Marble v. Marble, 54989
Decision Date | 10 October 1984 |
Docket Number | No. 54989,54989 |
Citation | 457 So.2d 1342 |
Parties | John Clayton MARBLE v. Rebecca Jane Schenk MARBLE. |
Court | Mississippi Supreme Court |
Lester F. Smith, Robert L. McArty, Perry, Morrison & Smith, Jackson, for appellant.
Rufus Creekmore, E. Michael Marks, Jackson, for appellee.
Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
John Clayton Marble appeals a judgment of the Chancery Court of the First Judicial District of Hinds County denying his prayer for divorce and awarding $500.00 per month separate maintenance to his wife, Rebecca Schenk Marble.
The parties were married on June 3, 1972, and had a son on September 14, 1975. In October, 1982, John Marble departed the family residence and has not since cohabited with his wife.
The record contains no evidence of abuse, physical or verbal, of either party by the other; but it is evident John and Rebecca can no longer live together. John stated the marriage had become intolerable to him and that he could not return to Rebecca under any circumstances. While Rebecca testified she "would love to try" to make her marriage a success, she could not agree to accept her husband back into their home unless he consented to consult with a therapist of her choice.
John Marble first contends the chancellor improperly denied his prayer for divorce on the ground of habitual cruel and inhuman treatment. While the record indicates it is now impossible for John to resume cohabitation with Rebecca, we are of the opinion her behavior does not constitute "habitual cruel and inhuman treatment" as this Court has defined. In Burnett v. Burnett, 271 So.2d 90, 93 (Miss.1972), we stated:
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).
(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.
Secondly it is argued the chancellor erred in awarding Rebecca separate maintenance. Citing Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which held unconstitutional the Alabama sta...
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