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.

Is HCIT of a Child Proof of HCIT of a Parent?

August 23, 2016 § Leave a comment

The marriage of Propst and Ty Pittman was by all accounts a stormy one that involved physical conflicts. There was testimony also that Ty had been physically violent in his dealings with the parties’ daughter, Tyler.

Propst filed for divorce from Ty on the ground of habitual cruel and inhuman treatment (HCIT).

After Propst rested in her case in chief, Ty moved per MRCP 41(b) to dismiss for failure of Propst to meet her burden of proof on the grounds for divorce. In a 10-page ruling, the chancellor analyzed the evidence. He concluded that Propst had failed to meet her burden of proof because her evidence was in general terms, the police had never been called to the disturbances, and she had only sought medical attention with respect to one incident. The judge did not address the testimony as to the incidents involving solely Tyler.

The COA affirmed, and the MSSC granted cert. In its decision in Pittman v. Pittman, rendered June 2, 2016, the court noted that, “In his ruling, the chancellor failed to make any factual findings regarding the violence against Tyler [Fn omitted]” and “We acknowledge that this Court has not made a clear pronouncement that violence against a child can be considered as habitual cruel and inhuman treatment of a spouse, and we thus recognize that this lack of a clear pronouncement may be why the chancellor understandably failed to make any factual findings regarding the violence against Tyler.”

The majority opinion, by Justice King, continued at ¶14:

… Thus, we will examine the legal question of [Fn omitted] whether violence against a child may be considered in the determination of whether one spouse has engaged in the habitual cruel and inhuman treatment of the other spouse. This Court has certainly considered the traumatic and detrimental effect a tumultuous marriage has on children when considering whether a divorce should be granted based on habitual cruel and inhuman treatment.[Fn 6] See, e.g., Richard, 711 So. 2d at 889. Moreover, the Court of Appeals, a court which chancery courts are bound to follow, has considered evidence of child abuse or mistreatment as conduct that supports granting a divorce based on habitual cruel and inhuman treatment. In  Jones, the Court of Appeals detailed the husband’s inappropriate sexual behavior with the couple’s children and considered it as supporting the chancellor’s grant of divorce for habitual cruel and inhuman treatment. Jones, 43 So. 3d at 476-77. The Court of Appeals noted that the wife “found this behavior offensive and alarming.” Id. at 477. In Keller v. Keller, a case incorrectly cited by the chancery court in this case, [Fn 7] the Court of Appeals noted that the record indicated that the husband had committed at least one instance of physical violence, by throwing a shoe at his wife, that he refused to have sexual relations with his wife and told her to “get a boyfriend” if she wanted sexual relations, that he forced his wife to do heavy physical work in the house and yard without his help, and that he humiliated her in front of family and friends. Keller v. Keller, 763 So. 2d 902, 908 (Miss. Ct. App. 2000). The Court of Appeals found that “[w]hether these facts alone would have been sufficient or not, we find the scales to shift markedly in favor of the divorce with the evidence that Mr. Keller beat his wife’s son from her first marriage[.]” Id. The Court of Appeals detailed the physical and verbal abuse of the child, as well as Mr. Keller’s demands that Mrs. Keller convey custody of her son to her ex husband or her parents, and stated that “[t]his was ‘cruel and inhuman treatment.’” Id. at 908- 09.

[Fn 6] The chancellor in this case did not appear to consider the detrimental effect of the tumultuous marriage on the children. Part of his reasoning for dismissal was that Propst was more concerned with the effects of Ty’s derogatory comments toward her on the children, than on herself.

[Fn 7] The chancery court stated that “In the afore-cited Keller v. Keller, the Court did not find sufficient grounds to award a divorce.” At that point, the chancellor then stated that the evidence in the case at hand did not meet the elements of habitual cruel and inhuman treatment. In Keller, both the chancery court and the Court of Appeals found sufficient grounds to award a divorce based on habitual cruel and inhuman treatment. Keller v. Keller, 763 So. 2d 902, 904, 908-09 (Miss. Ct. App. 2000).

