Another Divorce Misfire in an HCIT/Constructive Desertion Case

January 28, 2019 § Leave a comment

Brooke Hoffman charged her husband Michael with habitual cruel and inhuman treatment and constructive desertion. After hearing the evidence, the chancellor dismissed her complaint, finding that she had proved neither ground. Brooke appealed the denial of the divorce.

The COA affirmed in Hoffman v. Hoffman, decided October 23, 2018, with Judge Wilson writing for a unanimous court:

¶22. As discussed above, Brooke alleged that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and constructive desertion. As a practical matter, there is little difference between these two grounds. “In effect, conduct that would qualify as habitual, cruel, and inhuman treatment becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Deborah H. Bell, Mississippi Family Law § 4.02[5][d], at 80 (2d ed. 2011).

¶23. “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.” Farris v. Farris, 202 So. 3d 223, 231 (¶29) (Miss. Ct. App. 2016) (quotation marks omitted) (quoting Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012)). “To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶13) (Miss. Ct. App. 2011). “Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct.” Id.

¶24. Similarly, “constructive desertion” occurs when the innocent spouse “is compelled to leave the home and seek safety, peace, and protection elsewhere” because the offending spouse has engaged in conduct that “would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety.” Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949). “Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases.” Hoskins v. Hoskins, 21 So. 3d 705, 710 (¶20) (Miss. Ct. App. 2009). The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).

¶25. We affirm the chancery court’s judgment that Brooke failed to prove grounds for divorce. The chancery court noted that Brooke alleged only one incident of physical violence, which Mike denied. The court then noted that Brooke’s single allegation of violence was undermined by a police officer’s observation that she exhibited no signs of physical abuse immediately after the alleged injury. The court also noted that the day
following the alleged abuse Brooke wrote in a diary “that the parties made love and that she could ‘really tell that he (Mike) was emotionally present.’”

¶26. The chancery court also found that Brooke’s allegations related to Mike’s relationship with Matt were not credible. Mike denied Brooke’s allegations and another witness corroborated his testimony. Furthermore, the court found that Brooke offered “no proof” of an actual affair or physical relationship.

¶27. “It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact.” Johnson v. Black, 469 So. 2d 88, 90 (Miss. 1985). “The chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Darnell v. Darnell, 234 So. 3d 421, 423-24 (¶8) (Miss. 2017) (quotation marks omitted). “This Court gives deference to a chancellor’s findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses’ testimony and the parties’ behavior.” McNeese v. McNeese, 119 So. 3d 264, 275 (¶32) (Miss. 2013) (quotation marks omitted). Applying our familiar standard of review, we cannot say that the chancery court clearly erred in finding that Brooke’s allegations were not credible.

¶28. The same is true of the chancery court’s finding that Brooke’s allegations of emotional abuse were “unpersuasive.” The court noted that Brooke only testified to “a discreet number of unpersuasive specific incidents.” And, again, Mike denied Brooke’s allegations that he was emotionally abusive. It is for the chancellor “alone” to “judge[ ] the credibility of the witnesses” and weigh any “conflicting evidence.” Irle v. Foster, 175 So. 3d 1232, 1237 (¶32) (Miss. 2015). This Court does not reweigh conflicting evidence on such issues of fact. Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017).

¶29. Suffice it to say there was conflicting evidence with respect to each of Brooke’s various allegations against Mike. Those conflicts represent issues of fact for the chancery court to decide. Id. The chancery court summarized its reasons for dismissing Brooke’s complaint for divorce as follows:

Brooke may very well have determined for herself that she is no longer willing to countenance the ways in which she and Mike seem no longer to get along, especially when considered from the perspective of another man’s arms with whom she may now seem more compatible. However, . . . for a divorce to be granted on the ground of habitual cruel and inhuman treatment there must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility . . . .

. . . .

The theory of constructive desertion as a grounds for divorce is reserved for extreme cases. Although Brooke’s and Mike’s marriage might reasonably be characterized on the record made as unhappy and unfulfilling, the evidence does not support a finding that it is to be considered unendurable to Brooke.

. . . .

The [c]ourt takes no pleasure in declining to award relief in a circumstance where the parties are separated and one party professes to be so
unhappy as to seek to be officially unshackled from the bonds of matrimony. The [L]egislature, as the policy makers for this [S]tate, have consistently declined to amend the divorce statutes to provide that one party can obtain a divorce from the other spouse without a showing of fault. Our appellate courts have not expanded the definition of cruel and inhuman treatment to include circumstances which would otherwise comprise mere incompatibility. The [c]ourt is, therefore, constrained by the evidence presented to it and the record made, and cannot find that Brooke’s and Mike’s marriage was unendurable at the time that Brooke left. Thus, the [c]ourt cannot find that Mike is guilty of constructive desertion.

We find no clear error, legal error, or abuse of discretion in the chancery court’s findings and conclusions. Therefore, we affirm the judgment of the chancery court dismissing Brooke’s complaint for a divorce.

Some observations:

  • The inescapable object lesson here is one most practitioners have come to appreciate over the years: HCIT is not an easy ground with which to obtain a divorce, even though the burden of proof is only a preponderance of the evidence.
  • In ¶24, dealing with constructive desertion, the court says, citing Hoskins, that “The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).” That can at least be misleading. Hoskins does not say that; when Hoskins mentions burden of proof, it is referring to HCIT. Indeed, the only ground for divorce with a preponderance burden of proof is HCIT. The other grounds require clear and convincing evidence. See, Bell, 2d Ed., § 4.02[1][b]. Bell does say that, “In effect, conduct that would qualify as [HCIT] becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Id., §4.02[5][d]. So I guess it could be argued that the HCIT burden of proof applies in constructive desertion cases, but I am not aware of any cases that say that directly.

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