Alexander v. Alexander, No. 2010–CA–01765–COA.

CourtCourt of Appeals of Mississippi
Citation95 So.3d 696
Docket NumberNo. 2010–CA–01765–COA.
PartiesKhari Kamau ALEXANDER, Appellant v. Amanda Green ALEXANDER, Appellee.
Decision Date14 August 2012

95 So.3d 696

Khari Kamau ALEXANDER, Appellant
v.
Amanda Green ALEXANDER, Appellee.

No. 2010–CA–01765–COA.

Court of Appeals of Mississippi.

March 27, 2012.
Rehearing Denied Aug. 14, 2012.


[95 So.3d 697]


Everett T. Sanders, attorney for appellant.

David Neil McCarty, attorney for appellee.


Before LEE, C.J., ROBERTS and RUSSELL, JJ.

LEE, C.J., for the Court:
PROCEDURAL HISTORY

¶ 1. Khari Alexander and Amanda Green Alexander were married in October 2001, and separated in March 2009. One child

[95 So.3d 698]

was born of the marriage. Amanda filed for divorce in the Hinds County Chancery Court after she suspected Khari was having an extra-marital affair. The chancellor found Amanda failed to prove adultery, but he granted a divorce based on habitual cruel and inhuman treatment.

¶ 2. Khari now appeals, asserting the following issues: (1) the chancellor was biased; (2) the chancellor abused his discretion and applied an erroneous legal standard in granting the divorce based on habitual cruel and inhuman treatment; and (3) the award of attorney's fees was not supported by the record. We find reversible error as to issues two and three.

FACTS

¶ 3. Amanda accused Khari of adultery after discovering e-mails from other women on his computer. Khari admitted to being attracted to other women and having relationships with women other than his wife, but he denied that any of the relationships were sexual in nature. He wrote some of these women love poems. Khari admitted to being alone with another woman in a hotel room at night, but he denied that he committed adultery. Reverend Melvin Chapman testified he spoke with Khari about his relationship with Amanda. According to Chapman, Khari had an encounter with a female in which he put on a condom, but Khari insisted that he and the female did not have intercourse. Chapman testified that he did not believe Khari.

¶ 4. Amanda testified that, during the marriage, Khari would threaten her and use profane language. Amanda stated on one occasion, when Khari became violent, she attempted to call the police, but Khari slapped the phone away from her. Amanda tried to run to a neighbor's house, and Khari chased Amanda down the street. She eventually fled in her car. On another occasion, Khari took Amanda's keys out of her car while he was picking their child up for visitation. Amanda sought the help of law enforcement to get her keys back.

STANDARD OF REVIEW

¶ 5. “A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, [was] clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625–26 (¶ 8) (Miss.2002) (internal and citations quotations omitted).

DISCUSSION
I. HABITUAL CRUEL AND INHUMAN TREATMENT

¶ 6. Khari argues the chancellor erred in granting Amanda a divorce based on habitual cruel and inhuman treatment. First, Khari asserts that Amanda only pled for a divorce based on adultery. Second, he argues that even if habitual cruel and inhuman treatment was pled, it was not proven.

¶ 7. At the conclusion of the divorce proceedings based on adultery, the chancellor made the following statement:

THE COURT: All right. We are to the end of the case. I have heard all the testimony pertaining to the charged grounds for divorce, and I think particularly as to the grounds for adultery, uncondoned adultery, that the plaintiff has not met her proof. She has requested in an amended complaint for a divorce on the grounds of irreconcilable differences, but she's prayed for a divorce on the grounds of habitual cruel and inhuman treatment. That's not been charged. I'm helping her, I know,

[95 So.3d 699]

Khari's counsel], but under the new rules an amendment can be made right up to the final order. And, [Amanda's counsel], if you will conform to the statute and the rules, I can possibly grant a divorce on other grounds, but that's as far as I can go with you. You have prayed for all three grounds but you haven't charged that in the complaint.

Amanda's attorney immediately made an oral motion to modify the complaint to include habitual cruel and inhuman treatment. Khari's attorney objected on the ground that he had no notice that habitual cruel and inhuman treatment was being pled. His objection was overruled, and Amanda was granted a divorce based on habitual cruel and inhuman treatment.


¶ 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...

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5 practice notes
  • Littlefield v. Littlefield, NO. 2018-CP-00200-COA
    • United States
    • Court of Appeals of Mississippi
    • August 27, 2019
    ...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,......
  • Walker v. Walker, No. 2013–CA–01545–COA.
    • United States
    • Court of Appeals of Mississippi
    • March 24, 2015
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.Alexander v. Alexander, 95 So.3d 696, 699 (¶ 9) (Miss.Ct.App.2012). The Mississippi Supreme Court requires more "than mere unkindness, rudeness, or incompatibility to support th......
  • Walker v. Walker, NO. 2013-CA-01545-COA
    • United States
    • Court of Appeals of Mississippi
    • June 24, 2013
    ...for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Alexander v. Alexander, 95 So. 3d 696, 699 (¶9) (Miss. Ct. App. 2012). The Mississippi Supreme Court requires more "than mere unkindness, rudeness, or incompatibility to support the grant......
  • Williams v. Estate of Ellis, No. 2014–CA–00401–COA.
    • United States
    • Court of Appeals of Mississippi
    • October 6, 2015
    ...his or her discretion, was manifestly wrong, was clearly erroneous, or an erroneous legal standard was applied.” Alexander v. Alexander,95 So.3d 696, 698 (¶ 5) (Miss.Ct.App.2012)(citing Sanderson v. Sanderson,824 So.2d 623, 625–26 (¶ 8) (Miss.2002)).ANALYSIS¶ 11. The chancery court found th......
  • Request a trial to view additional results
5 cases
  • Littlefield v. Littlefield, NO. 2018-CP-00200-COA
    • United States
    • Court of Appeals of Mississippi
    • August 27, 2019
    ...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,......
  • Walker v. Walker, No. 2013–CA–01545–COA.
    • United States
    • Court of Appeals of Mississippi
    • March 24, 2015
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.Alexander v. Alexander, 95 So.3d 696, 699 (¶ 9) (Miss.Ct.App.2012). The Mississippi Supreme Court requires more "than mere unkindness, rudeness, or incompatibility to support th......
  • Walker v. Walker, NO. 2013-CA-01545-COA
    • United States
    • Court of Appeals of Mississippi
    • June 24, 2013
    ...for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Alexander v. Alexander, 95 So. 3d 696, 699 (¶9) (Miss. Ct. App. 2012). The Mississippi Supreme Court requires more "than mere unkindness, rudeness, or incompatibility to support the grant......
  • Williams v. Estate of Ellis, No. 2014–CA–00401–COA.
    • United States
    • Court of Appeals of Mississippi
    • October 6, 2015
    ...his or her discretion, was manifestly wrong, was clearly erroneous, or an erroneous legal standard was applied.” Alexander v. Alexander,95 So.3d 696, 698 (¶ 5) (Miss.Ct.App.2012)(citing Sanderson v. Sanderson,824 So.2d 623, 625–26 (¶ 8) (Miss.2002)).ANALYSIS¶ 11. The chancery court found th......
  • Request a trial to view additional results

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