¶15. It is common sense that abuse or mistreatment of a person’s child may constitute cruelty to that person. [Fn 8] Such conduct may certainly be “so unnatural and infamous as to make the marriage revolting to the” party seeking relief and “render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance,” provided the party seeking relief proves by a preponderance of the evidence that the abuse or mistreatment of the child was so unnatural and infamous to the party as to make the marriage revolting to that party, or that it contributes, along with other factors, to rendering the marriage revolting to that party. See Richard, 711 So. 2d at 888. Indeed, “[i]t would be difficult to imagine a course of conduct that would be more intolerable or unbearable, or that would be more subversive of the family relationship, than harsh and abusive treatment of a child.” Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962). We take this opportunity to clarify that chancery courts may consider evidence of child abuse or mistreatment as conduct supporting the grant of a divorce based on habitual cruel and inhuman treatment. [Fn 9] It is not clear that the chancery court in this case considered the alleged instances of physical violence and other mistreatment by Ty against Tyler in determining whether Propst had presented evidence of habitual cruel and inhuman treatment sufficient to defeat Ty’s Rule 41 motion to dismiss; thus the court did not apply what we now clarify is the appropriate legal standard. We therefore reverse the chancery court’s grant of Ty’s Rule 41 motion to dismiss and remand the case for further proceedings so that the chancellor may have the opportunity to consider the violence against Tyler in light of our clarification of the law. On remand, the chancellor should specifically consider and make findings regarding Ty’s treatment of Tyler in determining whether Propst has presented evidence sufficient to defeat Ty’s Rule 41 motion to dismiss regarding her entitlement to a divorce based on cruel and inhuman treatment.

[Fn 8] Additionally, trapping spouses and children in familial arrangements simply because the child, rather than the spouse, was the victim of abuse or mistreatment makes little sense and it certainly cannot have been the Legislature’s intent to imprison those children in abusive situations simply because their nonviolent parent could not obtain a divorce. Incidentally, the nonviolent spouse would have a duty to report any child abuse or neglect committed by the other spouse. See Miss. Code Ann. § 43-21-353(1) (Rev. 2015). That parent could also be held criminally liable in certain instances for failing to report his or her spouse. See Sherron v. State, 959 So. 2d 30 (Miss. Ct. App. 2006) (mother who helped minor child get an abortion after rape by mother’s husband found guilty of being an accessory after the fact to statutory rape, and was not entitled to a mitigating defense instruction that a failure to report was not a crime, because she did have an affirmative duty to report the abuse of her daughter).

[Fn 9] Other states have held likewise. See Jaikins v. Jaikins, 122 N.W.2d 673 (Mich. 1963) (noting the court’s duty toward the children, and stating that “mistreatment of children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty by the guilty party which justifies a divorce.”); Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962) (Mistreatment of a child constitutes an “indignity.”).

The court noted in Fn 6 (omitted in this post) that the GAL had developed some evidence of physical violence toward Tyler.

HCIT has been the graveyard of many a divorce case. This holding will give you an additional avenue by which you can make a viable case.



The Power of Prayer

August 16, 2016 § 1 Comment

In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:

” … he’d better pray longer and harder.”


August 9, 2016 § 6 Comments

Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.

After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.

In her case in chief, Lonnie presented testimony that Les:

  • Was uncommunicative, controlling, and belittling.
  • Was unwilling to spend time with her or to schedule family vacations.
  • Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
  • Refused to give her compliments or to acknowledge her contributions to their life.
  • Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
  • Refused to give her money to buy groceries because he might not like the food she bought.
  • Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”

Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.

For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.

The chancellor ruled that Lonnie had failed to  prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.

In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.

I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.

What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).

Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”

I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.

People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.

I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.


Who You Gonna Believe?

July 18, 2016 § 1 Comment

In the hilarious comedy, Duck Soup, Groucho Marx is caught by his lady-friend in flagrante delicto with another woman. When she accuses him of the obvious, he retorts, “Who you gonna believe, me or your lyin’ eyes?”

