Mixon v. Mixon
| Decision Date | 18 December 1998 |
| Docket Number | No. 97-CA-01129 COA,97-CA-01129 COA |
| Citation | 724 So.2d 956 |
| Parties | Jerry Lane MIXON, Appellant, v. Tori Estridge MIXON, Appellee. |
| Court | Mississippi Court of Appeals |
C. Gaines Baker, Batesville, Attorney for Appellant.
Robert H. Broome, Batesville, Attorney for Appellee.
BEFORE McMILLIN, P.J., COLEMAN, AND PAYNE, JJ.
PAYNE, J., for the Court:
PROCEDURAL POSTURE AND ISSUES PRESENTED
¶ 1. Tori Estridge Mixon received a divorce from Jerry Lane Mixon on the grounds of habitual cruel and inhuman treatment by decree of the Tate County Chancery Court, the Honorable Melvin McClure presiding, on July 14, 1997. From this decree, Tori was awarded custody of the couple's two minor children and $900 per month in child support, periodic alimony of $450 per month, and attorney's fees in the amount of $6,500.
¶ 2. Feeling aggrieved by the chancellor's ruling, Jerry filed this appeal asserting the following six issues:
Upon review of the record and legal precedent, we affirm as to Issues I, III, IV, and V, and reverse and render in part as to Issues II and VI.
FACTS
¶ 3. Jerry Mixon and Tori Mixon were married in September 1982. This union produced two children, a son, Justin Lane Mixon, and a daughter, Mallori Brooke Mixon. During the marriage, Tori was employed by the Department of Human Services, and Jerry was a self-employed farmer and car salesman. The couple separated in February 1996 but later reconciled. On August 22, 1996, Tori filed her complaint for divorce from Jerry on the grounds of habitual cruel and inhuman treatment, adultery, and irreconcilable differences, seeking custody of the couple's two minor children. Additionally, Tori sought a protective order, as a victim of domestic violence, from Jerry. On August 30, 1996, Jerry filed his answer and counterclaim denying all material allegations raised by Tori and claiming several affirmative defenses. On September 3, 1996, the chancellor issued an order of temporary relief for Tori giving her temporary custody of the children and ordering Jerry to pay Tori $1,000 per month in temporary maintenance for child support and residential rent. Jerry was granted bi-weekly overnight visitation with the children and both Tori and Jerry were restrained from contacting one another.
¶ 4. Subsequent to the temporary order, Tori filed complaints against Jerry for contempt of court: on October 1, 1996, Jerry was held in contempt for violating the no-contact order and for failing to pay temporary maintenance, and on November 12, 1996, Jerry was held in contempt of court for violating the no-contact order and sentenced to serve forty-eight hours in jail.
¶ 5. On January 16 and 22-23, 1997, the chancellor conducted a trial on the merits in this matter. At the trial's conclusion, the chancellor issued a partial ruling, citing Jerry for contempt for having violated the no-contact order again on January 3, 19971 and sentenced him to serve ten days in jail. The chancellor took under advisement the remaining issues. After the parties submitted proposed findings of fact and conclusions of law, the chancellor issued a decree of divorce for Tori for habitual cruel and inhuman treatment on July 14, 1997. Tori was awarded custody of the two minor children, with permanent visitation rights afforded to Jerry. In addition, Tori was awarded $900 per month in child support, and Jerry was ordered to provide the children with medical insurance. Tori and Jerry were ordered to equally bear the costs of any uninsured medical expenses of the children. Jerry was ordered to maintain a life insurance policy in the amount of $300,000 with the children as beneficiaries. Further, Jerry requested that the children attend private school and was ordered to pay tuition for the children in this regard above the amounts paid for child support. Tori was awarded $450 per month in alimony.
¶ 6. The chancellor also divided equitably the marital property. Jerry was awarded the marital home in Lambert, Mississippi, and Tori was awarded her retirement account with the State of Mississippi. Jerry and Tori were awarded their own vehicles, and each were charged with the indebtedness remaining on their respective automobiles. Each party was awarded their own clothing and other personal effects then in their possession, with the balance of the personal property being equally divided.
