Mitchell v. Mitchell, 1999-CA-01701-COA.

• Decision Date: 19 September 2000
• Docket Number: No. 1999-CA-01701-COA.,1999-CA-01701-COA.
• Citation: 767 So.2d 1037
• Parties: Debbie (Reynolds) MITCHELL, Appellant, v. Eddie MITCHELL, Appellee.
• Court: Mississippi Court of Appeals

767 So.2d 1037

Debbie (Reynolds) MITCHELL, Appellant, v. Eddie MITCHELL, Appellee.

No. 1999-CA-01701-COA.

Court of Appeals of Mississippi.

September 19, 2000.

Minnie P. Howard, Clarksville, Nora Rasco, Oxford, Gwendolyn Baptist Hewlett, Southaven, Attorneys for Appellant.

Gail P. Thompson, Oxford, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Debbie Mitchell appeals a decision of the Chancery Court of DeSoto County, Mississippi granting Eddie Mitchell a divorce on the grounds of adultery and cruel and inhuman treatment, the failure of the chancellor to award any child support, and the division of marital property and debt division. Finding that the chancellor manifestly erred in granting Eddie a divorce on the grounds of adultery and habitual cruel and inhuman treatment, we reverse. Further, we remand for proceedings for consideration of temporary child custody and child support consistent with the terms of this opinion.

FACTS

¶ 2. Eddie and Debbie Mitchell were married in August of 1984. The parties had two children, one born prior to their marriage and one born after they were married. The parties were finally separated in May of 1998. Following their marriage, the couple resided in Desoto County in a home which they owned. Debbie testified that she worked steadily throughout the course of the marriage, although she had changed jobs a number of times. Eddie testified that for the most part he had been employed throughout the marriage. Nevertheless, since 1991, Eddie has been employed on a part-time basis with Federal Express. In addition, during the course of the marriage Eddie opened up a furniture and "what-not" shop which he operated.

¶ 3. Eddie filed for a divorce on the grounds of uncondoned adultery, habitual cruel and inhuman treatment and, alternatively, irreconcilable differences. In his complaint, he alleged that he was a suitable person to properly care for his children and requested custody and control of the children. Further, he requested child support, exclusive ownership and possession of the marital home with all furnishings, full ownership in the business owned by him, attorneys fees and other relief. In response, Debbie, although not stating on what ground, asked for a divorce to be awarded to her, custody of the children, temporary and permanent alimony, exclusive use and title to marital home, fifty percent of Eddie's retirement and an equitable distribution of marital assets.

¶ 4. The chancellor granted Eddie a divorce on the grounds of adultery and habitual cruel and inhuman treatment. Debbie assigns the following errors on appeal which are take verbatim from her brief

I. WHETHER THE TRIAL JUDGE ERRED IN FINDING THE APPELLEE WAS ENTITLED TO A DIVORCE ON THE GROUNDS OF ADULTERY?

II. WHETHER THE TRIAL COURT JUDGE ERRED BY FINDING THAT THE APPELLEE WAS ENTITLED TO OBTAIN A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

III. WHETHER THE TRIAL JUDGE ERRED IN ITS PROPERTY DIVISION AND DEBT ASSIGNMENTS?

IV. WHETHER THE TRIAL JUDGE ERRED BY FAILING TO REQUIRE THE APPELLEE TO MAKE CHILD

SUPPORT PAYMENTS FOR THE BENEFIT OF THE MINOR CHILDREN OF THE PARTIES.

ANALYSIS OF THE ISSUES

I. WHETHER THE TRIAL JUDGE ERRED IN FINDING THE APPELLEE WAS ENTITLED TO A DIVORCE ON THE GROUNDS OF ADULTERY?

¶ 5. On a claim for adultery, a party is required to show his claim by clear and convincing evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). There must be clear and convincing evidence both of an adulterous inclination and a reasonable opportunity to satisfy that inclination. Id. Circumstantial evidence may be used prove such a claim, but the plaintiff retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilty. Id. "Such evidence need not prove the alleged acts beyond a reasonable doubt and the plaintiff is not required to present direct testimony as to the event complained of due to their secretive nature." McAdory v. McAdory, 608 So.2d 695, 698 (Miss.1992) (quoting Dillon, 498 So.2d at 330).

