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.
January 30, 2017 § Leave a comment
The recent COA decision in Gwathney v. Gwathney, decided January 10, 2017, is notable for the fact that it was an appeal from a chancellor’s decision denying the appellant a divorce. She had proceeded on the ground of habitual cruel and inhuman treatment (HCIT). You can read the decision for yourself. It’s instructive on the subject of what it takes to support a finding of HCIT.
The COA, by Judge Ishee, deferred to the chancellor’s findings of fact:
¶9. “[A]s the trier of fact, [the chancellor] evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Holladay [v. Holladay], 776 So. 2d  at 676 (¶62) [(Miss. 2000)]. We do not find that the chancellor was manifestly wrong or that he applied an erroneous legal standard. This opinion should not be construed as though a chancellor could never find cruel and inhuman treatment under the same or similar circumstances. Instead, we simply hold that it was within the chancellor’s discretion to consider the particular nuances of this case, weigh the evidence, and determine that the proof fell short of habitual cruel and inhuman treatment. To hold otherwise, we would have to improperly substitute our view for the chancellor’s. Because that would be beyond the scope of the standard of review, [Fn omitted] we affirm the chancellor’s judgment.
Fair enough. But it appears that there was some discussion among the judges as to whether the COA could act as “Super Chancellors” in a denial of divorce case, substituting its collective judgment for that of the trial judge who observed the demeanor and credibility of the witnesses. I say that because one judge, Wilson, “concurs in part and in the result without separate written opinion,” and because of the inclusion of a lengthy footnote at the end of the opinion that may have been intended to address Judge Wilson’s concerns. Here is the footnote (omitted above) in its entirety:
In Kumar v. Kumar, 976 So. 2d 957, 960 (¶13) (Miss. Ct. App. 2008), this Court stated that “[t]he chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law” that we review de novo. In so doing, we relied on Potts v. Potts, 700 So. 2d 321, 322 (¶10) (Miss. 1997), and Reed v. Reed, 839 So. 2d 565, 569 (¶13) (Miss. Ct. App. 2003). In Potts, the Mississippi Supreme Court cited Bland v. Bland, 629 So. 2d 582, 586 (Miss. 1993), and held that a chancellor’s findings regarding whether a spouse’s “conduct rose to the level of habitual cruel and inhuman treatment . . . is a determination of law, and is reversible where the chancellor has
employed an erroneous legal standard.” Potts, 700 So. 2d at 322 (¶10) (emphasis added). However, nothing in Bland appears to support the concept that a chancellor’s factual determination is a question of law. Instead, the Supreme Court stated that “[e]specially in the divorce arena, the chancellor’s findings will not be reversed unless manifestly wrong.” Bland, 629 So. 2d at 587. And no portion of Bland addressed a chancellor’s conclusion regarding whether conduct qualified as cruel and inhuman treatment. Fully cognizant of our place in the hierarchy of Mississippi courts, we do not comment on the subject out of any form of criticism, but to note our awareness of the precedent, and to explain our reliance on the more unequivocal command that an appellate court is “required to respect the findings of fact made by a chancellor” where they are “supported by credible evidence and not manifestly wrong [–] . . . particularly . . . in areas of divorce.” See Mizell v. Mizell, 708 So. 2d 55, 59 (¶13) (Miss. 1998) (quoting Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)).
I will leave that there for you to ponder for the next time you have that issue on appeal.
One thing to add: HCIT is arguably the most difficult ground to prove despite the fact that most people think it is easy because of its preponderance-of-the-evidence burden, and they see it as a “catch-all,” one-size-fits-all ground to use when nothing else quite fits. Nothing could be more inaccurate. As you can read in Gwathney, it takes a particular specie of proof to support a finding of HCIT. And the days are long gone when a chancellor could grant an HCIT divorce because “It’s obvious that these parties need a divorce.”
November 25, 2014 § 2 Comments
Rosie Jackson charged her husband Michael with habitual cruel and inhuman treatment based on allegations of Michael’s homosexual behavior, which he denied.
