Horn v. Horn

• Decision Date: 25 January 2005
• Docket Number: No. 2003-CA-01744-COA.,2003-CA-01744-COA.
• Citation: 909 So.2d 1151
• Parties: Jason Todd HORN, Appellant, v. Karen Camille Brown HORN, Appellee.
• Court: Mississippi Court of Appeals

909 So.2d 1151

Jason Todd HORN, Appellant, v. Karen Camille Brown HORN, Appellee.

No. 2003-CA-01744-COA.

Court of Appeals of Mississippi.

January 25, 2005.

Benny McCalip "Mac" May, attorney for appellant.

Steven Glen Roberts, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. The Chancery Court of DeSoto County granted Karen Camille Brown Horn a divorce from Jason Todd Horn on the ground of habitual cruel and inhuman treatment. Jason appeals, and argues that (1) the evidence did not support the grant of a divorce on the ground of habitual cruel and inhuman treatment; (2) comments by the chancellor at the trial indicated the chancellor pre-judged the issue of custody; (3) the chancellor misapplied the Albright factors; (4) the chancellor's visitation award was erroneous; and (5) the chancellor erroneously divided the parties' assets.

¶ 2. Finding error only in the chancellor's deficient findings regarding the property division, we affirm in part and reverse and remand in part.

FACTS

¶ 3. Jason and Karen Horn were married on September 15, 1999. During the marriage, the couple had one child, Kaelyn Gabrielle Horn, who was three years old at the time of the trial. In October 2001, Karen informed Jason that she wanted a divorce. Jason moved out of the marital home on December 7, 2001.

¶ 4. On December 19, 2001, Karen filed a complaint for a divorce on the ground of habitual cruel and inhuman treatment or irreconcilable differences and requesting joint legal custody of Kaelyn, with Karen having physical custody. On January 28, 2002, Jason answered and counterclaimed for a divorce on the ground of habitual cruel and inhuman treatment or irreconcilable differences and requesting full custody of Kaelyn. Karen answered the counterclaim and moved for temporary custody and other temporary relief. The record reflects that the parties were unable to obtain a ruling from the chancery court on the temporary relief issues. Therefore, the parties themselves agreed upon a temporary joint custody arrangement in which they exchanged Kaelyn every three days.

¶ 5. The trial occurred in May 2003. The chancellor granted Karen a divorce on the ground of habitual cruel and inhuman treatment. The chancellor awarded Karen legal and physical custody of Kaelyn, granted Jason visitation rights, and ordered Jason to pay child support in the amount of $280 per month. The chancellor awarded Karen the majority of the parties' assets and debt.

STANDARD OF REVIEW

¶ 6. This Court adheres to a limited standard of review in domestic relations matters. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000). We may disturb the chancery court's decision only if the chancellor's findings were unsupported by substantial evidence and were manifestly wrong or clearly erroneous, or if the chancellor applied an incorrect legal standard. Id. We review the facts underlying a divorce decree in the light most favorable to the appellee. Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000).

LAW AND ANALYSIS

I. DID THE CHANCELLOR ERR IN GRANTING A DIVORCE TO KAREN ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶ 7. The ground for divorce of habitual cruel and inhuman treatment must be proven by a preponderance of the credible evidence. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). The offending spouse's behavior must either:

(1) endanger life, limb, or health, or create a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) be so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying any basis for its continuance.

Crenshaw v. Crenshaw, 767 So.2d 272, 275(¶ 11) (Miss.Ct.App.2000) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). The conduct must consist of "something more than unkindness or rudeness or mere incompatibility or want of affection." Daigle, 626 So.2d at 144 (quoting Smith v. Smith, 614 So.2d 394, 396 (Miss.1993)). Generally, to show habitual cruel and inhuman treatment, the offending party's cruel and inhuman conduct must be shown to have been systematic and continuous. Id. ¶ 8. Karen testified that Jason slept on the couch for the duration of the marriage. She said that Jason had a quick temper and often became angry, sometimes not speaking to her for days at a time. He falsely accused Karen of having affairs and called her a "slut." Several mornings before Karen went to work, Jason trapped her in the bathroom and yelled at her through the door. Karen stated that after she told Jason she wanted a divorce, Jason became physically abusive on multiple occasions. He had frequent bouts of anger in which he yelled at Karen and called her names, pulled her hair, and pushed her, once bruising her leg. Jason often followed and berated Karen as she spoke to her sisters on the phone. Once, when Karen was on the phone with her sister Penny, Jason pulled the telephone from the wall and struck Karen's foot with it. Karen submitted a photograph of her bruised foot. Another time, Jason became furious and began "thumping" Karen on the head. Jason also expressed wishes that Karen would die. When Karen was on the phone with her sister Michelle Shackelford, Jason said "he wished that he could hug [Karen's] body up to a can of gasoline and that it would explode and burn [Karen's] body up." Michelle overheard this statement. Karen testified that she lost twenty-five pounds during this period and developed a spastic colon.

