Kumar v. Kumar, No. 2006-CA-01140-COA.

CourtCourt of Appeals of Mississippi
Writing for the CourtChandler, J.
Citation976 So.2d 957
PartiesBhavna KUMAR, Appellant v. Arvind M. KUMAR, Appellee.
Docket NumberNo. 2006-CA-01140-COA.
Decision Date11 March 2008
976 So.2d 957
Bhavna KUMAR, Appellant
v.
Arvind M. KUMAR, Appellee.
No. 2006-CA-01140-COA.
Court of Appeals of Mississippi.
March 11, 2008.

[976 So.2d 958]

Mark A. Chinn, Jackson, Lee Ann Self Turner, William Matthew Thompson, attorneys for appellant.

Edward L. Pleasants, Columbus, Wilbur O. Colom, attorneys for appellee.

Before KING, C.J., CHANDLER, BARNES and ISHEE, JJ.

CHANDLER, J., for the Court.


¶ 1. The Chancery Court of Lowndes County entered an order denying Bhavna Kumar a divorce from her husband, Arvind M. Kumar. Aggrieved by the chancellor's order, Bhavna appeals. She asserts the following issues: (1) the chancellor's denial of a divorce was manifestly wrong, clearly erroneous, and against the overwhelming weight of the evidence, (2) the chancellor's denial of her motion for a new trial and/or to alter or amend judgment was manifestly wrong and clearly erroneous, and (3) the chancellor's decision to allow Arvind to file an untimely answer was manifestly wrong and clearly erroneous.

¶ 2. Finding that the chancellor erred in denying a divorce based on the grounds of

976 So.2d 959

habitual cruel and inhuman treatment, we reverse.

FACTS

¶ 3. Arvind and Bhavna, who are of Indian descent, married on March 31, 1979, in the United Kingdom. The following year they moved to the United States. They eventually settled in West Point, Mississippi and became naturalized citizens. At the time of trial, the parties had a daughter who was twenty years old and a twenty-two-year-old son.

¶ 4. Bhavna filed for divorce from Arvind on July 30, 2004, in the Chancery Court of Lowndes County. She sought a divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. At the time, the chancellor entered a temporary restraining order against Arvind and set a hearing for temporary relief on August 9, 2004. The hearing was continued twice, but it was never held. Eventually, Bhavna withdrew her request for temporary support when the parties attempted to reconcile in September 2004.

¶ 5. After Bhavna returned home, the parties lived together until August 12, 2005, at which time, Bhavna left the marital home because of another abusive incident. She then filed an application for entry of default citing Arvind's failure to file an answer to the divorce complaint. In response, Arvind requested leave to file an answer to the original complaint, which the chancellor granted. Discovery was attempted, but after Arvind failed to comply with an order compelling discovery, the chancellor found that he had willfully disobeyed the court order and sanctioned him. The chancellor prohibited Arvind from calling any witnesses or admitting any documents at trial, thereby limiting him to cross-examination of Bhavna's witnesses. Because Arvind also failed to answer Bhavna's requests for admissions, the chancellor deemed them admitted.

¶ 6. For failing to comply with discovery, some of the facts the chancellor deemed admitted were as follows: (1) that Arvind committed adultery; (2) that Arvind physically abused, hit, punched, tried to strangle, used a belt to whip, and yelled at Bhavna; (3) that Arvind stayed away from home without notice or reason; (4) that he caused Bhavna to suffer mental abuse and to be in fear of her physical safety; (5) and that his actions caused the marriage to be unbearable for Bhavna.

¶ 7. At trial, Bhavna's sister, Kusum "Kay" Patel, testified to corroborate Bhavna's marital problems. She told the court how Bhavna was never happy in the marriage, how Bhavna was in poor health because she could not sleep, and how Bhavna was always afraid that Arvind would hit her. Kay was aware of a number of specific instances of abuse. Bhavna told Kay that Arvind had hit her while she was pregnant with their son and that she had to go to the hospital in 1995 after Arvind hit her in the face. Kay also told the court that, because of Bhavna's marital problems, Bhavna tried to commit suicide by overdosing on Tylenol, which resulted in a trip to the emergency room.

¶ 8. Besides the abuse, Kay also testified that Bhavna told her that Arvind had a girlfriend during the marriage. According to Kay, Bhavna did all the housework, including taking care of Arvind's mother. She also helped to run the hotels that she and Arvind owned. Even though she knew about her sister's problems with Arvind, Kay never encouraged her to leave him. She thought it would be best for their children if they stayed together.

¶ 9. Bhavna took the stand and recounted the problems she had and abuses she suffered throughout her marriage to Arvind.

976 So.2d 960

Problems surfaced almost immediately as Bhavna learned that Arvind had a girlfriend, even though he and Bhavna had recently gotten married. His adulterous nature also led to his and Bhavna's contraction of a sexually transmitted disease some years later.

¶ 10. As far as physical abuse, Bhavna claimed that Arvind would abuse her two or three times each year. She said the frequency of abuse had recently dropped to just once a year. Nevertheless, Bhavna told the court that Arvind once hit her in the face when she was pregnant with her son. Years later, Arvind again hit her in the face, which required that Bhavna go to the hospital because of the injuries to her jaw. Another time, after Arvind had been out at a casino all night without calling, he was arrested following an argument. During that argument he pinned Bhavna to the floor with his hands on her throat. The last instance she recounted was when Arvind hit her with a belt. It was following this incident that Bhavna left Arvind for the last time.

