Gerty v. Gerty

Citation265 So.3d 121
Decision Date13 December 2018
Docket NumberNO. 2017-CP-00828-SCT,2017-CP-00828-SCT
Parties Michael T. GERTY and State of Mississippi ex rel. Jim Hood, Attorney General v. Joesie R. GERTY
CourtUnited States State Supreme Court of Mississippi

ATTORNEYS FOR APPELLANTS: MICHAEL T. GERTY (PRO SE), OFFICE OF THE ATTORNEY GENERAL, BY: JUSTIN L. MATHENY, JACKSON

ATTORNEY FOR APPELLEE: M. CHANNING POWELL, GULFPORT

BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. In September 2013, the Gertys filed a joint complaint for an irreconcilable-differences divorce. The joint complaint languished in the Harrison County Chancery Court for almost two years, during which the parties cooperated with each other and faithfully abided by the Property Settlement Agreement ("PSA"), which had been filed contemporaneously with the joint complaint. The PSA provided that Michael would have physical custody of the couple's minor child. Joesie had full knowledge that Michael was required to move to the Great Lakes area to fulfill a three-year military commitment when she agreed that their son would move with Michael. Joesie made the decision not to move to the Great Lakes area with their son and Michael. By her own admission, her decision was due to Michael's lack of intimacy and her desire to live as a single woman.1 It was Joesie's idea that their son and Michael move in with a military family in the Great Lakes area that Joesie knew from the Mississippi coast.

¶ 2. During this same time, without his knowing her connection, Joesie had Michael assist her in moving her belongings into the house of her paramour's mother, Robin Caldwell Fitzgerald.2 For nearly two years, Michael and their son lived apart from Joesie. She chose to spend Thanksgiving of 2013 and 2014 and Christmas of 2012 and 2013 with Kyle and his family, unknown to Michael. The sexual nature of her affair with Kyle ended in January 2014 or May 2014, depending upon what testimony from Joesie is to be accepted. She further admitted that she continued to engage socially with Kyle until December 2014, unknown to Michael.

¶ 3. In January of 2015, Michael informed Joesie that reconciliation was impossible and that he wanted her to sign and finalize the divorce papers. Joesie, upon the advice of her attorney,3 surreptitiously told Michael that she also was ready to complete the irreconcilable-differences divorce. Based on the advice of her counsel, Joesie waited until her summer visitation had begun pursuant to the PSA and until her son was physically in Mississippi before withdrawing her consent to an irreconcilable-differences divorce. Joesie and Michael then filed separate complaints for divorce on the ground of adultery, inter alia , and alternatively sought an irreconcilable-differences divorce.

¶ 4. After a temporary hearing on July 13, 2015, the chancellor granted physical custody to Joesie. The trial began in December 20154 and concluded May 2016. Six months later, in November 2016, the chancellor entered a final judgment and decreed that a divorce should be granted, but that neither party was entitled to a fault-based divorce. She found that Joesie had failed to establish adultery. She found that Michael had proved adultery because Joesie had admitted it, but that Michael had condoned Joesie's adulterous conduct. Then the chancellor sua sponte declared the statutory scheme under Mississippi Code Section 93-5-2 (Rev. 2013) unconstitutional and granted an irreconcilable-differences divorce. Joesie was granted custody of their child.

¶ 5. Today's case, as described by the State, is unique but not unprecedented—Michael, Joesie, and the State agree that the chancellor erred in declaring Section 93-5-2 unconstitutional.5 After the chancellor's November 15, 2016, final judgment was entered, Michael and Joesie, along with the State of Mississippi, asked the chancellor to reconsider her judgment,6 because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute. The chancellor gave the parties and the State an opportunity to brief the constitutionality of Section 93-5-2. In the arguments for reconsideration, all parties conceded that the chancellor had erred in granting an irreconcilable-differences divorce. No other hearings were conducted. Yet the chancellor significantly amended her earlier final judgment,7 increasing Joesie's award to include a percent of Michael's military-retirement benefit and reducing the noncustodial parent's summer visitation from three months, as provided in the PSA, to one month, contrary to the PSA and the chancellor's original final judgment.

¶ 6. The State appealed the chancellor's sua sponte adjudication of Section 93-5-2 as unconstitutional. Michael also appealed, arguing that the trial court erred by (1) declaring Section 93-5-2 unconstitutional, (2) failing to award Michael a divorce on the ground of adultery, (3) reducing Michael's summer visitation, (4) awarding Joesie a portion of Michael's retirement benefits, and (5) awarding custody to Joesie. We affirm the chancellor's finding regarding custody and child support, but we reverse the remaining judgment and remand the case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 7. On September 18, 2013, Joesie8 and Michael Gerty filed a Joint Complaint for Divorce (Irreconcilable Differences), which Joesie admitted was precipitated by her self-described summer 2013 "fling" with Kyle and her desire to be a single woman. After numerous revisions, concessions and negotiations, Joesie and Michael executed and filed as an exhibit to their complaint for divorce a Separation and Child Custody and Property Settlement Agreement, which provided that their minor son9 would live with Michael during the school year and with Joesie during the summer. The following clause was included in the PSA:

It is agreed and understood that this Agreement is not contingent upon a divorce [sic] being granted. However, if the parties are granted a divorce on any grounds, the parties agree that this Agreement shall be made a part of the Judgment and that such Judgment shall not conflict with the terms of the Agreement [sic] except to the extent disapproved by the Court [sic] the [sic] parties agree that each mutually submits to the personal jurisdiction of the Chancery Court of Harrison County, State of Mississippi, so that said Court has the power to decide any and all matters and questions concerning the dissolution of the parties' marriage ... and the division of the parties' property and debts.

