Ellzey v. Ellzey, 46318
| Decision Date | 11 October 1971 |
| Docket Number | No. 46318,46318 |
| Citation | 253 So.2d 249 |
| Parties | Ester Lee ELLZEY v. Wincfus ELLZEY. |
| Court | Mississippi Supreme Court |
Philip Singley, Columbia, for appellant.
Mounger & Mounger, Tylertown, for appellee.
This is an appeal from the Chancery Court of Walthall County, Mississippi, wherein the Chancellor denied the granting of a divorce to the appellant based upon the grounds of habitually cruel and inhuman treatment.
In August of 1969 the appellant filed a suit against the appellee seeking a divorce, custody of minor children, and child support; and in it she also asked the court to declare a resulting trust in her favor for an undivided one-half interest in and to certain lands described in the bill of complaint. After a hearing on temporary features, the court by its decree dated November 20, 1969, awarded the temporary custody of Hattie Martinas Ellzey and Luzern Ellzey, minor children of the parties, unto the appellant and ordered the appellee to pay the sum of $22.50 per week for the support and maintenance of said children.
At the regular May 1970 term of Chancery Court of Walthall County, Mississippi, the court heard the case on its merits and rendered a decree denying the divorce, and denying the relief prayed for in the bill of complaint as to said lands, but awarded the custody of the two minor children unto the appellant and ordered the defendant to pay the sum of $22.50 per week for the support and maintenance of these children. The appellant has prosecuted this appeal from that final decree.
The only testimony in the record offered to sustain the charge of cruel and inhuman treatment was based upon the following two incidents. The appellant contended that her husband hit her on the head with a shovel twenty-five years before the trial and cut a gash in her head. He denied he hit her with a shovel. They had three children born to them after the alleged shovel incident.
The last incident was alleged to have occurred at a church where, it is said, the defendant accused members of his family of having taken twenty dollars out of his pocket. One of the daughters of the parties and also the appellant testified that the defendant Wincfus Ellzey took a shotgun out of a truck and tried to shoot the appellant. They testified that the children held him until the appellant could run away. Appellee testified that he did not try to shoot the appellant, but that the children had taken the gun out of the truck and he took it and put it back in the truck.
The Chancellor in his opinion said that the testimony was insufficient to establish habitual cruel and inhuman treatment to sustain a divorce decree.
The Court said, however, that:
'* * * (A)nd coming down to the instance in May, 1968, I am inclined to believe the complainant and her witnesses are telling the truth about this episode, but still this is one isolated instance.'
The trouble we have here is, if the Chancellor believed that the testimony showed that the defendant tried to shoot his wife, that incident alone...
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Dorman v. Dorman, 98-CA-00258-COA.
...on this ground. McKee v. Flynt, 630 So.2d 44, 48 (Miss.1993); Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989); Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). The requisite essential behavior may be established by a preponderance of the evidence. Smith v. Smith, 614 So.2d 394, 396 (M......
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McKee v. Flynt, 91-CA-0987
...of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment." Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). There must exist some causal connection between the habitual cruel and inhuman treatment and the parties' separation. Fo......
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Rakestraw v. Rakestraw
...see Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989), a single incident may provide grounds for divorce. Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). The requisite behavior may be established by a preponderance of the evidence, and the charge "means something more than unkindness o......
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Rawson v. Buta, 90-CA-1034
...see Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989), a single incident may provide grounds for divorce. Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971) (citing Bunkley & Morse, Amis Divorce and Separation in Mississippi Sec. 3:14(3) (1957)). A causal connection between the treatment a......