Boutwell v. Boutwell, 2001-CA-00584-SCT.

• Decision Date: 18 July 2002
• Docket Number: No. 2001-CA-00584-SCT.,2001-CA-00584-SCT.
• Citation: 829 So.2d 1216
• Parties: William Denton BOUTWELL v. Michelle Sekul BOUTWELL.
• Court: Mississippi Supreme Court

829 So.2d 1216

William Denton BOUTWELL v. Michelle Sekul BOUTWELL.

No. 2001-CA-00584-SCT.

Supreme Court of Mississippi.

July 18, 2002.

Rehearing Denied November 14, 2002.

Angela B. Healy, Jackson, C. Everette Boutwell, Laurel, attorneys for appellant.

Gail D. Nicholson, Austin, TX, attorney for appellee.

Before SMITH, P.J., DIAZ and EASLEY, JJ.

DIAZ, J., for the Court.

¶ 1. On September 28, 2000, Michelle Sekul Boutwell (Michelle) filed a complaint for divorce and temporary relief against William Denton Boutwell (Denton) in the Chancery Court of Harrison County, Second Judicial District. In the complaint, Michelle alleged the ground of habitual, cruel, and inhuman treatment or, in the alternative, irreconcilable differences. Michelle also asked for temporary relief including exclusive use and possession of the house and its contents, an order restraining Denton from harassment or interference with Michelle's "peace of mind, safety, and security of her property," and attorneys' fees and court costs.

¶ 2. On November 1, 2000, Denton filed an answer to the complaint for divorce asserting that Michelle had failed to state a claim upon which relief may be granted. After a hearing, the chancellor issued a temporary order granting neither party use of the home and enjoining both parties from "any harassing conduct toward a party, relative of the party, or an employer" or "any intrusive or interfering conduct with regard to the other party's workplace, home, or peace of mind."

¶ 3. On January 21, 2001, Denton filed a motion to amend pleadings to allow a counterclaim alleging that Denton is entitled to a divorce on the ground of adultery, or, in the alternative, irreconcilable differences, or, in the alternative, habitual, cruel and inhuman treatment. Denton also asked for rehabilitative, transitional, periodic and lump sum alimony, exclusive use of the home, attorneys' fees and court costs, and satisfaction of all marital debts. On February 15, 2001, the chancellor granted that motion and, on February 26, 2001, Denton filed the counterclaim.

¶ 4. On March 2, 2001, Michelle filed an answer to Denton's counterclaim for divorce admitting she had sexual intercourse with another man after she and Denton separated and admitting irreconcilable differences, but denying Denton was entitled to a divorce on the ground of habitual, cruel and inhuman treatment.

¶ 5. On February 19, 2001, Michelle filed a motion for an order granting adverse inference due to Denton's discovery abuse alleging that Denton refused to provide medical authorizations and evaded deposition. On March 1, 2001, Denton filed an answer to Michelle's motion for an order granting adverse inference due to Denton's discovery abuse alleging that Michelle did not specify time frames for the alleged discovery abuse and that Michelle could have deposed anyone in connection to the information sought under the Mississippi Rules of Civil Procedure.

¶ 6. On March 1, 2001, Denton filed a motion to compel Michelle to answer deposition questions concerning her alleged adultery, who consumed alcohol in the marital home, and "other illegal activities."

¶ 7. A hearing was held on March 5-6, 2001, upon the divorce complaints of the parties. On March 13, 2001, the chancellor issued his judgment granting Michelle a divorce from Denton on the grounds of habitual, cruel and inhuman treatment. The chancellor divided the property as follows: Michelle was granted the home, her vehicle, items listed in Exhibit 3 and 13 as hers, items noted as being purchased by mortgage monies, certain pieces of furniture, half the contents of the kitchen cabinets, half the pewter accessories and other wedding gifts, the Walter Anderson alligator print, the mortgage on the lot she inherited from her grandfather, her personal belongings and her retirement. Denton was granted his Jeep, items listed in Exhibits 3 and 13 as his, the Walter Anderson crab print, the VCR, the Globe, half of the contents of the kitchen cabinets, half of the pewter accessories and other wedding gifts, his personal belongings, his 401(k) and his tools.

