A Caveat About Joint Custody Arrangements

May 1, 2017 § Leave a comment

When Suresa and Derrium Todd got an irreconcilable-differences divorce, they agreed that they would share joint legal and physical custody. Only thing is, their agreement did not spell out a schedule for how that custody would be shared. Notwithstanding that omission, the chancellor who granted the divorce found the agreement “adequate and sufficient,” and granted the divorce.

Two years after the divorce they were back in court over Derrium’s allegations that Suresa was not properly caring for the child. His proof at trial, however, was that the child was happy and well-cared for. There was no proof of a material change and adverse effect; however, the proof was that the custody arrangement was unworkable absent a specific schedule. So the chancellor conducted an Albright analysis and awarded Derrium sole custody. Suresa appealed.

Now, you can probably guess that the COA reversed. They did, in Todd v. Todd, handed down April 18, 2017. Judge Irving’s opinion reiterated the familiar rule that there can be no modification absent a showing of material change and adverse effect.

What I found interesting was what the COA expects chancellors to do when confronted by a joint custody arrangement that has proven to be unworkable due to the lack of a schedule, or due to a change in the parties’ schedules, or maybe due to the fact that the child was an infant when the agreement was entered into but is now school age. Do we still require a material change coupled with an adverse effect, or do we apply a lesser standard such as we do in visitation cases? Whatever the standard, it is clear in these cases that something has to be done for the best interest of the child.

Judge Irving spoke to the issue:

¶11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim [for modification of custody], Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).

So, yes, the chancellor, short of modification of custody, may proceed to clarify the original custody arrangement so as to eliminate friction between the parties.

But note Judge Irving’s caution that “it was probably error to find that the parties’ agreement was ‘adequate and sufficient’” without a custody schedule. To that, I say Amen. But in saying that I am not being critical of the chancellor who granted the divorce. I have been in those shoes many times, with lawyers imploring me that “these are good people, judge; they will work it out.” Or, “Judge, we had a hard time reaching a final agreement, and there was a lot of give and take; we had to leave this the way it is or we would not have an agreement at all.”

Hindsight is always cataract-free and eagle-eyed. It always sees in sharp focus what a thoughtful person either (a) should have seen at the time, or (b) deluded himself or herself into thinking all would turn out peachy keen despite the flaws in the agreement.

When you bid your client farewell after the judgment is entered, that client believes that you covered all the bases and protected him or her from further litigation. If you kick the can down the road, it does not mean that the can has disappeared. It’s still there for someone to trip over later and get cut on the rough edges.



The State of HCIT

April 11, 2017 § 1 Comment

If you need a nifty survey of the current law of HCIT in Mississippi, look no farther than the COA’s decision in White v. White, decided December 13, 2016. In that case, the chancellor found that Barbara White had proven her ground of HCIT against her husband, Anderson, despite Anderson’s claim that her proof was insufficiently corroborated, and that he denied her claims.

Judge Barnes wrote for the court:

¶11. First, Anderson argues that the facts asserted by Barbara at trial do not rise to the level necessary to establish habitual cruel and inhuman treatment. In response, Barbara argues that this Court should do as the chancery court did, and review the acts not in isolation, but as a whole. Finding no error with the chancery court’s analysis, we affirm the chancery court’s judgment.

¶12. In Rakestraw v. Rakestraw, 717 So. 2d 1284 (Miss. Ct. App. 1998), this Court
reiterated the long-held principle that:

Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Rakestraw, 717 So. 2d at 1287 (¶8) (citing Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that its recurrence maybe reasonably expected whenever occasion or opportunity presents itself.” Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972). “Although the cruel and inhuman treatment usually must be shown to have been ‘systematic and continuous,’ a single incident may provide grounds for divorce.” Rakestraw, 717 So. 2d at 1287 (¶8). “While ordinarily one act or an isolated incident will not establish a charge of habitual cruel and inhuman treatment, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So. 2d 44, 48 (Miss. 1993). “[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility or want of affection.’” Rakestraw, 717 So. 2d at 1287 (¶8) (quoting Daigle, 626 So. 2d at 144). Habitual cruel and inhuman treatment must be shown by a preponderance of the evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).

