Mitchell v. Mitchell, No. 2001-CA-00967-COA.

CourtCourt of Appeals of Mississippi
Writing for the CourtBefore McMILLIN, C.J., LEE, and BRANTLEY, JJ.
Citation823 So.2d 568
PartiesMatthew Ray MITCHELL, Appellant, v. Janet Blossman MITCHELL, Appellee.
Decision Date21 May 2002
Docket NumberNo. 2001-CA-00967-COA.

823 So.2d 568

Matthew Ray MITCHELL, Appellant,
v.
Janet Blossman MITCHELL, Appellee

No. 2001-CA-00967-COA.

Court of Appeals of Mississippi.

May 21, 2002.

Rehearing Denied July 30, 2002.


823 So.2d 569
Paul Hardin Holmes, Petal, Sheila Havard Smallwood, attorneys for appellant

Richard C. Fitzpatrick, Poplarville, attorney for appellee.

Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.

BRANTLEY, J., for the court.

¶ 1. Janet Mitchell was granted a divorce from Matthew Mitchell in a Pearl River County Chancery Court on the ground of habitual cruel and inhuman treatment. Matthew appeals, arguing that the court erred in granting Janet the divorce, in awarding visitation, in the division of property and in awarding attorney's fees. Finding that the chancellor did not err in his decision, we affirm.

823 So.2d 570
FACTS

¶ 2. Matthew and Janet Mitchell were married on February 13, 1993. The parties had three children born during their marriage. Following their marriage, the couple resided in Pearl River County in a home located on eighty acres owned by Matthew's parents.

¶ 3. Janet testified that she did not graduate from high school, but received her GED certification. She stayed at home caring for their children, in addition to other family members' children. After the parties' final separation in July of 2000, Janet lived with her mother. She worked as a housekeeper for a doctor who permitted Janet to take her two youngest children with her to work, earning $879 per month. Janet does not pay rent to her mother, but pays the electric and phone bill, while her mother helps her in providing food. During the marriage, the Mitchells purchased a van for Janet's use in taking care of the children.

¶ 4. Janet further testified that she was left alone all the time with the children and spent most evenings with her parents due to Matthew not being at home. Janet's parents regularly assisted her financially. Additionally, Matthew on several occasions questioned the paternity of the two younger children.

¶ 5. Matthew testified that he finished high school. He has had several jobs in the past in real estate, in livestock activities and in the restaurant business. At the time of the hearing, Matthew worked for Southern Livestock Producers as a manager of its cattle auction, netting $2,022 per month. Matthew continued to live, rent free, in the home on his parents' property.

¶ 6. The parties have been separated three times, with the final separation in July of 2000. Janet filed for a divorce on the ground of habitual cruel and inhuman treatment. Matthew filed an answer and counter-claim for separate maintenance. A hearing was held on January 24, 2001. The chancellor granted Janet a divorce. In addition, he awarded the Mitchells joint legal custody with primary physical custody of the children awarded to Janet along with monthly child support payments. The chancellor awarded Janet the use of the van and ordered Matthew to pay the amounts due on the van each month as alimony. Matthew was also ordered to pay Janet $500 in attorney's fees.

DISCUSSION OF THE ISSUES

STANDARD OF REVIEW

¶ 7. This Court will not reverse a chancellor's decree of divorce unless it is manifestly wrong as to law or fact. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000). The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony. Id. This Court views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless this Court finds it manifestly wrong or unsupported by substantial evidence. Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000).

I. WHETHER THE CHANCELLOR ERRED IN GRANTING A DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 8. Habitual cruel and inhuman treatment must be established by a preponderance of the evidence, rather than clear and convincing evidence. Richard v. Richard, 711 So.2d 884, 888(¶ 14) (Miss. 1998).

Evidence sufficient to establish habitual, cruel and inhuman treatment should prove conduct that: either endanger[s]
823 So.2d 571
life, limb or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or, in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending[ed] spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.

Fisher, 771 So.2d at 367 (¶ 9) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss. 1993)). However, there must be more than a showing of unkindness or rudeness or mere incompatibility or want of affection. Daigle, 626 So.2d at 144.

