Cherry v. Cherry, 90-CA-0856

• Decision Date: 31 December 1991
• Docket Number: No. 90-CA-0856,90-CA-0856
• Citation: 593 So.2d 13
• Parties: Eunie Irene CHERRY v. Harold CHERRY.
• Court: Mississippi Supreme Court

Page 13

593 So.2d 13

Eunie Irene CHERRY v. Harold CHERRY.

No. 90-CA-0856.

Supreme Court of Mississippi.

Dec. 31, 1991.

Polly J. Covington, Quitman, for appellant.

Thomas T. Buchanan, Laurel, for appellee.

Before HAWKINS, P.J., and PITTMAN and McRAE, JJ.

PITTMAN, Justice, for the Court:

Eunie Irene Cherry filed suit in Wayne County Chancery Court for divorce from her husband, Harold Cherry, on the ground of habitual cruel and inhuman treatment. She also asked the chancery court to divide the property of the parties, and to grant her custody of the parties' minor child, Amanda. The chancery court denied the divorce. It did order Harold Cherry to pay $500.00 in child support for Amanda, who remained in the custody of her mother. We reverse and remand on the issue of the denial of a divorce. We also remand for further proceedings not inconsistent with this opinion to determine the issues of property division, alimony, and proper medical expenses of the minor child covered by Harold Cherry. We have no argument with the $500.00 per month child support award.

I.

Eunie Irene Cherry and Harold Cherry were married on January 20, 1967. Three children were born of the marriage: Alton D. and Eddie, born on April 19, 1968; and Amanda, born on July 23, 1976. Alton and Eddie have reached the age of majority, and their care and custody is not an issue on this appeal.

On December 28, 1989, Irene Cherry filed for divorce in Wayne County Chancery Court. She alleged habitual cruel and inhuman treatment on the part of her husband, or in the alternative, irreconcilable differences. Irene requested an equitable division of the couple's property, attorney's fees, custody of Amanda and child support for her, alimony for herself, and for Harold to procure medical and dental insurance for Amanda and to pay all of Amanda's medical expenses not covered by the insurance.

Harold Cherry filed his answer to Irene Cherry's complaint for divorce on May 24, 1990. He denied the allegations of the complaint and did not raise any affirmative defenses.

The hearing in this cause was held on May 30, 1990. Harold Cherry was called as an adverse witness. He testified that he and Irene had separated in April of 1989, though he maintained that Irene had spent the night at their house three times during the summer of 1989, and twice in October of 1989. Harold had mostly good things to say about Irene. Harold earned a gross yearly salary of $36,765.00, doing maintenance work for Hood Industries in Waynesboro. He also earned around $1700.00 from doing farm work. The Cherrys' home was nearly twenty-two years old and was paid for. The house was located on eight or nine acres of property. Harold valued the house at $35,000.00-40,000.00. Harold had a woodworking and mechanic shop, and he estimated that the tools in those shops had a value of $1250.00. He was not willing to sell and divide the property, or to let Irene have any part of it. Harold's son, Eddie Harold, lived in the house with him. According to Harold, the separation occurred in the following manner: Irene was gone for ten days to a convention. When she came home, she and Harold argued over a telephone call. The next day, Harold went to Mobile to buy some tires for his pick-up truck. When he returned, Irene was gone. She had left him a letter. Harold admitted that the couple had been having trouble for several years with sexual problems. Harold denied he regularly wore women's clothes and masturbated in front of his wife, but admitted that he did put on women's clothes once. He stated that the trouble lasted about a year and a half. He admitted that he had gone to see a psychiatrist about his troubles, but not until after he and Irene had separated. Harold stated that he "didn't find no answers" at the doctor's, only speculation as to the cause of the problem. He denied that his problem had much of an effect on her. He stated that if she was unhappy, it was because her mother had died at around the same time. Harold admitted that he talked about killing himself, but didn't actually threaten to do it. He stated that, the times he dressed in women's clothing, he "guess[ed he] like[d] the feel of the women's material." Harold stated that he was willing to pay whatever the court set as far as child support.