¶13. “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” Id. Nonetheless, “[c]orroborating evidence need not be sufficient in itself to establish habitual cruelty, but rather need only provide enough supporting facts for a court to conclude the plaintiff’s testimony is true.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶12) (Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).

¶14. On appeal, Anderson asserts that the incidents presented in testimony and outlined by the chancery court in its judgment do not show a continuous pattern or course of habitual cruel and inhuman conduct by Anderson toward Barbara. Specifically, Anderson argues that Barbara failed to sufficiently corroborate her testimony regarding the black eye she received, as well as the events surrounding the cocked-gun incident. The chancery court, however, found otherwise, considering the actions described not in isolation, but as a whole. In doing so, the chancellor determined that “[a]s a whole [Anderson]’s conduct has been habitually mean and heartless[,] . . . exhibit[ing] a pattern or a course of conduct which as a whole amounts to cruelty.”

¶15. Regarding the black-eye incident, Anderson denied hitting Barbara, but admitted that Barbara did, in fact, possess the alleged injury. Anderson further testified, however, that he was unaware of how Barbara received the injury. In reviewing Anderson’s testimony, the chancellor specifically noted in her final judgment that Anderson “nonchalantly testified” regarding this incident, and that “[i]t would seem to the court that a husband would make it his business to know how his wife received a black eye.” In relation to the 2009 cocked-gun incident, Barbara, her mother, and her sister all testified that after an argument between the parties, Anderson angrily ran upstairs, where they then heard a gun “cock” or “click.” Barbara’s mother did, however, testify that she did not realize at that time the noise she heard related to the use of a gun. Anderson admitted he owned many guns, but denied that the incident ever occurred; in support, Anderson III also testified that Anderson did not leave the room where the argument took place.

¶16. Upon review, this Court is reminded that “[t]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present.” Jones, 43 So.3d at 471 (¶10). The chancellor alone “hears the testimony and sees the demeanor of the witnesses.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶16) (Miss. 2002). This Court “cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses.” Hammers v. Hammers, 890 So. 2d 944, 951 (¶19) (Miss. Ct. App. 2004). As such, the chancery court found “[t]he black eye and the gun incidents gave [Barbara] a reasonable apprehension of danger to her life, limb or health,” causing her “to be nervous and scared,” as Anderson’s conduct “occurred continually throughout the marriage and its recurrence [could] be reasonably expected whenever occasion or opportunity present[ed] itself.” In light of the corroborating testimony provided by Barbara’s witnesses, as well as that of Anderson himself, we find the record contains more than sufficient evidence to support the chancery court’s grant of a divorce based upon habitual cruel and inhuman treatment. See Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970) (holding testimony of the defendant may also provide corroboration of the plaintiff’s testimony).

The chancellor commented unfavorably on Anderson’s cavalier demeanor during his testimony. It cost him. As I’ve said here before, get your witnesses ready for the crucible of court, or be prepared to watch your patient get carved up like a Christmas goose while you stand by twiddling your thumbs.

No Factors, No Affirmance

April 5, 2017 § 1 Comment

The COA’s March 21, 2017, decision in Sullivan v. Sullivan, is not going to have far-reaching impact on Mississippi law. It’s yet another in a long line of cases that reverses and remands because the chancellor’s findings did not address Ferguson and Armstrong factors. Not that big a deal, really.

Now, we don’t know much from the COA’s decision about what exactly happened in that particular case, but consider this scenario from a case in my court not long ago:

Husband’s attorney withdraws from the case, leaving him unrepresented in a case that had been pending nearly two years. When he appears for trial five months later, he asks for a continuance to get an attorney, which request is denied. The trial proceeds.

In the course of presenting proof on the issue of equitable distribution, the attorney for wife puts on proof as to only one Ferguson factor, a point I noted in my opinion, in which I nonetheless did effect an equitable distribution.

Husband timely filed a R59 motion asking for a do-over because I should have granted the continuance, which would have allowed husband to present an effective challenge to the equitable distribution.

I rejected his argument that I should have given him more time to get an attorney.

But … I felt that I had no choice but to grant the re-do as to the equitable distribution simply due to the paucity of the record as to any proof to support the Ferguson analysis. I am confident that, if I had rejected his argument and he appealed, the COA would have sent the case back for a more substantial record. So the husband will have assistance of counsel when the issue comes ’round again.

