Double Fault
April 17, 2019 § 1 Comment
When both parties are clearly guilty of grounds for divorce, who gets the divorce?
Stephen Anderson proved that his wife, Emmarie, was guilty of adultery. She put on proof that he was guilty of habitual drunkenness and habitual cruel and inhuman treatment. The chancellor found both parties had proven the other guilty by the requisite standard of proof.
What is the chancellor to do? Grant both parties a divorce? Grant Stephen a divorce because adultery is more serious? Grant the divorce to Emmarie because people shouldn’t be violent toward each other? Order them to go home together and try to preserve the sanctity of their marriage?
The chancellor granted Emmarie a divorce, and Stephen appealed, arguing that he should have been granted the divorce because it was Emmarie’s adultery that caused his separation from her.
In Anderson v. Anderson, decided March 19, 2019, the COA affirmed. Judge Lawrence wrote the opinion, which analyzed Stephen’s argument on the point:
¶9. Stephen argues that because he proved that Emmarie committed adultery and Emmarie’s adultery caused him to leave, he should have been granted a divorce on that ground. Stephen further argues that Emmarie should not have been granted a divorce on habitual cruel and inhuman treatment because she reconciled with him after her 2012 claim.
¶10. “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983-84 (¶23) (Miss. Ct. App. 2000) (citing Hyer v. Hyer, 636 So. 2d 381, 382 (Miss. 1994)). Here, Stephen filed for divorce on the grounds of habitual cruel and inhuman treatment and adultery. Emmarie counterclaimed on the same grounds.
¶11. In Sproles v. Sproles, 782 So. 2d 742, 746 (¶14) (Miss. 2001), the chancellor granted the wife a divorce on the grounds of habitual drunkenness and habitual cruel and inhuman treatment instead of granting the husband a divorce on the ground of adultery even though his wife admitted at trial that she had committed adultery. Our supreme court affirmed the chancellor, finding that “[t]here [was] ample proof that it was [the husband’s] conduct that caused the dissolution of the marriage and that [the wife] was entitled to a divorce on the grounds of cruel and inhuman treatment and habitual drunkenness.” Id. at 747 (¶20). In Boutwell v. Boutwell, 829 So. 2d 1216, 1219 (¶¶40-43) (Miss. 2002), our supreme court dealt with a nearly identical issue and relied on Sproles to affirm the chancellor’s grant of divorce to the wife on the grounds of habitual cruel and inhuman treatment.
¶12. Here, Emmarie admitted that she committed adultery. However, the chancellor also heard testimony from Emmarie, Emmarie’s mother, and Emmarie and Stephen’s son about Stephen’s physical abuse upon Emmarie that started prior to and throughout the marriage. Ultimately, the chancellor determined that it was Stephen’s continued course of physical abuse upon Emmarie that caused the breakdown of the marriage. Finding the chancellor’s decision was supported by substantial evidence, we affirm the chancery court’s grant of divorce to Emmarie on the ground of habitual cruel and inhuman treatment.
Here the chancellor specifically found that it was Stephen’s conduct that caused the breakdown of the marriage, and it was on that finding that she made the award of the divorce to Emmarie. That basis has been upheld by the courts.
When you have the possibility that either party may be granted a divorce because both have grounds, it would behoove you to develop proof that the opposing party was more at fault. You need that kind of proof in connection with Ferguson, Albright, and Armstrong factors.
The Better Chancery Practice Blog 
Thank you, Judge. You just made me go read up on recrimination.