Brewer v. Brewer, No. 2004-CA-00040-COA.
| Court | Court of Appeals of Mississippi |
| Writing for the Court | Griffis, J. |
| Citation | 919 So.2d 135 |
| Parties | Sunny S. BREWER, Appellant, v. Ritchie W. BREWER, Appellee. |
| Decision Date | 31 May 2005 |
| Docket Number | No. 2004-CA-00040-COA. |
v.
Ritchie W. BREWER, Appellee.
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Robert R. Marshall, attorney for appellant.
David Lee Brewer, Christopher Hederi Neyland, Thomas Michael Reed, attorneys for appellee.
Before KING, C.J., IRVING and GRIFFIS, JJ.
GRIFFIS, J., for the Court.
¶ 1. Sunny S. Brewer appeals the chancellor's judgment awarding Ritchie W. Brewer a divorce based on uncondoned adultery and giving him primary physical custody of their minor child. We find no error and affirm.
¶ 2. Ritchie and Sunny Brewer were married on June 21, 1997. One child was born to their marriage, who, at the time of the trial in this matter, was approximately four years old.
¶ 3. On January 15, 2003, Ritchie filed for divorce based on uncondoned adultery and habitual cruel and inhuman treatment. Ritchie sought custody of the minor child. Sunny filed her answer and counter-complaint for divorce on January 28, 2003, seeking a divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Sunny also sought custody of the minor child.
¶ 4. A temporary order was entered, on April 15, 2003, in which physical and legal custody of the minor child was to be shared by the parties on alternating week-ends. A trial in this matter was held on September 10, 2003.
¶ 5. On October 3, 2003, the chancellor issued his memorandum opinion granting Ritchie a divorce from Sunny based on uncondoned adultery. Ritchie and Sunny were awarded joint legal custody of the minor child, with Ritchie having primary physical custody. A final judgment of divorce was subsequently entered. Sunny filed a post-trial motion, which was denied by the chancery court.
¶ 6. Sunny appeals and argues that: (1) the chancellor erred in granting a divorce based on uncondoned adultery since he applied an incorrect legal standard, and (2) the chancellor erred in awarding Ritchie primary physical custody of the minor child.
I. Did the chancellor err in granting the divorce based on uncondoned adultery?
¶ 7. Sunny argues that the chancellor erred in granting the divorce based on uncondoned adultery. She contends the chancellor applied the wrong legal standard used to prove adultery.
¶ 8. A charge of adultery may be grounds for a divorce upon a showing of either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant. McAdory v. McAdory, 608 So.2d 695, 700 (Miss.1992) (citing Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982)). Proof of either of these elements must be supported by evidence of a reasonable opportunity to satisfy the infatuation or proclivity. Id. Adultery as a ground for divorce must be proved by clear and convincing evidence. Brooks v. Brooks, 652 So.2d 1113, 1116 (Miss.1995).
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¶ 9. In his memorandum opinion, the chancellor stated that "adultery [was] shown by a preponderance of the evidence to be the cause of the marriage failing." Thus, Sunny is correct in her contention that the chancellor applied the wrong legal standard. However, upon review of the record, it is apparent that clear and convincing evidence established that Sunny committed uncondoned adultery.
¶ 10. Sunny admitted to having an extramarital sexual relationship with Dr. Isidro Amigo, beginning in October 2002, while working on assignment in Marietta, Ohio. Sunny argues that this affair was condoned by Ritchie since she and Ritchie had sexual intercourse three times after Ritchie learned of her affair with Dr. Amigo.
¶ 11. Condonation is the forgiveness of a marital offense. Wood v. Wood, 495 So.2d 503, 505 (Miss.1986). Condonation is conditioned on the offending spouse's continued good behavior. Id. If the injurious acts are renewed or repeated, the right to make the condoned offense a ground for divorce is revived. See Lindsey v. Lindsey, 818 So.2d 1191, 1195(¶ 18) (Miss.2002); Manning v. Manning, 160 Miss. 318, 318, 133 So. 673 (1931).
