Bodne v. King, 2000-CT-00610-SCT.

• Decision Date: 23 January 2003
• Docket Number: No. 2000-CT-00610-SCT.,2000-CT-00610-SCT.
• Citation: 835 So.2d 52
• Parties: Jack D. BODNE v. Alice Susan KING.
• Court: Mississippi Supreme Court

835 So.2d 52

Jack D. BODNE v. Alice Susan KING.

No. 2000-CT-00610-SCT.

Supreme Court of Mississippi.

January 23, 2003.

Merrida Coxwell, Jackson, attorney for appellant.

Donald W. Boykin, Jackson, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

PITTMAN, C.J., for the Court.

¶ 1. Alice Susan King Bodne (Susan) was granted a divorce from her husband, Jack D. Bodne (Jack), on grounds of habitual cruel and unusual treatment. Jack appealed. A divided Court of Appeals decided that the trial court's ruling was based on an insufficient finding of facts and reversed. Bodne v. King, 2001 WL 808357 (Miss.Ct.App.2001). We granted certiorari to address the matters raised by the Court of Appeals. We reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the trial court.

FACTS

¶ 2. The Bodnes were married in 1994. The couple made their home in Jackson and had no children together. Jack was about sixty years old and owned his own business. Susan was also middle-aged and had grandchildren by a prior marriage. She worked as a salesperson for a pharmaceutical company. Susan described her employer as "very straight-laced" and her position as one of "high profile" which required her to come in frequent contact with physicians. At the time of the marriage, Jack's past included a conviction for possession of cocaine and a conviction for falsifying a federal document. Susan was aware of those parts of Jack's past before the marriage.

¶ 3. The marriage appears to have been at least tolerable to Susan for a time, although she would later complain of the strain caused by Jack's frequent ridicule and his embarrassing brand of sexual humor. Their memories of their first years were vastly different. Susan recalled a lot of screaming and fighting, and her witnesses corroborated one or more of these episodes. One witness testified that it was a "common thing" for Jack to scream at Susan until a household chore was completed. Jack recalled their time together as a rather enjoyable period in which the couple "never" fought and he never had occasion to raise his voice.

¶ 4. The strains of marriage worsened considerably for Susan when Jack was indicted in 1997 for conspiring to murder three business competitors. The indictment was amended in 1999 to a three-count charge of attempted murder. Jack's indictment was reported in the press, including the local TV news.

¶ 5. Jack and Susan separated shortly after Jack's arrest and confinement in September of 1997. Susan testified that Jack put "a lot of pressure" on her to keep his company running in his absence. She struggled to maintain Jack's business and her own job. Around the time of the separation, Jack found occasion to charge Susan with assault. Although Susan was required to go to court to face the charge, Jack did not appear to prosecute it.

¶ 6. Around this same time Susan received a call from an agent of the U.S. Customs Service. After she granted the permission the agent requested, federal and state officers showed up at the house to examine the couple's home computer. What the officers hoped to find is not entirely clear but, with Susan standing by watching, what they did find was images of child pornography stored on the hard drive. The officers then asked Susan to provide copies of her children and grandchildren for comparison to the pictures. At that point Susan's corroborated testimony was that she ran outside with an acute attack of nausea.

¶ 7. Jack testified that the pornography must have been planted by a law officer out to get him. Jack did not explain how or when this evidence planting might have occurred. The discovery led to no additional charges against Jack by the time of the divorce trial two years later.

¶ 8. Susan testified that her mortification from these events led to depression marked by loss of weight and appetite, requiring her to seek psychiatric care and medication. She also testified that she began to fear for her physical safety, and she sought and obtained a restraining order against Jack.

¶ 9. Having heard the evidence, the chancellor made her findings and conclusions from the bench, immediately at the end of testimony. Those findings and conclusions were in part as follows:

This [Chancery] Court specifically finds on the grounds of divorce alleged by Ms. Susan King that she has met her burden of proof, that being by a preponderance of the evidence on her habitual, cruel and inhuman treatment. Our case law certainly has said that conduct is not necessarily limited in habitual, cruel and inhuman treatment that there be a threat of life, limb or health, that the Court should consider testimony that goes to the conduct, and if that conduct is so unnatural as to make the marriage revolting to the offended spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Further, our Supreme Court has said, behavior is measured subjectively and by its effect on the offended spouse, offenses continuing in nature and not condoned by the mere continuation of cohabitation.

