Separate Maintenance and the Wife’s Material Contribution to the Separation

December 3, 2018 § Leave a comment

The chancellor ordered Rickey McCarley to pay separate maintenance to his wife, Kellie. Unhappy with this result, Rickey appealed, arguing that Kellie had materially contributed to the separation and thus was not entitled to separate maintenance.

In McCarley v. McCarley, handed down August 21, 2018, the COA affirmed. Judge Carlton’s opinion:

¶22. This Court has held that “[a] chancellor may award separate maintenance when (1) the parties have separated without fault by the wife and (2) the husband has willfully abandoned the wife and refused to support her.” Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. Ct. App. 2017) (citing Jackson [v. Jackson], 114 So. 3d [768] at 775 (¶17) [(Miss. App. 2013)]. In order to receive an award of separate maintenance, a wife does not have to be blameless, “but her (mis)conduct must not have materially contributed to the separation.” Id. (quoting Daigle v. Daigle, 626 So. 2d 140, 145 (Miss. 1993)). In other words, because an award of separate maintenance arises from equitable principles, “equity requires that . . . the requesting spouse . . . show [that] no significant conduct on her part negatively impacted the marriage or contributed to the separation.” Jackson, 114 So. 3d at 774 (¶16); [Fn omitted] see also King v. King, 246 Miss. 798, 152 So. 2d 889, 891 (1963) (holding that where a wife’s fault regarding the separation “is equal to or greater than that of her husband,” it may serve as a defense to the wife’s suit for separate maintenance.).

¶23. In Jackson, 114 So. 3d at 776 (¶21), we reversed the chancellor’s award of separate maintenance to the wife, Linda, after finding that the chancellor failed to first determine whether Linda materially contributed to the separation. This Court explained that “[t]he equitable relief of separate maintenance requires the requisite evidence of a separation without fault of the wife as well as evidence showing no significant misconduct on her behalf materially contributed to the separation of the parties.” Id. The chancellor’s findings below reflected that “Linda asserted that she wanted to work things out with [her husband,] Paul; that she still loved him; and that she would reconcile if Paul met certain unspecified conditions.” Id. at (¶20). This Court explained, however, that Linda bore the burden of establishing in the record not only a “present willingness to reconcile,” but also “that she had not engaged in significant marital misconduct contributing to the separation.” Id. This Court’s review of the record revealed that Paul separated from Linda after a five to six year period during which Linda “adamantly proclaim[ed] no love for Paul; secretly conduct[ed] financial dealings; fail[ed] to provide companionship or other support for the relationship; . . . demand[ed] [Paul] leave the marital home[;] [and] . . .  repeatedly reminded [Paul] that the marital house and land were hers and that he held no interest in the property.” Id. at 777-78 (¶26). This Court determined that Linda’s actions during this time period constituted marital fault and ultimately held that Linda failed to provide substantial evidence to show that “no significant misconduct on her behalf contributed to the separation.” Id.

¶24. In Tackett v. Tackett, 967 So. 2d 1264, 1267 (¶9) (Miss. Ct. App. 2007), we found no error in the chancellor’s award of separate maintenance to the wife, Kim. This Court reiterated that a “wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife’s conduct did not materially contribute to the separation.” Id. In Tackett, Kim admitted that “she was partly to blame for the couple’s separation[,] but [she] maintained that [her husband] Tim was more this claim. Id. The record also showed that Tim refused Kim’s suggestion to attend marriage counseling. Id. This Court ultimately held that after reviewing the record, “we cannot say that the trial court manifestly erred in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence.” Id.

¶25. In the case before us, the chancellor’s amended order sets forth her finding that Kellie “is without material fault in the separation and . . . [Rickey] abandoned [Kellie] and has refused to provide any support. Therefore, [Kellie] has met the burden of proof necessary to support her claim for separate maintenance.” The record reflects that at trial the chancellor heard testimony from Kellie, Rickey, Penny, and Rickey’s brother, Roger. Kellie testified that she and Rickey got married in November 1979 and separated in October 2015, after thirty-six years of marriage. Kellie stated that she would characterize the last five years of her marriage as “okay,” explaining that although they “might not have had the happiest marriage,” they were “content.” Kellie admitted that, although she and Rickey had a lot of problems in their marriage, she ultimately believed “that marriage is for better and worse, until death do us part.” Kellie testified that she and Rickey met in April 2016 to discuss whether they should reconcile or seek a divorce. Kellie stated that Rickey informed her that “he would think about what we discussed,” but she “never heard from him.”

¶26. Kellie testified that during the last year of their marriage, Rickey began drinking alcohol excessively. Kellie admitted that Rickey’s drinking did not affect his performance at work, but she explained that most of his drinking occurred on the weekends or on his days off. Kellie also testified that she discovered bills for a credit card and a loan. Kellie explained that she was not previously aware that Rickey had taken out a loan or obtained a new credit card before her discovery of these documents.

¶27. Regarding physical affection, Kellie testified that she was affectionate with Rickey and often hugged and patted him. However, Kellie testified that she and Rickey had not engaged in a sexual relationship since early 2015 and that they slept in separate bedrooms. Kellie stated that when she broached the subject with Rickey, he informed her that his medication prevented him from having an erection. Kellie testified that she attended one of Rickey’s doctor’s appointments where he explained the issue to the doctor, and the doctor responded that Rickey had to choose between “either tak[ing] some medicine to keep him alive or hav[ing] sexual intercourse.” Kellie admitted that she did not know if Rickey was still taking the medicine.

¶28. Roger characterized Rickey and Kellie’s marriage as “not happy.” Roger testified that he never observed Kellie expressing affection towards Rickey. Roger also testified that Rickey was unfaithful to Kellie on a separate occasion earlier in their marriage.

¶29. Rickey opined that his and Kellie’s marriage was not salvageable. Rickey testified that he and Kellie had not been physically affectionate over the last five years of their marriage, stating, “Every time I went to kiss her, she would turn her cheek on me.” Rickey testified that Kellie asked him to give up alcohol but he refused, explaining “I didn’t want to give up the beer.”

¶30. Rickey testified that when he left the marital home, he “wasn’t interested in another woman,” and he did not leave “because of another woman.” Rickey maintained that he was not romantically involved with Penny prior to his and Kellie’s separation in October 2015, and he testified that he did not begin dating Penny until after he had moved out of the marital home. He admitted that he and Penny worked together for years, and that they had talked on the phone for “one or two years” prior to his and Kellie’s separation. Rickey stated that he did not have sexual relations with Penny until after he moved in with her. Penny also testified and confirmed that she and Rickey did not become romantic until December of 2015.

¶31. After reviewing the testimony at trial, we find that the record contains substantial credible evidence supporting the chancellor’s finding that Kellie did not materially contribute to the separation. We therefore affirm the chancellor’s judgment. Knighten [v. Hooper], 71 So. 3d [1208,] at 1209 (¶5) [Miss. App. 2011)].

Nothing earthshaking here. The case does illustrate the way that a chancellor may process and weigh the proof of marital fault and its impact on separation.


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