¶ 12. Sunny acknowledged that Ritchie never forgave her for her adulterous affair with Dr. Amigo. She further testified that after separating from Ritchie she resumed her relationship with Dr. Amigo while in Scottsdale, Arizona. Moreover, in addition to her adulterous relationship with Dr. Amigo, Sunny testified that she had two other adulterous relationships with two different men after her separation from Ritchie.
¶ 13. Once properly married by law, the parties remain married until the entry of an order of final divorce. See McIlwain v. McIlwain, 815 So.2d 476, 479(¶ 7) (Miss.Ct.App.2002). So long as there exists and remains a valid marital relationship, proof of adulterous conduct on the part of one of the spouses to the marriage, prior to the official entry of a divorce order, whether before or after separation, may result in a final order of divorce being granted to the innocent spouse because of the adulterous actions of the other spouse. See Pucylowski v. Pucylowski, 741 So.2d 998, 1001(¶ 10) (Miss.Ct.App.1999)
¶ 14. The chancellor is the primary judge of the weight and value of the testimony and his judgment will not be disturbed unless manifestly wrong. Dubois v. Dubois, 275 So.2d 100, 101 (Miss. 1973). This Court "will affirm the decree if the record shows any ground upon which the decision may be justified." Yates v. Yates, 284 So.2d 46, 47 (Miss.1973). Where the defendant admits to adulterous conduct and this testimony is corroborated with other circumstantial evidence, a divorce on the grounds of adultery will be affirmed. See Arthur v. Arthur, 691 So.2d 997, 1001 (Miss.1997); Holden v. Frasher-Holden, 680 So.2d 795, 799 (Miss.1996).
¶ 15. Although the chancellor misstated the legal standard for adultery, we find that there was clear and convincing evidence that Sunny committed...
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...v. Lee , 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001). It "is one of the most difficult decisions that courts must make." Brewer v. Brewer , 919 So.2d 135, 141 (¶ 21) (Miss. Ct. App. 2005). The chancellor clearly found both Scarborough and Harden to be fit parents or else he would not have awar......
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...Hall v. Hall, 134 So.3d 822, 828 (¶21) (Miss. Ct. App. 2014)). We may not substitute our judgment for the chancellor's. Brewer v. Brewer, 919 So.2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id. ¶17. Thomas claims the chancellor......
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...v. Hall , 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014) ). We may not substitute our judgment for the chancellor's. Brewer v. Brewer , 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id .¶24. In conducting his Albright a......
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Wooten v. Wooten, 2020-CA-00353-COA
...v. Hall , 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014) ). We may not substitute our judgment for the chancellor's. Brewer v. Brewer , 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id .¶17. Thomas claims the chancellor......
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Harden v. Scarborough, NO. 2016–CA–01393–COA
...v. Lee , 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001). It "is one of the most difficult decisions that courts must make." Brewer v. Brewer , 919 So.2d 135, 141 (¶ 21) (Miss. Ct. App. 2005). The chancellor clearly found both Scarborough and Harden to be fit parents or else he would not have awar......
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Wooten v. Simmons Wooten, 2020-CA-00353-COA
...Hall v. Hall, 134 So.3d 822, 828 (¶21) (Miss. Ct. App. 2014)). We may not substitute our judgment for the chancellor's. Brewer v. Brewer, 919 So.2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id. ¶17. Thomas claims the chancellor......
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Stuckey v. Stuckey, 2020-CA-00848-COA
...v. Hall , 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014) ). We may not substitute our judgment for the chancellor's. Brewer v. Brewer , 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id .¶24. In conducting his Albright a......
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Wooten v. Wooten, 2020-CA-00353-COA
...v. Hall , 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014) ). We may not substitute our judgment for the chancellor's. Brewer v. Brewer , 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide if substantial evidence supports the ruling. Id .¶17. Thomas claims the chancellor......