Davis v. Davis, No. 2001-CA-00900-SCT.

• Decision Date: 12 December 2002
• Docket Number: No. 2001-CA-00900-SCT.
• Parties: Gary M. DAVIS v. Sharon DAVIS.
• Court: Mississippi Supreme Court

832 So.2d 492

Gary M. DAVIS v. Sharon DAVIS.

No. 2001-CA-00900-SCT.

Supreme Court of Mississippi.

December 12, 2002.

Michael P. Younger, Brandon, attorney for appellant.

William R. Wright, Maril Faith Risher, W. Benton Gregg, Jackson, attorneys for appellee.

EN BANC.

McRAE, P.J., for the Court.

¶ 1. Dr. Gary M. Davis appeals from an order entered by the Rankin County, Chancery Court denying his motion for a new trial, or in the alternative, motion to reconsider an earlier ruling granting Sharon Davis a divorce on the grounds of adultery, granting her both periodic and lump sum alimony, and causing a division of the marital assets. Gary argues that the chancellor abused his discretion in the aforementioned determinations.

¶ 2. We find no abuse of discretion. Accordingly, we affirm the final judgment.

FACTS

¶ 3. Dr. Gary M. Davis and Mrs. Sharon Davis met when Gary was a third year medical resident at a hospital in Baltimore, Maryland. Sharon was employed as a nurse in the same hospital and was enrolled in graduate school for a master's degree in nursing. After several months of dating, the two were married on May 16, 1982.

¶ 4. Gary and Sharon moved six times from 1982 to 1991 before Gary settled into a practice in Jackson, Mississippi. After the birth of their first child in 1983, Gary and Sharon agreed that Sharon would discontinue her work as a nurse and stay home with their child. Their second child was born in 1984, and the third was born in 1992. The children first attended the Seventh Day Adventist School in Jackson, then Rankin County Public Schools, were home-schooled by Sharon for a while and were finally enrolled in St. Andrew's Episcopal School in 1998.

¶ 5. Gary's practice in Jackson grew. He now has an ownership interest in Diversified Renal Group, Inc. and several dialysis units. The couple's net assets have grown throughout the marriage to $3.45 million, and Gary's income in 1999 was in excess of $550,000.

¶ 6. Sharon filed a complaint for divorce on July 23, 1998. Her complaint alleged adultery, habitual cruel and inhuman treatment, and desertion pursuant to Miss.Code Ann. § 93-5-1 (1994); in the alternative, or as a separate ground, irreconcilable differences pursuant to Miss.Code Ann. § 93-5-2 (1994). Gary filed his answer denying Sharon's allegations for divorce on August 5, 1998.

¶ 7. An agreed temporary order was issued on September 8, 1998, which gave Sharon temporary physical custody of the children, temporary support for Sharon and the children and provided Sharon the exclusive use of the marital home. On February 24, 1999, an amended temporary order was issued awarding Gary visitation with the children and providing further instructions for the temporary support of Sharon and the children.

¶ 8. After a hearing, the court entered its rulings in August of 2000 on the issues of divorce and grounds, division of marital property, alimony award, custody and visitation, and amounts still owed under the prior temporary orders. On November 30, 2000, the final judgment was entered which addressed the grounds for and award of divorce, child custody and visitation, child support, disclosure of addresses, medical and dental expenses for the children, children's college, life insurance, division of marital assets, income tax provision, alimony, past due support obligations, and marital debt.

¶ 9. On December 4, 2000, Gary filed a motion to amend the final judgement and a motion for a new trial or in the alternative a motion to reconsider, all of which were denied. An amended order was issued in June of 2001 that modified the computation of Gary's gross income and provided more specificity on the findings supporting the award of lump sum alimony. Gary timely appealed to this Court.

STANDARD OF REVIEW

¶ 10. The "Court views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless the Court finds it manifestly wrong or unsupported by substantial evidence." Fisher v. Fisher, 771 So.2d 364, 367 (2000).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN HIS FINDINGS OF ADULTERY AS THE PROPER GROUNDS FOR DIVORCE.

