Kergosien v. Kergosien

• Decision Date: 05 June 1985
• Docket Number: No. 54800,54800
• Citation: 471 So.2d 1206
• Parties: Rosalie KERGOSIEN v. Ames A. KERGOSIEN.
• Court: Mississippi Supreme Court

Page 1206

471 So.2d 1206

Rosalie KERGOSIEN v. Ames A. KERGOSIEN.

No. 54800.

Supreme Court of Mississippi.

June 5, 1985.

Thomas D. Berry, Jr., Gulfport, for appellant.

Henry J. Cook, III, Cook, Tucker & Sharp, Bay St. Louis, for appellee.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Rosalie Kergosien filed suit for separate maintenance and alimony in the Chancery Court of Hancock County, Mississippi. Ames Kergosien filed a counterclaim for divorce, on the ground of habitual cruel and inhuman treatment. At the conclusion of the evidentiary hearing, Chancellor Jason Floyd sustained the counterclaim and granted Ames Kergosien a divorce on the grounds of cruel and inhuman treatment, and awarded Rosalie Kergosien $250 per Mrs. Kergosien appeals and assigns the following errors:

month per child for child support and $500 per month in alimony.

I. Granting the divorce for habitual cruel and inhuman treatment on the basis of insufficient evidence;

II. Denying the complaint for separate maintenance and support; and

III. Awarding inadequate amounts of alimony, child support and attorney fees.

Appellant and appellee were married on August 24, 1963, and had six children, the oldest of which is 21 years old at this time. Appellee maintains a real estate and insurance business in Bay St. Louis, while appellant is licensed as a registered nurse.

I.

DID THE TRIAL COURT ERR IN GRANTING A DIVORCE FOR HABITUAL

CRUEL AND INHUMAN TREATMENT ON THE EVIDENCE BEFORE IT?

Viewed in its kindest light, the testimony offered by Ames Kergosien to support his claim of divorce on the ground of habitual cruel and inhuman treatment falls woefully short of that required by our law.

The record reflects that Rosalie Kergosien's manner of handling money caused Mr. Kergosien hardship and embarrassment. She would not balance the checkbook or keep the statements, and she constantly caused the account to be overdrawn. Her failure to pay utility bills and to pay attention to disconnect notices caused Mr. Kergosien to get all the bills sent to him at his office.

Mr. Kergosien complains that Rosalie Kergosien also disappeared and abandoned her family duties on several occasions. This testimony in its particulars amounted to her spending six days with her mother in Kiln, Mississippi, during the 1981 Christmas holidays. This forced Mr. Kergosien to take care of their children and prepare a Christmas Eve party. The eldest child of these parties testified that his mother would leave the home during the day and on weekends and no one knew where she was. Mr. Kergosien's employees testified that Mr. Kergosien received several calls a week to come care for the children because his wife was not at home. When one of the children cut his foot, Mrs. Kergosien was absent, and Mr. Kergosien was called to take the child to the emergency room by a neighbor. In July, 1982, while dining out at a restaurant, Mrs. Kergosien got up and left Mr. Kergosien without any explanation, so that Mr. Kergosien had to ride home with the priest they had invited to dinner. On one occasion, Mrs. Kergosien served as a chaperone in the Miss America Pageant and was gone from the house for 17 days. On one other occasion, Mrs. Kergosien locked Mr. Kergosien out of the house and he had to break the door down to get in.

Mr. Kergosien complains that his wife occasionally bought jewelry without telling him, and that his own employees added it to his insurance policy without telling him.

Mr. Kergosien testified that his wife committed acts of cruelty against the six children to "get at" Mr. Kergosien. After the parties had separated, when their 14-year-old daughter stated a preference to live with Mr. Kergosien, Mrs. Kergosien became angry, slapped her and cursed the girl. The oldest son of the parties testified that prior to the separation of the parties, Mrs. Kergosien told him that she hated him and ordered him to leave the family home. On one occasion, she actually threw his belongings into the front yard.

Finally, there was testimony that the adult Kergosiens frequently argued, and that Mrs. Kergosien complained in front of the children about having to take care of all six of them by herself.

Mr. Kergosien testified that he left his home on August 16, 1982, and refused to return. His total real estate holdings were worth approximately $271,800 and he had savings of approximately $60,192.

