Heimert v. Heimert, 2011–CA–00363–COA.

• Decision Date: 13 November 2012
• Docket Number: No. 2011–CA–00363–COA.,2011–CA–00363–COA.
• Citation: 101 So.3d 181
• Parties: Sheri Leigh HEIMERT, Appellant, v. Walter Lier HEIMERT, Jr., Appellee.
• Court: Mississippi Court of Appeals

101 So.3d 181

Sheri Leigh HEIMERT, Appellant,

v.Walter Lier HEIMERT, Jr., Appellee.

No. 2011–CA–00363–COA.

Court of Appeals of Mississippi.

Nov. 13, 2012.

Gregory C. Morton, Olive Branch, attorney for appellant.

Joy W. Graves, Starkville, Malenda Harris Meacham, Hernando, attorneys for appellee.

Before LEE, C.J., MAXWELL and RUSSELL, JJ.

LEE, C.J., for the Court:

¶ 1. Walter Heimert Jr. was granted a divorce from Sheri Heimert on the ground of habitual cruel and inhuman treatment. The chancellor divided the parties' property, including the equity in the marital home. Sheri now appeals, arguing the chancellor's findings regarding the divorce and division of property were erroneous.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sheri and Walter were married for approximately five and one half years before Sheri filed for a divorce in the DeSoto County Chancery Court. In her complaint, Sheri requested a divorce based on habitual cruel and inhuman treatment and habitual drunkenness. Walter filed an answer and counter-complaint requesting a divorce based on habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Sheri was fifty-one years old, and Walter was seventy-three years old at the time the couple separated. No children were born of the marriage.

¶ 3. A hearing was held. At the conclusion of Sheri's case, Walter made a motion to dismiss. The chancellor granted the motion, finding Sheri had failed to provide corroborating evidence to support her claims. Walter then proceeded with his case for a divorce based on habitual cruel and inhuman treatment against Sheri. The chancellor found Walter put on sufficient proof and granted Walter the divorce. The chancellor then divided the marital property. Alimony was denied.

¶ 4. Sheri now appeals, asserting the following issues: (1) there was insufficient evidence to support a divorce based on habitual cruel and inhuman treatment; (2) the chancellor erroneously admitted a police report into evidence; (3) Walter failed to support his testimony with corroborating evidence; (4) no causal connection existed between Sheri's behavior and the separation of the parties; (5) the chancellor failed to make specific findings of fact; and (6) the division of the property was not supported by the evidence. Issues one and three will be discussed together, as they are related.

STANDARD OF REVIEW

¶ 5. This Court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong ... [or] clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625–26 (¶ 8) (Miss.2002) (citation omitted).

¶ 6. The standard of review for a chancellor's decision to admit or exclude evidence is abuse of discretion. Koestler v. Koestler, 976 So.2d 372, 380 (¶ 26) (Miss.Ct.App.2008). “We will find an abuse of discretion if a party shows clear prejudice resulting from an undue constraint on his or her own case or an undue lack of constraint on the opposing party.” Id.

DISCUSSION

I. HABITUAL CRUEL AND INHUMAN TREATMENT

¶ 7. Sheri first argues Walter failed to prove habitual cruel and inhuman treatment by a preponderance of the evidence.

¶ 8. Habitual cruel and inhuman treatment is conduct that either: (1) “endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief,” or (2) is so “unnatural and infamous” as to render the marriage revolting to the non-offending spouse, making “it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.” Mitchell v. Mitchell, 767 So.2d 1037, 1041 (¶ 14) (Miss.Ct.App.2000) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). In making a determination, the chancellor must look to “1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff.” Fisher v. Fisher, 771 So.2d 364, 367 (¶ 10) (Miss.2000).

¶ 9. Walter complained Sheri cut his arm with a knife, bit his arm, threatened him with a fork, threw a glass of ice water on him while he watched television, and damaged his truck door out of anger. Walter would often leave the home when an argument arose. On several occasions, Sheri stood behind his truck or climbed into the bed of the truck so that he could not leave. Once, she reported to the police that Walter was threatening to commit suicide, and Walter was taken to the hospital by a SWAT team member. Walter denies he threatened to take his own life. On two occasions, Sheri withdrew the majority of the couple's money from their joint bank account without Walter's knowledge or consent. She placed the funds in an individually titled account on one occasion. She returned the funds to the joint account a few days later. Walter testified Sheri's actions had taken a toll on him physically and emotionally, and he had been prescribed sleeping pills and antidepressants.

