ONE TOKE OVER THE LINE

October 24, 2011 § 5 Comments

MCA § 93-5-1 lists the statutory grounds for divorce. Ground “Sixth” is “Habitual and excessive use of opium, morphine or other like drug.”

The somewhat archaic language of the statute has given rise to some obvious questions, including:

  • What frequency of drug use is required to be considered habitual?
  • When is use of opium, morphine and “other like drugs” excessive (and, for that matter, when is it not excessive?)
  • What drugs are included in the definition of “other like drugs?”

Perhaps the leading case to address these questions has been Ladner v. Ladner, 436 So.2d 1366 (Miss. 1983), in which the MSSC held that the husband’s daily use of drugs was so excessive that he had lost the ability to control his use, and the prescription drugs that he used and abused had an effect on him similar to that which would have been produced by opium or morphine, including adverse effects on his cognitive abilities, social and family relationships, and work.

In the case of Carambat v. Carambat, decided by the MSSC on October 20, 2011, the court held that marijuana is a drug included in the definition of “opium, morphine and other like drugs,” and affirmed the grant of a divorce on the ground. The court spelled out that the ground requires that the plaintiff prove the spouse’s drug use was: (a) habitual and frequent; (b) excessive and uncontrollable; and (c) that it involved opium, morphine, or drugs with a similar effect as opium or morphine. Habitual use is proved with evidence that the spouse customarily and frequently used drugs. Excessive use is proven by showing that the offending spouse abused drugs. In determining whether a drug fits the definition of “other like drug,” the trial court should consider the using spouse’s ability or inability to support his wife and family, or to properly attend to business, as well as the guilty spouse’s ability or incapacity to perform other marital duties, or his causing the marital relationship to be repugnant to the innocent spouse.

The court found that evidence in the record did support the chancellor’s findings that the husband’s use of marijuana was habitual and excessive, and that it did have an effect similar to opium and morphine in that it did affect his ability to work and support the family, his family relationships and the family’s financial stability, rendering the marital relationship repugnant to the wife.

At trial, the husband had attempted to argue that the wife knew about his marijuana use before the marriage, and that she condoned his use during the marriage, but the chancelor refused to entertain his objections. On appeal, the MSSC upheld the chancellor, noting that MRCP 8 requires that an affirmative defenses such as condonation must be specifically pled as required, and if not pled is waived. The husband had failed to plead condonation, and the wife timely objected when he attempted to interpose the defense. The MSSC held that the defense was waived.

The husband had also attempted to raise the defense of recrimination on appeal, claiming that the wife had committed adultery. He had not, however, filed a counterclaim or otherwise raised the issue in any pleading, resulting in the same result as that for his failed condonation claim. The court also noted that MCA § 93-5-2 does not mandate denial of a divorce when there is evidence of recrimination.

In a cogent dissent, Justice Carlson takes the position that Mississippi is the first state to hold that marijuana use is a ground for divorce. He also opines that the court’s ruling will open the floodgates to many more divorces. His dissent is worth a read for his argument highlighting the differences between opiates and marijuana, and their statutory treatment in our law. Justices Dickinson and Kitchens joined Carlson’s dissent.

A few points I glean from this case:

  • The court has fairly well spelled out the abc’s of what it will take to get a divorce on this ground. If your case fits the recipe, you will likely have some success.
  • The key to whether the drug in your case will fit the definition is what effect it has on the life of the using party and its effect on the other spouse and the marriage.
  • I agree with Justice Carlson that many cases that formerly were purely habitual cruel and inhuman treatment (HCIT) cases with marijuana use are now candidates for this ground, which could spell an increase in the number of cases. BUT, keep in mind that the burden of proof for ground the Sixth is clear and convincing evidence, which is a considerably heavier burden than the preponderance required for HCIT.
  • A side effect of this decision will be to remove any doubt that marijuana use can be included in the discussion of the kind of drugs that can trigger a divorce. Again, the turning point will be the effect on the other spouse and the marriage itself because of the offending spouse’s conduct. What about “synthetic marijuana’ and marijuana substitutes?
  • If you expect to raise condonation or recrimination as defense, whether at trial or on appeal, you had better plead them as required in MRCP 8(c).

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