Brooks v. Brooks

• Decision Date: 30 March 1995
• Docket Number: No. 92-CA-01197-SCT,92-CA-01197-SCT
• Citation: 652 So.2d 1113
• Parties: Robert T. BROOKS v. Jane Gunter BROOKS.
• Court: Mississippi Supreme Court

Page 1113

652 So.2d 1113

Robert T. BROOKS v. Jane Gunter BROOKS.

No. 92-CA-01197-SCT.

Supreme Court of Mississippi.

March 30, 1995.

William R. Collins, Montgomery Smith-Vaniz & McGraw, Canton, Richard Redfern, Richland, for appellant.

Charles L. Dunn, Madison, Barry W. Gilmer, Leslie R. Brown, Gilmer Law Firm, Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This appeal arises from the October 20, 1992, "JUDGMENT OF DIVORCE" of the Madison County Chancery Court, granting Jane Gunter Brooks ("Jane") a divorce from Robert T. Brooks ("Robert"), and awarding Jane alimony and property incident to that divorce. The chancellor: 1) awarded Jane periodic alimony which exceeded Robert's net take-home pay, as well as his gross income; 2) granted Jane greater than fifty percent (50%) of the couple's marital property; and 3) awarded Jane substantial lump-sum alimony.

The chancellor erred, as to the burden of proof required to grant Jane a divorce on grounds of adultery. Nevertheless, after our de novo review, we determine that Jane's proof was clear and convincing under the facts in this case, and we affirm the chancellor's grant of a divorce to Jane. However, the totality of the chancellor's awards of alimony and property to Jane was excessive. Accordingly, we reverse the chancellor's awards of alimony and property to Jane, and remand the case for a proper determination of equitable alimony and property distribution.

I.

Jane and Robert were married on July 12, 1957. When the couple married, Jane was employed by a bank, Magnolia Federal Bank for Savings. Robert was employed by his family's dry cleaning business, Grand Cleaners.

Sometime after they were married, Robert acquired an interest in Grand Cleaners. Later, in 1973, Robert and his brother also acquired an interest in another cleaning business, and Kolb's Grand Cleaners emerged as the resulting business name. The business was not lucrative and performed relatively poorly until 1980.

Income from both spouse's employment was required to offset the household maintenance and living expenses of the couple for the first twenty-five years of their thirty-five year marriage. During that time, Jane was gainfully employed, working at six different jobs from the date of her marriage in 1957 until 1981. But, at no time did Jane's salary income exceed $12,000.00 per year. Robert continually worked for the cleaning business.

By 1981, Robert's salary from Kolb's Grand Cleaners had increased to a level where Jane's income was no longer necessary to meet the couple's expenditures therefore, Jane discontinued employment. The couple's lifestyle changed, outwardly reflecting the increase in income through expensive automobiles, jewelry, and an elaborately decorated home. Robert continued working, while Jane spent her time on homemaking, social, and civic activities.

In 1985, the couple separated for the first time, the result of Jane asking Robert to leave the marital home. At trial, Jane stated that, at that time, she felt compelled to ask Robert to move out of the house because of his drinking and "staying out late at night," coupled with her suspicion of carousing and womanizing by Robert.

In the latter part of 1987, Jane returned to the work force, working in a management capacity for Kolb's Grand Cleaners at a new branch which was opened. She continued working there until September of 1989.

Although her relationship with Robert was harmonious after their reconciliation, at trial, Jane stated that "[t]here was no physical relationship at all after about eight--well, I would say after about eight to ten months after he came back, there was no sexual or physical relationship at all." Testimony at trial also reflected the fact that Jane had related Robert's impotency to Kolb's Grand Cleaners employees while she and Robert were living together. Robert confirmed the impotency, testifying on direct examination that he was impotent for the last eighteen months to two years that he lived with Jane.

Robert and Jane separated for the final time in October, 1989, and Jane hired private investigators to watch Robert. On January 26, 1990, Jane filed her "COMPLAINT" for divorce. Later, in May of 1990, while separated from Robert, Jane confronted Robert with her suspicions that he was having a relationship with a woman named Beverly Vaught. Robert confirmed that he was in love with Beverly Vaught, but denied that he had engaged in sexual relations with her.

In her "COMPLAINT" for divorce, Jane alleged that she was entitled to a divorce on numerous grounds, including adultery, habitual cruel and inhuman treatment, habitual drunkenness, and irreconcilable differences. Robert responded, denying the substantive portions of the allegations, with one notable exception; Robert admitted that the parties had experienced severe difficulties in the marital relationship and that a divorce on the grounds of irreconcilable differences was appropriate.

