Gallaspy v. Gallaspy

• Decision Date: 31 October 1984
• Docket Number: No. 54414,54414
• Citation: 459 So.2d 283
• Parties: George Wofford GALLASPY v. Linley Richter GALLASPY.
• Court: Mississippi Supreme Court

Page 283

459 So.2d 283

George Wofford GALLASPY v. Linley Richter GALLASPY.

No. 54414.

Supreme Court of Mississippi.

Oct. 31, 1984.

Rehearing Denied Dec. 5, 1984.

Howard Dyer, Dyer, Dyer & Dyer, Greenville, for appellant.

Kay Farese Luckett, Luckett, Luckett, Luckett & Thompson, Clarksdale, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

George Wofford Gallaspy has appealed to this Court from a decree of the Chancery Court of Sunflower County, Honorable Willard L. McIlwain, presiding, granting a divorce to Linley Richter Gallaspy, together with custody of children, alimony and support for her and the children. He has assigned three errors in the trial below, the first of which complains that the lower court erred in granting a divorce to Mrs. Gallaspy on the ground of habitual cruel and inhuman treatment, and the second and third set forth that the lower court erred in the amount of alimony and child support granted and in the requirement that Mr. Gallaspy pay for the college education of Mrs. Gallaspy. We think there is merit in the first assignment of error and reverse the decree of the lower court, consequently, it is unnecessary to address the second and third assignments of error.

The bill of complaint charges the appellant with habitual cruel and inhuman treatment, which entitled her to a divorce from the bonds of matrimony. The parties were married July 7, 1971, and two children were born of that marriage, Audra Fox Gallaspy, age ten years, and William Harold Gallaspy, III, age 8 years. The parties were separated in November, 1981. Further, the bill of complaint alternatively charges that irreconcilable differences have arisen between the parties which would entitle either of them to a divorce. The appellant denied the allegations of habitual cruel and inhuman treatment, but admitted that there were irreconcilable differences between the parties. It is obvious that both appellant and appellee wanted a divorce, but it is also apparent from the record that they could not agree upon support, alimony and property rights, which negated a divorce on irreconcilable differences.

The appellee testified that in November, 1981, she and the two children went to church on a Sunday morning, and, upon their return home, the appellant was gone. She was not worried about his absence, but thought he was working at the airplane hangar. ¹ When appellant failed to return home, she attempted to locate him. Appellee was embarrassed to call appellant's mother, who lived in Greenwood, their hometown, and inquire about his absence. She called the hangar three different times during the afternoon, and, on the third call, appellant answered the telephone. Appellee asked him why he left and appellant stated that they were both unhappy, and he thought it was best to leave. She said, "He was as scared as I was at having done it--having left like this." Appellee stated that there had been no violent arguments; that there was not anything that led up to and provoked his leaving; and that there was nothing other than "natural troubles we had through the years."

The facts appellee gave as constituting habitual cruel and inhuman treatment were appellant's criticism of her being overweight; that his first priority was his work, where he spent long hours when he could have been at home; that his second priority was his mother and his father's estate; that he was critical of appellee's family; and that he did not praise or support the children enough and his discipline was too severe for them.

In order to justify a divorce on the ground of habitual cruel and inhuman treatment, such treatment must be so continuous and of such a nature that the offended spouse can no longer live with the other spouse on account of that treatment and, therefore, separates herself from such spouse. The facts of the case sub judice simply do not pass the test of habitual cruel and inhuman treatment. Under the facts, appellee could have waited for a period of one year, filed suit for divorce on the ground of wilful, continued and obstinate desertion for the period of one year, and, without question, she would have been entitled to a divorce from the appellant.

If habitual cruel and inhuman treatment is to remain the seventh ground for divorce under the divorce statutes of Mississippi, then when a complaint is filed charging that ground for divorce, the proof must sustain it. Otherwise, the ground should be repealed by the legislature, but not by the judiciary. We recognize that courts have become liberal in the application of proof on the habitual cruel and inhuman treatment ground. However, by no means have they made a farce and mockery of the requirement to prove the ground.

In Wires v. Wires, 297 So.2d 900, 902 (Miss.1974), although the evidence on the charge of habitual cruel and inhuman treatment was not strong, the Court said:

It is true these cases held that habitual cruel and inhuman treatment should be sustained by "clear and convincing evidence." This conclusion was based upon the thesis that mental cruelty without violence required clear and convincing evidence to substantiate the charge. We have reexamined the authorities as to the degree of evidence required, and we are now of the opinion that habitual cruel and inhuman treatment may be established by a preponderance of the creditable evidence.

We agree, however, that the charge of cruel and inhuman treatment against one spouse means something more than unkindness or rudeness or mere incompatibility or want of affection. It has been said that:

"The conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb, or health. And finally, such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself." Bunkley and Morse, Amis on Divorce and Separation in Mississippi Sec. 3.14(3), at 114 (1957); cited in Burnett v. Burnett, 271 So.2d 90, at 92 (Miss.1972).

On the other hand, habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy health and endanger the life of an innocent spouse. Bunkley and Morse, Amis on Divorce and Separation in Mississippi Sec. 3.14(3), at 122 (1957).

The testimony in this case is close and lacks corroboration in many respects. Nevertheless, the chancellor was of the opinion that there was sufficient testimony in the record to establish the ground of habitual cruel and inhuman treatment.

See also Burnett v. Burnett, 271 So.2d 90 (Miss.1972) and Richey v. Richey, 185 So.2d 431 (Miss.1966).

The case of Marble v. Marble, 457 So.2d 1342 (Miss.1984), involves a divorce on the ground of habitual cruel and inhuman treatment with facts similar to those in the present case. There, the lower court declined to grant a divorce on that ground, and we said:

While the record indicates it is now impossible for John to resume cohabitation with Rebecca, we are of the opinion her behavior does not constitute "habitual cruel and inhuman treatment" as this Court has defined. [Citing Burnett v. Burnett, supra ].

The record reflects that appellant is a man of considerable wealth and that he has a substantial yearly income. Appellee and the children of the parties are entitled to support in accordance with their stations in life and in accordance with the means of the parties. The lower court has adequate power and authority to adjudicate the rights of the parties and the decision here does not prejudice any of them in the enforcement of those rights.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, P.J., and ROBERTSON, DAN M. LEE, PRATHER and SULLIVAN, JJ., specially concur.

ROBERTSON, Justice, specially concurring:

On July 1, 1976, the domestic relations laws of this state took a giant step forward into the real world as parties became authorized to obtain divorces on grounds of irreconcilable differences. See Miss. Laws of 1976, Ch. 451, now codified, as amended, as Miss. Code Ann. Sec. 93-5-2 (Supp.1983).

Prior to 1976 mature and responsible people who found their marriages irretrievably broken were offered by our law absurd choices. If they wanted to get an "uncontested divorce" the complaining...