Irene Cherry testified that she had worked during her marriage and had contributed to paying for their house and their other possessions. She stated that Harold deposited a certain amount in her checking account with which she ran the home and paid the bills. Everything else he kept and put in savings or somewhere. When Irene left Harold, she took a $15,000.00 certificate of deposit that was in her name and cashed it. She claimed that her husband had some savings or money invested in certificate of deposits, but she had little or no proof of this. She testified that after the separation Harold continued to put money in the bank, and she continued to pay the bills out of that amount, until December 1989, when she filed for divorce. From January through April Harold had paid $300.00 support for Amanda. He had paid nothing for May 1990.

According to Irene, Harold "could do nothing sexually." After accusing Harold of seeing another woman, she said that he admitted that he dressed in women's clothes. Apparently he would go to his mother-in-law's house frequently, at night and early in the morning. Irene stated that she talked to Harold, went to see a doctor, and urged Harold to do the same, but he never did until after the separation. Apparently this had occurred in 1986. She also claimed that Harold was very tight with money, that she could never please him, and that "he just fussed and fussed." She claimed that Harold's activities damaged her health, and she consulted Dr. Arthur Wood, Jr. Her health had improved since the separation.

Irene asked for her half of the real property owned by the parties, and specifically claimed as hers a piano, a bed, some antiques, a .22 rifle, some pictures, and her pots and pans. Irene admitted that when she left in April 1989, she wrote a letter to Harold, saying that she "needed a little time by myself," that Harold was "a wonderful person and a good worker," and that they would talk in the future and they could work things out if they loved each other. She admitted that she had stayed in her house for three days. She denied staying with Harold at any other time. Irene admitted that she had allowed photographs to be taken of her, partially clothed, at the photography studio where she worked. She stated that the pictures had been taken as practice of a type of boudoir photography that she and her employer had learned at a seminar. The pictures had been on file at the photography studio. She admitted that she knew a man named Dencil Smith. Her employer had hired him to do some work at the photography shop, and Irene had hired him to do some work at her apartment. She denied that there was anything going on between her and Smith, and she also denied that Smith had ever spent the night in her apartment.

Patsy Henderson had known Irene Cherry for twenty years. Irene had worked at Patsy's photography studio, the Four Seasons Photography Studio, since 1981. Patsy stated that Irene had been severely depressed, anxious, and emotionally upset from 1986 to her separation in 1989. Prior to 1986, Irene had always left early so she could be home at 5:00 p.m., because Harold wanted that. After 1986, she started working nights, to get away from the problems she was having at home. Since the separation Patsy stated that Irene's condition had improved, in spite of Harold writing, bringing flowers, calling her, or coming by the shop. Patsy corroborated what Irene had said about the boudoir photography. She said that only she and Irene saw the pictures. As far as physical violence, Patsy stated that Harold had on one occasion "yank[ed] her around one day from one door slam into another one." This took place after the separation, in her studio.

Linda Moseley had known Irene Cherry for over twenty years. Linda had worked at the photography studio. Presently she saw Irene once or twice a month. Beginning in 1986, she testified that Irene would come to work depressed and upset, and act like she was in a trance. Linda knew that Irene's mother was sick at this time, and she felt that this was the reason why. She felt that Irene's condition had vastly improved recently. She corroborated what Patsy Henderson had said about Irene having to be home at 5 p.m. for so long, and then working nights, as if she didn't want to go home. Linda stated that Harold was a hard-natured person toward Irene and the children, that she had heard him yell at the children, and that "he was constantly on them and on Irene." She stated that Irene had some good things to say about Harold also, that he was a good provider and good father.

Dr. Arthur E. Wood, Jr., a family practitioner, treated Irene Cherry for stress from 1986 onward. Dr. Woods had seen her approximately 20 times from June 1986 to April 1990.

Eddie Harold Cherry, son of Irene and Harold, was Harold's first and only witness. Eddie testified that in 1989, the time of his parents' separation, relations had gotten cold and strained between Irene and Harold. They didn't argue, but they didn't get along. Eddie said that Irene stayed at work late, as if "she didn't want to come home anymore." He didn't know whether his father had done anything to cause that. Eddie claimed to have seen his mother sitting in another man's lap, and he claimed to have seen them kiss. Eddie recognized the boudoir photographs of his mother. He testified that his sister had brought them to him. Eddie then gave the pictures to his father. He also confronted his mother about his belief that she was seeing another man. According to Eddie, she told him that was none of his business. He agreed that his mother had often complained about her nerves, but denied that s...