John Doe v. Jane Doe
| Decision Date | 09 November 2021 |
| Docket Number | 2020-CA-00853-COA |
| Citation | 341 So.3d 953 |
| Parties | John DOE, Appellant v. Jane DOE, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: WILLIAM ALEX JOHNY II, MICHELLE LUBER ELLIOTT, Long Beach
ATTORNEY FOR APPELLEE: GAIL D. NICHOLSON
BEFORE WILSON, P.J., McDONALD AND EMFINGER, JJ.
McDONALD, J., FOR THE COURT:
¶1. John Doe1 appeals the divorce decree entered by the Harrison County Chancery Court on July 6, 2020, that dissolved the marriage between John and his wife Jane, determined custody and visitation of their children, divided their property, and imposed sanctions on John for discovery abuses.2 John raises seven issues on appeal, challenging several of the chancery court's factual findings, its distribution of the couple's marital estate, and the sanctions imposed upon him. After reviewing the extensive record, arguments of counsel, and relevant precedent, we affirm the judgment of the chancery court in part, reverse it in part, and remand for further proceedings.
¶2. In 2003, John, who worked at Prudential Financials, met Jane, who was an entertainment manager for a casino and a part-time bartender. They were members of a band in which he played bass, and she sang. They married on June 14, 2005, in Harrison County, Mississippi, where they lived until their final separation. They had two sons, one born in 2005 and the other born in 2008.
¶3. At the time of the divorce, John, who has an MBA degree from Tulane University, was working as a civilian programmer for the National Guard. He had been with the military since 2004. Jane had several other jobs but obtained her real estate license in 2006. Since then, her income from real estate sales was considerably more than John's income. During their marriage, John and Jane lived a comfortable life, although they said they were stressed financially and even discussed divorce at times. John's $3,687.58 per month earnings (after taxes, medical insurance, and his mandatory PERS retirement contribution) were directly deposited into a joint account to pay family bills. Jane maintained a separate business account into which she deposited her monthly gross earnings, which averaged $11,363 as of June 2018. She maintained another account to which she transferred $2,000 per month for her estimated taxes. She or John made transfers from the business account to the family account as needed to cover the family's monthly bills.
¶4. When they purchased their home, John's parents gifted them $45,000 for the down payment, and Jane's mother contributed $40,000 toward the home's remodel. At the time of the final judgement of divorce, John agreed with Jane's valuation of the home at $220,000, which the chancery court accepted.
¶5. After an incident on Mother's Day in 2018, John left but returned home a few days later, as he said, "for the sake of his boys." He and Jane resumed family life, including sexual relations, for a brief period of time thereafter. On May 26, 2018, Jane found a picture of a woman named Stacey3 on John's phone. Stacey and John had a sexual relationship prior to John and Jane's marriage. Earlier in 2018, John and Stacey had "friended" each other on Facebook, and on at least one occasion, John met Stacey briefly in the parking lot of a Home Depot. Jane confronted John about Stacey's picture in his phone and accused him of having an affair. John denied this and left for a week, but then he returned to the home. Jane said she locked John out of the bedroom, and he slept in another room as he had frequently done since February.
¶6. On June 4, 2018, Jane set up cameras in the bedroom and living room of the house to secretly monitor and record John's actions. Then she took the boys on an out-of-town trip during which Jane watched and recorded John's private activities. John did not know about these cameras or that he was being recorded. In the divorce trial that eventually ensued, the chancery court judge would not admit the recordings as evidence, but there was testimony of what was captured on them.
¶7. On June 14, 2018, during Jane's annual physical, Dr. John Mallett diagnosed her with condyloma (genital warts caused by the HPV virus)4 and with genital herpes (caused by the HSV2 herpes virus).5 In an affidavit, Dr. Mallett indicated that Jane will forever carry the HSV2 virus. Jane did not tell John about her condition until after he moved out on June 20, 2018. According to John, in the interim Jane attempted to have sex with him. Jane denied this.
¶8. John lived in the home until June 20, 2018, when another incident occurred at their home during his son's birthday party. Again, John and Jane had an altercation that resulted in Jane's leaving with her sons and the other children who were guests. They went to a friend's home, and the police were called.