¶ 7. Lastly, Tori was awarded attorney's fees in the amount of $6,500, $3,500 for fees relating to three previous contempt hearings, and $3,000 for the fees regarding the divorce. Additionally, all court costs were taxed against Jerry.
STANDARD OF REVIEW
¶ 8. The standard of review employed by this Court in domestic relations cases is abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991); Devereaux v. Devereaux, 493 So.2d 1310, 1312 (Miss.1986).
ANALYSIS AND DISCUSSION
¶ 9. Jerry's first assignment of error alleges that the proof presented at the trial was insufficient for the chancellor to grant Tori a divorce on the grounds of habitual cruel and inhuman treatment. Our case law has addressed this issue on numerous occasions and is well-settled. Habitual cruel and inhuman treatment can be established by demonstrating conduct that threatens the life, limb, or health of the party seeking relief, or the conduct is so unnatural and infamous as to make disgusting and revolting to the non-offending spouse the discharge of marital duties, which erases the basis for the union. Richard v. Richard, 711 So.2d 884, 888 (Miss.1998); Bowen v. Bowen, 688 So.2d 1374, 1378 (Miss.1997); Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). As a general rule, the habitual cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be grounds for a divorce on this ground. McKee v. Flynt, 630 So.2d 44, 48 (Miss.1993); Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989); Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). The requisite essential behavior may be established by a preponderance of the evidence. Smith v. Smith, 614 So.2d 394, 396 (Miss.1993).
¶ 10. Based on our review of the evidence adduced at trial, we cannot not say that the chancellor manifestly erred in awarding Tori a divorce on the ground of habitual cruel and inhuman treatment. Jerry admitted to striking Tori during a violent confrontation at her mother's home after the separation,2 pushing her on one occasion during the marriage, and accusing her of having a sexual affair on two occasions.
¶ 11. Tori testified that on other occasions Jerry had pushed her, shoved her into an oak bed, twisted her head, and once tried to strike her with a telephone. Further, according to Tori, Jerry berated her about her job and constantly urged her to quit, asked her vulgar questions of a sexual nature and accused her of having extramarital relations—once brandishing a handgun and issuing threats—and was jealous of time she spent with the couple's children. Additionally, Tori testified that Jerry, on more than one occasion during the marriage, tore clocks and phones from their outlets. Tori's mother, Juanita Estridge, testified that after the couple separated Jerry came to see Tori at her home and had "roughed Tori up," thrown a mirror, and put a hole in the floor. Patricia Goodwin, a co-worker of Tori, testified that she had seen a bruise on Tori's wrist which Tori told her was the result of an argument between her and Jerry. Further, Goodwin testified that Jerry told her that he had hit Tori during the couple's confrontation at Juanita Estridge's home and that he accused Tori of adultery and "dressing like a prostitute".
¶ 12. We think there was sufficient testimony for the chancellor to conclude that Tori was a victim of habitual cruel and inhuman treatment at the hands of Jerry. The chancellor was in the best position to assess the credibility of the testimony presented at trial. Jerry offered no real refutation of the allegations presented by Tori, and he admitted to some of the allegations. Further, as Professor Hand has observed in his treatise:
Indeed, except in the case of personal violence of a serious nature, it would often be difficult or impossible to show the conduct of the defendant was such as to actually endanger the life, limb, or health or to create a reasonable apprehension thereof. Yet, the most refined cruelty—the poisoned shaft of scorn, ridicule, sarcasm, contempt, insult, verbal abuse, slander, neglect, and the like—is often more painful to cultured and sensitive persons than mere blows might be.
N. Shelton Hand, MISSISSIPPI DIVORCE, CHILD CUSTODY, AND ALIMONY, § 4-12 at 72-73 (4th ed. 1996).
¶ 13. While the personal violence against Tori was not constant, it nonetheless did occur and the verbal berating and destructive acts by Jerry during his periods of outrage were more common....
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