Jones v. Jones, No. 2008-CA-00675-COA (Miss. App. 12/15/2009), No. 2008-CA-00675-COA

CourtCourt of Appeals of Mississippi
Writing for the CourtCarlton
Docket NumberNo. 2008-CA-00675-COA
Decision Date15 December 2009

Page 1

No. 2008-CA-00675-COA
Court of Appeals of Mississippi
December 15, 2009







¶ 1. Steven Jones appeals the judgment granting Rachel Jones a divorce based on the ground of habitual cruel and inhuman treatment.1

Steven argues that the chancellor erred by (1) granting the fault-based divorce without substantial evidence, (2) not awarding joint custody of the children and allowing Steven to have mid-week visitation, (3) failing to make a formal ruling that the children were not abused by Steven, (4) awarding attorney's fees to Rachel, (5) admitting Steven's COPAC records into evidence, and (6) allowing Rachel's therapist to testify as an expert witness. We find that the evidence supports a divorce based on the ground of habitual cruel and inhuman treatment; thus, we affirm the judgment of the chancery court as to the grant of the divorce. However, we reverse the chancellor's decision as to child custody and visitation, and remand the case for further proceedings consistent with this opinion.


¶ 2. Steven and Rachel were first married in 1993. They divorced eight months later. They remarried on December 18, 1995. The couple had three children during their second marriage: Michael, Robert, and Sarah — ages ten, seven, and five, respectfully, at the time of trial.2 Steven and Rachel separated during 2004 due to Steven's gambling addiction. Upon Steven's promises to change his gambling behavior, the two reunited and lived together until their final separation on November 27, 2006.3

¶ 3. On January 11, 2007, Rachel filed a complaint for divorce. As ground for divorce, Rachel alleged habitual cruel and inhuman treatment and, alternatively, irreconcilable differences. Steven answered the complaint and included a motion to dismiss the complaint because Rachel was not entitled to the relief requested.

¶ 4. During a pretrial conference with the chancellor, counsel for Rachel informed the chancellor that there was evidence of possible inappropriate sexual contact between Steven and the three children; namely, inappropriate bathing rituals. The children also received injuries while under Steven's supervision: Robert suffered cuts on his lip as a result of a six-wheeler accident, and also burned his hand in a campfire. Sarah suffered from a rash on her thighs and genitals, for which Steven did not seek medical treatment. The chancellor appointed a guardian ad litem to represent the children in this case.

¶ 5. After a three-day trial, the chancellor found that Rachel had proven habitual cruel and inhuman treatment by providing evidence of Steven's controlling behavior, his gambling addiction, his possible pornography and sexual addictions, and the effect that such actions had on Rachel's health. The chancellor granted the divorce, gave Rachel full physical and legal custody of the three children with visitation awarded to Steven, and awarded child support to Rachel in the amount of $1,100 per month. Rachel was awarded attorney's fees, and both parties were awarded certain fees for various discovery violations. The chancellor denied Steven's request for attorney's fees that he had incurred in defending the allegations of sexual abuse.

¶ 6. Additional facts, as necessary, will be relayed during our analysis and discussion of the issues.


¶ 7. "In domestic relations cases, [the appellate court's] scope of review is limited by the substantial evidence/manifest error rule." Samples v. Davis, 904 So. 2d 1061, 1063-64 (¶ 9) (Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶ 10) (Miss. 2002)). "[We] will not disturb the chancellor's opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)). However, questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 945 (¶ 7) (Miss. 2000). "The chancellor's determination of whether a spouse's conduct rose to the level of cruel and [inhuman] treatment is a determination of law." Kumar v. Kumar, 976 So. 2d 957, 960 (¶ 13) (Miss. Ct. App. 2008) (citations omitted).


I. Habitual Cruel and Inhuman Treatment

¶ 8. Steven argues that Rachel failed to introduce sufficient evidence to prove the divorce ground of habitual cruel and inhuman treatment. Rachel responds that the chancellor correctly granted the divorce because the evidence of Steven's habitual cruel and inhuman treatment, and its effect on Rachel, was overwhelming.