In his response, Robert made a counter-complaint for divorce from Jane. There, he incorporated the aforementioned admission regarding irreconcilable differences, but alleged that he was entitled to a divorce from Jane only on the ground of habitual cruel and inhuman treatment.

Testimony and evidence was presented at trial on August 26, 1991, December 9, 1991, December 10, 1991, February 24, 1992, and February 25, 1992. Thereafter, on June 2, 1992, the chancellor rendered a one-page "OPINION" which adopted the "FINDINGS OF FACT AND CONCLUSIONS OF LAW" of the Plaintiff, Jane, as those of the lower court.

Finally, on October 20, 1992, the chancellor executed and entered his "JUDGMENT OF DIVORCE." That Judgment incorporated the June 2, 1992, "OPINION" and "FINDINGS OF FACT AND CONCLUSIONS OF LAW." In that "JUDGMENT OF DIVORCE," the chancellor dismissed Robert's counterclaim for divorce, and granted Jane a divorce from Robert on the grounds of uncondoned adultery, stating that, "Jane Gunter Brooks proved by a preponderance of the credible evidence that Robert T. Brooks is guilty of uncondoned adultery...." The Judgment also awarded Jane periodic alimony, lump-sum alimony, litigation costs, and divided the couple's marital property.

Robert filed a "NOTICE OF APPEAL" on December 11, 1992. The issues raised on appeal by Robert are quoted as follows:

A. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S DIVORCE ON THE GROUNDS OF UNCONDONED ADULTERY.

(1) IN THAT THE LOWER COURT ERRED IN GRANTING PLAINTIFF A DIVORCE FROM THE DEFENDANT, IT LIKEWISE, ERRED IN ORDERING DEFENDANT TO PAY PLAINTIFF'S ATTORNEYS' FEES.

(2) IN THAT THE LOWER COURT ERRED IN GRANTING PLAINTIFF A DIVORCE FROM THE DEFENDANT, IT LIKEWISE, ERRED IN ORDERING DEFENDANT TO PAY PLAINTIFF'S ACCOUNTANT'S FEES.

(3) IN THAT THE LOWER COURT ERRED IN GRANTING PLAINTIFF A DIVORCE FROM THE DEFENDANT, IT LIKEWISE, ERRED IN ORDERING DEFENDANT TO PAY COSTS OF COURT.

B. THE TRIAL COURT ERRED IN DIVESTING DEFENDANT OF INDIVIDUALLY OWNED PROPERTY.

C. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF THE SUM OF $7,200.00 PER MONTH IN ALIMONY AND ORDERING DEFENDANT TO PURCHASE PLAINTIFF A $47,000.00 AUTOMOBILE.

D. THE TRIAL COURT ERRED IN FAILING TO AWARDING [sic] DEFENDANT A DIVORCE FROM PLAINTIFF ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

II.

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S DIVORCE ON THE GROUNDS OF UNCONDONED ADULTERY.

A.

In the case of McAdory v. McAdory, 608 So.2d 695 (Miss.1992), this Court reiterated the proof necessary to support adultery as grounds for a divorce. There, we stated that:

A charge of adultery may be grounds for 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. Owen v. Gerity, 422 So.2d 284, 287 [sic]. Proof of either of these elements must be supported by evidence of a reasonable opportunity to satisfy the infatuation or proclivity before divorce on grounds of adultery will be granted. Id.

McAdory, 608 So.2d at 700. And, an earlier case from this Court summarized the necessary evidentiary standard to be applied to a litigant's proof of adulterous activity, as follows:

In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilt. Rodgers, 274 So.2d at 673. However, such evidence need not prove the alleged acts beyond a reasonable doubt and the plaintiff is not required to present direct testimony as to the events complained of due to their secretive nature. Bunkley & Morse's Amis, Divorce & Separation in Mississippi, Sec. 3.09(5) (1957). Nevertheless, the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence. Owen, 422 So.2d at 287, citing and quoting Banks v. Banks, 118 Miss. 783, 79 So. 841 (Miss.1918).

Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986) (emphasis added).

In his "JUDGMENT OF DIVORCE," the chancellor erroneously evaluated the evidence of adultery under an incorrect quantum of proof for adultery. Instead of finding proof of adultery by "clear and convincing evidence," Dillon, 498 So.2d at 330, the chancellor found proof of adultery by the lesser standard of a "preponderance of the evidence." In his "JUDGMENT OF DIVORCE," the chancellor found, inter alia, that:

Jane Gunter Brooks proved by a preponderance of the credible evidence that Robert T....