This could have been avoided had counsel for wife taken a little more time to get evidence into the record of as many of the Ferguson factors as applied.

Getting back to Sullivan, sometimes when I read these cases I wonder whether the fault was the chancellor’s or whether the fault lay in the cards that the judge was dealt.

Mother-in-Law’s Revenge

March 30, 2017 § Leave a comment

What happens when, after a divorce has been granted, the mother-in-law claims that some of the personal property awarded to the wife actually belonged to her (i.e., the mother-in-law)?

Well, one avenue she might pursue is a replevin.

And that is precisely what Mary Stevens did, in County Court, claiming that Ginger Grissom, her former daughter-in-law, was wrongfully holding some rings and knick-knacks belonging to her. Those things, however, had been awarded to Ginger in the divorce. The County Court ruled against Stevens, and she appealed to Circuit Court, which affirmed. Thence she appealed, and the COA affirmed in Stevens v. Grissom, handed down March 21, 2017.

The divorce case was actually mine. Although I don’t make it a habit to comment here about cases from my court, this is really a county court case, and the divorce is only tangentially related. Still, it’s interesting to note that the divorce was settled in mediation and the final judgment approved and incorporated the parties’ own property-settlement agreement that awarded those later-contested items to Grissom.

I found this interesting simply because I had never seen an action like this in the backwash of a divorce.

Who Pays the Cost of Expertise?

March 28, 2017 § 1 Comment

Stephen and Alaina Bullock separated in 2007, and were in divorce proceedings by 2008. When they finally appeared for trial in 2010, Alaina noted that she had yet to receive discovery responses (after around 3 years), but waived her right to them so as to get the matter over with. After a day of testimony, the chancellor realized he had a conflict and recused.

In July, 2011, the successor chancellor entered an order compelling Stephen to answer the discovery requests. On August 7, 2011, the chancellor entered an order appointing a forensic accountant to report on valuation of the parties’ rather extensive assets as of the date of the report, which he did on January 31, 2012. In reaction, Alaina hired her own forensic accountant, Levens, who produced a report that was “significantly broader in scope and detail than that of the court-appointed accountant,” including valuation of assets not mentioned by the court-appointed expert, the parties’ net worth, and final numbers.

In 2014, around six years into the pendency of the case, the parties appeared for trial, and Stephen asked for a continuance to answer the discovery that was now ready to enter first grade. The chancellor denied the request, and the trial commenced. Both experts testified. In his final ruling, among other things, the chancellor ordered Stephen to pay a large part of the fees charged by Alaina’s expert. Stephen appealed.

In the case of Bullock v. Bullock, handed down February 28, 2017, the COA affirmed on the assessment of expert cost. Judge Greenlee wrote for a unanimous court (Lee not participating):

¶24. Stephen asserts that the chancellor erred in assessing him half of Levens’s expert accounting fees. In Burnham-Steptoe v. Steptoe, 755 So. 2d 1225, 1236 (¶40) (Miss. Ct. App. 1999), this Court affirmed a chancellor’s refusal to require a husband to pay his wife’s accountant fees where a court-appointed accountant also testified, the wife’s expert based his calculations on the court-appointed accountant’s testimony, and the court could have derived the value of the asset based solely upon the court-appointed expert’s testimony. We have a different situation in the case at hand. Here, Alaina’s expert generated an independent report greater in scope than that of the court-appointed accountant, a report that included identifying genuine mistakes in the court-appointed accountant’s report as well as identifying the loan and investment that constitute the disputed marital assets on appeal. The chancellor stated that the two experts “supplemented” each other. Unlike in Steptoe, the contributions of Alaina’s expert were not entirely derivative and duplicative of the work done by the court-appointed accountant. The court relied on the combined work of the two experts, and the court’s determination on fees has Alaina and Stephen splitting the cost of both experts evenly. We also note that Stephen’s chronic resistance to meaningfully participating in discovery hampered both experts’ progress. We do not find that the chancellor abused his discretion in assessing Stephen half of Levens’s expert fees.

