Holladay v. Holladay, No. 1999-CA-00291-SCT.

• Decision Date: 24 August 2000
• Docket Number: No. 1999-CA-00291-SCT.
• Citation: 776 So.2d 662
• Parties: Marilyn Smith HOLLADAY v. Robert Lawson HOLLADAY.
• Court: Mississippi Supreme Court

776 So.2d 662

Marilyn Smith HOLLADAY v. Robert Lawson HOLLADAY.

No. 1999-CA-00291-SCT.

Supreme Court of Mississippi.

August 24, 2000.

Rehearing Denied February 15, 2001.

Nancy Allen Wegener, Clarksdale, Attorney for Appellant.

F. Ewin Henson, III, A. Lee Abraham, Jr, Greenwood, Attorneys for Appellee.

BEFORE PRATHER, C.J., MILLS AND COBB, JJ.

MILLS, Justice, for the Court:

¶ 1. After more than nine years of marriage, Marilyn "Susie" Smith Holladay filed a complaint for divorce in the Sunflower County Chancery Court. She alleged that her husband, attorney Robert Lawson Holladay, was guilty of habitual cruel and inhuman treatment which entitled her to a divorce, custody of their minor child, child support, equitable division of marital property, alimony and attorney's fees. Lawson denied the allegations and further denied that Susie was entitled to any relief sought. At the end of Susie's proof, Lawson moved to exclude the evidence and dismiss the case for failure to make a prima facie case of habitual cruel and inhuman treatment. An order dismissing the case with prejudice was entered by Special Chancellor Dennis M. Baker. Susie subsequently perfected her appeal to this Court, raising the following issues:

ISSUES

I. WHETHER THE TRIAL COURT ERRED IN FINDING DISCOVERY VIOLATIONS AND THEREBY EXCLUDING LAY AND EXPERT TESTIMONY.

II. WHETHER THE TRIAL COURT ERRED IN EXCLUDING HEARSAY STATEMENTS OF JENNIFER HOLLADAY.

III. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PROOF OF AN ALLEGED VIOLENT INCIDENT BEFORE MARRIAGE.

IV. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT FOR DIVORCE.

FACTS

¶ 2. Marilyn "Susie" Smith and Robert Lawson Holladay were married on May 2, 1987, in Leflore County, Mississippi. The couple had one child, Jennifer, who was nine years old when the instant complaint for divorce was filed on September 4, 1997. Susie had two sons by a previous marriage, Haley and Sam Easley. Lawson had one son, Rob, from a previous marriage. All three boys lived with Susie and Lawson at the beginning of the marriage. After a year of his mother's second marriage Haley became depressed and moved to his father's home until high school graduation, but he spent the summer of 1997 (immediately prior to the separation) at Susie and Lawson's home in Ruleville, Mississippi.

¶ 3. At trial Susie testified in detail about the direction of her marriage with Lawson. Her direct examination revealed that he began a course of verbal and physical abuse about three months after their marriage when Susie became pregnant with Jennifer. Lawson's drinking and violent outbursts caused Susie to leave home on three separate occasions. Susie attempted to avoid confrontations with Lawson out of fear, but a month before Jennifer was due, Lawson went into a rage when Susie asked him to attend an awards ceremony for his son Rob. While the record is unclear as to the cause, Susie's crying was followed by cramps and Jennifer's subsequent birth that day.

¶ 4. On one occasion in May of 1990, Jennifer was crying in the middle of the night due to an ear infection. To his displeasure, the crying awakened Lawson, and he physically shook Jennifer and tossed her back into her crib. Because Susie had never seen Lawson show any violence toward the children, growing fear caused her to leave home for approximately one week. Susie returned to Ruleville after Lawson agreed to see a marriage counselor and move into his father's residence. The parties subsequently signed an agreement to receive marital counseling. They remained separated for the next three months. A reconciliation followed after Lawson promised to improve his temper and conduct.

¶ 5. Marital relations improved until some time in 1993, when Lawson's verbal abuse began to recur. Lawson became angry over her spending habits toward Haley, and, in the middle of an argument he choked and spit on her. Susie responded by calling a mutual friend, Dudley Burke, who arrived at their home and remained there until Lawson appeared calm. On another occasion in 1993, Lawson threw a McCarty pottery bowl at Susie during an argument over money. Susie attempted to testify that Lawson's actions caused her to suffer from "anxiety attacks," but the trial court sustained Lawson's objection on grounds that it was an unqualified medical diagnosis. She did testify that Lawson's conduct made her very anxious, worried, and frightened.

