s findings regarding whether a spouse’s “conduct rose to the level of habitual cruel and inhuman treatment . . . is a determination of law, and is reversible where the chancellor has
employed an erroneous legal standard.” Potts, 700 So. 2d at 322 (¶10) (emphasis added). However, nothing in Bland appears to support the concept that a chancellor’s factual determination is a question of law. Instead, the Supreme Court stated that “[e]specially in the divorce arena, the chancellor’s findings will not be reversed unless manifestly wrong.” Bland, 629 So. 2d at 587. And no portion of Bland addressed a chancellor’s conclusion regarding whether conduct qualified as cruel and inhuman treatment. Fully cognizant of our place in the hierarchy of Mississippi courts, we do not comment on the subject out of any form of criticism, but to note our awareness of the precedent, and to explain our reliance on the more unequivocal command that an appellate court is “required to respect the findings of fact made by a chancellor” where they are “supported by credible evidence and not manifestly wrong [–] . . . particularly . . . in areas of divorce.” See Mizell v. Mizell, 708 So. 2d 55, 59 (¶13) (Miss. 1998) (quoting Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)).

I will leave that there for you to ponder for the next time you have that issue on appeal.

One thing to add: HCIT is arguably the most difficult ground to prove despite the fact that most people think it is easy because of its preponderance-of-the-evidence burden, and they see it as a “catch-all,” one-size-fits-all ground to use when nothing else quite fits. Nothing could be more inaccurate. As you can read in Gwathney, it takes a particular specie of proof to support a finding of HCIT. And the days are long gone when a chancellor could grant an HCIT divorce because “It’s obvious that these parties need a divorce.”

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