¶ 9. Michelle described Jason as a moody person who often became enraged over minor annoyances. She said that many times when she was on the phone with Karen, Jason would follow Karen around the house, calling Karen and Michelle derogatory names. Michelle did not witness any incidents of violence, but observed Karen with bruises which Karen attributed to Jason.

¶ 10. Penny Wilson, Karen's sister, said that during the marriage, Jason often threw temper tantrums and would become "raging mad." She said Jason was jealous of Karen's spending time with her family. Jason frequently refused to talk to Karen for a number of days and told Penny that this was for punishment. Once, Jason became enraged because he thought, incorrectly, that Penny and Karen were talking about him on the phone. While Penny listened through the phone, Jason cursed, stated that he was going to rip the phone from the wall, and squeezed Karen's fingers together. Penny later observed Karen's swollen fingers. She also saw Karen's bruised foot; Karen said Jason had ripped the phone from the wall and struck her foot with it. Another time, Penny was on the phone with Karen when Jason began pulling Karen's hair. Penny overheard Karen begging him to stop. At the trial, Jason maintained that he and Karen fought but that he never became physically violent with Karen.

¶ 11. The chancellor held that Karen had shown by the preponderance of the evidence that Jason had committed acts which, taken as a whole, evinced habitual cruel and inhuman treatment supporting the grant of a divorce to Karen. Jason argues that the chancellor's ruling was error because all of the alleged physical abuse occurred after the parties had constructively separated and, therefore, there was no causal connection between the abuse and the separation. Alternatively, he argues that the evidence was insufficient to support a divorce on the ground of habitual cruel and inhuman treatment. We disagree with both of Jason's contentions.

¶ 12. Jason cites precedent stating that a plaintiff must show a causal connection between the defendant's habitual cruel and inhuman treatment and the parties' separation. Sproles v. Sproles, 782 So.2d 742, 747(¶ 16) (Miss.2001); Langdon v. Langdon, 854 So.2d 485, 489(¶ 7) (Miss.Ct.App. 2003). Jason posits that the parties constructively separated in October 2001 when Karen told Jason that she wanted a divorce, though the parties cohabited for two months thereafter. He argues that, because the alleged physical abuse did not begin until after this "constructive separation," the abuse could not have caused the parties to separate. Therefore, he contends, Karen failed to prove the ground of habitual cruel and inhuman treatment.

¶ 13. This argument is without merit. Jason fails to cite any authority recognizing the concept of constructive separation. Moreover, were this Court to find that Karen and Jason in fact separated before the occurrence of physical abuse, that finding would not render deficient Karen's proof of habitual cruel and inhuman treatment. This is because the requirement of a causal relationship between the habitual cruel and inhuman treatment and the parties' separation has been limited such that conduct both before and after a separation may be considered in determining the sufficiency of the evidence of habitual cruel and inhuman treatment. Robison v. Robison, 722 So.2d 601, 603(¶ 4) (Miss.1998) (citing Bias v. Bias, 493 So.2d 342, 345 (Miss.1986)).

¶ 14. Next, Jason argues that the evidence was insufficient to support the ground of habitual cruel and inhuman treatment. The chancellor found that Jason threatened to set Karen on fire. Jason argues that his alleged statement that he "wished to hug Karen up to a gasoline can and that it would explode and burn Karen's body up" could not be construed as a threat to set Karen on fire. Without delving into a semantic thicket, we find that Jason's alleged wish was sufficiently threatening in character to provide a basis for the chancellor's finding that Jason threatened to set Karen on fire. Moreover, disregarding the characterization of the statement as a threat, the statement certainly was within the category of verbal abuse providing support for the ground of habitual cruel and inhuman treatment. Holladay v. Holladay, 776 So.2d 662, 677(¶ 64) (Miss.2000)...