¶ 6. In late October of 1994, an incident caused Susie to separate from Lawson a second time. The couple attended a Halloween party and consumed alcoholic beverages. Lawson passed out on a couch, and when he awakened, he grabbed Susie and pulled her across a coffee table. Susie testified that she was bruised in the process. Lawson denied the allegation, testifying that Susie was bruised because she fell down while they were dancing. Lawson then left Susie at the party and returned home where six-year-old Jennifer was being watched by a babysitter. Lawson took the babysitter home and left Jennifer alone in the house.

¶ 7. When Susie arrived at their residence with friends, Lawson refused to let her in the house. Jennifer was crying and asking for her mother. This standoff lasted throughout the night, and several of Lawson's law partners called and asked that he allow Jennifer to leave. Susie spent the night at the house of a mutual friend and continued calling Lawson with requests for him to "release" his daughter. Susie testified that she could hear Jennifer crying during these calls. She finally called Lawson around 5:30 a.m., and he agreed let Susie see Jennifer. Susie testified that, "When he opened the door he had slept with her [Jennifer] in the bed with a T shirt and no underwear on."

¶ 8. Lawson objected that the incident had not been revealed in discovery. The trial court allowed the testimony concerning Lawson's lack of attire but struck the testimony "with respect to how he slept, where he slept and with whom he slept. The way he appeared when she saw him, she can tell it...." Susie then explained how she knew that Lawson had slept with Jennifer:

I called all night long about every 30 minutes, all night long. I called to try and get him to let her out. He kept telling me—Lawson told me, Jennifer is laying here trying to sleep. We are in bed sleeping. You keep calling; you keep waking her; you keep waking me up. Quit calling me, you (vile name). I knew she was in the bed with him because I could hear her and he stated that he was in the bed with her.

¶ 9. The trial court considered this explanation but let the earlier ruling stand. While Susie's attorney stated that she was not alleging sexual abuse, Susie testified to another incident when Lawson had been drinking heavily. On that occasion Lawson walked into the kitchen in front of Jennifer wearing only a T shirt. Jennifer was embarrassed and Susie testified that the conduct was inappropriate.

¶ 10. As a result of the Halloween night incident, Susie and Lawson separated, and she filed a complaint for divorce on November 28, 1994, but they were reconciled several months later, in June of 1995. Susie agreed to the reconciliation and dismissal of the complaint subject to three conditions: 1) Lawson's agreement to receive treatment at the Charter Behavioral Hospital; 2) Lawson's agreement to establish a $25,000 account, not to be spent unless another break-up occurred in the marriage so Susie could have some financial security to hire an attorney; and 3) Lawson's agreement to put the marital residence "in both their names." Lawson subsequently complied with these three conditions and again promised to stop his verbal and physical abuse.

¶ 11. Lawson temporarily kept his promises after the reconciliation, but instances of verbal and physical abuse began to recur. He called Susie names such as goddamned motherfucking bitch, whore, and slut. Lawson objected to Jennifer's attending Presbyterian Day School and consequently reacted with angry tirades of more verbal abuse. Susie testified that Jennifer reacted to these outbursts with fear. The instances escalated in the summer of 1997, prior to the final separation in September. On another occasion Lawson spit at Susie in front of Jennifer while calling her a vile name. During that summer Lawson's drinking escalated. His temper tantrums became more violent; he was physically abusive at times; he made vague threats. This behavior became virtually a daily occurrence during the summer of 1997.

¶ 12. Susie was employed part time in Lawson's law office during the marriage, and in 1996, she had $9,166.03 of net income. Susie paid Jennifer's babysitter from her salary. Susie also received $804 in interest generated by the deposit Lawson gave her as part of the 1995 reconciliation agreement. In March of 1997 Lawson demanded that Susie pay him an additional $2,300 as "her share" of his business taxes. When Susie offered to file separately and pay her own taxes rather than file jointly, Lawson became enraged and began a course of daily verbal harassment. During the summer of 1997 Lawson refused to pay for repairs to her vehicle, closed her bank account, took her checkbook, and began personally buying the groceries. He required Susie to ask for money used to buy Jennifer's clothes, repeatedly called her vile names, and physically restrained her on two different occasions.

¶ 13. Susie testified that she began writing Lawson notes because she was afraid of him. She testified that the principal cause of the separation was the fear, the physical violence and the verbal abuse — not money. In attempting to explain her fear of Lawson, Susie tried to introduce evidence of a violent incident which occurred shortly before the marriage. She proffered testimony of Lawson going into a violent rage and severely beating her so badly that she was unable to work for a week or "car-pool" her two sons. As a result of this incident the couple sought counseling. The trial court excluded this...