The allegations arose from three sources: (1) Rosie testified that in 2008, she received a call from Michael’s friend John, who complained that he wanted Michael to leave him alone, but John testified at trial that he and Michael had not had sexual contact; (2) Rosie said that one of Michael’s former students, James, told her that Michael had molested him 26 years earlier, and the individual did testify to that effect at trial; and (3) Alma Flowers, the Jacksons’ daughter overheard a 3-way conversation, without Michael’s knowledge, in which Michael solicited a man for oral sex.
Rosie testified that, after she confronted Michael about the allegations, Michael bullied and tried to intimidate her, and she experienced problems with blood sugar and blood pressure, sleeplessness, and anxiety, for which she was prescribed medication.
The chancellor found from the evidence that Rosie had proven Michael guilty of habitual cruel and inhuman treatment. Michael appealed, claiming that the judge erred in finding that Rosie was entitled to a divorce.
The COA affirmed on November 4, 2014, in Jackson v. Jackson. Judge Ishee’s opinion addressed the adequacy of proof to support the judge’s findings on grounds for divorce:
¶13. “The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law.” Jones v. Jones, 43 So. 3d 465, 469 (¶7) (Miss. Ct. App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1 (Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and inhuman treatment. In order to establish a divorce on such ground, the offended spouse must show 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.
Jones, 43 So. 3d at 469 (¶9) (citations omitted).
¶14. In reviewing whether the conduct reaches that of cruel and inhuman treatment, the chancellor must consider: “1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff.” Fisher v. Fisher, 771 So. 2d 364, 367 (¶10) (Miss. 2000) (internal quotations and citations omitted). The evaluation of the impact of the conduct on the plaintiff is subjective. Smith v. Smith, 90 So. 3d 1259, 1263 (¶11) (Miss. Ct. App. 2011) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). “The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id.
¶15. “The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection.” Fisher, 771 So. 2d at 367 (¶9). The chancellor granted Rosie a divorce based on a finding that Michael’s homosexual relations were such that they made the marriage revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual cruelty – whether Michael’s conduct was so unnatural and infamous as to make the marriage revolting to Rosie.
¶16. There has only been one case where the Mississippi Supreme Court has found that a homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court found that “[u]nnatural practices of [pederasty] are an infamous indignity to the wife . . . which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife.” Id. Since Crutcher, this Court has found that evidence of homosexual affairs, when combined with other misconduct, can justify a divorce based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So. 2d 681, 689 (¶¶27-28) (Miss. 2001).
¶17. The record here reflects it was not only alleged that Michael was involved in homosexual affairs, but that he had also molested a child. Rosie testified to learning about both allegations within rapid succession of one another. We find that the combination of this conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties. However, it is well settled that a spouse’s testimony regarding an offending spouse’s behavior must be corroborated when habitual cruel and inhuman treatment is asserted. Pace v. Pace, 16 So. 3d 734, 741 (¶31) (Miss. Ct. App. 2009) (citation omitted).
¶18. Rosie’s testimony was supported by both Flowers and James. Flowers corroborated the allegations of a homosexual affair by testifying to the conversation she heard where Michael solicited sexual favors from another man. In support of the child-molestation allegations, James gave detailed testimony regarding the molestation that occurred at the hands of Michael when James was only ten years old. In addition to relying on this testimony, the chancery court also relied on other statements made by Rosie. However, we will address the other testimony in Michael’s next issue. We find that Rosie’s testimony, coupled with the corroborating testimony of both Flowers and James, was sufficient alone to support that Michael’s conduct was cruel and inhuman.
¶19. Michael contends that, even if his conduct was found to be inhuman or cruel, Rosie failed to establish a causal connection between his conduct, the separation, and how it impacted her. We disagree. There is no longer a requirement that a specific act caused a separation but “[i]t is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce.” Fisher, 771 So. 2d at 367-68 (¶10). Rosie testified that, upon learning of these sexual allegations, she began to experience adverse physical reactions to learning about Michael’s sexual relationships and history. She also noted, once she confronted Michael, the atmosphere in the home changed and she gave examples of how Michael treated her.