¶ 8. As far as the debts were concerned, Michelle was granted the entire $90,000 home mortgage debt, any debts on her car, and any debts listed in her name alone. Denton was granted any debt on his Jeep, and any debts listed in his name alone. On April 9, 2001, Denton filed his notice of appeal to this Court.

FACTS

¶ 9. Denton and Michelle married on May 9, 1998. Prior to the marriage, Michelle's grandfather had passed away leaving her his house and the mortgage for an adjacent lot at $300 a month. Michelle actually acquired title to this property after the marriage. The original value of the house was appraised at $108,000. Michelle and Denton borrowed $90,000 in Denton's name to make improvements on the house. Some portion of that money was used for home repairs, and the rest was unaccounted for. Both Denton and Michelle worked on the house, but they disagree as to the degree that each contributed to the house renovation.

¶ 10. At the time of the divorce, Denton was thirty years old and employed at Mississippi Phosphate in Pascagoula, Mississippi and Michelle was twenty-eight years old and employed at the Mississippi Gulf Coast Community College, Perkinston Campus as a recruitment officer. Both parties lived with their parents at the time of their divorce.

¶ 11. The chancellor found that both parties had proved their alleged grounds for divorce. Michelle admitted at trial that she had a sexual relationship with another man after she and Denton separated. Regarding Michelle's alleged ground for divorce, habitual, cruel and inhuman treatment, the chancellor found the following:

Denton appears to have an alcohol and prescription drug problem. He noted five doctors in his deposition, but has prescription records from seventeen doctors. He has pages of prescriptions during the two year marriage, including prescriptions for xanax, cenicon, remoran, zoloft, paxil, prozac zerzone, ambien, buspar, and elevil. Although Denton maintained that he didn't fill all these prescriptions and some were taken in relation to his seizure disorder, Michelle, and other witnesses noted behavior related to abuse of medication and alcohol, including: an incident of road rage (threatening and waving a gun while driving and drinking); an arrest at a casino; the taking of medication at his in-law's home; frequent yelling and humiliating Michelle in front of family, friends, and students; and, the incident at their home when they separated. [In explanation of that incident] Michelle stated that she found a plastic bag with around ninety xanax in his [Denton's] coat pocket and, when confronted, he stated he was having a friend, Ron Gronski, get rid of it for him. Michelle took this to mean he was selling his prescription drugs. Thereafter, Michelle no longer wanted to continue the marriage and discussed divorce with him. He got angry and began to tear up the deck and retaining wall. Michelle left the home that night.

Additionally, Michelle related other facts relating to her grounds. First, he [Denton] accused her of having an affair with someone at the Perkinston campus before the separation; and, after her alleged adulterous weekend, told friends and students that she was a whore. Second, he would not quit using marijuana, and stated he would quit if she got pregnant. Third, he frequently threatened to divorce her during arguments..... Denton apparently defied the November 10, 2000 temporary order by following Michelle to Mobile, harassing her in her car, and then following her into a shopping mall where she had to seek the help of mall security.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN AWARDING THE MICHELLE A DIVORCE ON THE GROUND OF HABITUAL, CRUEL

AND INHUMAN TREATMENT.

¶ 12. Denton argues that the chancellor abused his discretion by granting Michelle a divorce on the ground of habitual, cruel and inhuman treatment because he relied on the "self serving" testimony of Michelle and her witnesses, including her mother. Denton also argues that Michelle did not meet the burden of proof to establish the ground of habitual, cruel and inhuman treatment, citing Smith v. Smith, 614 So.2d 394, 396 (Miss.1993)(holding that something more than unkindness or rudeness or mere incompatibility or want of affections must be proved by the preponderance of the evidence).

¶ 13. Under our standard of review, we view the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancellor's decision unless we find that decision to be manifestly wrong or unsupported by substantial evidence. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). Therefore, we employ this standard in looking at the evidence in this case.

¶ 14. Evidence of habitual cruel and inhuman treatment is sufficient if it shows conduct that endangers life, limb or health or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, if the conduct is so unnatural and infamous 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. This Court has consistently held that the chancellor as the trier of fact evaluates the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimony. Richard v. Richard, 711 So.2d 884, 888(¶ 13) (Miss.1998). The burden of proof in a habitual cruel and inhuman treatment case is a preponderance of evidence, not clear and convincing. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993). As a general rule, the habitual cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be grounds for a divorce on this ground. Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989); McKee v. Flynt...