Arthur v. Arthur, 94-CA-00230-SCT

• Citation: 691 So.2d 997
• Decision Date: 10 April 1997
• Docket Number: No. 94-CA-00230-SCT,94-CA-00230-SCT
• Parties: Jerry L. ARTHUR v. Peggy O. ARTHUR.
• Court: United States State Supreme Court of Mississippi

Page 997

691 So.2d 997

Jerry L. ARTHUR v. Peggy O. ARTHUR.

No. 94-CA-00230-SCT.

Supreme Court of Mississippi.

April 10, 1997.

John W. Christopher, Ridgeland, for appellant.

Donald A. McGraw, Jr., Montgomery, Smith-Vaniz & McGraw, Canton, for appellee.

Before SULLIVAN, P.J., and SMITH and MILLS, JJ.

MILLS, Justice, for the Court:

On December 16, 1993, the Chancery Court of Madison County granted Peggy O. Arthur a divorce from Jerry L. Arthur on the grounds of adultery. In addition to awarding Peggy Arthur custody of the parties' minor child, child support, and the exclusive use and possession of the marital home, the court ordered that Jerry Arthur maintain his $150,000 in life insurance and name Peggy Arthur as the beneficiary for the use and benefit of their minor child. The court also awarded to Peggy Arthur one-half interest in the cattle acquired during the marriage, one-half of Jerry Arthur's pension profit sharing fund held by his employer and $1,200 in attorney fees. On appeal before this Court, Jerry Arthur assigns as error the following issues:

I. WHETHER THE CHANCELLOR ERRED IN GRANTING PEGGY ARTHUR A DIVORCE ON THE GROUNDS OF ADULTERY.

II. WHETHER THE CHANCELLOR ERRED IN ORDERING JERRY ARTHUR TO NAME PEGGY ARTHUR AS HIS LIFE INSURANCE BENEFICIARY FOR THE USE AND BENEFIT OF THEIR MINOR CHILD.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING TO PEGGY ARTHUR ONE-HALF INTEREST IN CATTLE ACQUIRED DURING THE MARRIAGE.

IV. WHETHER THE CHANCELLOR ERRED IN AWARDING TO PEGGY ARTHUR ONE-HALF OF JERRY ARTHUR'S PENSION PROFIT SHARING FUND HELD BY HIS EMPLOYER.

V. WHETHER THE CHANCELLOR ERRED IN AWARDING TO PEGGY ARTHUR $1,200 IN ATTORNEY FEES.

FACTS

Jerry and Peggy Arthur were married on November 2, 1978, about a year after which they had a child, Kara Rebecca Arthur. At the time of the marriage, Jerry had, from a previous marriage, a three-year-old daughter, Jennifer Arthur, who resided with the parties after the marriage. Peggy had a seven-year-old daughter from a previous marriage, who resided with the parties until she married and moved out in 1991.

At the time the parties were married and throughout the marriage, Jerry Arthur was employed by People's Construction Company in Jackson, Mississippi, where he plans to work until he retires. After the parties were married, Jerry also became involved in the cattle business when Peggy's father gave Jerry three or five head of cattle. ¹ Jerry kept the cattle on Peggy's father's land until the spring of 1993, and paid for the cattle with proceeds from the sales of calves.

For the first six years of the marriage, Peggy Arthur did not work outside the home, but instead performed the duties of mother and housewife such as cooking, cleaning and caring for the children. She then went to work as an assistant teacher in the Madison County school system for five or six years The couple's marital problems began when Jerry and Peggy went to their high school class reunion in Sebastopol, Mississippi, in July of 1992. At the reunion they ran into Diane Sharpe, who had attended Sebastopol High School with Jerry and Peggy, and who had been Peggy's "best friend" during high school. Approximately two weeks after the reunion, Jerry Arthur made a phone call to Diane Sharpe and, thereafter, called her several times because, as he testified, "Things weren't going too good at my house and I needed someone to talk to." Jerry admitted calling Diane Sharpe two or three times per week, and that he spent the night with her at her house in Columbus, Mississippi, on two occasions. According to Peggy, when Jerry returned home after one such liaison, he told Peggy that he thought he was in love with Diane Sharpe, and that he needed to be free to find out if it was truly love he felt.

after which she went to work for Merchants and Farmers Bank on a part-time basis. Peggy later began working full-time at Merchants and Farmers Bank. Throughout the marriage, Peggy did not contribute any effort towards the maintenance of the cattle operation, in feeding or caring for the cattle.

Peggy Arthur employed Kenneth Willis, a private investigator, who testified that on the afternoon of October 17, 1992, he observed Jerry Arthur and Diane Sharpe drive into Diane's driveway in Columbus and enter Diane's home. Mr. Willis saw the lights go out in the house around 10:30 p.m., and as of 12:30 a.m. neither Jerry nor Diane had left the house. When Mr. Willis returned to the house at 8:00 the following morning, Jerry's vehicle remained parked in Diane's driveway.

