Benson v. Benson, 91-CA-0874
| Decision Date | 12 November 1992 |
| Docket Number | No. 91-CA-0874,91-CA-0874 |
| Parties | Gary Wayne BENSON v. Patricia Boyd BENSON. |
| Court | Mississippi Supreme Court |
James A. Becker, Jr., Susan Latham Steffey, Watkins & Eager, Jackson, for appellant.
Barry W. Gilmer, Gilmer Law Firm, Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and McRAE, JJ.
On May 31, 1990, Gary Wayne Benson sued Patricia Boyd Benson for divorce on the grounds of habitual cruel and inhuman treatment, constructive desertion, or on the alternative ground of irreconcilable differences. Patricia counterclaimed and sought a divorce on the grounds of habitual cruel and inhuman treatment, adultery, or irreconcilable differences. In the alternative, Patricia claims that she is entitled to separate maintenance.
At the close of Gary's case, Patricia moved for the court to dismiss his complaint and the motion was overruled.
After a five day trial, the chancellor denied both parties' requests for a divorce and awarded separate maintenance to Patricia.
Gary filed a motion for a new trial or, in the alternative, for the court to amend final judgment, and these motions were overruled.
On appeal, Gary assigns four errors:
1. It was error to deny Gary Benson a divorce on the grounds of constructive desertion or habitual cruel and inhuman treatment.
2. It was error to grant separate maintenance to Patricia Benson.
3. Even if granting separate maintenance was not error, the amount awarded was so excessive that it was an abuse of the trial court's discretion.
4. It was error to award attorney's fees to Patricia Benson.
I.
The standard of review for a denial of divorce in Mississippi is set forth in Chaffin v. Chaffin, 437 So.2d 384 (Miss.1983). The chancellor's decree of divorce will not be reversed unless it is manifestly wrong as to law or fact.
In denying Gary a divorce on the grounds of habitual cruel and inhuman treatment the chancellor held that Gary must have been placed in fear of his life, health, safety or limb.
Gary also alleges that his wife was guilty of constructive desertion and that the chancellor applied the incorrect legal standard in denying him a divorce on this ground. Gary argues that the correct standard is whether he was compelled to leave his home by his wife's conduct and not his own fear for his life, health, safety or limb.
To define constructive desertion, Gary relies on Criswell v. Criswell, 254 Miss. 746, 750, 182 So.2d 587 (1966), for its holding that a spouse's refusal to accept an unconditional, good-faith effort to reconcile constitutes constructive desertion. When Gary tried to return home after his separation from Patricia, she responded, "you're not coming back in this house."
Gary also argues that Patricia did not have to commit physical violence against him to be guilty of habitual, cruel and inhuman treatment, and that habitual ill-founded accusations, threats, and malicious sarcasm, insults, and verbal abuse may cause such mental sufferings as to destroy and endanger the life and health of an innocent spouse.
The Chancellor found that the problems in the Benson home were based primarily on the incompatibility of the parties and that is not a ground for divorce in Mississippi.
The Chancellor denied Gary's ground of constructive desertion because, "the Court finds that the testimony, the facts as set forth by the witnesses and Dr. Benson were insufficient to prove constructive desertion, which would be again that he was in fear of life, health, safety, or limb." The chancellor relied on Day v. Day, 501 So.2d 353 (Miss.1987), as the most factually on point case.
Gary testified that he had contemplated suicide because of the hopelessness of his marriage. Dr. King testified that the primary cause of Gary's depression was the "atmosphere of his home and the difficulty he had in maintaining what he considered to be a warm and close relationship with his wife."
The Chancellor appears to have based her decision on only a part of the standard set out in Day, and overlooked the issue of whether Patricia's conduct was extreme enough to render the continuance of this marriage unendurable. The doctrine of constructive desertion has been adopted by this Court in Griffin v. Griffin, 207 Miss. 500, 505, 42 So.2d 720, 722 (1949), and also in Day v. Day, 501 So.2d 353 (Miss.1987), quoting Bunkley & Morse's Amis, Divorce and Separation in Mississippi, Sec. 3.11(12) (1957), for this proposition:
If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or...
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