Day v. Day, No. 56837

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore WALKER; ROBERTSON; WALKER
Citation501 So.2d 353
PartiesPaul DAY v. Ellen B. DAY.
Decision Date07 January 1987
Docket NumberNo. 56837

Page 353

501 So.2d 353
Paul DAY
v.
Ellen B. DAY.
No. 56837.
Supreme Court of Mississippi.
Jan. 7, 1987.

Arthur D. Currie, Jackson, for appellant.

C.A. Henley, Jr., Jackson, for appellee.

Before WALKER, C.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the court:

I.

This appeal born of a decade of domestic intranquility presents three questions which, once the correct legal standards

Page 354

have been identified, are largely ones of fact.

For the reasons explained below, we find well within the evidence the Chancery Court's findings that the husband had not established entitlement to a divorce on grounds of habitual cruel and inhuman treatment or constructive desertion. We further regard the finding that the husband had made no good faith offer of reconciliation, so that a prior separate maintenance decree might be avoided, as within the evidence and thus beyond our authority to disturb. We affirm.

II.

Although Paul and Ellen Day have been in and out of court for almost nine years, regarding a myriad of real and imagined reciprocal sins arising out of their marital relationship, the present proceeding dates only back to September 14, 1984. On that date Paul filed a new complaint seeking a divorce from Ellen on grounds of habitual cruel and inhuman treatment and desertion. Alternatively, Paul sought relief from the financial terms of a March 9, 1979, separate maintenance decree pursuant to which he had been providing support for Ellen. In that regard Paul alleged an attempt to reconcile the parties' conjugal differences and Ellen's refusal thereof.

The matter came on for hearing in the Chancery Court of Yazoo County, Mississippi, on December 20, 1984, and in due course thereafter the Court rendered an opinion dismissing Paul's complaint for divorce and denying his request for termination of the separate maintenance payments. The final judgment carrying that decision into effect was entered July 3, 1985. It is from that final judgment that Paul presents the instant appeal.

Paul and Ellen Day were married on May 26, 1956. Three children have been born of the marriage, Lee Allen Day, Steven Matthew Day and Roland Andrew Day. The two oldest boys are now adults, being at least 26 and 25 years of age, respectively. We are not clear whether Andy Day is 20 or 21 years old.

By way of further background, this litigational saga began May 15, 1978, one year to the day after Paul and Ellen separated. On May 15, 1978, Paul Day filed a complaint for divorce alleging habitual cruel and inhuman treatment. Ellen Day answered, alleging she was entitled to a divorce on the grounds of desertion, and filed a bill for separate maintenance. On March 9, 1979, the Chancery Court dismissed Paul's complaint, and granted Ellen's bill for separate maintenance. No appeal was taken. Thereafter, on August 6, 1980, Paul filed a petition to modify the bill for separate maintenance, but the Court ruled in Ellen's favor. Again there was no appeal.

On September 3, 1982, Ellen filed a petition for contempt alleging that Paul was in arrears in child support, and seeking money for home repair and an automobile. Paul subsequently filed his answer denying the contempt charges. On October 29, 1982, the court awarded Ellen monetary relief, but held that Paul was not in contempt. On April 6, 1984, Ellen filed another motion to cite Paul in contempt for failure to pay the amount awarded on October 29, 1982. Thereafter Paul filed an answer denying contempt and a counterclaim for divorce. Prior to the hearing on this matter, Paul paid the amount sought by Ellen, and the court dismissed the motion for contempt citation with prejudice. The complaint for divorce led ultimately to the July 3, 1985 judgment from which this appeal has been taken.

III.

Paul Day's first assignment of error is that the Chancery Court erred when it refused to grant him a divorce. As at trial, Paul here asserts alternative grounds. He claims that his proof entitled him to a divorce on grounds of habitual cruel and inhuman treatment, Miss.Code Ann. Sec. 93-5-1 [Seventh] (1972), or, in the alternative, on grounds of desertion, Miss.Code Ann. Sec. 93-5-1 [Fourth] (1972). We will consider the two points separately.

Page 355

A. Habitual Cruel and Inhuman Treatment

Paul acknowledges this Court's firm rule emanating from Gallaspy v. Gallaspy, 459 So.2d 283 (Miss.1984), and progeny making clear that a party alleging cruel and inhuman treatment must prove systematic and continuous behavior on the part of the offending spouse that goes beyond mere incompatibility, or no divorce may be granted on such grounds. Paul contends that his evidence met this burden and that the Chancery Court erred when it refused to grant him a divorce based on the grounds of habitual cruel and inhuman treatment.