¶20. Michael also asserts that, if his conduct were found to be true, Rosie condoned his behavior by remaining in the marital home for nearly a year after learning about the homosexual affairs and child molestation. The chancellor noted, however, that Rosie had already left the marital bedroom in 2007 and had not engaged in sexual relations since 1999. Further, she was living with her disabled sister, Marian, in the marital home that had been specifically been renovated to accommodate Marian’s disabilities. The chancellor also commented that Rosie may have been in financial duress since she had to take a second job to cover her expenses following the separation. In his final judgment, the chancellor acknowledged that there was no evidence presented by either party as to why Rosie waited to leave Michael. Nonetheless, the chancellor concluded that each of these factors played a role in his finding that Rosie had not condoned Michael’s conduct.
¶21. The chancellor found that the evidence, Michael’s conduct, and the impact it had on Rosie established a divorce on the ground of habitual cruel and inhuman treatment. Although Michael denied the allegations, and several witnesses testified on his behalf, the chancellor found Rosie’s testimony to be credible. The supreme court has held that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robinson v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (citing Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). For these reasons, we find Michael’s overall conduct sufficient to support a divorce based on habitual cruelty.
The COA found that the chancellor erred in allowing in Rosie’s testimony of the hearsay conversation with John, but that it was harmless error since the other testimony of Rosie, corroborated by James and Alma, was sufficient. The court also rejected Michael’s objection that James’s allegations were remote in time.
This case presents a classic analysis of the second prong of HCIT. It’s something you can try to apply when that first prong involving danger to life or limb simply does not exist.
June 9, 2014 § 2 Comments
Judge Maxwell of the COA often includes lucid, concise explanations of the law in his opinions. I find his statements of the law to be a helpful guide in resolving issues that come before me.
One of the most confusing areas of domestic law is how to define what is and is not habitual cruel and inhuman (not “inhumane”) treatment (HCIT), per MCA 93-5-1. In the case of Harmon v. Harmon, handed down June 3, 2014, the COA affirmed the chancellor’s award of a divorce in favor of Linda Harmon against Courtney Harmon on the ground of HCIT. Judge Maxwell, for the unanimous court, set out this helpful exposition on what constitutes HCIT under our law:
¶14. Courtney first argues the chancellor wrongly granted Linda a divorce based on habitual cruelty. See Miss. Code Ann. § 93-5-1 (Rev. 2013). To prove cruelty, a party mustshow 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 nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Smith, 90 So. 3d at 1262 (¶10) (quoting Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss.1998)). “The conduct must consist of something more than unkindness or rudeness[.]” Jackson v. Jackson, 922 So. 2d 53, 56 (¶4) (Miss. Ct. App. 2006) (quoting Horn v. Horn, 909So. 2d 1151, 1155 (¶7) (Miss. Ct. App. 2005)). Want of affection or incompatibility is not enough. Id. The complaining party must prove one of these two prongs by a preponderanceof the credible evidence. Smith, 90 So. 3d at 1262-63 (¶10).
¶15. Generally, habitually cruel conduct must be “routine and continuous.” Jackson, 922So. 2d at 56 (¶4) (citing Moore v. Moore, 757 So. 2d 1043, 1047 (¶16) (Miss. Ct. App.2000)). However, a pattern is not always required. Sometimes, a single act of physical violence is sufficient. Smith, 90 So. 3d at 1263 (¶13) (citing Curtis v. Curtis, 796 So. 2d1044, 1047 (¶8) (Miss. Ct. App. 2001)). But in cases like this where there is no physical violence, we consider the frequency and severity of the conduct, and the impact on the offended spouse. Id. “[V]erbal abuse, neglect, and the like,” considered independently, willnot amount to cruelty. Id. (quoting Jackson, 922 So. 2d at 57 (¶8)). But if these combinedacts manifest a course of revolting conduct, they may give rise to cruelty.Id.
¶16. In reviewing a cruelty-based divorce, “there is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Id. at 1263 (¶11)(quoting Bodne v. King, 835 So. 2d 52, 59 (¶24) (Miss. 2003)). This specific inquiry is subjective. Id. (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). Instead of using an ordinary, reasonable-person standard, we concentrate on the conduct’s effect on the particular offended spouse. Id. (citing Faries, 607 So. 2d at 1209). Though a party alleging cruelty must generally corroborate his or her testimony, an exception is made “where corroboration is not reasonably possible because of the nature of the accusation.” Id. at(¶12).
On that last point — corroboration — Judge Maxwell adds this helpful footnote: “For example, corroboration may be unnecessary in unusual cases, such as isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Further, “‘the 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 that the plaintiff’s testimony is true.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[d] at 74(2005)).
