October 14, 2019 § Leave a comment
Cobbling together enough evidence and corroboration to meet your burden of proof in an habitual cruel and inhuman treatment (HCIT) case can be quite a challenge.
In the COA’s recent case, Littlefield v. Littlefield, appellant Eddie Littlefield argued that the chancellor erred in granting his wife Brooke a divorce on the ground. The COA affirmed in a decision handed down August 27, 2019. Judge Tindell’s opinion first set down the legal standard for HCIT:
¶8. Eddie first argues that the chancellor erred in granting a divorce in favor of Brooke on the ground of habitual cruel and inhuman treatment. Mississippi Code Annotated section 93-5-1 (Rev. 2018) allows a chancellor to grant a divorce based upon habitual cruel and inhuman treatment. Divorce is properly granted upon this ground if the claimant establishes, by a preponderance of the evidence, 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.
Alexander v. Alexander, 95 So. 3d 696, 699 (¶9) (Miss. Ct. App. 2012) (citing N. Shelton Hand, Mississippi Divorce, Alimony and Child Custody § 4:12 (2d ed. Supp. 1991)). In addition, there must be a causal connection between the treatment and the actual or threatened harm to the claimant’s health or well-being. Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986); see also Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992); Farris v. Farris, 202 So. 3d 223, 232 (¶33) (Miss. Ct. App. 2016). To establish such a causal connection, there must be some corroboration to the moving party’s testimony of the offensive conduct, except in cases of isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Evidence of something more than “mere unkindness, rudeness, petty indignities, frivolous quarrels, incompatibility or lack of affection” is required to establish habitual cruel and inhuman treatment. Id. at 469 (¶9).
There follows five pages in which the court recites the evidence at trial supporting the chancellor’s findings.
As for Eddie’s arguments that Brooke had failed to offer sufficient corroboration, the court said:
¶18. Eddie asserts that Brooke’s testimony lacked corroborating evidence. But the testimony of Jean, Erhart, and Eddie himself corroborated the vast majority of Brooke’s allegations. We have held that a claimant’s corroborating evidence “need not be sufficient in itself to establish the ground, but rather, need only provide enough supporting facts for a court to conclude the [claimant’s] testimony is true.” Williams v. Williams, 224 So. 3d 1282, 1287 (¶15) (Miss. Ct. App. 2017). In this case, the chancellor was provided more than enough testimony and evidence to corroborate Brooke’s testimony.
And finally, with regard to the sufficiency of the evidence, the court said:
¶19. Eddie also argues that the evidence provided at trial was insufficient to prove habitual cruel and inhuman treatment by a preponderance of the evidence. As the trier of fact, the chancellor “evaluates the sufficiency of proof based on the credibility of the witnesses and the weight of their testimony.” Rawson v. Buta, 609 So. 2d 426, 431 (Miss. 1992). Divorces based upon habitual cruel and inhuman treatment are necessarily fact-intensive and require a case-by-case analysis. James Shelson, Mississippi Chancery Practice § 38:5 (2019). The chancellor must dually focus on both the alleged conduct of the offending spouse as well as the impact of that conduct on the complaining spouse and the marriage. Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012). Upon review, we “must employ a subjective standard,” rather than an ordinary, reasonable person standard, understanding that the impact of the conduct on the complaining spouse is crucial. Harmon v. Harmon, 141 So. 3d 37, 42 (¶16) (Miss. Ct. App. 2014) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)).
¶20. Eddie correctly argues that a more extreme set of facts is required than a showing of “mere unkindness, rudeness, and incompatibility.” Reed v. Reed, 839 So. 2d 565, 570 (¶19) (Miss. Ct. App. 2003). But “our supreme court has specifically noted that ‘[t]here are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.’” Rakestraw v. Rakestraw, 717 So. 2d 1284, 1288 (Miss. Ct. App. 1998) (citing Savell v. Savell, 240 So.2d 628, 629 (Miss.1970)). Also, abusive conduct that is routine and continuous suffices to meet the requisite burden. Lomax v. Lomax, 172 So. 3d 1258, 1261 (¶6) (Miss. Ct. App. 2016); see also Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972) (The “conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity present itself.”). For example, in Harmon, the offending spouse’s conduct included continuous sexual degradation, cursing and yelling, jealousy and constant accusations of infidelity, irrationality, and habitual name-calling. Harmon, 141 So. 3d. at 40 (¶¶5-11). Because the cumulative effect of the offending spouse’s behavior constituted cruelty, we upheld the chancellor’s judgment of divorce. Id. at 42 (¶17).
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[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.
February 5, 2013 § Leave a comment
Tell me, how long, Judge, do I have to wait?
Can you let me know? Why must I corroborate?
— apologies to Rev. Gary Davis “Hesitation Blues”
We’ve visited the issue of corroboration in divorce cases several times on this blog. You can find posts on the subject here, here and here. As Judge Maxwell said in the case of Smith v. Smith, “[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 that the plaintiff’s testimony is true.” citing Jones v. Jones, 43 So. 3d 465, 478 (Miss.App. 2009).
If your case lacks corroboration, you will leave the courtroom sans a divorce.