A few points to ponder:

  • If you’re going to hang your client with the extra expense of an expert in addition to the court-appointed expert, be sure that the expert is going to go above and beyond what the court-appointed one did. Merely to take what the court-appointed expert concluded and nick at the edges will only get your client minor relief at a dear price. Here, Levens was able to add substance that gave the chancellor a basis to go beyond what the court-appointed expert did.
  • It never ceases to amaze me how some lawyers cavalierly let their clients get months (and in this case, years) behind in discovery responses. Don’t they realize that they are asking for trouble? Do they think the chancellor is going to stand idly by, shrug her shoulders, and say, “Oh, well,” when confronted with a long-standing neglect to respond? At some point a price will be paid. Stephen paid it here.
  • It’s hard to imagine a case in which the parties are well-served by a six-year-divorce proceeding, followed by an appeal and a partial remand, which may well be followed by another appeal (not to mention the usual post-ruling motions at both appellate and trial levels). Not to say that I haven’t been involved in lengthy ones myself, but, honestly, if the lawyers can get the parties to answer discovery and do what needs to be done, the case can be brought to a merciful end.
  • Here’s a trick I learned from one of the all-time great Chancellors, John Clark Love of Kosciusco. When a party was overdue on discovery and the matter was brought to his attention on a motion to compel, he would inquire of the defaulting attorney, “How much time does your client need to file complete responses?” Invariably the lawyer would lowball the time, and Judge Love would encourage a realistic response. When a realistic date was finally arrived at, he would direct the prevailing attorney to prepare an order that would require the party to answer by that date, and for every day thereafter until the answers were filed, the defaulter would incur a $25 fine payable to the county. You can do the math; it doesn’t take very long for that to become a painful — and hopefully motivational — bite.

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.”

When Alimony is Like an Elephant

November 28, 2016 § Leave a comment

Most of you, I am sure, are familiar with the fable of the blind men and the elephant. Six different blind men, for some reason, are asked to feel an elephant and to describe what the creature is like based on their experience. Of course, each one can offer a description based only on his limited groping. One surmises a rope-like creature based on feeling the trunk, another guesses a tree-like creature after feeling the leg, and yet another posits an umbrella-like critter from feeling the ear. And so on. The point being that perception based on limited evidence can be misleading and incomplete.

That takes us to the COA’s decision in Kittrell v. Kittrell, decided October 4, 2016, in which the court was called upon to determine whether the special chancellor erred in concluding that an alimony provision in a PSA was periodic. To set the stage, Judge Lee recited the legal standard and went on to describe the court’s chore:

¶9. “Although a court order imposing alimony must, in general, clearly identify what type of alimony is being awarded and adhere to its traditional characteristics, our ‘Supreme Court has not required consensual support agreements to follow the same terms as for court imposed alimony.’” Id. at 918 (¶30) (quoting Elliott v. Rogers, 775 So. 2d 1285, 1289 (¶15) (Miss. Ct. App. 2000)). “Rather, the Supreme Court has emphasized divorcing parties’ freedom and ‘broad latitude’ to settle the financial aspects of their separation by contract as they see fit[.]” Id.

¶10. It is because of this broad latitude that this Court is faced with the hopeless task of determining whether the alimony provision in Stan and Stephanie’s property-settlement agreement provided for lump-sum or periodic alimony. [Emphasis added]

Hopeless task? Hyperbole, you think? Well, judge for yourself; here’s the PSA provision in question:

Both parties do hereby agree that Stan Kittrell each month shall deposit his monthly retirement check from the Public Employees Retirement System (PERS) into Stephanie Kittrell’s bank account via direct deposit with the monthly amount of $250.00 considered child support and the remainder as alimony. The child support will continue to be deposited monthly until the child’s [twenty-first] birthday or until the child no longer lives with the mother. The remainder of the check shall be considered alimony and shall continue to be paid until the child reaches the age of [twenty-one] or until Stephanie Kittrell remarries. Stan Kittrell shall receive sixty percent (60%) of the [thirteenth] PERS check and Stephanie Kittrell shall receive forty-percent (40%) of the same until such time as the child reaches the age of [twenty-one] or until the child no longer lives with the mother. Stephanie Kittrell by signing this document agrees to pay the house note on the marital home out of the PERS money she receives from Stan Kittrell.

Stan Kittrell hereby relinquishes all rights and benefits to Stephanie Kittrell’s 401k retirement funds. Both parties relinquish any right to bonuses, rewards, or financial settlements of any kind.

