Bowen v. Bowen

• Citation: 688 So.2d 1374
• Decision Date: 27 February 1997
• Docket Number: No. 94-CA-00259-SCT,94-CA-00259-SCT
• Parties: Linda Watts BOWEN v. David R. BOWEN.
• Court: United States State Supreme Court of Mississippi

Page 1374

688 So.2d 1374

Linda Watts BOWEN v. David R. BOWEN.

No. 94-CA-00259-SCT.

Supreme Court of Mississippi.

Feb. 27, 1997.

Orbie S. Craft, Brandon, for appellant.

Douglas Paul Nanney, Pelahatchie, for appellee.

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

MILLS, Justice, for the Court:

Linda Watts Bowen filed for a divorce from David R. Bowen in the chancery court of Smith County, alleging as grounds for divorce habitual cruel and inhuman treatment. David Bowen counterclaimed for divorce on the same grounds. On February 4, 1994, the chancellor denied a divorce to either party, but awarded custody and support of the couple's older child to Linda and custody of the younger child to David. The chancellor also ordered an equitable distribution of marital property. Among other things, the chancellor found that each party owned an undivided one-half interest in the marital home, and awarded use and possession of the home to David. The chancellor denied Linda any portion of David's retirement benefits and denied attorney fees to either party. Aggrieved by the judgment, Linda Bowen appeals to this Court, assigning as error the following issues:

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO GRANT LINDA BOWEN A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.

II. WHETHER THE CHANCELLOR ERRED IN AWARDING TO DAVID BOWEN CUSTODY OF THE COUPLE'S YOUNGER CHILD, JEREMY BOWEN.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING TO DAVID BOWEN USE AND POSSESSION OF THE MARITAL HOME.

IV. WHETHER THE CHANCELLOR ERRED IN DENYING LINDA BOWEN ANY PORTION OF DAVID BOWEN'S RETIREMENT BENEFITS, OR IN MAKING AN EQUITABLE DIVISION OF MARITAL PROPERTY IN THE ABSENCE OF A DIVORCE.

V. WHETHER THE CHANCELLOR ERRED IN DENYING LINDA BOWEN AN AWARD OF $2,500 IN STIPULATED ATTORNEY FEES.

FACTS

David and Linda Bowen were married on November 27, 1974, of which union two children were born--Jason, fifteen years old at the time of trial, and Jeremy, age eleven. The parties separated sometime in the fall of 1992. During a four-day trial on the divorce complaints, both parties presented evidence regarding various items which they alleged constituted cruel and inhuman treatment by the other party, not the least of which involved the close relationship between Linda Bowen and another woman, Lynn Grayson.

Rumors and speculation were rampant in the Raleigh and Cohay, Mississippi, communities that Lynn Grayson was a lesbian and that Linda, due to her close relationship with Lynn, was engaged in an homosexual relationship with Lynn. Linda admitted that David never called her or accused her of being a lesbian, but testified that he "insinuated" it. David admitted telling his sons that "[y]our mother loves another woman more than she loves you." David testified that he did not believe Linda was a lesbian, but that Linda never denied being homosexual and never made any effort to dispel the rumors. David testified that Linda told him that if she were made to choose, she would choose Lynn Grayson over David.

Sherrie Bowen, David's sister-in-law, testified that on two occasions Linda asked her if she would cover for Linda if Linda were to have an affair. Sherrie testified that on the second occasion, Linda was referring to an affair with Lynn Grayson. David testified that Linda refused to break off her relationship with Lynn in order to keep the family from being embarrassed by the rumors. Jason, the couple's older son, testified that his mother loved Lynn Grayson more than she loved David, but he felt that David, by his insinuations, was responsible for the rumors about his mother. David testified that his younger son, Jeremy, came home one day from school upset because a boy on the school bus had told him "that mama left [David] for another woman."

Linda denied having any knowledge either of the rumors regarding her and Lynn Grayson or of the aforementioned school bus incident. However, Ruth Hayes, David's sister, testified that she warned Linda of the rumors regarding Linda and Lynn. Also, both Lynn Grayson and Janice Houf, a co-worker at the hospital where both Linda and Lynn worked, testified that Linda and Lynn joked at work about the rumors that they were gay. In addition, Lynn Grayson testified that Linda told her about the school bus incident involving Jeremy.

