Faries v. Faries

• Decision Date: 24 September 1992
• Docket Number: No. 90-CA-1078,90-CA-1078
• Citation: 607 So.2d 1204
• Parties: Nancy FARIES v. Kevin FARIES.
• Court: Mississippi Supreme Court

Page 1204

607 So.2d 1204

Nancy FARIES v. Kevin FARIES.

No. 90-CA-1078.

Supreme Court of Mississippi.

Sept. 24, 1992.

Robert J. Brantley, Jr., Brantley & Malone, Jackson, for appellant.

John W. Christopher, Ridgeland, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

I.

Presently we are asked to determine the type of proof necessary to support grant of a divorce on the ground of habitual cruel and inhuman treatment. Nancy Faries (Nancy) appeals a decision of the Chancery Court of Madison County denying her a divorce from, and awarding custody of the children to, Kevin Faries (Kevin). Finding that the chancellor applied an erroneous standard in denying a divorce to Nancy, we reverse and remand for further proceedings consistent with this opinion. The judgment of the chancellor is in all other respects affirmed.

II.

Kevin filed his complaint for divorce first. He alleged that he was entitled to a divorce on the grounds of habitual cruel and inhuman treatment, habitual and excessive use of drugs, and irreconcilable differences. Additionally, Kevin asserted that Nancy moved from the marital residence in February of 1990 and took with her all of the furniture owned by the parties, as well as, toys and clothing of the children. He asked that the court order her to return these items because they were needed. He alleged that Nancy, due to her erratic conduct and drug abuse, was unfit to have custody of the children and requested the court to award him sole custody. He asked that the court award him exclusive use and possession of the residence and the car jointly purchased by him and Nancy. ¹ Kevin sought child support and payment of his attorneys' fees. He requested a emergency hearing determining the temporary custody of the children, pending a hearing on the merits and final disposition.

Nancy answered the complaint for divorce and filed a counterclaim seeking to be divorced from Kevin. She denied the material allegations of the complaint. Although admitting that she left Kevin on February 21, 1990, Nancy explained that she had every intention of taking the children with her which is why she removed their clothing and toys. She asserted that she had returned some of the necessary clothing and toys to the marital home; further, she denied depriving Kevin and the children of furniture and furnishings needed by them, though she did remove from the abode those things which would reasonably meet her needs during the separation.

Nancy claimed that her possession of the family car was lawful, since she primarily used the vehicle.

In her counter-claim for divorce, Nancy averred that Kevin abused her physically, emotionally, and mentally, inflicted cruel and inhuman treatment upon her; she claimed also that she was entitled to a divorce on the ground of irreconcilable differences. Nancy sought separate maintenance, permanent and exclusive possession of the marital home and all of the furnishings. She asked that the court divide the other property accumulated during the marriage and order Kevin to pay any and all indebtedness against the house and the furniture. In the alternative, she requested that Kevin pay a suitable monthly sum so that she could rent a residence. Like Kevin, Nancy sought possession of the car and an order that Kevin pay any remaining indebtedness on the car. Finally, she sought a decree ordering Kevin to provide her with transportation like or similar to that with which she was accustomed, granting her custody of the children and ordering that Kevin pay child support and maintain medical insurance on her and the children.

On March 17, 1990, both parties agreed to an order of continuance specifying certain visitation schedules. Later in March, Nancy filed a "Motion for Temporary Relief" requesting that the court schedule an emergency hearing and thereafter order that she be given exclusive use and possession of the marital home and car, temporary custody of the children, child support and alimony.

The court held a hearing on April 10, 1990. In an order filed May 7, 1990, the court found that there existed no urgent or necessitous circumstances and continued the dispositions in the agreed order entered March 16, 1990, touching custody and visitation. Kevin was granted exclusive use and possession of the marital residence and custody of the children. Nancy was granted visitation. Both parties were cautioned not to remove the children from the jurisdiction.

On April 30, 1990, Kevin filed his answer to the counter-claim for divorce brought by Nancy. He denied the material allegations of the complaint and asked that the court dismiss the counter-claim for divorce.