This Court is of the opinion based upon the credible testimony of not only Ms. King, but her two corroborating witnesses, that Mr. Bodne has inflicted habitual, cruel and inhuman treatment through the marriage, especially given the incidence of the indictments and the ultimate imprisonment—well, when he was in jail for the indictment. The Court recognizes that it is not considering the guilt or innocence of any indictment that has been handed to Mr. Bodne. That in and of itself has no specific bearing on the Court's decision. However, what does have bearing is the testimony of Ms. King that throughout that period of time that she could not sleep properly, eat properly, that she was under the care of a psychiatrist, and that the pressure of trying to maintain the business of the parties created stress that was for Ms. King specifically something that she could not handle.

Additionally, the Court recognizes and finds credible her statements regarding her embarrassment, humiliation regarding the jokes and the fixation in terms of the types of jokes Mr. Bodne enjoyed and the profanity.

For those reasons, this Court would direct and order that a divorce be granted to Ms. King on the grounds of habitual, cruel and inhuman treatment based upon a preponderance of the evidence.

¶ 10. Jack appealed two elements of the trial court's judgment. He argued that Susan failed to prove sufficient facts to constitute cruel and unusual treatment and, also, that the chancellor erred in treating two parcels of real estate as marital property subject to equitable distribution.

¶ 11. The Court of Appeals found that the chancellor's findings of fact were insufficient to justify a divorce on the fault-based ground of habitual cruel and unusual treatment. In reaching this conclusion, the court limited itself to a consideration of the conduct specifically referenced in the chancellor's bench ruling. Thus constrained, the Court of Appeals found that Jack's indictment and boorishness were the only matters which could properly be considered on appeal and that such conduct was not enough to justify the chancellor's conclusion. In the absence of specific findings, testimony concerning other conduct would not be considered as proven if Jack offered a denial of the conduct. For example, the testimony regarding child pornography could not be considered. The judgment of divorce was therefore reversed, and the property division was made moot.

DISCUSSION

I. WHETHER THERE WAS SUFFICIENT EVIDENCE OF CRUEL AND UNUSUAL TREATMENT TO SUPPORT THE CHANCELLOR'S DIVORCE DECREE.

¶ 12. We begin by referring to that portion of the chancellor's bench decision which is excerpted above. That excerpt shows that the chancellor made some specific findings of fact, which the Court of Appeals later found insufficient to meet the standard of proof.

¶ 13. There is no question that there are areas of the law where specific findings are mandated. A division of marital assets is one such area. Fisher v. Fisher, 771 So.2d 364, 369 (Miss.2000); Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). If findings are not mandated by the nature of the case, procedural rules are applied to determine whether findings should be made. Lowery v. Lowery, 657 So.2d 817, 818-19 (Miss.1995). In a case tried without a jury, the court "may" make specific findings of facts and conclusions of law, but "shall" do so when requested by a party or by if required by another rule. M.R.C.P. 52(a). A uniform chancery court rule says essentially the same thing, and the uniform rule recites that it is made pursuant to Rule 52. Unif. Chan. Ct. R. 4.01. While a chancellor is not directed by rule to make findings and conclusions in the absence of a request, whether findings should be made is a separate question and depends largely on the complexities of the case. See M.R.C.P. 52 cmt.

¶ 14. Here Jack did not request, through objection at trial or post-trial motion, that the chancellor make amended or additional findings. Notwithstanding that failure, the rule permits him to challenge the sufficiency of the evidence on appeal. M.R.C.P. 52(b). However, whether additional or amended findings are requested affects the standard of review.

¶ 15. If a request is made and no ruling is entered, the appellate court must consider the effect of the trial court's missed responsibility, and overwhelming evidence may be required as a condition for affirmance. Lowery, 657 So.2d at 819. If no request is made, as here, the appellate court accepts facts specifically found unless manifestly wrong. The court will then review the record and presume that the chancellor resolved, in the appellee's favor, those fact issues not specifically found. Owen v. Owen, 798 So.2d 394, 398 (Miss.2001); Bryant v. Cameron, 473 So.2d 174, 179-80 (Miss.1985); Cheek v. Ricker, 431 So.2d 1139, 1143-44 ...