¶ 6. In the final order of divorce, the chancellor awarded Eddie a divorce, though he did not indicate on what grounds the divorce was being awarded. However, the chancellor made findings orally following trial on the matter. He concluded that the grounds for adultery had been met on the basis that:

the Defendant entered into a course of conduct of mistreatment toward him [Eddie] which consisted of adultery shown by an adulterous inclination and opportunity to satisfy that inclination as exhibited, by among other things, checking into and expending family funds for hotel rooms without her husband and without sufficient explanation; two, absenting herself from the home virtually all night long at—and at night without little explanation as to her whereabouts; and number three, maintaining private telephone conversations with other men under circumstances which would cause one to suspect an adulterous relationship as shown by her constantly being paged even into the late hours of the night.

¶ 7. Eddie testified that Debbie stayed in an hotel room on several occasions while the parties were married. Having been called as an adverse witness, Debbie testified that she did in fact stay in a hotel on occasions because of Eddie's physical and emotional abuse towards her and her children. Eddie acknowledged that "[a] couple of times she got mad at me and arguing and her and the girls went. I did not know where they were. She said they were at a hotel."

¶ 8. Eddie testified that he would get off of work at 4:00 a.m. and arrive home to find that Debbie was not there. On two occasions he stated that he went to look for her at her work place but could not find her. He testified that Debbie's response to him was that she was gambling at the casinos. On November 4, 1997, Eddie testified that he sought to spend some time with Debbie because it was her birthday. He stated that he could not find her and was told that her girl friends had taken her out, though he later learned that she was in a hotel room.

¶ 9. Eddie complained that one evening in the middle of the night he picked up the phone and there was male voice asking Debbie if she had arrived home safely. Eddie also complained that Debbie received pages and she would return the calls, presumably to talk to her boyfriend as Eddie asserts. There was no testimony, however, that Eddie knew the person or persons to whom Debbie was talking. Eddie did not produce any evidence of the identity of the person with whom his wife was allegedly having an adulterous relationship. Eddie stated that he discovered that Debbie was spending money on hotel rooms and gambling at the casinos when he attempted to straighten out the parties' finances. ¶ 10. In response to questions regarding his acquiring a venereal disease, Eddie testified that it was not him who had contracted a venereal disease through relations with someone else, but it was Debbie who had acquired the disease from a man named Johnny Johnson. Eddie testified that he intercepted a letter from Johnson to Debbie. The letter, however, was not produced at trial. Nor was this alleged relationship asserted as a cause of the breakdown of the marriage.

¶ 11. In cases involving allegations of adultery, the chancellor is required to make a finding of fact. Where a chancellor makes such findings, the supreme court has held that his decisions will not be set aside on appeal unless they are manifestly wrong. Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss.1995). "Adultery may be shown by evidence or admissions and either are sufficient to support a decree of divorce." Harmon v. Harmon, 757 So.2d 305 (¶ 8) (Miss.Ct.App.1999).

¶ 12. Having reviewed the record, we are unable to unearth sufficient evidence from which the chancellor could determine that Debbie possessed an inclination towards adulterous behavior. There was no direct evidence of Debbie's alleged adultery. Where one seeks to prove a claim of adultery using circumstantial evidence, "the conclusion sought to be established must follow logically from the facts and must be inconsistent with a reasonable theory of innocence." Dillon, 498 So.2d at 330. In this case, the only evidence of any adultery was through Eddie's testimony, which alone did not amount to clear and convincing evidence of Debbie's adulterous inclination or opportunity to act on such tendency. Eddie alleged that Debbie spent her money on hotel rooms, but did not produce any records showing how many times she stayed in hotel rooms, the dates or how much she spent. He stated that she spent time on the phone with her "boyfriend," but did not show to whom she may have been talking, nor did he provide any telephone records evincing the time she spent on the phone or the number of pages she received. The chancellor found that Debbie's absences from the home were not sufficiently explained. However, the burden remained on Eddie to prove his claim of adultery. Dillon, 498 So.2d at 330. This burden cannot be met with only "he said, she said" testimony alone. The circumstantial evidence presented by Eddie does not lead one only to the conclusion of guilt as required by case law. See McAdory, 608 So.2d at 699

.

¶ 13. We rule that Eddie failed in his burden to show clear and convincing evidence of adultery. Furthermore, based on the evidence presented, the chancellor manifestly erred in finding that sufficient evidence was produced to support a finding of clear and convincing evidence of adultery. Accordingly, we reverse the award of divorce on the ground of adultery.

II. WHETHER THE TRIAL COURT JUDGE ERRED BY FINDING THAT THE APPELLEE WAS ENTITLED TO OBTAIN A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶ 14. To support a divorce on the ground of habitual cruel and inhuman treatment, the conduct which evinces habitual cruel and inhuman treatment...