Anderson v. Anderson, 2008–CA–01785–COA.

• Decision Date: 24 February 2011
• Docket Number: No. 2008–CA–01785–COA.,2008–CA–01785–COA.
• Citation: 54 So.3d 850
• Parties: Merlene ANDERSON, Appellantv.Donald ANDERSON, Appellee.
• Court: Mississippi Court of Appeals

54 So.3d 850

Merlene ANDERSON, Appellant

v.Donald ANDERSON, Appellee.

No. 2008–CA–01785–COA.

Court of Appeals of Mississippi.

June 29, 2010.Rehearing Denied Sept. 28, 2010.Certiorari Granted Dec. 16, 2010.Certiorari Dismissed as Improvidently Granted Feb. 24, 2011.

Richard Shane McLaughlin, D. Kirk Tharp, attorneys for appellant.Rebecca C. Phipps, Corinth, attorney for appellee.Before MYERS, P.J., GRIFFIS and MAXWELL, JJ.

GRIFFIS, J., for the Court:

¶ 1. Merlene Anderson appeals the judgment granting Donald Anderson a divorce based on the ground of habitual cruel and inhuman treatment. Merlene argues that the chancellor erred by granting the divorce on the ground of habitual cruel and inhuman treatment because the ground of habitual cruel and inhuman treatment was barred by the doctrine of condonation. Finding reversible error, we reverse and render the judgment of the chancery court.

FACTS

¶ 2. Donald and Merlene were married on October 2, 1994. Donald had two children from a previous marriage. At the time of the trial, Samuel was twenty-one years old, and Joshua was sixteen years old. Merlene had one child from a previous relationship, named Bart. Merlene adopted Joshua and Samuel after their marriage. Donald did not adopt Bart. They had no other children.

¶ 3. Donald was the pastor of Little Zion Missionary Baptist Church in Corinth, Mississippi, for seventeen years. He was also the president of the Northeast Mississippi Baptist State Convention. Merlene worked for the United States Army Reserve in Tupelo, Mississippi, for thirteen years.

¶ 4. On January 31, 2006, Donald filed a for divorce. In the complaint, Donald alleged as the grounds for divorce of habitual cruel an inhuman treatment and, alternatively, irreconcilable differences.

¶ 5. On February, 2, 2006, an emergency order was entered into, in which the chancellor ordered Merlene and Donald to live separate and apart in the marital residence.

¶ 6. At the conclusion of the trial, the chancellor found that Donald had proven that he was entitled to a divorce on the ground of habitual cruel and inhuman treatment. The chancellor relied on the evidence of Merlene's persistent false accusations of infidelity, her ongoing emotionally abusive behavior toward the children, and “her ongoing activities which were oppressive to Donald, and made the relationship unbearable.” The chancellor granted the divorce, gave Donald legal and physical custody of Joshua, and awarded child support to Donald in the amount of $297 per month. Each party was ordered to pay their own attorney's fees.

STANDARD OF REVIEW

¶ 7. “In domestic relations cases, [the appellate court's] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063–64 (¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss.2002)). We “will not disturb the chancellor's opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). However, questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000). “The chancellor's determination of whether a spouse's conduct rose to the level of cruel and [inhuman] treatment is a determination of law.” Kumar v. Kumar, 976 So.2d 957, 960 (¶ 13) (Miss.Ct.App.2008) (citations omitted).

ANALYSIS

¶ 8. The issue is whether Donald proved he was entitled to a divorce on the ground of habitual cruel and inhuman treatment. Merlene argues that Donald failed to introduce sufficient evidence.

¶ 9. Mississippi Code Annotated section 93–5–1 (Rev.2004) provides that a divorce may be granted to the injured party based on the ground of habitual cruel and inhuman treatment. Such ground for divorce is established by evidence that the conduct of the spouse 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.

Kumar, 976 So.2d at 961 (¶ 15) (internal quotations and citations omitted).

¶ 10. The supreme court has held that more is required “than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of ‘cruel and inhuman treatment.’ ” Robison v. Robison, 722 So.2d 601, 603 (¶ 5) (Miss.1998) (internal quotations omitted). “There must be corroboration of the complaining party's testimony” for a divorce based upon habitual cruel and inhuman treatment. Chapel v. Chapel, 700 So.2d 593, 597 (¶ 19) (Miss.1997).