Ellen rebuts, arguing first that it is impossible for her conduct to constitute habitual cruel and inhuman treatment when she and Paul have not lived together since the separate maintenance agreement of March 9, 1979. Even so, Ellen argues that the facts proved by Paul and alleged to constitute habitual cruel and inhuman treatment are not sufficient to require the granting of a divorce on this ground.

Ellen's first contention can be answered quickly. Bias v. Bias, 493 So.2d 342, 344 (Miss.1986), holds that there is no reason on principle why the fact that the parties have not been living together should render it legally impossible to establish cruel and inhuman treatment. A party can be granted a divorce based on incidents occurring after the parties were separated. 493 So.2d at 345.

We are concerned ultimately with whether there is substantial evidence (or a lack thereof) upon which the Chancery Court may have found for Ellen in Paul's claim of habitual cruel and inhuman treatment. At trial, Paul Day testified that Ellen had constantly refused to talk...

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20 practice notes
  • Mullins v. Ratcliff, No. 57278
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...the final judgment. Ross v. Brasell, 511 So.2d 492, 495 (Miss.1987); Anderson v. Burt, 507 So.2d 32, 38 (Miss.1987); see also Day v. Day, 501 So.2d 353, 356 (Miss.1987); Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Kelly v. Shoemake, 460 So.2d 811, 817 A.Dee and Sarah argue that at the......
  • Anderson v. Burt, No. 55533
    • United States
    • United States State Supreme Court of Mississippi
    • April 15, 1987
    ...will proceed upon the assumption that the trial court resolved the unmentioned issues consistent with the final judgment. See Day v. Day, 501 So.2d 353, 356 (Miss.1987); Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Kelly v. Shoemake, 460 So.2d 811, 817 (Miss.1984). Besides, it was only......
  • Robinson v. Robinson, No. 07-58575
    • United States
    • United States State Supreme Court of Mississippi
    • November 15, 1989
    ...on the part of the offending spouse that goes beyond mere incompatibility, or no divorce may be granted on such grounds." Day v. Day, 501 So.2d 353, 355 As stated in Day, This Court has refused to allow a divorce to be granted on the grounds of habitual cruel and inhuman treatment where the......
  • McKee v. Flynt, No. 91-CA-0987
    • United States
    • United States State Supreme Court of Mississippi
    • December 23, 1993
    ...the offending spouse was of a "systematic and continuous" nature. Parker v. Parker, 519 So.2d 1232, 1234 (Miss.1988), citing Day v. Day, 501 So.2d 353 (Miss.1987). See also, Burnett v. Burnett, 271 So.2d 90, 92-93 (Miss.1972). While ordinarily one act or an isolated incident will not establ......
  • Request a trial to view additional results
20 cases
  • Mullins v. Ratcliff, No. 57278
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...the final judgment. Ross v. Brasell, 511 So.2d 492, 495 (Miss.1987); Anderson v. Burt, 507 So.2d 32, 38 (Miss.1987); see also Day v. Day, 501 So.2d 353, 356 (Miss.1987); Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Kelly v. Shoemake, 460 So.2d 811, 817 A.Dee and Sarah argue that at the......
  • Anderson v. Burt, No. 55533
    • United States
    • United States State Supreme Court of Mississippi
    • April 15, 1987
    ...will proceed upon the assumption that the trial court resolved the unmentioned issues consistent with the final judgment. See Day v. Day, 501 So.2d 353, 356 (Miss.1987); Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Kelly v. Shoemake, 460 So.2d 811, 817 (Miss.1984). Besides, it was only......
  • Robinson v. Robinson, No. 07-58575
    • United States
    • United States State Supreme Court of Mississippi
    • November 15, 1989
    ...on the part of the offending spouse that goes beyond mere incompatibility, or no divorce may be granted on such grounds." Day v. Day, 501 So.2d 353, 355 As stated in Day, This Court has refused to allow a divorce to be granted on the grounds of habitual cruel and inhuman treatment where the......
  • McKee v. Flynt, No. 91-CA-0987
    • United States
    • United States State Supreme Court of Mississippi
    • December 23, 1993
    ...the offending spouse was of a "systematic and continuous" nature. Parker v. Parker, 519 So.2d 1232, 1234 (Miss.1988), citing Day v. Day, 501 So.2d 353 (Miss.1987). See also, Burnett v. Burnett, 271 So.2d 90, 92-93 (Miss.1972). While ordinarily one act or an isolated incident will not establ......
  • Request a trial to view additional results

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