It is not uncommon to Mississippi Chancery Practice that a chancellor when hearing However, within the past year, this Court has reversed three divorces which were granted on grounds of habitual cruel and inhuman treatment on the basis that the acts complained of were not such as to constitute habitual cruel and inhuman treatment. In Marble v. Marble, 457 So.2d 1342 (Miss.1984), this Court wrote:

a divorce case will determine that, although the grounds for divorce have not been shown, the marriage itself is actually dead. We view with some sympathy the reaction of chancellors in these circumstances as they grant the divorce, throwing sand over the cadaver of the marriage.

In discussing habitual cruel and inhuman treatment as grounds for divorce, we said in Howard v. Howard, 243 Miss. 301, 303-304, 138 So.2d 292, 293 (1962),

"The popular idea is that, like charity, it covers a multitude of marital sins, and is the easiest road to freedom from the marital bonds. As a result suits are often brought, based on petty indignities, frivolous quarrels, general incompatibility and the petulant temper of one or both parties, seeking divorce for habitual cruel and inhuman treatment, without ever realizing or understanding, in the remotest degree, what is meant by the words as used in the statute. They do not realize the nature, gravity, or duration of the cruelty required to warrant a divorce * * * The cruelty required by the statute is not such as merely to render the continuance of cohabitation undesirable, or unpleasant, but so gross, unfeeling and brutal as to render further cohabitation impossible, except at the risk of life, limb, or health on the part of the unoffending spouse; and that such risk must be real rather than imaginary merely, and must be clearly established by the proof." (Emphasis added.)

The parties are not compatible. Rebecca Marble's religious views differ from her husband's, and she is unable or unwilling to be as fastidious a housekeeper and as demonstrative as he would like. While John Marble appears genuinely unhappy in this marriage, in our opinion, he has not proved this dissatisfaction is caused by any cruel and inhuman treatment on Rebecca's part.

Id. at 1343.

This Court again denied a divorce on the grounds of habitual cruel and inhuman treatment in Gallaspy v. Gallaspy, 459 So.2d 283 (Miss.1984). The Court said:

The facts appellee gave as constituting habitual cruel and inhuman treatment were appellant's criticism of her being overweight; that his first priority was his work, where he spent long hours when he could have been at home; that his second priority was his mother and his father's estate; that he was critical of appellee's family; and that he did not praise or support the children enough and his discipline was too severe for them.

In order to justify a divorce on the ground of habitual cruel and inhuman treatment, such treatment must be so continuous and of such a nature that the offended spouse can no longer live with the other spouse on account of that treatment and, therefore, separates herself from such spouse. The facts of the case sub judice simply do not pass the test of habitual cruel and inhuman treatment. Under the facts, appellee could have waited for a period of one year, filed suit for divorce on the ground of wilful, continued and obstinate desertion for the period of one year, and, without question, she would have been entitled to a divorce from the appellant.

Id. at 285.

Finally, in Stennis v. Stennis, 464 So.2d 1161 not yet reported, this Court, reviewing Marble and Gallaspy, found that habitual cruel and inhuman treatment was not proven where the evidence included the facts that a husband once slapped his wife, once put her in a hammerlock, and once washed her mouth out with soap. The wife testified that she had lost her love for her husband, resented living in a small town, and was incompatible with him. Stennis In Wires v. Wires, 297 So.2d 900 (Miss.1974), this Court upheld the charge of habitual cruel and inhuman treatment where the proof showed that the wife was jealous and accused the husband of philandering with his secretary; that her bickering caused their son to leave home; and that she made anonymous calls to his secretary. Appellee said that all of this caused him to have a knot in his stomach.

                reversed the lower court "with the understanding that the lower court has adequate powers and authority to adjudicate the rights of the parties and the decision here does not prejudice any of them in the enforcement of those rights."   At 1162
                

In upholding the divorce, this Court said:

It is true these cases held that habitual cruel and inhuman treatment should be sustained by "clear and convincing evidence." This conclusion was based upon the thesis that mental cruelty without violence required clear and convincing evidence to substantiate the charge. We have reexamined the authorities as to the degree of evidence required, and we are now of the opinion that habitual cruel and inhuman treatment may be established by a preponderance of the creditable evidence.

We agree, however, that the charge of cruel and inhuman treatment against one spouse means something more than unkindness or rudeness or mere incompatibility or want of affection. It has been said that:

"The conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in...