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).”
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“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).”
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“¶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).
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.