Fisher v. Fisher, No. 1998-CA-01795-SCT

Decision Date16 November 2000
Docket Number No. 1998-CA-01795-SCT, No. 97-CA-00837-SCT.
Citation771 So.2d 364
PartiesLealve FISHER v. Earnest J. FISHER. Lealve Fisher v. Earnest J. Fisher.
CourtMississippi Supreme Court

Jessie L. Evans, Canton, Attorney for Appellant.

Sharon Patterson Thibodeaux, Jackson, Attorney for Appellee.

EN BANC.

COBB, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Earnest J. Fisher filed for a divorce, temporary restraining order and other temporary relief from her husband of 29 years, Lealve Fisher. Mrs. Fisher alleged as her grounds for divorce habitual cruel and inhuman treatment, adultery, and irreconcilable differences. Temporary relief was granted to Mrs. Fisher, and Mr. Fisher counterclaimed for divorce. The chancellor granted Mrs. Fisher a divorce on the ground of habitual cruel and inhuman treatment due to the physical abuse by Mr. Fisher and his extramarital affairs throughout the course of the marriage. Mr. Fisher filed a motion to clarify the judgment of divorce, which Mrs. Fisher answered counterclaiming for contempt for his failure to pay sums then due under the judgment. A postponement of a hearing on the motion was allowed in order to give the parties an opportunity to obtain certain information for the chancellor. Mr. Fisher filed a notice of appeal, and Mrs. Fisher filed a motion to dismiss because the trial court had not ruled on all of the issues. This Court granted the motion and dismissed the appeal without prejudice. Following a hearing on Mr. Fisher's motion to clarify, the trial court denied that motion. A notice of appeal to this Court from the final judgment was timely filed, assigning as error the following three issues:

I. THE CHANCELLOR ERRED IN GRANTING A DIVORCE TO APPELLEE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.
II. THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING ONE HALF OF APPELLANT'S RAILROAD RETIREMENT TO APPELLEE, IN REQUIRING APPELLANT TO PAY THE SUM OF TWO HUNDRED DOLLARS PER MONTH AS A UTILITY ALLOWANCE, AND IN THE GENERAL DISTRIBUTION OF THE ASSETS ACCUMULATED DURING THE MARRIAGE OF THE PARTIES.
III. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN AWARDING USE AND POSSESSION OF THE PARTIES' MARITAL DOMICILE TO APPELLEE UNCONDITIONALLY AND BY FURTHER REQUIRING APPELLANT TO PAY THE MONTHLY HOUSE NOTE ON SAID DOMICILE WITHOUT GIVING APPELLANT ANY INCREASE IN HIS EQUITY IN SAID DOMICILE.

¶ 2. We remand to the trial court for the limited purpose of having the chancellor make the required record of the findings of fact and conclusions of law regarding the distribution of the marital estate.

STATEMENT OF THE FACTS

¶ 3. Earnest and Lealve Fisher were married on July 5, 1968, and had three children, two of whom were still living, grown and married at the time of the divorce. Mr. Fisher had worked for Illinois Central Railroad for 16 years during the marriage, and he had been laid off about 6 years from that job. He worked a short period of time for J.B. Hunt and 5 years for Southern Drayage as a truck driver, and in 1996, he began driving a truck for Jitney Jungle.

¶ 4. Mrs. Fisher had been employed as a crossing guard with the Jackson Police Department for 15 years and also at Jackson Academy for 1½ years. She had worked at various other jobs providing services such as baby sitting, personal care needs of a family member, cleaning, flower arranging and assisting with weddings at her church.