¶ 11. Gary argues that the character of his sexual conduct with Edith Russell was misunderstood by the chancellor. He argues that since the sexual conduct occurred after the physical separation of the parties it should not be considered uncondoned adultery; and therefore, the chancellor should not have granted the divorce on the ground of adultery. ¶ 12. The final judgment of divorce grants Sharon the divorce on the ground of uncondoned adultery pursuant to Miss.Code. Ann. § 93-5-1. Sharon had the burden of proving adultery by clear and convincing evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986); Mitchell v. Mitchell, 767 So.2d 1037, 1040 (Miss.Ct. App.2000). She satisfied this burden when, on direct examination, Gary admitted to the adulterous conduct. The record shows no evidence or any attempt by Gary to rebut the admission or to explain the events of the adulterous conduct. "`Adultery may be shown by evidence or admissions and either are sufficient to support a decree of divorce.'" Holden v. Frasher-Holden, 680 So.2d 795, 799 (Miss.1996) (quoting Jordan v. Jordan, 510 So.2d 131, 132 (Miss.1987)).

¶ 13. Gary raised the issue of his adulterous conduct and attempted to explain the circumstances surrounding such conduct for the first time in his December 4, 2000, Memorandum In Support of Motion for New Trial, or in the Alternative, Motion to Reconsider. Not only did Gary admit to the adulterous conduct during trial, his attorney admitted the conduct was adulterous during the March 27, 2001, hearing on the motion. Gary then, and now, tries to argue that since the adulterous conduct did not cause the separation, then it is not sufficient evidence for a divorce based on uncondoned adultery.

¶ 14. The Legislature did not condition the granting of a divorce on the ground of adultery upon the adulterous conduct actually causing the legal separation of the parties. Miss.Code Ann. § 93-5-1. The statute explains that "[i]t shall be no impediment to a divorce that the offended spouse did not leave the marital domicile or separate from the offending spouse on account of the conduct of the offending spouse." Id. § 93-5-4. The "[l]aw does not require that ground for divorce, such as adultery, arise before separation." Talbert v. Talbert, 759 So.2d 1105, 1110, (Miss.1999). It has never been required that the adultery be causally related to the final separation of the parties to be a valid basis for granting a divorce. Id.

¶ 15. Gary's alleged sexual misconduct with Mrs. Russell may not have caused Sharon to file her complaint for divorce, but it is still uncondoned adultery. Gary's characterization of the adultery as a "one night stand" does not make the sexual misconduct any less adulterous.

¶ 16. The chancellor did not err in granting Sharon a divorce on the grounds of adultery pursuant to Miss.Code Ann. § 93-5-1.

II. WHETHER THE CHANCELLOR ERRED IN HIS AWARDING OF PERIODIC AND LUMP SUM ALIMONY TO SHARON DAVIS.

A. PERIODIC ALIMONY AWARD

¶ 17. Gary contends that the trial court erroneously granted Sharon periodic or permanent alimony in the amount of $4,000 per month. Gary's chief argument is that the trial court misapplied the factors for awarding periodic alimony and weighed too heavily on the finding of adultery in making the determination of the requisite amount of alimony due. He submits that the trial court misunderstood the nature and character of the sexual misconduct and in making the alimony rulings used that conduct against him as a type of punishment.

¶ 18. Sharon argues that the trial court properly applied and carefully weighed the factors for the awarding of periodic alimony as shown in his August 28, 2000, order. She further argues that the trial court may have taken Gary's fault into consideration when making such alimony determination, but there was no over-weighing of such factor.

¶ 19. In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider "not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living." Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).

¶ 20. In the August 28, 2000, order, and the June 4, 2001, amended order, the chancellor gave a detailed factual account for his finding for periodic alimony. Following the factors outlined for the award of periodic alimony, the...