McAdory v. McAdory, 91-CA-0855

CourtUnited States State Supreme Court of Mississippi
Citation608 So.2d 695
Docket NumberNo. 91-CA-0855,91-CA-0855
PartiesKimberly Nell Hamm McADORY v. James Edward McADORY, Jr.
Decision Date24 September 1992

Page 695

608 So.2d 695
Kimberly Nell Hamm McADORY
James Edward McADORY, Jr.
No. 91-CA-0855.
Supreme Court of Mississippi.
Sept. 24, 1992.

Page 696

G. Jyles Eaves, Eaves & Eaves, Louisville, for appellant.

J. Niles McNeel, David E. Bane, Jr., McNeel & Ballard, Louisville, for appellee.


BANKS, Justice, for the court:


In the present appeal, we are called upon to review the level and quantum of proof necessary to support a finding of adultery. Kimberly Nell Hamm McAdory (Kimberly) appeals a judgment of the Winston County Chancery Court granting to James Edward McAdory, Jr., (James) a divorce on the ground of adultery. Finding that the evidence below did not rise above mere suspicion, we reverse not only the finding of adultery, but the other rulings emanating from that finding. We affirm the portion of the opinion granting James a divorce on the ground of cruel and inhuman treatment.


Kimberly and James wed on January 13, 1987, and lived together until they separated on December 8, 1990. One child, James Edward McAdory, III (Jamie), whose date of birth is January 6, 1990, was born to the couple. Shortly after separating from Kimberly, James filed a "Bill of Complaint for Divorce" alleging three grounds in support: (1) uncondoned adultery, (2) habitual, cruel and inhuman treatment, and (3) irreconcilable differences. James also requested custody of the minor child.

Kimberly moved for dismissal of the complaint because it did not state a cause of action. She denied all other material allegations of the complaint, except to admit that irreconcilable differences existed between the parties. In addition, she filed

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a cross-complaint for divorce alleging cruel and inhuman treatment and irreconcilable differences. She requested custody of Jamie and support payments and alimony from James.

Kimberly filed an amended complaint and cross-complaint on January 11, 1990. James answered the allegations of the cross-complaint, denying all material allegations, except to admit that irreconcilable differences existed between the parties.


After separating from her husband, Kimberly moved in with her parents. The separation was precipitated by pictures and notes James found in Kimberly's purse. Six of the twenty-seven pictures introduced into evidence show Kimberly in various forms of embrace with a male co-worker; another three show her and this same co-worker playing and joking with each other.

The notes were addressed to Kimberly from different men. None are from the co-worker in the pictures, or any other person about whom there was evidence other than the notes. After happening upon the pictures and notes, James confronted Kimberly who explained that she and a co-worker, Ophelia Doss (Doss) who was pictured in at least one of the photographs, jointly paid to have them developed. 1

According to Kimberly, all of the pictures were taken the same day. Later, she testified that the photos were taken on at least two different days. She identified the man in the photographs as John Wesley Hughes (Hughes), a co-employee who worked in the same department as she before she was moved to another section. Kimberly denied any romantic involvement with Hughes. Specifically, she testified that they were not having an affair and not sexually involved. "We just worked together and all of us got along back there." She explained that the pictures showing her and Hughes standing close to her with his arms around her shoulders and her arms around his waist were taken when they were "joking around." In one picture, she is shown making an obscene gesture. 2 She explained that she was making that gesture toward Doss. She could not remember if Hughes was present when the photograph was taken. Hughes is not pictured in that photograph.

Kimberly stated that Hughes visited her home on one occasion. Her husband was not home. Hughes was accompanied by Doss and they visited for approximately forty minutes. Kimberly testified that Doss and Hughes came to her home because Doss wanted to see it. She explained what happened after they arrived.

We was in the living room and I told her that I needed to go to the bathroom that they could go on and look through the house and that I would be out in a minute.

Q. Then what occurred?

A. Well, they was looking through and, uh, this is what she told me later on, was when they was in the bedroom, he said that he was hot and he was going to take his shirt off, and she told him if he did that she would take his picture, and she did, and I didn't know anything about it until they come back and I seen it.