¶ 5. The parties bought a home in 1971 and resided in this domicile together until their final separation in August 1996. Five years before their final separation the parties had been sleeping in separate bedrooms. Mrs. Fisher alleged that her husband would stay out late at night, and when she tried to refuse him entry into the home he would shove her out of the way. Mr. Fisher began sleeping on the couch and moved to a spare bedroom when one of the daughters moved out. Both parties had locks on their bedrooms, and Mr. Fisher had even put a refrigerator in his room. One night after he came in late, and Mrs. Fisher was questioning him about where he had been, she picked up a screwdriver and demanded that he tell her who he had been with. She testified that he grabbed her, hit her "up side" the head and that after she fell to the floor he kicked her. Mr. Fisher alleged that he hit his wife in self-defense. Mrs. Fisher also testified that she had seen the defendant with other women on several occasions, but Mr. Fisher denied the allegations of adultery.

¶ 6. After hearing the testimony of all parties, and having weighed the credibility of the witnesses before the court, the chancellor found that Mr. Fisher had committed adultery, and had been habitually cruel and inhuman in his treatment of his wife. Accordingly, the chancellor awarded the divorce on the ground of:

habitual cruel and inhuman treatment, finding that the habitual treatment shall also include the manner and the relationships which Mr. Fisher had with the three other witnesses, ... that—again, the Court finds that there is sufficient grounds for uncondoned adultery, but can only award a divorce on one particular ground, and the ground is habitual cruel and inhuman treatment, with the Court having considered the treatment of the extramarital affairs and the adulterous relationship that Mr. Fisher has convinced this Court that he has had throughout the course of the marriage and specifically since the filing of the second divorce. And for those reasons, the Court will grant Mrs. Earnest Fisher a divorce on the grounds of habitual cruel and inhuman treatment.

¶ 7. The chancellor, without making the requisite findings of fact and conclusions of law, awarded Mrs. Fisher the use and possession of the marital domicile as well as one-half of Mr. Fisher's pension from Illinois Central Railroad. Mrs. Fisher was also awarded the use and possession of the household furnishings excluding the bedroom set and Mr. Fisher's personal items. Further, Mr. Fisher was ordered to pay the mortgage on the home, a $200.00 per month allowance for all utilities associated with the home, and $1,500.00 in partial attorney fees. He was not required to provide health insurance coverage, and he was not divested of title to his undivided one-half interest in the marital domicile.

STANDARD OF REVIEW

¶ 8. This Court will not reverse a chancellor's decree of divorce unless it is manifestly wrong as to law or fact. The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony. This Court views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless this Court finds it manifestly wrong or unsupported by substantial evidence. Richard v. Richard, 711 So.2d 884, 888 (Miss.1998) (citing Rawson v. Buta, 609 So.2d 426, 429 (Miss.1992)).

DISCUSSION

I. THE CHANCELLOR ERRED IN GRANTING A DIVORCE TO APPELLEE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 9. "The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge `means something more than unkindness or rudeness or mere incompatibility or want of affection.'" Id. at 888 (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). "Evidence sufficient to establish habitual, cruel and inhuman treatment should prove conduct that: either endanger[s] life, limb or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or, in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending[ed] spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance." Id.

¶ 10. Justice requires that the chancellor's primary inquiry must be into the ground for divorce with a dual focus upon 1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff. Id. at 890. The requirement of physical violence or threats of such for a claim of cruel and inhuman treatment to lie apply only when those are the acts alleged in the complaint. Id. at 889. This Court no longer requires that a specific act must be the proximate cause of a separation before a divorce may be granted on grounds of habitual cruel and inhuman treatment. It is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce. Id. at 890.

¶ 11. Mr. Fisher contends that his wife did not present sufficient testimony and evidence to show that she was entitled to a divorce on the ground of habitual cruel and inhuman treatment, relying on Potts v. Potts, 700 So.2d 321, 322 (Miss. 1997). However, Potts is distinguishable on its facts, with the only similarity being that Mr. Potts did sleep in a separate bedroom and would return when he wanted to have sexual relations with his wife. There was no evidence that Mr. Potts was seeing other women, which appears to be the primary basis for the chancellor's decision in the case sub judice, nor that Mr. Potts ever hit Mrs. Potts. In the present case, testimony revealed that Mr. Fisher had indeed hit his wife, and shoved her on numerous occasions even though he alleged that he hit her in self-defense, and that he had been seeing other...

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