Owen v. Gerity, No. 53529

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE; PATTERSON
Citation422 So.2d 284
PartiesStephanie OWEN v. Thomas C. GERITY.
Docket NumberNo. 53529
Decision Date17 November 1982

Page 284

422 So.2d 284
Stephanie OWEN
v.
Thomas C. GERITY.
No. 53529.
Supreme Court of Mississippi.
Nov. 17, 1982.

Page 286

Powell & Thrash, Gary D. Thrash, Jackson, for appellant.

Watkins & Eager, James A. Becker, Jr., Jackson, for appellee.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Chancery Court of Hinds County wherein Thomas C. Gerity, appellee, sought modification of a previous divorce decree based upon a material change in circumstances occurring subsequent to the rendition of the divorce decree. Gerity, in his petition, averred that Stephanie Owen, his former wife, appellant, had engaged in sexual misconduct and thereby forfeited her right to all future alimony under the previous divorce decree. Ms. Owen denied the material averments of the petition and subsequently filed a petition for contempt, alleging that Gerity had failed to pay a promissory note which he was obligated to pay under the provisions of the final decree for divorce. The cases were consolidated and at the conclusion of the testimony, the chancellor terminated Ms. Owen's alimony based on a finding that she had engaged in fornication with Haywood Ellis, Jr. The chancellor also found that Gerity was not in contempt of court for failing to pay the promissory note. From this finding, Ms. Owen appeals. We reverse.

The parties were married on August 21, 1971. On February 11, 1980, they separated and subsequently filed a joint bill for divorce on March 4, 1980, upon the grounds of irreconcilable differences. No children were born to the parties during the marriage. On May 7, 1980, a final decree of divorce was granted to the parties. The decree incorporated the parties' property settlement agreement which provided, among other things, that appellee would pay appellant $325 per month in alimony beginning twenty-four months from the date of the agreement 1 for housing, and continuing thereafter for sixty months so long as appellant remained the exclusive occupant of her residence.

On June 16, 1981, appellee filed the present petition for modification of the final decree for divorce, alleging that appellant had forfeited her right to receive future alimony because she was involved in a sexual relationship with Haywood F. Ellis, Jr.

On June 19, 1981, appellant filed a petition for contempt, contending appellee had failed to abide by the parties' property settlement agreement incorporated in the final decree of divorce in that he had failed to discharge a promissory note owing to appellant's mother. The two cases were consolidated for trial.

Appellee's proof as to the alleged sexual relationship between appellant and Ellis was wholly circumstantial. The proof established that appellee and Ellis were fond of each other, enjoyed each other's company and saw each other on an average of three to four times a week. Both appellant and Ellis admitted they had chaperoned dances together, exhanged gifts, attended movies together, dined together, attended various functions together and had even been alone in appellant's house together on occasion. Appellant and Ellis denied they had ever

Page 287

engaged in sexual relations even though they had had ample opportunity to do so if they so desired.

Although appellee sought by photographs to establish that Ellis was seen leaving appellant's home early in the morning on June 12, 1981, the evidence overwhelmingly established that Ellis was staying at appellant's residence while she was visiting her mother in Nashville, Tennessee. Both appellant and Ellis denied they had ever slept overnight in the same house except when they stayed with appellant's mother in Nashville for a visit.

Based upon the proof, the chancellor ordered that appellant's alimony be terminated.

I. Did the chancellor err in terminating appellant's alimony based upon her alleged adulterous relationship?

The subsequent misconduct of a wife following an absolute divorce from her husband may, in proper circumstances, constitute a material change in circumstances so as to entitle the husband to modification of the final decree for divorce. McHann v. McHann, 383 So.2d 823 (Miss.1980); McRae v. McRae, 381 So.2d 1052 (Miss.1980); and Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961). The misconduct most often complained of involves alleged sexual misconduct of a wife whereby the husband seeks a termination of future alimony provided for by the final decree of divorce.

Although in previous decisions this Court has referred to this type of sexual misconduct as adultery, adultery cannot be committed by an unmarried woman with an unmarried man, the gist of the offense being voluntary sexual intercourse of a married person with a person other than the offender's spouse. Because the bonds of matrimony in cases such as this one have been severed, the offending spouse's sexual misconduct cannot be categorized as anything more than fornication. In such a case, the chancellor, as the trier of fact, has the duty to find whether or not the alleged misconduct of the former wife is of such a nature as to forfeit her right to future alimony. This question must be faced and determined on a case-by-case basis. McHann, supra, and McRae, supra.

An adulterous relationship may be established by circumstantial evidence, the act itself usually being committed...

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31 practice notes
  • Mississippi Power & Light Co. v. United Gas Pipe Line Co., No. 84-4220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 17, 1985
    ...592 F.2d 238, 241 (5th Cir.1979). Under Mississippi law, words of a contract are to be given their ordinary meaning. Owen v. Gerity, 422 So.2d 284, 288 (Miss.1982); Continental Casualty Company v. Hester, 360 So.2d 695, 696 (Miss.1978). When a written instrument is clear, definite, explicit......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant. Owen v. Gerity, 422 So.2d 284, 287 [sic]. Proof of either of these elements must be supported by evidence of a reasonable opportunity to satisfy the infatuation or procl......
  • Dorman v. Dorman, No. 98-CA-00258-COA.
    • United States
    • Court of Appeals of Mississippi
    • February 23, 1999
    ...an adulterous inclination coupled with 2) an opportunity to consummate the inclination. Holden, 680 So.2d at 798 (citing Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982)). The inclination may be proven by showing either 1) an infatuation with a particular person or 2) a general adulterous pro......
  • Anderson v. Anderson, No. 94-CA-00870-SCT
    • United States
    • Mississippi Supreme Court
    • April 10, 1997
    ...cohabiting with a third party. The decision reached by the chancellor followed the past decisions by this Court in Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982) Page 70 ; McHann v. McHann, 383 So.2d 823 (Miss.1980); McRae v. McRae, 381 So.2d 1052 (Miss.1980). Susan Anderson complains to th......
  • Request a trial to view additional results
31 cases
  • Mississippi Power & Light Co. v. United Gas Pipe Line Co., No. 84-4220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 17, 1985
    ...592 F.2d 238, 241 (5th Cir.1979). Under Mississippi law, words of a contract are to be given their ordinary meaning. Owen v. Gerity, 422 So.2d 284, 288 (Miss.1982); Continental Casualty Company v. Hester, 360 So.2d 695, 696 (Miss.1978). When a written instrument is clear, definite, explicit......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant. Owen v. Gerity, 422 So.2d 284, 287 [sic]. Proof of either of these elements must be supported by evidence of a reasonable opportunity to satisfy the infatuation or procl......
  • Dorman v. Dorman, No. 98-CA-00258-COA.
    • United States
    • Court of Appeals of Mississippi
    • February 23, 1999
    ...an adulterous inclination coupled with 2) an opportunity to consummate the inclination. Holden, 680 So.2d at 798 (citing Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982)). The inclination may be proven by showing either 1) an infatuation with a particular person or 2) a general adulterous pro......
  • Anderson v. Anderson, No. 94-CA-00870-SCT
    • United States
    • Mississippi Supreme Court
    • April 10, 1997
    ...cohabiting with a third party. The decision reached by the chancellor followed the past decisions by this Court in Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982) Page 70 ; McHann v. McHann, 383 So.2d 823 (Miss.1980); McRae v. McRae, 381 So.2d 1052 (Miss.1980). Susan Anderson complains to th......
  • Request a trial to view additional results

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