Kimberly stated that she neither saw Hughes without his shirt nor was she in the room when the picture was taken. The picture shows Hughes lying in the bed that Kimberly and James shared, wearing some type of shorts. According to Kimberly, Hughes said he disrobed because he was hot. Another picture was taken of Hughes in the living-room. At the time of trial, Hughes was in the military and stationed away from Winston County. Kimberly stated that Doss took all the pictures. Doss, however, is not shown in any of the pictures taken in the house during that visit.

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In one photograph, Kimberly is pictured wearing a brown leather jacket. She testified that the jacket belonged to Hughes, but denied that he gave her the jacket to wear or was present when the picture was taken. It was her testimony that Doss came to visit on another occasion. During this visit, Doss wore a brown-leather jacket. Kimberly complimented Doss on the jacket and asked to wear it. She liked the fit and asked Doss to photograph her wearing the jacket.

Kimberly was questioned about a letter she received from Wal-Mart, indicating that some film she submitted for development could not be processed because it was improper. She denied having any knowledge of the contents of the film.

When asked about some notes addressed to her, which were found with the pictures, Kimberly explained that a note directing her to call "Brad" was left on her tow-motor as a joke and she did not make the call. The number on the note was to the company cafeteria. According to Kimberly, the note containing the sentence "I Love You" was written by her to James, her husband, although she could not recall whether or not she gave him the note. She could not explain the note containing the phrase "Don't worry, be happy. I love you." from Zachary Tyson. She denied knowing a person by that name. Another note containing an explicit sexual reference was addressed to Kimberly from Ted. Kimberly explained that Ted works at Spartus; she denied that he propositioned her. Instead, she testified that Doss wrote the note as a joke. She did not remember when any of them were given to her.

On direct-examination, Kimberly stated that she had never had a sexual relationship with anyone other than her husband. Kimberly testified that it was customary for the employees to "horse around" and joke. Helen Holder, a co-worker testified that horseplay was commonplace at the factory. She never witnessed anything that would lead her to believe that Kimberly was having an affair.

James testified that he was employed at Taylor Machine Works in the machine shop. He stated that the marriage began to sour in early 1990. Specifically, the couple could not agree on anything. James came across the pictures when he was looking for a check stub in Kimberly's purse. When he confronted Kimberly about them, she told him that the pictures were of "real good friends." Upon seeing the photographs and reading the notes, he was very upset, especially upon seeing Hughes in his bed. "[I]t will tear you up inside because when you love somebody ... you know, you find that they have got somebody else in your bed while you are not there, it tears you up."

On recall, Kimberly stated that she was never given a chance to explain the pictures and notes to James or his family and she was sorry that the pictures were taken. She admitted that the notes and photographs exhibited poor judgment. She remained adamant in her testimony that she never committed adultery with anyone.

At the conclusion of the evidence, the court issued its decision. After outlining the applicable law, the court held that Kimberly was infatuated with a male co-worker, had a reasonable opportunity to satisfy her adulterous inclinations and had a loose and immoral life-style. Consequently, the court granted James a divorce on the ground of adultery. The court also found that James was entitled to divorce on the ground of habitual cruel and inhuman treatment. Kimberly was denied a divorce on the same ground.

The court, after reviewing the Albright 3 factors, awarded custody to James. Specifically, the court found,

1. [t]hat the moral fitness of the father as opposed to the mother weighs heavily in favor of the father.

2. The father is willing and able to care for his son.

3. The work factors of the parties do not seem to favor either party since both work and have limited time to care for their child.

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4. Since the child is a male and is approaching the age when the influences of a father are important, this factor favors the father.

5. The other Albright factors seem to have very limited application to this case.

The final decree in accordance with the opinion was entered August 16, 1991. Aggrieved from the decision of the court, Kimberly and James appeal to this Court.


The standard of review applied to findings of a chancellor is a familiar one. This Court will not disturb those findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Company, 596 So.2d 874 (Miss.1992)....

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