Hyperbole? I think not. Here’s how the COA addressed it:

¶18. We also reverse the chancery court’s finding that the alimony provision in Stan and Stephanie’s property-settlement agreement provided for periodic alimony. The alimony provision does not strictly adhere to the traditional characteristics of either periodic or lump sum alimony. See Lowrey [v. Simmons], 186 So. 3d [907] at 919 (¶33) [(Miss. App. 2000)]. Accordingly, we will enforce the provision as it is written. See id. Because Stephanie did not remarry, Stan was obligated to pay alimony until Dylan reached the age of twenty-one on September 17, 2014. And Stan’s thirteenth PERS check would have terminated when Stan was granted custody of Dylan. We remand this case to the chancery court for a calculation of the specific amount of alimony owed as well as costs and attorney’s fees.

I am guessing that this was not the outcome Stan expected when he signed that PSA back in 2005.

When you draft an agreement such as a PSA, keep in mind that it not only has to reflect the parties’ agreement and make sense to them and counsel involved, it most importantly must be clear enough to make sense to others not involved, and particularly to any judge who will later be called upon to construe it. Again : Draft it, and set it aside for a day or so. Then pick it up and read it over again carefully. Does it say what needs to be said? Then re-read it pretending that you know nothing about the negotiations (like a judge has to do). Is it clear from its plain language just what is intended and what is to occur? If it is intended to be periodic alimony, then say so in plain, unmistakable terms. When you leave it to a judge to figure it out later, your client might not get what she thought she bargained for.

This case also involved a claim for termination of alimony for cohabitation. That’s for another day.

The Gift that Keeps on Giving

October 17, 2016 § Leave a comment

Is it habitual cruel and inhuman treatment (HCIT) to give a sexually transmitted disease to one’s spouse?

Becky Farris filed a complaint for divorce against her husband, Gene, on the ground of HCIT and, in the alternative, irreconcilable differences. In the course of the trial, Becky testified that she had contracted herpes from Gene. The chancellor granted a divorce on HCIT, and Gene appealed, claiming that it was error for the chancellor to grant a divorce on that ground.

In the case of Farris v. Farris, decided October 4, 2016, the COA affirmed the chancellor. Judge Wilson’s opinion sets out the pertinent facts and law. Here it is, quoted at length:

¶28. Gene argues that the chancellor erred by awarding Becky a divorce based on habitual cruel and inhuman treatment. Gene insists that the record is devoid of any evidence proving that Becky filed for divorce because she contracted herpes or that the disease made it impossible for her to continue in the marriage. He also argues that there is no evidence to corroborate Becky’s claim that he gave her herpes.

¶29. “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.’” Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012) (quoting Mitchell v. Mitchell, 767 So. 2d 1037, 1041 (¶14) (Miss. Ct. App. 2000)). The party seeking a divorce must prove habitual cruel and inhuman treatment by a preponderance of the evidence. Richard v. Richard, 711 So. 2d 884, 888 (¶14) (Miss. 1998). “While the chancellor’s determinations of the events that preceded the divorce are findings of fact, [a] finding that . . . conduct rose to the level of habitual cruel and inhuman treatment as defined as a ground for divorce . . . is a determination of law, and is reversible where the chancellor has employed an erroneous legal standard.” Potts v. Potts, 700 So. 2d 321, 322 (Miss. 1997).

¶30. There is no published Mississippi case affirming a finding of habitual cruel and inhuman treatment based on exposure of one spouse to a sexually transmitted disease. In Moses v. Moses, 879 So. 2d 1043, 1048 (¶12) (Miss. Ct. App. 2004), this Court reversed the chancellor’s finding of habitual cruel and inhuman treatment based on a husband’s alleged transmission of herpes to his wife. We did so, however, because “[t]here was no credible evidence . . . that [the husband] transmitted to [the wife] any STD.” Id. Moreover, because the wife alleged that “she knowingly married [her husband] believing he infected her with herpes” prior to the marriage, she could not “later claim that such infection [was] grounds for habitual cruel and inhuman treatment.” Id. (emphasis added). In Buckley v. Buckley, 815 So. 2d 1260 (Miss. Ct. App. 2002), this Court held that “[t]he fact that one spouse causes another to contract an uncomfortable, embarrassing disease, which may affect the likelihood of that spouse again becoming married, must be included in the evaluations of fault and misconduct” for purposes of determining alimony. Id. at 1265 (¶28). In Buckley, the parties agreed to an irreconcilable differences divorce, so fault and misconduct were litigated only in the context of property distribution and alimony. See id. at 1261 (¶3).