You will find the latest example in the case of Gillespie v. Gillespie, decided by the COA January 29, 2013. I’ll let Judge Griffis’s decision do the talking:
¶13. Habitual cruel and inhuman treatment as a ground for divorce must be proved by a preponderance of credible evidence. Chamblee v. Chamblee, 637 So. 2d 850, 859 (Miss. 1994). This Court has stated:
Conduct that evinces habitual cruel and inhuman treatment must be such that it 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 nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Fulton v. Fulton, 918 So. 2d 877, 880 (¶7) (Miss. Ct. App. 2006) (citation omitted). Generally, the “cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be [sufficient] for a divorce on this ground.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶14) (Miss. 2002) (citations omitted).
¶14. In Chamblee, the supreme court addressed the requirement that the claims of cruel and inhuman treatment be corroborated by a witness. Chamblee, 637 So. 2d at 860. The court noted that the wife produced only one corroborating witness. Id. The witness simply observed the presence of bruises on the wife’s arm and had no independent knowledge of how they got there. Id. Finally, the husband denied abusing the wife. Id. For these reasons, the court determined the chancellor did not err when he denied the wife a divorce on the ground of cruel and inhuman treatment because she failed to prove her case by a preponderance of the evidence. Id.
¶15. In Fulton, 918 So. 2d at 880-81 (¶¶9-10), the wife produced three witnesses to corroborate her claim that her husband abused her. Id. at 880 (¶9). Her mother testified she observed bruises. Id. Also, a friend testified that on many occasions the wife called late at night to discuss the altercations between her and her husband. Id. Finally, a cousin testified she took pictures of the wife’s bruises and scratches in her mouth. Id. The cousin also observed tension in the household when she visited. Id. This Court determined that this evidence was sufficient to grant a divorce based on cruel and inhuman treatment. Id. at 881 (¶10).
¶16. Here, Timmy offered one witness, James Moss, to corroborate his claim of cruel and inhuman treatment. Moss observed bruises on Timmy but had no independent knowledge of how Timmy had received the bruises. Moss’s testimony was based not on his own knowledge or information but on what Timmy had told him.
¶17. Timmy also claims that Meagan observed an attack. But, Meagan did not testify to corroborate his claim.
¶18. No corroborating witness, with independent knowledge of the instances of cruel and inhuman treatment, testified to establish the claim of cruel and inhuman treatment. As a result, we find that the chancellor’s finding of grounds for a divorce due to cruel and inhuman treatment was not supported by substantial credible evidence in the record. Nevertheless, because we affirm the chancellor as to the grounds of adultery in the following section, this decision does not affect the outcome of this appeal.
The difficult corroboration cases seem to be the ones that I refer to as self-corroboration, which occurs when all that the corroborating witness knows is what he or she was told by the alleged abusee, as in Chamblee. In Smith, the only corroboration was police reports that the alleged victim had made, which were based on her own allegations and nothing else. The Fulton case, above, is a good illustration of the web of circumstantial evidence that will be found to be corroborative.
No corroboration, and you have to hesitate.
January 11, 2011 § 3 Comments
I posted here about how crucial it is for the proof of grounds in fault-based divorces to be corroborated.
In Ladner v. Ladner, decided December 14, 2010, the court of appeals again emphasized the strength of the corroboration rule. The court stated at ¶ 10 the familiar principle that “The corroborated testimony must show conduct that ‘endangers life, limb, or health, or creates reasonable apprehension of such danger, rendering it impossible for [the other] spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.'”
Deborah Ladner charged her husband Philip with habitual cruel and inhuman treatment She testified that Philip had been abusive toward her and assaulted her. She offered into evidence two police reports and two rpotective orders, which both the trial judge and the court of appeals found not to be corroborative because all of the information they contained was provided by Deborah. The appellate court also found uncorroborative a statement in a police report that the parties’ son was afraid of his father, and that Philp had broken his daughter’s door in anger because those showed only a troubled relationship with the children and did not corroborate Deborah’s testimony about violence directed at her. The court reversed the chancellor’s decision granting Daborah a divorce on the ground of habitual cruel and inhuman treatment.
Justice Carlton in her dissent would have found the testimony adequately corroborated to grant Deborah a divorce on habitual cruel and inhuman treatment. She quoted from Professor Bell’s treatise that the corroborating evidence need not be sufficient in itself to establish the ground, but only needs to be enough for the court to conclude that the plaintiff’s testimony is true.
An interesting twist in this case is that the chancellor granted both parties a divorce. He granted Deborah a divorce on the ground of habitual cruel and inhuman treatment, and he granted Philip a divorce on the ground of adultery. Philip had raised the issue that it was improper for the chancellor to grant dual divorces, but the court of appeals held that issue to be moot, based on its reversal of Deborah’s divorce.
There are several points chancery practitioners need to come away from this case with:
- No corroboration = no divorce. The requirement of corroboration is alive and well, and you need to be sure you have a corroborating witness or two lined up to support your case.
- Self-corroboration will not work. The information Deborah submitted to corroborate her claims that she generated was found not to be corroboration, and that makes perfect sense. It’s easy for a party to generate police reports and file charges to build a case. Those kinds of documents are nothing more than her own statements, so they corroborate nothing.
- The corroboration has to be linked to the conduct charged. Deborah’s proof about her son and daughter was not tied to conduct directed at her. Maybe the result would have been different if the son had testified that he was afraid of his dad because the son saw him threaten or physically mistreat the mom; if the door-breaking incident had been tied to a rampage in which Philip manhandled Deborah, that may have been the link she needed.
The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.