The Better Chancery Practice Blog

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.