That is essentially a hornbook on HCIT, complete with supporting authority, that you can use to your client’s benefit next time you have an HCIT case.
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.
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.
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.
November 14, 2011 § Leave a comment
One of the most valuable service you can render your clients is to convince them that it is indeed difficult to get a divorce in Mississippi without an agreement therefor.
Most clients present facts that would fall generally in the ballpark of habitual cruel and inhuman treatment (HCIT), if anything. And yet, HCIT is not an easy ground upon which to obtain a divorce. The Mississippi Supreme Court’s stringent definition of the ground has really not changed since its pronouncement more than eighty years ago:
“Conduct only as endangers life, limb, or health, or creates a reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse, or such unnatural and infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible for him or her, as the case may be, to discharge the duties thereof.” Russell v. Russell, 128 So. 270, 272 (Miss. 1930)
In the decades following Russell, Mississippi trial and appellate courts in practice allowed the HCIT divorce where the chancellor was satisfied that the parties “need to be divorced from each other,” even when the offending conduct was less than that defined. In essence, HCIT became an incompatibility ground.
In 1984, however, the MSSC returned to a strict adherence to the Russell standard in Gallaspy v. Gallaspy, 459 So.2d 283, 285 (Miss. 1984). Since then, the appellate decisions reflect the stricter standard, and your case will F*A*I*L if it does not measure up.
To complicate matters, there is the requirement of corroboration.
As for the facts supporting the ground, there is a breathtaking scope of opinions showing what has not passed muster as HCIT. Here is a sampling:
- Wife’s weight ballooned from 165 to 210 because she drank too much beer, but husband bought the beer for her and drank with her, and she was not exactly undernourished at the time when the parties tied the knot. When husband would come home in the evenings a few minutes late, wife would cry and complain that he had been off somewhere with some other woman. Husband said that wife’s treatment had caused him to become nervous and upset, and he had lost 11 pounds, but the court found that he was not at home enough for his health to have been materially affected by any habitual conduct on wife’s part. Husband testified: ‘If I was a few minutes late getting home, she would be waiting and crying under the assumption that I had been out to see another woman, which was untrue;’ and further that she would not have supper prepared for him, and that he would sometimes have to cook his own supper and his own breakfast; and that she was indifferent to her own personal appearance. The court pointed out, on the other hand, that wife had been able to hold a position of employment as cashier at a restaurant for a long period of time. F*A*I*L: Skelton v. Skelton, 111 So.2d 392, 393 (Miss. 1959).
Wife complained about the marital residence that ‘the location wasn’t right’; it was ‘too far out of town’; she ‘would not make any choice in the selection of colors’; and ‘she said she was not going to live in that house.’ The parties had many differences, compounded by their son’s congenital hypospadias that required numerous, expensive surgeries that the husband resisted. Wife complained that husband was not employed in a respectable job and was not making enough money; his friends ‘were not much’, and were not welcome in her house; she did not like his work and the hours were too long for what he was making. They would quarrel. He would try to ‘shut up’ at first, and if that would not stop her he would walk out of the house. ‘She would run me off from the house.’ He and his son got along all right on minor corrections, but, if she did not agree, she would attempt to overrule him in the boy’s presence. Husband wanted his son’s condition to be corrected, but thought it could be done in the South nearer home and the doctor told him that it could be done here but she would not hear to this and said that she was going to continue with the doctors in New York. He said that the effect of her attitude and treatment were such that it was on his mind all of the time; he would neglect his work; he would forget things and have to re-do his work; and that this troubled him very much all of the time. ‘There were times when he did not think that he would be able to live any more.’ However, when she was away, there was no domestic trouble on his mind. He did not think that they could live together with reasonable happiness and satisfaction. He was willing to accept the full custody of the boy and contribute to his support within his means. F*A*I*L: Taylor v. Taylor, 108 So.2d 872, 873-874 (Miss. 1959).
Husband, an attorney, marries wife for the second time. There are accusations of infidelity, a failed business, overspending, heavy debt, and hostility that ripens like a rotting peach into genuine mutual hatred. F*A*I*L: Wilson v. Wilson, 547 So.2d 803, 804-805 (Miss. 1989).