¶ 10. The chancellor noted little corroborating evidence existed because the couple did not have many visitors and mainly lived in isolation. However, Sheri's own testimony provided corroboration. Sheri admitted to biting Walter, removing money from the joint account without Walter's knowledge, pouring cold water on him, blocking his truck so he could not leave the home, and damaging his truck door. Sheri submitted a handwritten note stating she had attempted to take the tag off Walter's truck on one occasion when a “Mexican officer” was at their house. She was ordered by the police officer to put the tag back on the truck. No explanation was given as to her actions. Also, two police reports were admitted into evidence.

¶ 11. The first police report states that on August 21, 2007, the Olive Branch Police Department responded to a verbal disturbance at the Heimerts' home. Both parties were acting disorderly and in an aggressive manner. Sheri had a bruise on her wrist and a scrape on her foot. Walter had a large bite mark on his arm. Both parties were arrested for domestic violence. The police report noted this was the third time in the past year that officers had responded to disturbances at the Heimerts' residence. The second report states that on December 5, 2008, Sheri went to a neighbor's house after an altercation with Walter. She entered the neighbor's house carrying two dogs, a purse, and an electrical cord. When the police arrived, she was lying on the floor complaining of extreme back pain. Sheri told the police officer that Walter had strangled her with an electrical cord until she passed out. She told police Walter had left the scene in a Ford Mustang. The officer saw no marks on Sheri's face or neck. The officer found Walter driving nearby in the Mustang and initiated a traffic stop. A detective arrived on the scene to interview Walter. Walter told the detective he was cooking dinner when Sheri attacked him with a sharp object and cut his arm. Walter stated he left the house to avoid being attacked further. The detective determined that Walter was the actual victim, and a warrant was issued for Sheri's arrest for domestic violence.

¶ 12. We cannot find the chancellor abused her discretion in determining Walter proved his case for habitual cruel and inhuman treatment. The chancellor was able to hear the testimony and determine the credibility and weight to give to each party's testimony. The chancellor acknowledged the testimony was conflicting, but the chancellor chose to give Walter's testimony more weight, as she did not find Sheri to be a credible witness. After hearing the testimony and reviewing the evidence, the chancellor made the following conclusion: “[Sheri] has been, it seems, trying to provoke [Walter] to do something so that she can establish grounds for divorce.” Sheri's conduct in cutting Walter's arm clearly shows Sheri endangered Walter's “life, limb, or health” or at least created “a reasonable apprehension of such danger and render[ed] the relationship unsafe.” Mitchell, 767 So.2d at 1041 (¶ 14).

¶ 13. While Walter was not blameless in the demise of the marriage, the testimony from both parties showed that when a fight arose, Sheri antagonized Walter, while Walter would at least attempt to avoid the confrontation. Also, Walter was in his mid-seventies, and he testified he was suffering from health problems and had become depressed as a result of Sheri's behavior. We find the divorce was supported by the facts presented, and the chancellor's decision was not manifestly wrong or clearly erroneous. This issue is without merit.

II. ADMISSIBILITY OF POLICE REPORT

¶ 14. During the divorce hearing, Sheri was asked to identify police reports from August 2007 and December 2008 detailing altercations between her and Walter. Both documents were identified and admitted into evidence. Sheri now argues the chancellor erred in admitting the December 2008 police report, which shows that Sheri was charged with domestic violence.¹

¶ 15. In her brief, Sheri argues an objection was made at the hearing on the grounds that the December 2008 report was not properly authenticated and a proper foundation had not been laid for its admission. The following exchange occurred during cross-examination after Sheri was asked to review the December 2008 police report:

[Walter's attorney:] You've had an opportunity to review it, is that a fair and accurate copy?

[Sheri:] Uh, there's a, uh, discrepancy in here, uh.

[Walter's attorney:] I'm not asking about any discrepancies, I'm asking you if this is a true and accurate copy?

[Sheri:] Oh.

[Walter's attorney:] You will be allowed to obviously to explain your discrepancy—

[Sheri:] I, I would, I would, I would assume so, yes.

[Walter's attorney:] Your Honor, I'd ask that that be marked as an Exhibit and admitted into evidence.

[Sheri's attorney:] Is that an assumption, or is she certain of the facts? Uh, she's assumed something.

[Walter's...