¶ 9. Mississippi Code Annotated section 93-5-1 (Rev. 2004) provides that a divorce may be granted to the injured party based on habitual cruel and inhuman treatment. Such ground for divorce is established by evidence that the conduct of the spouse either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or (2) is 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 the basis for its continuance.

Kumar, 976 So. 2d at 961 (¶ 15) (internal quotations and citations omitted). The supreme court has held that more is required "than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of cruel and inhuman treatment." Robison v. Robison, 722 So. 2d 601, 603 (¶ 5) (Miss. 1998) (internal quotations omitted). "There must be corroboration of the complaining party's testimony" for a divorce based upon habitual cruel and inhuman treatment. Chapel v. Chapel, 700 So. 2d 593, 597 (¶ 19) (Miss. 1997).

¶ 10. After a trial held on September 12, 13, and 17, 2007, the chancellor found:

This cause was set for a final hearing before this Court on September 12, 2007 with some time reserved on September 13 in case the parties were unable to conclude in one (1) day. The trial, however, lasted September 12, 13, and 17, 2007. Both parties were represented by counsel with Eric Malouf, Esq. representing the Plaintiff and William Bell, Esq. representing the Defendant. The Court appointed Meda Lindley, Esq. as the guardian ad litem for the three (3) minor children in this cause. Having thoroughly reviewed the testimony of the eight (8) witnesses presented at trial, the exhibits entered into evidence, the pleadings, the reports of the guardian ad litem, and the proposed findings of fact and conclusions of law submitted by both parties, this Court does hereby enter its opinion and final judgment in this cause.

I. Jurisdiction

This Court has jurisdiction over this matter as Rachel Jones4 and Steven Jones are adult residents of Madison County. Rachel and Steven were married on December 18, 1995 and finally separated near the end of November 2006 in Madison County. Three children have been born to the parties: Michael Jones born November 14, 1996, Robert Jones born August 31, 2000, and Sarah Jones born July 17, 2002.

II. Background History

Through the final separation occurred in November 2006, it was not the first separation of the parties. The parties, in fact, first married each other on June 5, 1993 then divorced after eight (8) months and remarried on December 18, 1995. Rachel and Steven also separated briefly in 2004. Rachel testified that Steven's behavior caused each separation and that she only returned to the relationship after his assurances of change.

Rachel filed her Complaint for Divorce initiating this cause of action on January 11, 2007 requesting that this Court grant a divorce to her on the ground of habitual cruel and inhuman treatment or irreconcilable differences. Steven answered her complaint on March 7, 2007 requesting her complaint be dismissed. Notably, Steven did not counter-sue Rachel for a divorce. Therefore, the burden lay solely upon Rachel to establish grounds for a divorce if Steven would not agree to an irreconcilable differences divorce.

III. Grounds for Divorce

While a plethora of appellate decisions exist providing chancellors guidance on when a divorce should be appropriately granted or denied on the ground of habitual cruel and inhuman treatment, several consistent themes run through the case law. In order for this Court to grant a divorce to Rachel on the ground of habitual cruel and inhuman treatment, she must prove by a preponderance of the evidence that Steven's conduct either 1) endangers life, limb or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or 2) in the alternative, be so unnatural and and infamous as to make the marriage revolting to the [offended] spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 823 So. 2d 568, 570-71 (Miss. Ct. App. 2002). Habitual cruel and inhuman treatment does not require physical violence as the negative impact upon the plaintiff can be to her mental health, but it does require something more than "mere unkindness, rudeness, petty indignities, frivolous quarrels, incompatibility or lack of affection." Bodne v. King, 835 So. 2d 52, 58-59 (Miss. 2003); Reed v. Reed, 839 So. 2d 565, 571 (Miss. Ct. App. 2003). Cruelty may be found from a series of separate events or acts "such as willful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken...

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