The Fifth Amendment and the Adverse Inference
September 9, 2019 § 3 Comments
Can a chancellor grant a divorce solely on the adverse inference created when a witness invokes the Fifth Amendment to the United States Constitution?
That was one of the questions raised in Martha Bradshaw’s appeal from a chancellor’s adjudication that she was guilty of adultery and granting a divorce to her husband, Loyd.
To refresh your recollection as to that adverse inference, here is a quote from ¶22 of the COA’s August 13, 2019, decision in Bradshaw v. Bradshaw, penned by Judge Greenlee:
Concerning a witness’s “taking the Fifth” in civil cases, the trier of fact may draw an adverse inference from a defendant’s refusal to testify. Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004).
Let’s say the witness was asked, “have you committed adultery during the marriage?” and the witness pleads the Fifth, at that point the court may infer that the witness’s answer would have been adverse to his or her interest.
So, when a witness claims the Fifth Amendment’s right against self-incrimination in a divorce case, is that inference enough to satisfy the burden of proof? Judge Greenlee says:
However, we have failed to find a case that allows a divorce to be granted based solely on that inference.
In a specially concurring opinion, Judge McCarty raises the question whether in Mississippi it is even appropriate to invoke the Fifth on the basis that answering the question could subject one to prosecution for adulterous conduct. At footnote 7 he observes:
It is unlawful cohabitation conjoined with more than a single act of adultery that is a crime—a misdemeanor. Miss. Code Ann. § 97-29-1 (Rev. 2014); see Miss. Dep’t of Wildlife, Fisheries & Parks v. Bradshaw, 196 So. 3d 1075, 1085 (¶26) (Miss. Ct. App. 2016) (holding that there is no general crime of adultery, but that the Code prohibits cohabitation when there is a “habitual . . . laying together”).
Then, at footnote 8, he points out:
There have been prosecutions for adultery, but we do not see reported cases on it lately. See Ratcliff v. State, 234 Miss. 724, 728, 107 So. 2d 728, 729 (1958) (examining the law and the corollary prohibition on marriage between blacks and whites, which unlike the cohabitation crime, was a felony punishable with 10 years); Housley v. State, 198 Miss. 837, 839, 23 So. 2d 749, 749 (1945) (affirming dual convictions for unlawful cohabitation). Although it is easy to see the objection as gamesmanship, we have reminded the Bar not too long ago “that cohabitation between persons not married to each other is against the law in Mississippi,” and while “this law is frequently broken has been recognized by the supreme court,” it remains on the books as a crime. Sullivan v. Stringer, 736 So. 2d 514, 516-17 (Miss. Ct. App. 1999). We ruled there that “[c]ommission of crimes by a custodial parent, even if they are only about sex, is properly the concern of a chancellor,” although it should be added that the weight accorded to it is left to the trial court. Id.
He refers to the objection based on possible prosecution for adultery as “incorrect” in footnote 9:
The same incorrect objection was lodged in McDonald v. McDonald, 69 So. 3d 61, 66 (Miss. Ct. App. 2011). We noted in passing that we would “decline to address the question of whether [the husband] could have successfully been prosecuted for adultery . . . . ” Id. at 66 n.2.
THE CURSE OF HCIT STRIKES AGAIN
April 4, 2012 § Leave a comment
Amanda Alexander filed for divorce charging her husband, Khari, with the sole fault ground of adultery. She had discovered amorous emails on Khari’s computer. For his part, Khari admitted being attracted to other women, and even having flirtations with them, including one episode in which he was alone in a hotel room with a woman and put on a condom, but he denied adultery.
Amanda also testified that Khari threatened her and used profane language, slapped a phone out of her hand when she attempted to call the police, and took her car keys so that she had to get the help of police to get them back.
At the conclusion of the trial, the special chancellor found that Amanda had not proven adultery and suggested that she move to amend her pleadings under MRCP 15 to seek a divorce on the ground of habitual cruel and inhuman treatment, which she immediately did, and the judge granted Amanda the divorce on that ground.
Khari appealed, complaining that it was improper to allow the amendment because the requirements of MRCP 15(b) were not met to allow an amendment.
The COA reversed. In Alexander v. Alexander, decided March 27, 2012, Judge Lee, writing for the court, said, beginning at ¶8:
“Mississippi Rules of Civil Procedure Rule 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. Fisher v. Fisher, 771 So. 2d 364, 368 (¶13) (Miss. 2000). However, the chancellor found Amanda failed to prove adultery.