David admitted that he and Linda had screamed at each other in front of the children, and that on one occasion he called her a "Baptist Bitch." Linda testified that David had many times called her a "whore" and a "street walker." Jason testified that he heard David call his mother a "bitch" a time or two. Linda testified that the "cruel treatment" of which she complained included the way David always fussed at her for wearing pants and make-up.

Linda testified that on one occasion, David was complaining about a pair of black pants she was wearing when he threw her onto the bed and started taking the pants off her. She testified that she thought David was going to rape her although he had never raped her before, and that David let her go after she reached up and scratched his face. David testified that no brutality was involved in the incident, characterizing it instead as playful tussling that ended up in laughter.

David admitted that during an argument on one occasion, he hit the couple's bedroom door with his fist and created a hole in it. He explained that Linda often tried to slam the door on his hand or foot, and that during the incident in question he hit the door when she reached for the doorknob as if to slam it. David admitted that on the same occasion he put a gun barrel into his mouth. He testified that he did not know whether the gun was loaded (in fact it was not), and that he did not know whether the children were in the house at the time. Linda testified that she begged and pleaded with David not to "do it," and that after David left she did not know whether he would shoot himself or come back and shoot her. According to David, when he put the gun barrel into his mouth, Linda told him to "[g]o ahead and pull the trigger."

David testified that on several occasions, Linda told him she had parked on the side of the road and stuck a gun to her head. He testified he once found his wife lying on the floor with a loaded 44-magnum cocked to her head, and that he once found a suicide note written by her. Linda admitted writing a "desperation" note but denied that it mentioned suicide.

There was much testimony elicited from both parties regarding a physical altercation between the two that occurred on November 9, 1992, some five days after Linda had signed her complaint for divorce. The incident started during an argument when Linda told David to get out of her way, and David responded, "Your way lies with the Graysons." Linda testified that she took this to be an insinuation that she was gay, so she slapped David. She initially testified that David then threw her onto the floor and hit her twice in the head above the ear, after which she bit him. She later testified that David hit her "back and forth" in the face before throwing her to the floor, after which he hit her several more times. Linda testified that while they were on the floor, she spat in David's face.

According to David, after he made the comment about the Graysons, Linda swung a starch can at him, hitting him on the left forearm. He testified that he then grabbed her to prevent her from hitting him again, and "[s]he bit the fire out of me." David testified that they then rolled onto the floor, whereupon she spat in his face. He testified that when he let her go she tried to hit him again, so he "popped her twice right there with the back side of my hand." Linda denied hitting David with the starch can, but admitted that "I hit him first."

Jason testified that when he entered the room where the parties were fighting, he saw his father hit Linda three or four times with his hand. Linda testified that Jeremy went and got the gun and told David to get off her. She admitted that prior to this incident, David had never hit her. After this incident, Linda was admitted to the hospital for observation for three days. Linda testified that after one day in the hospital, she asked the doctor to let her stay "a while longer."

Linda testified that she thought David to be an alcoholic, although she admitted that she had never seen him drunk. David testified that at Linda's suggestion, he took a shot of whiskey some nights to help him sleep, as a substitute for taking a muscle relaxer prescribed to him by a doctor for a neck injury. Timothy Bowen, David's brother, testified that once while David was out of town on National Guard duty, Timothy had to go to David's house to help Timothy's wife carry Linda to the bathroom to throw up because Linda was so drunk she could not walk.

Jason testified that once when his father was angry, David hit the car windshield with his fist, making "spider webs" in it. Jason then testified that the windshield was already broken, stating it "already had a line in it." Jason also testified that about four times his mother had taken the boys out and they had spent the night away from home on a school night. ¹ On one such occasion, Jeremy was suffering from pink eye when Linda took both boys around 10:00 or 11:00 at night to the White Oak community, where Jason spent the night at one house and Linda and Jeremy stayed at another. Linda testified that she had called the doctor to be sure it was alright if Jeremy went while he had pink eye. Jason testified he would prefer to be placed in the custody of his mother because "it's a more stable environment." David and Linda each called witnesses who testified that they were fit and suitable parents, and no witnesses testified that either party was not a fit parent.

At the time of trial, David was employed by Trilogy Communications in Flowood, where his take-home pay was $1,420 to $1,460 per month. He also served as a Major...