¶31. A number of courts in other jurisdictions have held that exposing one’s spouse to an STD may be grounds for divorce. The Rhode Island Supreme Court held that “[i]t is difficult to imagine a worse or more insidious form of cruelty.” Wilson v. Wilson, 13 A. 102, 104 (R.I. 1888). The Iowa Supreme Court similarly held “that the communication by a husband of a venereal disease to his wife, knowingly, is good and sufficient cause for a divorce, and is cruelty of the most flagrant kind.” Holmes v. Holmes 170 N.W. 793, 794 (Iowa 1919). The Maryland Court of Appeals held that “if a spouse, although knowing he or she is afflicted with a venereal disease, yet continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty.” Kline v. Kline, 16 A.2d 924, 925 (Md. 1940). And the Supreme Court of Pennsylvania was simply unable “to imagine a more direct and palpable case of cruelty to a wife by a husband.” McMahen v. McMahen, 40 A. 795, 797 (Pa. 1898). There are many similar decisions from other states. See, e.g., Holden v. Holden, 116 P.2d 1003, 1005 (Idaho 1941) (“If [the husband] knowingly communicated [gonorrhea] to [his wife], that would constitute cruelty.”); Carbajal v. Fernandez, 58 So. 581, 581 (La. 1912) (stating that “all the courts agree” that knowing transmission of an STD to a spouse constitutes cruel treatment”); Holthoefer v. Holthoefer, 11 N.W. 150, 150 (Mich. 1882) (stating that knowing transmission of an STD by a spouse constitutes “extreme cruelty” and grounds for divorce); Darling v. Darling, 167 S.W. 1166, 1166 (Mo. Ct. App. 1914) (holding that knowing communication of gonorrhea to a wife was grounds for divorce); Cook v. Cook, 32 N.J. Eq. 475 (N.J. Ct. Ch. 1880) (holding that knowing communication of an STD to a wife was “extreme cruelty” and grounds for divorce); Cadle v. Cadle, 191 S.W.2d 561, 561-62 (Tenn. Ct. App. 1945) (holding that communication of a venereal disease would constitute cruel and inhuman treatment). While the most recent of the above-cited cases is more than seventy years old, we do not believe that knowingly exposing one’s spouse to an STD is any less cruel today, and we agree that it may be a form of habitual cruel and inhuman treatment.

¶32. Becky testified that she contracted herpes from Gene during the course of their marriage and first learned that she had the disease only a few months before their separation. Gene never denied that he had herpes; he only said that he did not know whether he had the disease because he had never been tested. In fact, Gene admitted that his first wife told him that she had herpes. Despite this, Gene never told Becky that he might have herpes until she told him that she had contracted the disease. The chancellor found Gene’s “actions of such an egregious nature that . . . each and every time he engaged in unprotected sex with [Becky] he was committing a continuous systematic cruel act upon her.” Given Gene’s own admissions, we cannot say that the chancellor’s factual findings were clearly erroneous or that she erred in granting a divorce on this ground.

¶33. Gene argues that Becky’s allegation was not corroborated by medical evidence, but Gene’s own admissions are sufficient corroboration to support the chancellor’s findings. See Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005) (explaining that a plaintiff’s allegations of cruel and inhuman treatment must be supported by independent corroborating evidence, but the “testimony of the defendant” may be sufficient corroboration); Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970). Gene also argues that there was no “evidence . . . linking Becky’s alleged diagnosis of herpes with the separation of the parties.” However, the law only requires Becky to show that Gene’s conduct was “a proximate cause of harm to [her] health and physical well being”—not that it was “the actual cause of the separation.” Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986). There was sufficient evidence for the chancellor to find that Becky met this burden.