¶9. Jane filed for divorce in the Chancery Court of Harrison County on June 21, 2018, claiming grounds of adultery and habitual cruel and inhuman treatment. On that same day, she obtained a temporary restraining order (TRO) to keep John away from the home. John moved into a pool house at his parents' home. On July 6, 2018, the chancery court continued the TRO and appointed a guardian ad litem to provide the court with information about the children that the court could use to determine their best interest. The guardian ad litem interviewed the parties and the children and filed her report on July 25, 2018. She found the children to be well-behaved and adjusted and that they loved, and were loved by, both of their parents. Later, on August 10, 2018, the chancery court entered a continuing temporary order granting joint physical and legal custody to both parties, setting visitation, and ordering the parties not to disseminate private information about medical issues.
¶10. When John learned of Jane's sexual-disease diagnoses, he voluntarily underwent testing and was found negative for the genital herpes virus (HSV2). The parties agreed that there is no test for the HPV virus that causes genital warts ; rather, a diagnosis is made from the presentation of the warts themselves, which John has never had. On August 8, 2018, contending that John did not take the correct test for herpes, Jane filed a motion for a Rule 35 examination of John to determine if he was a carrier of the HSV2 virus. See M.R.C.P. 35. John was tested again for HSV2, using the Titer's test that Jane's doctor had recommended. John tested negative on August 7, 2018, and again tested negative for HSV2 on November 6, 2018.
¶11. Jane propounded discovery on July 9, 2018, to which John failed to respond. After Jane filed a motion to compel, the parties agreed to an order that required John to respond by October 28, 2018. In responding to an interrogatory requesting the identification of his potential witnesses and their expected testimony, John merely provided the names of sixty-three individuals. Jane filed another motion to compel.
¶12. On November 29, 2018, John filed a motion for review of the August 10, 2018 temporary order, noting the results of his testing. On December 5, 2018, John also filed a motion for contempt. John attached an affidavit by Dr. Charles Guich, who said that "it is scientifically conclusive that [John] does not have nor has he ever had HSV2 and could not have infected anyone with HSV2." In his contempt petition, John also raised an incident where the children had gotten into the gun safe at the house, and he therefore sought custody of them for their safety.
¶13. Meanwhile, Jane was referred by a doctor-friend to an infectious disease doctor, Nicholas Conger, not for treatment, but "to discuss transmission properties of herpes virus 1 and 2 as well as VZV and condyloma."6 In his notes on the December 26, 2018 visit, Dr. Conger admitted that he did not have access to Jane's medical records from Dr. Mallett. Dr. Conger based his opinions solely on information provided by Jane. She told him that she was in her usual state of health until "out of the blue," she was diagnosed with condyloma.7 She said John had been unfaithful in the marriage, and the doctor opined that "the fact that she never had any condyloma and then suddenly had condyloma is highly suggestive that her husband did pass that along to her." In a report he later prepared, Dr. Conger added "given [Jane's] history of normal pap smears throughout her life ... and if [Jane] was monogamous with her husband, the virus must have been transmitted to her via relations with her husband." Notably, Jane failed to inform Dr. Conger that in her past, she did have abnormal pap smears and was treated for an HPV-related condition.
¶14. On January 15, 2019, the chancery court heard Jane's motion to compel answers to discovery and John's motion to review the August 10, 2018 temporary order. The court reviewed Jane's interrogatories question by question and ordered John to supplement his answers. It also ordered John to pay Jane $1,000 in attorney's fees. The chancery court heard testimony from both John and Jane concerning several incidents relating to their separation, their finances, and the needs of the children. On February 19, 2019, the chancery court entered an order concerning child support, contributions by the parties for the children's medical and school-related expenses, payment of bills relating to marital assets, and visitation. Deadlines for filing amended pleadings and for discovery were set and an order, signed on March 26, 2019, set the divorce for trial on August 29, 2019.
¶15. John filed his formal answer to Jane's divorce complaint on April 11, 2019. In the answer, John counterclaimed for divorce, alleging grounds of adultery and habitual cruel and inhuman treatment by Jane. On April 18, 2019, Jane filed a motion to strike John's answer as untimely, and a motion for sanctions for John's discovery abuses in failing to supplement his answers to...
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