- Husband and wife have differences in religious views, wife is not as fastidious a housekeeper as husband would like, and wife is not demostrative enough to suit husband, so that husband is seriously unhappy in the marriage. F*A*I*L: Marble v. Marble, 457 So.2d 1342, 1343 (Miss. 1984).
- Husband gave wife the “silent treatment.” He has called her stupid on occasion and sometimes would not listen to her. Wife complained that she suffered from stress. She took the position that husband’s conduct endangered her health and created apprehension of danger, to such an extent, that she felt the relationship was unsafe, even though she did admit, several times in the record, that husband never physically abused her. F*A*I*L: Ayers v. Ayers, 734 So.2d 213, 214 (Miss. App. 1999).
- Wife contended that husband’s conduct created a reasonable apprehension of danger, rendering the relationship unsafe for her, based on: (1) Husband threw her onto a bed to take her pants off; (2) husband punched a hole in the bedroom door and put a gun barrel into his mouth; (3) husband hit her several times during an altercation; and (4) husband hit the car windshield in front of the parties’ son. She also complained of husband’s abusive name-calling and his constant nagging and complaining about her make-up, clothes, and hair style. Wife also argued that husband’s accusing her of being homosexual constituted “conduct 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.” She cited Hibner v. Hibner,217 Miss. 611, 613, 64 So.2d 756, 757 (1953), for the proposition that false and malicious charges of adultery or immoral conduct which would “naturally tend to cause shame, humiliation or disgrace” would justify a divorce on the grounds of habitual cruel and inhuman treatment. Wife conceded, however, that husband had never actually called her a lesbian, and there was no evidence that David ever accused her of being such to anyone else, other than “insinuating” it to the children by saying “[y]our mother loves another woman more than she loves you.” The supreme court rejected wife’s argument that she was entitled to a divorce under Muhammad v. Muhammad, 622 So.2d 1239, 1250 (Miss.1993), cert. denied, 510 U.S. 1047, 114 S.Ct. 698, 126 L.Ed.2d 665 (1994), which held that a party is entitled to a divorce “if a spouse’s actions which cause deep personal misery that has no foreseeable end is the gravamen of the action for divorce by reason of habitual cruel and inhuman treatment.” That case involved a situation where the husband had moved the family into the community of an oppressive religious cult whose rules and social order were extremely oppressive to women and dictated virtually every facet of life, so that the wife had been “relegated … to a status and set of living conditions that would be unbearable to a great many, if not a majority, of the women living in our modern society.” Id. at 1250. The appellate court found that her situation did not reach that level. The chancellor had said that “[t]here is a great conflict in evidence in this case. And I’m sure that everyone that sat here and heard this case knows. There is almost irreconcilable conflict in many areas of the case … most of the evidence in this case had to do with the parties fussing back and forth with each other with a few physical altercations. It seems to the Court that each party gave about as good as they got when they had these physical altercations. The Court is not impressed by the trips of either party to Magee General Hospital in order to try to bolster their case, which the Court believes was contrived on the part of both parties.” F*A*I*L: Bowen v. Bowen, 688 So.2d 1374-1376-1378 (Miss. 1997).
- Husband charged that wife was disinterested in having sex, and that they had gone six months without a sexual encounter. Wife conceded lack of interest, but said that they had sex more frequently than husband claimed. The parties had frequent, intense arguments over finances and wife’s spending habits. F*A*I*L: Tackett v. Tackett, 967 So. 2d 1264, 1267 (Miss. App. 2007).
- “Boorish, obnoxious and selfish behavior.” Too much to catalog in this space. F*A*I*L: Talbert v. Talbert, 759 So.2d 1105, 1109 (Miss. 1999).
- Controlling behavior by husband, clinical depression of wife, questions about whether wife was a lesbian, husband severly beat wife’s post-separation boyfriend. F*A*I*L: Morris v. Morris, 804 So.2d 1025, 1029 (Miss. 2002).
The number of misfires has dwindled over the years as the “consent” divorce has come to the fore. Every now and then, however, an HCIT case comes through, raising with it the issue whether the ingredients of the Russell recipe are present in the case. Before you launch off into the treacherous waters of the HCIT divorce, consider the shoals, rocks and cross-currents that await your client. You might want to plot an alternate course.