¶34. Credibility determinations are made by the chancellor, not this Court. See, e.g., Irle v. Foster, 175 So. 3d 1232, 1237-38 (¶23) (Miss. 2015); McNeese v. McNeese, 119 So. 3d
264, 275 (¶32) (Miss. 2013). As relevant to this issue, the chancellor obviously found Becky’s testimony more credible, and there was sufficient evidence to support the chancellor’s findings of fact and finding of habitual cruel and inhuman treatment. Therefore, we cannot say that the chancellor erred in granting her a divorce on that ground.

So, until the MSSC speaks to the contrary, it is the law in Mississippi that knowingly, or in this case at least negligently, passing an STD to one’s spouse does constitute HCIT. It’s remarkable to me that after nearly 200 years of Mississippi jurisprudence that issue has never made it to the appellate level until now.

Pending R 59 Motion = No Appeal, Part Deux

September 27, 2016 § Leave a comment

Only a few weeks ago, we talked about the concept that if there is a pending R59 motion the trial court continues to have jurisdiction, and, until it is disposed of, any attempt to appeal will  be dismissed for lack of jurisdiction in the trial court. That post is here.

Since then, in the case of Hoffman v. Hoffman, handed down September 6, 2016, the COA again dismissed an appeal in which there was a pending R59 motion. That case involved a divorce action between Brooke and Michael Hoffman.

We don’t need to address the law on the R59 point yet again. Instead, what I’d like to highlight is the procedural tangle that birthed this confusion. Here’s how Judge James described it in her opinion for a unanimous court:

¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael filed a motion for contempt of the agreed temporary order claiming that he had been denied the opportunity to visit with his minor children.

¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt of the agreed temporary order. Also, on September 23, 2014, the trial court entered a separate order denying Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order finding her in contempt.

¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s contempt order was denied.

¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of the judgment denying the divorce, her motion has not been resolved and remains pending in the trial court, based on the record before this Court. On November 12, 2014, Michael filed a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion for contempt as well as for the defense of the divorce action. A statement of legal fees was attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.

¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule” (the “Motion to Amend”). Based on the trial-court docket, this motion has not been resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of appeal of the trial court’s judgment awarding attorney’s fees.

You can tally up for yourself the layers of judgments, orders, and motions in this case. They illustrate for me how things can spiral into a convolution of complication almost before one is aware that things ate getting out of control.

Some judges will step in and try to untie the Gordian knot before it gets untie-able. But it’s really not the judge’s duty to do that. It’s your job as attorney to make a record that is comprehensible. If you don’t, your client might just end up paying the freight for a premature appeal. And remember: when you cost your clients money, they hate you; when you save them money, they love you.

Avoiding a Desertion Glitch

September 22, 2016 § Leave a comment

MCA 93-5-1 provides that the court may grant a divorce on the ground of “Willful, continued and obstinate desertion for the space of one (1) year.”

It’s often said that desertion is the easiest ground to prove as an uncontested divorce. It’s fairly straightforward:

  1. Separation without fault on the part of the complaining party;
  2. Continued, obstinate, intentional, and unjustifiable separation for more than a year.

But there’s another element that you need to include in your proof. In the case of Lynch v. Lynch, 217 Miss. 69, 63 So.2d 657, 653 (1953), the court said:

In matter of law, a deserted party must stand ready to receive the other back, if the offer to return is made in good faith, not otherwise, at any time before the statutory period has fully run. But when the desertion has ripened into a ground for divorce, the day of repentance has ended, and the one in whom is the right may refuse.”

In 21st-century language, this means that: (a) during the one-year desertion period, the deserted party must have been willing to allow the deserter to return home if a good-faith offer to return would have been made; and (b) after the one-year period has expired, that duty expires also.

So you must ask your client in his or her testimony to this effect: “If the other party had offered to give up his paramour, and to repent of his ways and to return home in good faith, would you have taken him back?” If the answer is affirmative, you will be successful if the other elements are proven and there is corroborating testimony.

I’ve seen some uncontested divorces come unravelled because the complaining party didn’t seem to have ever heard of this concept.

Before setting off for court, sit your client down and explain this requirement. What most clients think when confronted with the question is, “Horrors, I never want to see that monster again since he left me for that other woman!” Once they understand that the willingness to resume cohabitation, if there is a good-faith offer to reconcile, applies only to that one-year period now elapsed, they relax. There is no requirement to take the deserter back after the one-year period has expired — good faith or no.

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