Lee v. Lee, 45627
| Decision Date | 23 February 1970 |
| Docket Number | No. 45627,45627 |
| Citation | 232 So.2d 370 |
| Parties | Ronnie LaRue LEE v. George Evelyn Ede LEE. |
| Court | Mississippi Supreme Court |
Rex K. Jones, Hattiesburg, for appellant.
Albert S. Johnston, III, W. Roberts Wilson, Jr., Pascagoula, for appellee.
The appellant, Ronnie LaRue Lee, appeals from a judgment of the Chancery Court of Jackson County, Mississippi, granting the appellee, George Evelyn Ede Lee, a divorce from the appellant on the ground of habitual cruel and inhuman treatment and awarding custody of Donnie LaRue Lee, minor, to the appellee.
The appellant contends that his plea in abatement should have been sustained. He set up in his plea that a prior divorce suit on the same ground between the same parties had been filed by the appellee in the Forrest County Chancery Court and that this suit was undisposed of and was still pending at the time of the hearing in the Jackson County Chancery Court. The appellant had filed an answer and cross-bill in the Forrest County action wherein he prayed that a divorce be granted him on the grounds of habitual cruel and inhuman treatment and adultery.
The appellee's bill of complaint was filed in the Forrest County Chancery Court on May 2, 1968. In her bill for divorce, she stated under oath that she and the appellant were resident citizens of Forrest County, Mississippi. On May 21, 1968, after a hearing, the Forrest County Chancery Court entered a temporary decree finding that neither the complainant nor the defendant at that time as a fit and suitable person to have the permanent custody of the minor child but that temporarily the complainant and the defendant should have custody for alternate weeks until the final hearing at the regular June 1968 term of court.
The defendant, Ronnie LaRue Lee, filed his amended answer and cross-bill in the Forrest County Chancery Court on June 3, 1968. In his cross-bill he prayed for divorce from the complainant on the grounds of habitual cruel and inhuman treatment and adultery.
On Monday morning, October 14, 1968, appellee, then in Pascagoula, Mississippi, phoned appellant, who was then a student at the University of Southern Mississippi, and asked him to come to Pascagoula. He did so, arriving in Pascagoula about noon. They talked reconciliation. Ronnie returned to Hattiesburg, checked out of school, and drove back to Pascagoula on Wednesday, October 16. He rented a house trailer, and they moved in on Friday, October 18. They lived together in the trailer until Monday night, October 21, when she left with the child, ostensibly to go to the store, but instead returned to the home of her mother and father in Pascagoula. She sent her husband's car back to him by another man.
On October 29, 1968, the appellee, Mrs. George Evelyn Ede Lee, filed a bill of complaint for divorce against appellant, Ronnie LaRue Lee, in the Chancery Court of Jackson County alleging the same ground of habitual cruel and inhuman treatment. This time she swore that they separated in Jackson County on October 21, 1968.
On November 13, 1968, appellant filed a motion and plea in abatement in the Jackson County Chancery Court. In this plea, appellant set up the prior divorce suit still pending in the Forrest County Chancery Court and alleged:
'Defendant would show that the parties in this and the former case are the same, and not other or different persons; that the alleged cause of action, subject matter, and issues in this and the said former suit are the same, and not different, and that the said former suit so brought and prosecuted is still pending in the Court aforesaid and will not be heard until the December 1968 Term of that Court; and that a trial and judgment in said former suit will be determinative and will finally dispose of all the issues presented in this suit.'
Appellant moved the Jackson County Chancery Court:
'(T)o dismiss, abate or to stay all the proceedings in the above-entitled cause until such time as the case now pending in Cause No. 25,747 can be tried, heard and determined by the Chancery Court of Forrest County, Mississippi.'
In spite of the fact that the appellant's attorney was in the actual trial of an eminent domain suit in Forrest County on December 12, 1968, the Jackson County Chancery Court proceeded to have a hearing on the motion and plea in abatement, and the appellant, Ronnie LaRue Lee, was forced to represent himself. The court overruled his plea in abatement.
The appellee filed a motion to dismiss the Forrest County divorce suit on November 8, 1968. Neither she nor her attorney appeared for a hearing on the motion to dismiss, and the Forrest County Chancery Court entered a decree on December 13, 1968, finding:
'The Court finds that the Complainant, George Evelyn E. Lee, did on the 18th day of October, 1968, perpetrate a fraud upon this Court by entrapping the Defendant, Ronnie LaRue Lee, Jr., into a reconciliation with her in another jurisdiction for the express purpose of divesting this Court of jurisdiction in the above cause and for the purpose of eliminating the Defendant's grounds for divorce against her.
'The Court finds that the Complainant did by false and fraudulent statements and promises entrap the Defendant into a three-day reconciliation in another jurisdiction for the express purpose of eliminating the Defendant's grounds for divorce and divesting this Court of jurisdiction.
'The Court finds that the reconciliation between the Complainant and Defendant was not voluntary because the Complainant did not enter into it in good faith but induced the Defendant into said reconciliation by the use of fraudulent promises for the purpose of divesting this Court of jurisdiction in said cause.
'The Court finds that the motion to dismiss is not well taken and is hereby overruled...
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