Chapel v. Chapel, 95-CA-01109-SCT

• Decision Date: 07 August 1997
• Docket Number: No. 95-CA-01109-SCT,95-CA-01109-SCT
• Citation: 700 So.2d 593
• Parties: Anna Sue Parker CHAPEL v. Theron Theodore CHAPEL.
• Court: Mississippi Supreme Court

Page 593

700 So.2d 593

Anna Sue Parker CHAPEL v. Theron Theodore CHAPEL.

No. 95-CA-01109-SCT.

Supreme Court of Mississippi.

Aug. 7, 1997.

Henry L. Tillman, Henry P. Pate, III, Pascagoula, for appellant.

Richard R. Vaughan, Gautier, for appellee.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

¶1 Anna Sue Parker ("Sue") Chapel appeals the August 23, 1995 order of the Jackson County Chancery Court granting Theron Theodore ("Ted") Chapel a divorce on grounds of habitual cruel and inhuman treatment and denying her alimony. Sue charges that Ted failed to meet his burden of proving his grounds for divorce, that the chancellor erroneously denied her motion to dismiss the proceedings, and that provision for her support should have been made. Ted raises for the first time on appeal issues of equitable distribution not brought before the chancellor. Finding no error, we affirm the chancellor's decision.

I.

¶2 Sue and Ted Chapel were married on May 26, 1990 in Jackson County, Mississippi. Each has children from previous marriages. Ted adopted Sue's minor daughter, Katherine Emily Parker Chapel, who was emancipated by her own marriage in November, 1994. Ted's previous effort to obtain a divorce from Sue was dismissed with prejudice by the parties' "Mutual Dismissal of Respective Suits and Counter-Suits Herein" on September 3, 1992.

¶3 Prior to their marriage, the parties entered into an antenuptial agreement, which addressed the disposition of Ted's property in the event of his death. The agreement further provided for most of Ted's assets to be held jointly during the marriage, passing at death to the surviving spouse. No provision was made for the division of property in the event of divorce. Sue's assets, apparently, were not subject to terms of the agreement and her house remained titled in her name only.

¶4 The parties disagree as to whether the marriage was consummated. Ted contends that it was not consummated because he is impotent and Sue always had excuses. Sue asserts that the marriage was, indeed, consummated on May 27, 1990 at the Holiday Inn at Navarre Beach, Florida. Alternately, she stated that it was consummated on the wedding night at Ted's house before Sue went home to her house. She further contends that they "petted" and had sex, but claimed that Ted only enjoyed sex while watching pornographic videos. Ted, incidentally, was seventy-two years old at the time of the marriage, and suffered from congestive heart failure and a variety of other ailments. The record indicates only that Sue is considerably younger.

¶5 The parties contemplated living either at Ted's Londontown Road house or at Sue's River Road house. However, neither party moved. Sue variously claimed that she didn't want to leave her daughter alone at her River Road house; that her daughter didn't want to leave the house that she had grown up in (although she and her brother ultimately moved into Ted's house when he moved in with his son and daughter-in-law); and that she couldn't live in the house because, as she alleged, Ted's children had keys to the house and would take her things and sell them at yard sales. Contrary to Sue's statement that they stayed together eighty percent of the time, there is corroborated testimony that the two never lived together as man and wife. They would visit once or twice a week and attend church. Ted indicated that Sue did not show a great deal of concern for him, even after he was injured in a car accident.

¶6 Although it is apparent from the record that the parties did not live together after they were married, Sue depleted a substantial portion of Ted's savings, sometimes promising that things would be better if he gave her more money and sometimes converting assets without his knowledge. Ted testified that during the course of the marriage, his savings dwindled from $500,000 to $200,000. Pursuant to the terms of the antenuptial agreement, most of Ted's bank accounts and investments were changed to joint name accounts. Sue's were not.

¶7 Among his many investments, Ted came into the marriage with $73,000 in U.S. government bonds. After receiving a Form 1099 from the Internal Revenue Service indicating the sale proceeds of those bonds, Ted, having no knowledge of the transaction(s), wrote to the Bureau of Public Debt to get more information and to request copies of the securities. Sue admitted that she sold the bonds, alternately claiming that the money was used to buy her Lincoln Town Car with the remainder given to Ted, that she used it to support herself and pay her attorneys, and that she lost it gambling, but Ted forgave the debt. Ted further testified that Sue's son took him to Florida and showed him a house that he said his mother had bought with the money from the bonds. As is characteristic of Sue's testimony throughout the proceedings, she had no direct explanation for the money or the house, had no idea why only her name was on a leasehold assignment as "Sue S. Chapel ... a single woman" and tried to dismiss the whole matter as just one of many papers Ted always had her sign.