Hearing on the complaint and counter-claim for divorce was had in August of 1990. The court denied the relief sought by the parties "because there was no corroboration as to their respective grounds as being the cause for the separation." The court found that none of the witnesses for either party testified to the cause of separation or grounds for divorce. The court assessed the cost of the proceedings equally between the parties. Judgment to this effect was entered on August 15, 1990.

Shortly thereafter, Kevin moved that the judgment be amended to address and dispose of the custody issue. He requested that the court direct the entry of a new judgement and award him custody of the children. Likewise, On August 28, 1990, Nancy moved that the court grant her custody of the children. The court acted on these motions on September 4, 1990. After hearing was held on the post-trial motions, custody was granted to Kevin. Crucial to the court's determination was the fact that Nancy took the children out of the state after the court rendered its opinion. ² It found that Nancy's actions secreting the children from August 7, 1990, to August 30, 1990, were not in and evinced a lack of concern for the best interest of the children. Thus, the court granted custody to Kevin, finding the best interest of the children would be served if he was given custody, because he could provide them with stability and familiar surroundings. Nancy was given liberal visitation privileges. ³ Judgment to the effect of the opinion was entered September 7. ⁴

Later, Kevin filed a petition to modify the final judgment because in October of 1990, Nancy moved back into the marital residence. Kevin asserted that Nancy removed from the residence certain items. He asked that the court order her to return those items she removed and pay child support to him, since she was employed at the time he filed this motion. He also asked for attorneys' fees. In response to this motion, the court issued a bench opinion in which it granted to Kevin the exclusive use and occupancy of the marital home free from interference by the defendant or partition. The court directed Nancy to return the personal property items which she had removed from the home. The request for child support was denied. Aggrieved from the judgments entered below, Nancy appeals to this court seeking review and disposition favorable to her claims.

III.

Kevin Faries and Nancy Huyser wed on June 4, 1983. To this union two children were born, Amanda Katherine and Daniel Patterson, whose respective dates of birth are December 4, 1984, and May 29, 1987. After seven years of marriage, Kevin and Nancy sought legal dissolution of the bonds of matrimony.

At trial, Nancy's testimony revealed that she and Kevin lived together, as husband and wife, until February 21, 1990, when they separated. She recounted that on the Saturday before the Wednesday she left home, Kevin was very angry with her. According to Nancy, Kevin told her to either leave the home or be prepared to be a wife, who would do everything he said. During this same episode, he called her parents and told them that they were no longer welcome in his home because of something Nancy's mother did to him the previous Christmas. ⁵ Kevin stormed out of the house. Nancy testified that she was "scared to death" because Kevin was out of control. She was afraid of what his reaction would be when he got home and found her still there, so she decided to leave home.

On Sunday she placed a deposit on an apartment; Monday, she called an attorney. She elicited aid from her mother, who helped her move. She testified that she lived in constant fear her last days with Kevin. She stated that when she left, she took most of the children's things, especially their toys, furniture and clothing, because she intended for the children to live with her. Kevin found out about her plans for the children and prevented her from taking the children to the apartment.

Kevin told a different story. He stated that he told Nancy that she needed to awake, because he was about to go for a run. According to him, he attempted to awake her twice and she told him that she was awake. After returning from his run, he found that Daniel had strewn VCR tapes on the living room floor and Nancy was still in bed.

On the previous Friday, Amanda told Kevin that Nancy's mother was coming to visit them on Wednesday, February 21. When he inquired, Nancy told him that she did not know why her mother was coming to visit. Kevin admitted that he called Nancy's mother and told her that she was not welcome in the house. He stated that he did not do anything to cause Nancy to leave, but they did argue on the days prior to February 21.

Nancy sought to show that Kevin had a violent temper. Kevin admitted that on February 21, 1990, he asked Nancy to leave the home, though she did not leave until four or five days later. He admitted that he spanked his wife once when she hit Amanda. He also grabbed her arm on one occasion. He admitted that sometimes he called Nancy a "candy ass or bitch".

Nancy testified that she was mistreated emotionally; she felt that Kevin hated her and was disgusted by her presence. She was afraid of him; he disrespected her, treated her with...