¶ 9. The chancellor must evaluate not only the conduct of the offending spouse, but also the impact of that conduct upon the other spouse. Bias v. Bias, 493 So.2d 342, 345 (Miss.1986). The negative impact upon the complaining spouse may be to their mental health, not just physical health. Rakestraw v. Rakestraw, 717 So.2d 1284, 1288(¶ 11) (Miss.Ct.App.1998). Physical violence or threats of physical violence are not necessary to prove habitual cruel and inhuman treatment. Richard, 711 So.2d at 889(¶ 9). Acts, short of physical cruelty, "such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty." Savell v. Savell, 240 So.2d 628, 629 (Miss.1970).

¶ 10. Matthew contends that his wife failed to present sufficient testimony and evidence to show that she was entitled to a divorce on the ground of habitual cruel and inhuman treatment. However, the chancellor found that Matthew's behavior during their marriage did constitute habitual cruel and inhuman treatment. This was not a case of physical violence, but a case of mental cruelty.

¶ 11. Janet testified that she was left alone all the time with the children. When Matthew was at home, he rarely spent any time with her or the children. Janet and the children spent most evenings having...

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11 practice notes
  • JONES v. JONES, No. 2008-CA-00675-COA.
    • United States
    • Court of Appeals of Mississippi
    • 9 septembre 2010
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 823 So.2d 568, 570-71 (Miss.Ct. App.2002). Habitual cruel and inhuman treatment does not require physical violence as the negative impact upon the plainti......
  • 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
    • 15 décembre 2009
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 823 So. 2d 568, 570-71 (Miss. Ct. App. 2002). Habitual cruel and inhuman treatment does not require physical violence as the negative impact upon the plai......
  • Baumbach v. Baumbach, NO. 2016–CA–00978–COA
    • United States
    • Court of Appeals of Mississippi
    • 3 avril 2018
    ...to the acceptance of the case. Id. ¶ 41. A chancery court's decision to award attorney's fees is discretionary. Mitchell v. Mitchell , 823 So.2d 568, 573 (¶ 21) (Miss. Ct. App. 2002) (citing Grogan v. Grogan , 641 So.2d 734, 744 (Miss. 1994) ). Attorney's fees are justified when equity sugg......
  • Holloway v. Holloway, No. 2002-CA-01762-COA.
    • United States
    • Court of Appeals of Mississippi
    • 4 novembre 2003
    ...that there are a number of cases that tend to relax the necessity of strict adherence to the McKee factors. See Mitchell v. Mitchell, 823 So.2d 568, 573(¶23) (Miss.Ct.App.2002); Wells v. Wells, 800 So.2d 1239, 1246(¶18) (Miss.Ct.App.2001). However, where a party presents substantial, credib......
  • Request a trial to view additional results
11 cases
  • JONES v. JONES, No. 2008-CA-00675-COA.
    • United States
    • Court of Appeals of Mississippi
    • 9 septembre 2010
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 823 So.2d 568, 570-71 (Miss.Ct. App.2002). Habitual cruel and inhuman treatment does not require physical violence as the negative impact upon the plainti......
  • 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
    • 15 décembre 2009
    ...impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 823 So. 2d 568, 570-71 (Miss. Ct. App. 2002). Habitual cruel and inhuman treatment does not require physical violence as the negative impact upon the plai......
  • Baumbach v. Baumbach, NO. 2016–CA–00978–COA
    • United States
    • Court of Appeals of Mississippi
    • 3 avril 2018
    ...to the acceptance of the case. Id. ¶ 41. A chancery court's decision to award attorney's fees is discretionary. Mitchell v. Mitchell , 823 So.2d 568, 573 (¶ 21) (Miss. Ct. App. 2002) (citing Grogan v. Grogan , 641 So.2d 734, 744 (Miss. 1994) ). Attorney's fees are justified when equity sugg......
  • Holloway v. Holloway, No. 2002-CA-01762-COA.
    • United States
    • Court of Appeals of Mississippi
    • 4 novembre 2003
    ...that there are a number of cases that tend to relax the necessity of strict adherence to the McKee factors. See Mitchell v. Mitchell, 823 So.2d 568, 573(¶23) (Miss.Ct.App.2002); Wells v. Wells, 800 So.2d 1239, 1246(¶18) (Miss.Ct.App.2001). However, where a party presents substantial, credib......
  • Request a trial to view additional results

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