¶ 8. Neither party sought to finalize the divorce or to change the PSA for nearly two years. At the same time, with Joesie's participation and agreement, the minor child moved to Wisconsin and later to Illinois pursuant to the PSA. Joesie visited sparingly, with Michael paying all her travel expenses. The minor child also traveled with his mother at Michael's expense to reside with Joesie during the summers.

¶ 9. Joesie admitted to deceiving Michael in May 2015 by telling him that she would agree to finalize the divorce papers. Two weeks later, Joesie picked up their then eight-and-one-half-year-old son and brought him back to Mississippi, ostensibly for the agreed-upon summer-visitation period. On June 10, 2015, Joesie withdrew her consent to the pending irreconcilable-differences complaint. She alleged that the best interest of the minor child required that she have physical custody. One week later, Joesie filed a separate complaint for divorce, pleading adultery, habitual cruel and inhuman treatment, and desertion as grounds. Alternatively, Joesie sought a divorce based on irreconcilable differences. To support her claim for custody, Joesie falsely pleaded in the complaint that their son had resided with her in Pass Christian since January 2014.10 Joesie also filed a motion for temporary relief, requesting temporary custody, an increase in child support, exclusive use of the marital home (which she already had under the PSA), exclusive rights to all of Michael's accounts (including his military retirement), and an increase in alimony until the final hearing on her complaint for divorce.

¶ 10. Michael answered her complaint, asserting that both he and Joesie had been abiding by the 2013 PSA for nearly two years and that the PSA should be given full force and effect. Michael also pleaded that Joesie "mislead[ ] the court in a fraudulent manner" regarding the residence of their son. Michael averred that he and his son had lived in the Great Lakes area for six months since December 2014 and that, before that, they had lived in Wisconsin from September 2013 through December 2014. Michael pleaded that he had been the primary parent to their son and that he should be awarded custody and support.

¶ 11. Michael included in his answer a separate countercomplaint, alleging that the parties had agreed to a divorce and had agreed that Michael would have custody of their son. Michael asked the court to ratify the PSA, at least on a temporary basis, and to return the child to the temporary custody of Michael.

¶ 12. Joesie responded to Michael's countercomplaint for divorce by admitting adultery but by affirmatively pleading condonation by Michael. Joesie asked the chancellor to dismiss Michael's countercomplaint.

¶ 13. On July 13, 2015, after a temporary-custody hearing, the chancellor awarded temporary custody of the child to Joesie and awarded child support. The chancellor also ordered spousal support and exclusive use and possession of the marital home as provided by the PSA.

¶ 14. A five-day trial began in December 2015 and was completed in May 2016.11 Six witnesses testified and twenty-eight exhibits consisting of hundreds of pages of documents were entered into evidence.

¶ 15. Joesie admitted that the factor precipitating the filing of the joint complaint and the PSA was Michael's August 2013 discovery of and Joesie's admission to her 2013 summer "fling" with Kyle. Joesie told...

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11 cases
  • Baughman v. Baughman
    • United States
    • Court of Appeals of Mississippi
    • 1 November 2022
    ...... fact," which will not be set aside on appeal unless they. are manifestly wrong. Gerty v. Gerty , 265 So.3d 121,. 131 (¶36) (Miss. 2018) (citing Dillon v. Dillon , 498. . 13 . . So.2d 328, 330 (Miss. ......
  • Summers v. Gros
    • United States
    • United States State Supreme Court of Mississippi
    • 3 June 2021
    ...standard of review when examining domestic-relations cases." Ray v. Ray , 304 So. 3d 598, 599 (Miss. 2020) (citing Gerty v. Gerty , 265 So. 3d 121, 130 (Miss. 2018) ). We will not overturn a chancellor's findings of fact unless they are "manifestly wrong or clearly erroneous." McNeese v. Mc......
  • Baughman v. Baughman
    • United States
    • Court of Appeals of Mississippi
    • 1 November 2022
    ...the chancellor is required to make a finding of fact," which will not be set aside on appeal unless they are manifestly wrong. Gerty v. Gerty , 265 So. 3d 121, 131 (¶36) (Miss. 2018) (citing Dillon v. Dillon , 498 So. 2d 328, 330 (Miss. 1986) ). ¶27. Condonation is an affirmative defense to......
  • Summers v. Gros
    • United States
    • United States State Supreme Court of Mississippi
    • 3 June 2021
    ...limited standard of review when examining domestic-relations cases." Ray v. Ray, 304 So. 3d 598, 599 (Miss. 2020) (citing Gerty v. Gerty, 265 So. 3d 121, 130 (Miss. 2018)). We will not overturn a chancellor's findings of fact unless they are "manifestly wrong or clearly erroneous." McNeese ......
  • Request a trial to view additional results
1 books & journal articles
  • Review of the Year 2018-2019 in Family Law: Jurisdiction and Choice of Law Issues Abound
    • United States
    • ABA General Library Family Law Quarterly No. 53-4, January 2020
    • 1 January 2020
    ...6266363 (Tenn. Ct. App. Nov. 30, 2018) (slip op.). 213. Hoffman v. Hoffman, 270 So. 3d 1121 (Miss. Ct. App. 2018). 214. Gerty v. Gerty, 265 So. 3d 121 (Miss. 2018). Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permissi......

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