¶ 11. Donald's evidence was that Merlene abused him, physically and emotionally abused his children, verbally threatened him, attempted to ruin his reputation at his church, falsely accused him of having affairs, and exhibited “dominant behavior.” The breaking point for Donald was when Merlene locked him and herself in their bathroom for a couple of hours in January 2006. He called a friend, Officer John Hall, to come over and talk Merlene into letting Donald out of the bathroom. Merlene testified that she locked Donald in the bathroom with her because she wanted to talk to him, and he kept avoiding her. She felt that locking him in a room with her was the only way to make him talk to her about their marriage.

¶ 12. Donald also claimed that Merlene was physically and emotionally abusive to him. He claimed that she yelled at him for no reason. He testified that she threatened him by reminding him multiple times about a minister's wife in Selmer, Tennessee, who had killed her husband. She also told him that God was upset with him for wanting to divorce her. In July 2006, a snake was in their home, and Merlene told Donald that the snake represented the devil and that it was God's way of telling Donald that he did not agree with Donald's filing for divorce. That same summer, Donald's air conditioning unit went out in his side of the marital house. Again, Merlene told him that it was God's way of telling him not to divorce her.

¶ 13. Samuel and Joshua testified that they saw Merlene hit their father a few times, but neither son named a specific instance or date. They also testified that Merlene yelled at Donald for no reason. Officer Hall testified that he saw Merlene slam the bathroom door on Donald's back.

¶ 14. Samuel and Joshua also testified that Merlene was physically and mentally abusive to both of them several years prior to Donald's filing for divorce. The sons admitted that they did not tell Donald about the abuse until the night before trial began. Both claimed that she hit them and that she favored Joshua over Samuel. Merlene admitted that she was hard on Samuel during his teenage years. Joshua testified that during a fight between Merlene and Donald, Donald left the house in his car, and Merlene followed after him in her car. While she was backing up in her car, she almost hit Joshua.

¶ 15. The chancellor appointed a guardian ad litem. The guardian ad litem did not conclude that there was sufficient evidence to support a finding, after thorough examination, of any instance of physical abuse of the children. The chancellor agreed. Without such a finding, this evidence cannot be used by Donald to prove his ground for divorce.

¶ 16. Donald accused Merlene of attempting to “bring his church down.” According to Donald, Merlene discussed with members and with the head of the National Baptist Convention details of their marriage and Donald's alleged adultery. Merlene stood up during one church meeting and said the only person that really loved her was Joshua. Merlene's behavior embarrassed Donald.

¶ 17. Out of three fellow church members who testified, not one member corroborated Donald's allegation of Merlene “ranting and raving” at conventions and church meetings about their marital problems and Donald's alleged extra-marital affairs. Based on the testimony, it was not Merlene who “ranted and raved” about their marriage at a convention. Instead, it was a third person who had told the convention that Donald was treating Merlene badly.

¶ 18. Merlene admitted that she had asked for other church members' prayers in some church meetings. She also told members that she did not want a divorce after Donald told the church that he had filed for divorce and members questioned her about it. She claimed that she called the head of the National Baptist Convention in an effort to save her marriage. She hoped that he would talk Donald out of going through with the divorce.

¶ 19. Donald claimed that Merlene attempted to “dominate” him and that “no real man [is] going to be dominated by his wife.” His example of Merlene being dominant was that she refused to allow the boys to have a dog. She testified that she did not like animals and that was her reason for not wanting a dog.

¶ 20. Donald testified that Merlene publicly had accused him of having affairs and that she had harassed the ladies that he counseled at church because she believed that he was having affairs with them. He claimed that one lady had to change her phone number because Merlene called and harassed her.

¶ 21. The chancellor's decision was primarily based on the finding that Merlene's accusations of infidelity were unfounded, Merlene's ongoing abusive behavior toward the children, and Merlene's “ongoing activities which were oppressive to Donald, and made the relationship unbearable.”

¶ 22. “[F]alse accusations of infidelity, made habitually over a long period of time without reasonable cause also constitute cruel and inhuman treatment.” Richard v. Richard, 711...