It is also known that on two occasions Jerry and Diane went out to eat together, once in Columbus and once in Leake County, Mississippi. They dined alone in Columbus, and were accompanied by Jerry's sister in Leake County. Jerry also testified that he was in the company of Diane Sharpe and others at his sister's house on the Mississippi Gulf Coast one weekend in the spring of 1993, and that afterwards Diane drove him back to his home in Leake County. ² Jerry has denied ever having had sexual relations with Diane Sharpe.

At the time of trial, Jerry Arthur's income as construction superintendent at Peoples Construction Company was $2,320 per month. He owned thirteen cows, one bull, and ten calves worth $7,500. Jerry also owned tractors and other farm equipment used in the cattle operation, all of which he valued at $7,600. Jerry had a certificate of deposit at Merchants and Farmers Bank in the sum of approximately $5,900, which remained of funds he had inherited from an aunt. Jerry had a pension profit sharing fund at Peoples Construction Company valued at the time of trial at approximately $48,000. The retirement fund had been in place since Jerry started working for Peoples Construction Company in 1969, but there was no evidence at trial as to what portion of those funds had accumulated prior to his 1978 marriage to Peggy. Jerry was covered by two insurance policies: a term life policy in the amount of $100,000 and a whole life policy in the amount of $50,000. The named beneficiaries on both policies were Jennifer (Jerry's daughter from a previous marriage) and Kara (the daughter of Jerry and Peggy).

At the time of trial, Peggy Arthur's salary at Merchants and Farmers Bank was $1,400 per month. Peggy also had a certificate of deposit in the amount of approximately $9,600 which constituted the balance of proceeds she received from the sale of a home she owned prior to marrying Jerry. Peggy had no retirement fund. At the time of trial, Jennifer and Kara were living with Peggy.

LAW

I. WHETHER THE CHANCELLOR ERRED IN GRANTING PEGGY ARTHUR A DIVORCE ON THE GROUNDS OF ADULTERY.

Jerry Arthur argues that the evidence at trial did not rise above mere suspicion of adultery, and thus the chancellor erred in granting Peggy Arthur a divorce on those grounds.

The grounds of adultery may be proven by clear and convincing evidence of:

(1) an infatuation for a particular person of the opposite sex; and (2) a reasonable opportunity to satisfy that infatuation. McAdory v. McAdory, 608 So.2d 695, 699-700 (Miss.1992), appeal after remand, 628 So.2d 1388 (Miss.1993). This Court will not overturn the decision of a chancellor in domestic cases when those findings are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or applied an erroneous legal standard. Kennedy v. Kennedy, 650 So.2d 1362, 1366 (Miss.1995); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993).

In the case sub judice, there was evidence that Jerry Arthur telephoned Diane Sharpe several times per week, and that Jerry admitted to his wife that he had feelings for Diane. Peggy testified that despite her repeated pleadings with Jerry to leave Diane alone, Jerry continued to communicate with Diane. Also, Jerry admitted that he spent the night with Diane on at least two occasions, and there was testimony by a private investigator to that effect as well. Thus, there was evidence at trial both of Jerry's infatuation with Diane Sharpe and of his reasonable opportunity to satisfy that infatuation. There having been substantial evidence supporting the chancellor's finding of adultery, we hold that the chancellor did not err in granting Peggy Arthur a divorce on the grounds of adultery.

II. WHETHER THE CHANCELLOR ERRED IN ORDERING JERRY ARTHUR TO NAME PEGGY ARTHUR AS HIS LIFE INSURANCE BENEFICIARY FOR THE USE AND BENEFIT OF THEIR MINOR CHILD.

At the time of trial, Jerry Arthur's two life insurance policies totaling $150,000 in coverage named both Jennifer and Kara Arthur as beneficiaries. In his judgment, the chancellor ordered Jerry to name Peggy Arthur as the beneficiary on the two policies for the use and benefit of Kara. Jerry argues that this order was inequitable in that it provided, in the event of Jerry's death, for the care of Kara to the exclusion of Jennifer. We find this order to be reversible error.

Insurance coverage for the benefit of children in divorce cases is an issue of child support. Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss.1994); Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989). A parent's obligation to pay child support lasts only until that child reaches the age of majority, which age in Mississippi is twenty-one for child support purposes. Nichols, 547 So.2d at 770. It follows that a parent who has been ordered to maintain life insurance for the benefit of a minor child may be required to do so only until that child reaches the age of majority. In the absence of other compelling reasons, such as the mental or physical incapacitation of the child, we hold that life insurance benefits for a minor child may be ordered only until the child reaches the age of majority. See, e.g., Harris v. Deeb, 605 So.2d 1325, 1326 (Fla.Dist.Ct.App.1992); Bainter v. Bainter, 590 N.E.2d 1134, 1137 (Ind.Ct.App.1992); Whitten v. Whitten, 592 So.2d 183, 186 (Ala.1991); Thomas v. Studley, 59 Ohio App.3d 76, 571 N.E.2d 454, 460 (1989); Gluck v....