Pleading the Spousal Domestic Abuse HCIT Ground

March 24, 2020 § Leave a comment

Ever since the legislature amended MCA 93-5-1 in 2017 to add “spousal domestic abuse” as a form of HCIT there has been a lingering question whether one is required to plead the enhanced ground, or whether it is sufficient simply to plead HCIT and nothing more. A recent MSSC decision comes close to answering the question.

Karrah Wangler filed her Complaint for Divorce against her husband Richard on January 3, 2018. On October 16, 2018, the day before trial, she moved the court to amend her complaint to track the 2017 amendment verbatim. The chancellor denied her motion. On appeal, she charged that the chancellor erred in denying her motion.

In Wangler v. Wangler, handed down March 12, 2020, the court affirmed. Justice Griffis wrote the 7-2 majority opinion:

¶6. “[M]otions for leave to amend are left to the sound discretion of the trial court. This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (internal quotation marks omitted) (quoting McCarty v. Kellum, 667 So. 2d 1277, 1283 (Miss. 1995)).

¶7.

[Mississippi] Rule [of Civil Procedure] 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded . . . if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be “freely given.”

Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002)).

¶8. Karrah argues that the chancellor should have granted her motion to amend the complaint because under Rule 15(a), “leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). This Court disagrees and finds that the amendment was futile. Alternatively, any error by the chancellor was harmless.

¶9. Mississippi Code Section 93-5-1 (Rev. 2018) provides twelve causes for divorce. Among those causes is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1. Effective July 1, 2017, the Legislature amended Section 93-5-1 to include “spousal domestic abuse” as a form of habitual cruel and inhuman treatment. S.B. 2680, Reg. Sess., 2017 Miss. Laws ch. 427, § 6 (codified as amended at Miss. Code Ann. § 93-5-1 (Rev. 2018)).

¶10. Karrah filed her complaint for divorce on January 3, 2018, and alleged that Richard was “guilty of habitual cruel and inhuman treatment.” More than nine months later, on October 16, 2018, Karrah moved to amend her complaint to allege spousal domestic abuse, specifically,

that Richard . . . ha[d] engaged in a pattern of behavior against [her] of threats of intimidation, emotional or verbal abuse, forced isolation, and false accusations of marital infidelity, coupled with episodes of abandoning [her] at all times of the day or the night on the sides of public highways and in public places which pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

According to Karrah, “[o]ut of an abundance of caution and so as to avoid any ‘surprises’ or misunderstandings, [she] . . . filed her motion to amend to explicitly and almost verbatim track the language of amended section 93-5-1 . . . .” Karrah explained that she moved to amend her complaint in order “to spell out the new . . . standard for habitual cruel and inhuman treatment . . . .”

¶11. But as previously noted, the legislative amendment to Section 93-5-1 was effective July 1, 2017, approximately six months before Karrah and Richard separated and Karrah filed her complaint for divorce. Thus, Karrah had ample time to include in her complaint any
allegation of spousal domestic abuse. Notwithstanding her failure to do so, the 2017 amendment to Section 93-5-1 was still applicable to Karrah’s complaint alleging habitual cruel and inhuman treatment. In other words, because Karrah filed for divorce on the ground
of habitual cruel and inhuman treatment after July 1, 2017, the effective date of the amendment, the amended language of Section 93-5-1 applied to her complaint. Additionally, the record shows that the parties participated in discovery and exchanged documentation
regarding Karrah’s allegations of spousal domestic abuse. Thus, Karrah’s last-minute motion to amend the complaint to “track the language of amended section 93-5-1” and to “spell out” the new standard was futile. Accordingly, the chancellor did not err by denying the motion.

¶12. Alternatively, even if the chancellor’s denial of Karrah’s motion to amend the complaint was erroneous, such error was harmless. The record shows, and Karrah admits, that “Karrah had already spelled out her evidence in her responses to discovery.” Moreover,
the record shows that Karrah testified at trial regarding her allegations of habitual cruel and inhuman treatment, including spousal domestic abuse. At the conclusion of Karrah’s case-in-chief, the chancellor granted her motion to amend the pleadings to conform to the evidence under Mississippi Rule of Civil Procedure 15(b). As a result, the chancellor considered all of the testimony and evidence offered by Karrah in support of her claim for divorce on the ground of habitual cruel and inhuman treatment, including spousal domestic abuse. Therefore, as acknowledged by Karrah, any error by the chancellor in denying the motion to amend the complaint was harmless.

Random thoughts:

  • One of the key advantages of the 2017 amendment is to do away with the strict corroboration requirement. It replaces corroboration with a determination of credibility by the court. So the concern of practitioners has been over how much is necessary to be pled in order to preserve the no-corroboration advantage.
  • This decision seems to say, without coming right out and saying it, that all you need to do is plead HCIT and the spousal abuse amendment is invoked.
  • As a practice consideration, if I were you, I would plead both HCIT and HCIT/spousal abuse, and I would probably spell out as much of the offensive behavior as applies. Why? Well, it eliminates the argument that the other side was not put on notice, and if you don’t choose to invoke it at trial it is mere surplusage in the pleading.
  • I did rule in the only case that has come before me with this issue that it was adequate to plead HCIT without the other language, but I still think that the better, most airtight way to approach it is to plead in detail.

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