¶8 In another incident, Ted deposited $54,000 in Sue's checking account to be used for remodeling her house. There was some question as to whether the work was actually done, but the money apparently was spent. The record indicates that Ted often would give Sue money or control over assets in return for promises of a better relationship. He testified, too, that Sue would call him "mean and evil" and "stomp out" when he wouldn't give her more money or when they had discussions about a budget.

¶9 On July 6, 1993, Sue filed papers in the Jackson County Chancery Court to have Ted committed to the psychiatric unit at Singing River Hospital, alleging that he was violent, and that he had physically attacked her with his fists, hit her over the head with a book, slammed a car door against her, threatened to kill her and was going around saying that he was Jesus Christ and needed to give his money away. There was no corroborating evidence of this behavior. Ted denied the allegations raised in the filings, and indicated that Sue had had him committed in retaliation for repossessing the truck her son was financing through him. He had seen his family doctor the previous day for a check-up because of all of the stress he had been under. On the day the commitment papers were filed, Ted, with the help of his children and several friends from church, was moving his personal belongings out of the Londontown Road house, when Sue and her son arrived. Linda Palmer, a church member, and Catherine Chapel, Ted's daughter-in-law, testified that there was no altercation, just a ruckus raised by Sue and her son over the truck. Ted had been quiet and submissive that day and stayed away from Sue. Another friend, Margaret Gerns, called the police. When they arrived, Sue told them, "My tummy, he hit me with the door...." She then accused Catherine and Margaret Gerns of kidnaping Ted and drugging him. Two days later, sheriff's deputies escorted Ted to the hospital by ambulance. He was sent home the next day.

¶10 On another occasion that July, Sue had Ted arrested for assault. The circumstances are somewhat confusing, but it appears that Sue followed Ted in his car, he stopped at a police station to see what might be wrong, she ran in ahead of him and accused him of punching her, whereupon he was charged with simple assault and arrested. She testified that she dropped the charges because Ted said he would come back to her if she did.

¶11 As a result of the summer's events, Ted moved in with his son and daughter-in-law in August of 1993. Further, he had become afraid of Sue's son, Timmy Devers, who had been living at the Londontown Road house with him. At the time of these proceedings, he was still living in Moss Point with his children.

II.

¶12 Ted filed for divorce and/or annulment and other relief in the Jackson County Chancery Court on July 15, 1993. He alleged that his May 26, 1990 marriage to Sue had not been consummated and that her course of conduct amounted to habitual cruel and inhuman treatment. In the alternative, he sought a divorce on grounds of irreconcilable differences. Ted further sought injunctive relief to keep Sue and members of her family from harassing him and from liquidating any additional assets held in her or their joint names. Finally, Ted sought damages from Sue for malicious prosecution and emotional distress.

¶13 The chancellor granted Ted's motion for a temporary restraining order on July 16, 1993. On August 18, 1993, the parties entered an agreed temporary order, enjoining them from coming near to or otherwise harassing one other and prohibiting each from transferring or liquidating any assets. Sue further was enjoined from interfering with Ted's removal of his personal belongings from his Londontown Road house.

¶14 On October 5, 1993, Sue answered the complaint, denying all allegations raised therein and raising the affirmative defense of res judicata. On May 17, 1994, she filed a counter-suit for separate maintenance on grounds of adultery and/or habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. She sought enforcement of a May 22, 1992 support agreement ¹ entered into by the parties after Ted's earlier action for divorce was dismissed at their request on September 3, 1993.

¶15 On August 23, 1995, the chancellor entered an order granting Ted a divorce on grounds of habitual cruel and unusual treatment and denying Sue's complaint for separate maintenance. He noted that the parties had seldom lived together during this "sham of a marriage" and that Sue had done many things to Ted, including attempting to commit him to a mental hospital and taking funds in excess of $100,000 from him. He further found that the couple had acquired no assets of substantial value during their marriage and that the money Sue had taken was from assets...