¶ 11. In addition to the physical abuse and the adultery, Bhavna testified that Arvind would continually subject her to verbal abuse, even threatening her life three times. She said that she was never happy in the marriage, and she was always in fear of abuse. Nevertheless, just as Bhavna's sister never encouraged her to divorce Arvind, Bhavna told how her family also encouraged her to remain married, despite the abuse. Bhavna told the court that on two occasions she attempted to commit suicide to escape her marriage. She said she first tried to kill herself when she was living in Florida and later when she tried to overdose on Tylenol.

¶ 12. Bhavna did not call Arvind as a witness, and the court's sanctions prevented Arvind from taking the stand himself or calling any witnesses. At the conclusion of the trial, the chancellor entered an order denying Bhavna's request for a divorce based on cruel and inhuman treatment. He found that Bhavna failed to carry her burden of proving cruel and inhuman treatment by a preponderance of the evidence.

STANDARD OF REVIEW

¶ 13. The scope of review in a domestic relations case is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(¶ 13). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). The chancellor's determination of whether a spouse's conduct rose to the level of cruel and unusual treatment is a determination of law. Potts v. Potts, 700 So.2d 321, 322(¶ 10) (Miss.1997); Reed v. Reed, 839 So.2d 565, 569(¶ 13) (Miss.Ct.App.2003). Such a finding is reversible if the chancellor employed an erroneous legal standard. Potts, 700 So.2d at 322(¶ 10).

ISSUES AND ANALYSIS

I. Whether it was error to deny Bhavna a divorce.

¶ 14. Bhavna first argues that it was against the weight of the evidence to deny her a divorce from Arvind based on cruel and inhuman treatment. Bhavna claims that the chancellor erred in weighing the evidence and in failing to consider her subjective apprehension of harm. Furthermore, she argues that the abuse was not condoned and that the chancellor punished her for not calling her children to testify. Based on the foregoing claims,

976 So.2d 961

Bhavna concludes that she met her burden and was entitled to a divorce from Arvind.

¶ 15. The causes for divorce are provided for by section 93-5-1 of the Mississippi Code Annotated (Rev.2004), which states that a divorce decree may be based on habitual cruel and inhuman treatment. Conduct that evinces habitual cruel and inhuman treatment must be such that it 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. Mitchell v. Mitchell, 767 So.2d 1037, 1041(¶ 14) (Miss.Ct.App.2000) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). In making a determination, the chancellor must look to "(1) the conduct of the offending spouse and (2) the impact of the conduct upon the plaintiff." Fisher v. Fisher, 771 So.2d 364, 367(¶ 10)...

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12 practice notes
  • JONES v. JONES, No. 2008-CA-00675-COA.
    • United States
    • Court of Appeals of Mississippi
    • September 9, 2010
    ...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 DISCUSSION I. Habitual Cruel and Inhuman Treatment ¶ 8. Steven argues that Rachel failed to introduce sufficien......
  • Lindsay v. Lindsay, NO. 2018-CA-00370-COA
    • United States
    • Court of Appeals of Mississippi
    • April 7, 2020
    ...usually must be shown to have been systematic and continuous, a single incident may provide grounds for divorce." Kumar v. Kumar , 976 So. 2d 957, 961 (¶14) (Miss. Ct. App. 2008) (citing Rakestraw v. Rakestraw , 717 So. 2d 1284, 1287 (¶8) (Miss. Ct. App. 1998) ). ¶29. Thus, "[j]ustice requi......
  • Jones v. Jones, No. 2008-CA-00675-COA (Miss. App. 12/15/2009), No. 2008-CA-00675-COA
    • United States
    • Court of Appeals of Mississippi
    • December 15, 2009
    ...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 I. Habitual Cruel and Inhuman Treatment ¶ 8. Steven argues that Rachel failed to introduce sufficient evid......
  • McGee v. State, No. 2006-CP-02139-COA.
    • United States
    • Court of Appeals of Mississippi
    • March 11, 2008
    ...does not have jurisdiction to alter or vacate a judgment once the term of court ends. Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss. 976 So.2d 957 2001). However, a court may rule on a motion that was pending at the end of the court term. Miss.Code Ann. § 11-1-16(1) ¶ 13. We find no erro......
  • Request a trial to view additional results
12 cases
  • JONES v. JONES, No. 2008-CA-00675-COA.
    • United States
    • Court of Appeals of Mississippi
    • September 9, 2010
    ...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 DISCUSSION I. Habitual Cruel and Inhuman Treatment ¶ 8. Steven argues that Rachel failed to introduce sufficien......
  • Lindsay v. Lindsay, NO. 2018-CA-00370-COA
    • United States
    • Court of Appeals of Mississippi
    • April 7, 2020
    ...usually must be shown to have been systematic and continuous, a single incident may provide grounds for divorce." Kumar v. Kumar , 976 So. 2d 957, 961 (¶14) (Miss. Ct. App. 2008) (citing Rakestraw v. Rakestraw , 717 So. 2d 1284, 1287 (¶8) (Miss. Ct. App. 1998) ). ¶29. Thus, "[j]ustice requi......
  • Jones v. Jones, No. 2008-CA-00675-COA (Miss. App. 12/15/2009), No. 2008-CA-00675-COA
    • United States
    • Court of Appeals of Mississippi
    • December 15, 2009
    ...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 I. Habitual Cruel and Inhuman Treatment ¶ 8. Steven argues that Rachel failed to introduce sufficient evid......
  • McGee v. State, No. 2006-CP-02139-COA.
    • United States
    • Court of Appeals of Mississippi
    • March 11, 2008
    ...does not have jurisdiction to alter or vacate a judgment once the term of court ends. Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss. 976 So.2d 957 2001). However, a court may rule on a motion that was pending at the end of the court term. Miss.Code Ann. § 11-1-16(1) ¶ 13. We find no erro......
  • Request a trial to view additional results

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