In my opinion,. HCIT requires some creative thinking to make it work. You have to look at the totality of the circumstances and craft your case as strongly as possible to demonstrate the impact of the offending spouse’s behavior on the innocent spouse. Check out Judge Maxwell’s latest on the subject. It’s about as good an exposition on the subject as you will find.
November 7, 2011 § 8 Comments
Habitual Cruel and Inhuman Treatment (HCIT) as a ground for divorce can be an elusive concept. It’s almost seems to be an “eye of the beholder” phenomenon.
In the case of Smith v. Smith, rendered November 1, 2011, by the COA, Judge Maxwell penned about as concise an exposition on the legal basis of the ground as you will find. Here is an excerpt from the opinion:
In Mississippi, one of the twelve fault-based grounds for divorce is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1 (Supp. 2011). To obtain a divorce on this ground, the plaintiff must show 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.
Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss. 1998). The plaintiff must prove one of these two prongs by a preponderance of the credible evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).
¶11. In reviewing a divorce based on cruelty, “[t]here is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Bodne v. King, 835 So. 2d 52, 59 (¶24) (Miss. 2003). Evaluating the impact on the offended spouse is a subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person. Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992). The plaintiff must show a casual connection between the defendant’s conduct and the impact on the plaintiff. Id. And the defendant’s cruelty must not be too temporally remote from the separation. See Richard, 711 So. 2d at 890 (¶23) (finding a divorce may be granted based on “habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs[.]”); see also Deborah H. Bell, Bell on Mississippi Family Law § 4.02[b]-[c] (2005) (explaining that a strict causal connection between the conduct and the separation is no longer a required element of proof).
¶12. Generally, the party alleging habitual cruelty must corroborate his or her own testimony. Shavers, 982 So. 2d at 403 (¶35). An exception is made in cases where corroboration is not reasonably possible because of the nature of the accusation. Bell § 4.02[d]; see also Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). “‘[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.’” Jones, 43 So. 3d at 478 (¶30) (quoting Bell § 4.02[d]).
¶13. To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility. Robison v. Robison, 722 So. 2d 601, 603 (¶5) (Miss. 1998). Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct. See Curtis v. Curtis, 796 So. 2d 1044, 1047 (¶8) (Miss. Ct. App. 2001). When there is no violent conduct involved, we review the facts on a case-by-case basis, taking into account the frequency and severity of the conduct, as well as the impact on the plaintiff. See Bell § 4.02[b]. “There 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.” Jackson v. Jackson, 922 So. 2d 53, 57 (¶8) (Miss. Ct. App. 2006).”
* * *
“Our supreme court has observed “[t]he words ‘unnatural and infamous’ have not been precisely defined by precedent because the plain meanings of those words are sufficient.” To determine the plain meaning of words, we look to their dictionary definition. Gilmer v. State, 955 So. 2d 829, 834 (¶13) (Miss. 2007). The American Heritage Dictionary 1956 (3ded. 1992) defines “unnatural” as “[d]eviating from a behavioral or social norm[.]” “Infamous” means “[c]ausing or deserving infamy; heinous[.]” Id. at 924.
¶16. In McIntosh v. McIntosh, 977 So. 2d 1257, 1267 (¶¶37-38) (Miss. Ct. App. 2008), this court found a wife’s conduct relating to the parties’ finances amounted to habitual cruelty under the “unnatural and infamous” prong. The wife in McIntosh forged her husband’s name to savings bonds, cashed them without notifying him, and pretended to help him look for them afterward. We found: “Such acts certainly qualify as conduct that could have rendered the marriage revolting . . . and could have made it impossible . . . to discharge the duties of marriage.” Id. at 1267 (¶38). In Jones, 43 So. 3d at 471-72 (¶10), 473-74 (¶¶15-16), 477-78 (¶¶26, 29), we found a husband’s substantial gambling losses—when combined with his verbal abuse and sexual demands—rose to the level of habitual cruel and inhuman treatment. Though proof of the gambling losses was limited, the wife testified the losses were $100,000. Id. at 471 (¶10).”
* * *
“¶22. Habitual cruelty may be found from a series 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.'” Jackson, 922 So. 2d at 57 (¶8).