¶9. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that:
either endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.
S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp. 1991); Gardner v. Gardner, 618 So. 2d 108, 113-14 (Miss. 1993). A causal connection between the treatment and separation must exist. Fournet v. Fournet, 481 So. 2d 326, 329 (Miss. 1985). “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Moses v. Moses, 879 So. 2d 1043, 1047 (¶9) (Miss. Ct. App. 2004) (quoting Keller v. Keller, 763 So. 2d 902, 908 (¶29) (Miss. Ct. App. 2000)).
The court went on to find that Amanda’s proof did not meet the standard required to prove habitual cruel and inhuman treatment (HCIT). As Judge Lee pointed out, Amanda, when asked in her testimony what was the reason she was seeking a divorce, answered “Adultery,” and said that the reason for the separation was the inappropriate relationships with other women. Judge Lee noted that the conduct that is the ground for divorce must be the cause of the separation, not some other ground, and he pointed out that, although adultery can be considered HCIT, in this case the trial judge had found that there was inadequate proof of adultery.
This is yet another case that hammers home 2 points: (1) Make sure your pleadings are in order and map out what you are going to try to prove at trial and how to get there; and (2) You might as well not even try to get an HCIT divorce unless you have the requisite proof.
Judge Ishee wrote a dissent, joined by Judge Carlton, concluding that the chancellor did have adequate proof to support a finding of HCIT, but the dissent did not carry the day.
Two more points:
First, this case is another unfortunate example where the chancellor tried to do what he felt needed to be done, but did not have either the proof in the record or proper pleadings to go on. It’s up to the attorney to make sure that the pleadings cast a wide enough net to cover everything that needs to be covered, and that there is sufficient direct and corroborating evidence to support the judge’s ruling.
Second, I had to laugh out loud when I read this statement by the special chancellor: ” … but under the new rules an amendment can be made right up to the final order.” No, I’m not laughing at the distinguished and respected former chancellor and COA judge who made that statement. I’m laughing at myself. Here’s why: several months ago I was talking with a young lawyer about a procedural matter, and I commented that “Under the new rules … ” we now have to do so and so. Her face clouded up, and I asked her whether I had confused her. “It’s not that,” she said “it’s only that I didn’t know we had some new rules.” I explained that I still called the MRCP, put into effect in 1983 (that’s almost 30 years ago), the “new rules.” She laughed innocently and said, “1983? I was still in diapers then!” Yikes. I have since tried to purge my speech of any reference to the “new rules,” at least until we actually do have some new rules. Still, it’s hard not to feel old as Moses when someone tells you something like that.
CAN ADULTERY BE HCIT?
December 27, 2011 § 1 Comment
If you prove adultery, can that get your client a divorce on the ground of habitual cruel and inhuman treatment (HCIT)?
In the COA case of Johnson v. Johnson, decided December 13, 2011, Willie Johnson argued that the chancellor improperly granted his wife, Hazel, a divorce on the ground of HCIT because the only proof against him was that he had committed adultery, which had been condoned. He contended that adultery is a separate and distinct ground, and that, since he had proven a complete defense to adultery, it was error for the trial court to grant his wife a divorce on another ground.
It’s an interesting argument, because condonation is an absolute defense against an act of adultery, but it’s much more difficult to apply against HCIT, which involves recurring (habitual) conduct.
Judge Griffis stated the opinion of the court:
¶24. While Willie might be correct that adultery alone cannot support a finding of habitual cruel and inhuman treatment, a pattern of adultery, when combined with other cruel and inhuman conduct, can support such a finding. Id. at 368 (¶¶12-13). In Fisher, the Mississippi Supreme Court held that the husband’s several acts of adultery and few acts of physical violence supported a finding of habitual cruel and inhuman treatment. Id.
¶25. Likewise, in this case, there was substantial evidence that Willie had committed several acts of adultery and that he had, on at least one occasion, committed an act of physical violence. Willie fathered at least two – possibly three – children out of wedlock with two different women during his marriage to Hazel. His affair with Jones spanned almost two decades – beginning in approximately 1991 at Utica Junior College and continuing up until the entry of divorce in 2010. Also, Hazel’s testimony and the hospital records indicate Willie physically assaulted her in their former marital home in May 2004. We find these facts are sufficient to establish that Willie’s conduct was cruel and inhuman.