That popped into my head when I read the COA’s decision in Stuckey, Conservator of Waid v. Waid, decided June 28, 2016. Stuckey, who was special conservator of Lila Waid, an end-stage Altzheimer’s victim, became convinced that Lila’s husband Herman Waid was having an affair with an old flame. At the time of trial, Herman was 84 years old and was suffering from Parkinson’s Disease. The plaintiff presented proof that Herman and his lady-friend, JK, were seen lying together in Herman’s hospital bed, and they spent time together at each other’s homes, often in the bedroom. They were seen being affectionate toward one another. In defense, they denied any sexual relations. Herman contended that he was impotent, and suffered from erectile dysfunction. JK stated that she wished that the relationship were more than friendship.

The chancellor issued a 12-page opinion denying the divorce, and Lila appealed. The COA affirmed. What I want to call to your attention is how it is up to the judge to choose who to believe, and how much weight to give to the evidence presented. Here is how Judge Fair, for the court, stated it:

¶16. We find there was substantial evidence to support the chancellor’s finding. Herman and J.K. both testified that their relationship was not romantic. They admitted to staying together overnight, but there was no evidence of a sexual relationship. See Atkinson [v. Atkinson], 11 So. 3d at 176-77 (¶19) [(Miss. App. 2009)](finding that cohabitation does not prove adultery by clear and convincing evidence). None of the conduct described in the eyewitness testimony meets the definition of adultery. See Owen [v. Gerity], 422 So. 2d at 287 [(Miss. 1982)]. Further, the chancellor was presented with uncontradicted evidence of Herman’s impotence, which would make it impossible for him to satisfy any inclination.

¶17. As the judge of credibility, the chancellor is entitled to choose between reasonable interpretations of the evidence and the inferences that may be drawn therefrom. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). The evidence of record is facially sufficient to support a finding of adultery, as stated in the dissent. But the evidence is, likewise, facially sufficient to support a finding that adultery did not take place. The trier of fact is not this court but the chancellor, who heard the testimony of the witnesses, determined their credibility, weighed that and other evidence, and made a decision within her discretion. After viewing the record, we are therefore satisfied that the chancellor did not abuse that discretion, was not manifestly wrong, was not clearly erroneous, and applied the proper legal standard in making her decision. We thus affirm.

Nothing really earth-shaking there, but it’s a good reminder that the chancellor has broad power to choose whom to believe and how much weight to assign to the evidence. As long as the chancellor’s decision is supported by substantial evidence and applies a proper legal standard, the result will be an affirmance on appeal. That is even true, as in this case, where there was substantial evidence to support an opposite result.

Periodic or Lump-sum?

June 22, 2016 § Leave a comment

When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:

“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”

Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.

Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.

In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.

Some observations:

  • Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
  • As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
  • In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
  • Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
  • As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?


What You Say and How You Say it

June 13, 2016 § Leave a comment

When Lori and Gary Mosher appeared for the divorce trial to end their 26-year marriage, they agreed to a divorce on the ground of irreconcilable differences, and submitted several contested issues for adjudication by the court.

The parties agreed that Lori would receive “one-half of [Gary’s] military retirement,” but left it to the court, apparently, to decide the amount. The chancellor found that Gary’s “military retirement” consisted of two components: “his disposable retired pay”; and his VA disability retirement of around $400 a month. Half of the two components came to $1,795, after deduction for a survivor annuity. Since the VA benefit was not subject to division under federal law, the chancellor awarded Lori a greater share of the retirement.

Gary appealed, complaining that the chancellor had no authority to divide the VA benefits because their agreement was to divide the military retirement only.

The COA affirmed on the point in Mosher v. Mosher, handed down May 24, 2016. Judge Fair wrote for the majority:

¶8. This argument misses the mark. Although it is true that the parties here agreed to divide the “military retirement” equally, the property settlement agreement did not specify what that was. Property settlement agreements are contracts, and like all contracts, there are sometimes disputes regarding the meaning of their terms. Gaiennie v. McMillin, 138 So. 3d 131, 135 (¶8) (Miss. 2014). It is apparent that the chancery court interpreted the parties’ agreement rather than disregarding it as Gary contends. The chancellor dedicated nearly ten of the fifty-six pages of her written judgment to this question.