¶26. We also find Hazel has shown the requisite impact on her physical or mental health. The hospital records indicate that she suffered bruises and lacerations following the incident in May 2004. Also, Willie’s affair with Jones caused significant stress for Hazel. Jones became possessive, jealous, and threatening. She made harassing phone calls to Hazel, damaged property in Hazel’s garage, and scattered Hazel’s wedding photographs on the street in front of Hazel’s house. Hazel testified that as a result of that behavior, she felt terrified and would often barricade herself inside her home.
¶27. Lastly, we do not find Hazel had condoned Willie’s adultery. Hazel did continue in the marriage after she learned about Willie’s affairs, but the evidence indicates she expected him to end the affairs and recommit to the marriage. She forgave him for his past indiscretions, but she did not consent to live in a marriage with a habitually unfaithful husband. This is not a case where isolated acts of adultery were forgiven by the other spouse. Rather, Willie’s adultery was habitual and continuous.
¶28. In Smith v. Smith, 40 So. 2d 156, 157 (Miss. 1949), the supreme court rejected the husband’s argument that his wife had condoned his habitual cruel and inhuman treatment by continuing in the marriage. The court distinguished a “single act” from “courses of conduct,” suggesting that it is more difficult to establish condonation of the latter. Id. The supreme court stated: “The effort to endure unkind treatment as long as possible is commendable and the patient endurance by the wife of her husband’s ill-treatment should not be allowed to weaken her right to a divorce.” Id. Likewise, in Lindsey v. Lindsey, 818 So. 2d 1191, 1195
(¶¶17-18) (Miss. 2002), the supreme court found the doctrine of condonation inapplicable under the facts of the case. The husband had forgiven his wife for her past acts of adultery, but the wife proceeded to commit adultery again. “Condonation can be avoided if . . . the marital offense is repeated.” Id. Based on these authorities, we find Hazel had not condoned Willie’s habitual adultery.
So there you have it. Habitual adultery can amount to HCIT and defeat a defense of condonation if it meets the basic requirements of HCIT.
EQUITABLE DIVISION AND MARITAL FAULT
August 24, 2011 § 5 Comments
It is almost a platitude of Mississippi law that, “Courts may divide marital assets between divorcing spouses in a fair and equitable manner — equal division is not required.” Bell, Mississippi Family Law, § 6.01[4].
The sticking point is where to draw the line between “fair and equitable” and “equal.” The appellate decisions come in all sizes, colors and flavors.
Bond v. Bond, decided by the COA August 16, 2011, is the latest iteration on the point. In that case, Jimmie Lee proved that his wife, Donna, had committed adultery during their four-year marriage. The chancellor awarded Jimmie Lee 90% of the equitable division, and gave Donna the remaining 10%. Jimmie Lee appealed, aggrieved that Donna got such a generous share, and charged that the chancellor erred in failing to make sufficient findings of Donna’s adultery.
Judge Maxwell’s opinion sets out the applicable law about as clearly as can be done:
In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:
(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.
Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009) (citing Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss. 1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So. 2d 1004, 1013-14 (¶26) (Miss. 2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So. 3d 1251, 1264 (¶45) (Miss. Ct. App. 2009). Rather, we examine the chancellor’s judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶52).
In Carrow v. Carrow, 642 So. 2d 901, 905 (Miss. 1994), the Mississippi Supreme Court held that a chancellor erred in finding a wife’s “adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce.” The Carrow court instructed that chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. See id. at 904 (citing Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994)). Rather, “marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Id. at 904-05 (citing Ferguson, 639 So. 2d at 927).
The court found that the chancellor had, indeed, taken into consideration Donna’s fault when he considered the Ferguson factor dealing with the parties’ relative contributions to the stability and harmony of the marriage. The chancellor had found under that factor that:
“Neither Jimmie nor Donna did all they could to provide stability and harmony to the family. Donna became infatuated with another man and her romantic relationship with this third party caused the dissolution of the marriage.”
So here are a few points to ponder about this decision:
- The rule that equitable division does not require an equal division, but only a fair division, is alive and well.
- A 90-10 split in equitable distribution will be found fair if the judge addresses all of the Ferguson factors and justifies the decision.
- The judge is only required to address all of the Ferguson factors, not to analyze them in excruciating, lengthy detail. In this case, the chancellor’s two-sentence recitation was found adequate to support the award.
This case reminded me of the student who got a 90 on a test and wanted the teacher to re-grade it in hopes of an even better grade. Jimmie Lee’s “grade” stayed the same after the appeal, but it’s somewhat of a head-scratcher why he appealed in the first place, given the pretty clear holding in the Carrow case.
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