¶9. As to the interpretation of the agreement, while it is clear Gary does not agree with the chancellor’s decision, he has not briefed that issue. “[T]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to [the appellate court].” Birkhead v. State, 57 So. 3d 1223, 1231 (¶28) (Miss. 2011); see also M.R.A.P. 28(a)(6). Gary has failed to meet his burden of showing error on this issue.

There are other issues addressed in the opinion dealing with equitable distribution and alimony. Judge Carlton dissented in part, joined by Greenlee and Griffis.

The main takeaways here for practitioners:

  • What you say and how you say it are pretty dadgum important when it comes to court. If the parties intended that only the military retirement, not including the VA disability retirement, was to be divided, then the agreement should have stated exactly that. Precision makes all the difference. It’s pretty hard to argue that something was intended when that intent does not appear in the specific language.
  • If you do not cite authority for your position on appeal, you have effectively waived it.


Can Your Client Do What She Agreed to Do?

May 24, 2016 § Leave a comment

When Karen and Rickey Chance got an ID divorce in 2003, the parties’ PSA provided that Karen would get ownership of a home in Ocean Springs. Rickey was to be responsible to obtain a 30-year mortgage on the property, and to pay the mortgage debt and one-half of the ad valorem taxes for 96 months. Karen was responsible to pay her one-half of the ad valorem taxes, the hazard insurance, and to pay all taxes, insurance, and mortgage debt payments after Rickey’s obligation expired. Rickey also was to pay Karen alimony.

In 2004, Rickey got the mortgage, and the closing attorney suggested in a letter that Rickey simply reduce his alimony payments by the amount of Karen’s monthly obligation, but neither party acted on the recommendation.

To make a long story somewhat shorter, Karen never paid either her half of the taxes or the hazard insurance between 2003 and 2013. In 2013, Karen did send Rickey nearly $4,500 to pay her share of the 2013 expenses.

In the 10-year interim between 2003 and 2013, the parties talked about the situation. Karen steadfastly maintained that she did not have the financial ability to carry out her end of the deal.

In 2013, Rickey filed a petition for contempt against Karen, who responded with several defenses, most notably that of inability to pay. After a hearing the chancellor awarded Rickey a judgment for $38,584.90, and attorney’s fees. Karen appealed.

In the case of Chance v. Chance, decided May 10, 2016, the COA affirmed. You can read the opinion for yourself to see how the court dealt with Karen’s claims of laches, inability to pay, and error in award of attorney’s fees.

I want to focus on the agreement itself:

  • I have seen several PSA’s lately in which one party agrees to refinance the home within some stated period of time. In every case, when I asked the lawyer whether the obligated party had the ability to do it, the answer was a shrug with a whimsical smile and “that’s what they agreed to do.” Yes, but if it’s your client who is on the hook, have you discussed whether he or she has the ability to do it? And if it’s the other party who has the duty, what impact will it have on your client if he or she proves incapable of doing as promised? Have you explored these things?
  • One critical reason why this is so important to your client’s interest is that the property-division portions of a PSA are unmodifiable. East v. East, 493 So.2d 927, 931 (Miss. 1986). Your client does not get a do-over on the “oops” principle.
  • Another important factor is that attempting to prove inability to pay is rarely successful. The burden is heavy, as I have pointed out here before.
  • To avoid these swivet-inducing situations, build some alternatives into the agreement. If, say, your client ever can not pay her share of the taxes or insurance, the home could be listed for sale, the other party may reduce alimony and pay the taxes and insurance himself until sold, and he will be reimbursed from the proceeds. That’s one example; I am sure your creative legal genius can conjure up many others.
  • Remember that if all you do is take your client’s notes and convert them into a legal-looking sheaf of papers, you are nothing more than a clerk-typist; you are misleading the public and fooling yourself if that’s what you do and you call yourself a lawyer.



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