Rawson v. Buta, 90-CA-1034

• Decision Date: 22 October 1992
• Docket Number: No. 90-CA-1034,90-CA-1034
• Parties: George Allen RAWSON v. Vera BUTA (Rawson).
• Court: Mississippi Supreme Court

Page 426

609 So.2d 426

George Allen RAWSON v. Vera BUTA (Rawson).

No. 90-CA-1034.

Supreme Court of Mississippi.

Oct. 22, 1992.

Rehearing Denied Dec. 31, 1992.

Helen J. McDade, DeKalb, for appellant.

Marvin E. Wiggins, Jr., DeKalb, for appellee.

En Banc.

PITTMAN, Justice, for the COURT:

This divorce case arose on appeal of the husband, George Rawson, from the judgment of the Chancery Court of Kemper County in granting a divorce to his wife, Vera Buta, then Vera Rawson. The appellant timely filed a notice of appeal framing his issues for appeal as:

A. Does a trial judge abuse his discretion by allowing a divorce case to proceed uncontested where the defendant's answer is filed three days late and the plaintiff made no written application to the court under civil procedure rule 55?

B. Must a judgment granting a divorce on a charge of habitual, cruel and inhuman treatment be reversed where plaintiff fails to present any witness to corroborate the charge or to show such was unavailable after her due diligence?

I.

The plaintiff, Vera Buta ¹, suffers from myo-facial syndrome after having been rear-ended in 1988. She described being in frequent pain which could strike her even while performing minor tasks. Buta was suffering from this condition when she married Rawson on September 24, 1988. The condition has left her unable to perform the work she had been doing, driving a gasoline tanker semi-tractor/trailer.

The couple moved to Mississippi in May of 1989. Buta opened a beauty shop. Buta and Rawson lived in Vera's Winnebago to which Rawson had made additions. After several months, the marriage began to deteriorate. Buta found that Rawson's mother frequently visited, would criticize Buta, and would countermand Buta's instructions to her children. Rawson became extremely angry whenever Buta raised the matter with him. Buta testified that Rawson had several times drawn back as if to strike her.

Rawson and his mother "just went crazy" when, in May 1989, Buta wanted to go to the Florida funeral of the grandmother who raised her, even though her stepfather financed the trip. Buta made the eight-day trip, "and they never got over it. They were nasty ever since."

A few weeks later, on June 30, Rawson told Buta to pack her things and leave, but she replied that the trailer belonged to her. Though he threatened to burn the trailer, Buta still refused to leave. Rawson "grabbed my arms ... and give me a jar, like a push...." Buta sought counsel the next day from the attorney who later served as defense counsel for Rawson. Buta also made out a will, "just in case." She began sleeping on the couch and removed her hunting guns for safekeeping. Rawson noticed the absence of the guns on the day of his 20th high school reunion. Buta testified that they had already paid for the reunion dinner tickets, so they attended, but Rawson made her walk behind him and let the door slam on her. At some point that Saturday night, he grabbed Buta so hard that the bruises were still visible in photographs taken two days later.

Rawson was working out of town when Buta served him with the complaint for divorce. When he received the papers, he telephoned her and said, "When I get home this weekend, one of us will not be alive."

On July 27, 1990, Buta filed for divorce. Buta alleged that she and Rawson had married on September 24, 1988, in Florida and had separated July 22, 1990. She also alleged that irreconcilable differences existed between her and Rawson and that he had been habitually cruel and inhuman toward her. She asserted that she was entitled to a divorce pursuant to Sections 93-5-1, -2, and -17 of the Mississippi Code. Buta requested relief in the form of a divorce, lump-sum alimony, periodic alimony, injunction against harassment, as well as certain personalty and the satisfaction of certain financial obligations.

On July 27, 1990, Buta requested temporary relief based upon her dire need and pursuant to Section 93-5-17 of the Mississippi Code, alleging that Rawson had physically assaulted her several days before, resulting in "numerous bruises." She also alleged that she was afraid to return to the couple's marital home, which she owned. She alleged that Rawson had taken and stored her personal items without her permission.

On August 13, the chancellor issued an agreed order that the motion for temporary relief be heard on September 4, 1990. On September 4, he gave notice that trial would proceed on September 10.

Dated September 8 but stamped as filed Friday, September 7, Rawson answered Buta's original complaint for divorce and also filed a "counter-complaint" for divorce. Buta's attorney testified that he received the documents at 4:35 p.m. on Friday, September 7. Rawson's counter-complaint alleged that Buta was guilty of habitual cruel and inhuman treatment, habitual drunkenness, and that irreconcilable differences existed between the parties such that Rawson was entitled to a divorce pursuant to Section 93-5-2 of the Mississippi Code. Rawson prayed for a divorce, certain personalty, and Buta's payment of certain debts.

On September 10th, the chancellor heard the case. As a preliminary matter, Buta moved to strike Rawson's answer and counter-complaint on the grounds of their untimely filing. In reviewing the motion to strike, the chancellor noted that Rawson had been served with the original complaint on August 3, 1990; citing civil procedure rule 12(a), the chancellor observed that Rawson's thirty-day period to answer had expired on September 4, and that Rawson had not requested an extension of time. ² The court stated:

[T]he court sees no reason that it can ignore the provisions of rule 12 and sustains this motion because the plaintiff has had no way to respond to the counterclaim because of the short notice, because the defendant did not seek any order from the court allowing the answer to be filed past the deadline as prescribed in rule 12 of the civil rules of procedure, so [the plaintiff's motion to strike] is sustained.

The chancellor proceeded to hear the action as uncontested and instructed the defense attorney that the defense could offer no proof. During trial, Buta's sole evidence corroborating her grounds consisted of photographs of her bruises. At the conclusion of the testimony, the chancellor stated:

[The photographic evidence presented by the plaintiff] is the only corroborative evidence [of habitual, cruel and inhuman treatment] before the court. It is not in the form of testimony. This is one case that is unbelievable of bungling on both sides, both sides. I have never seen a case, even an uncontested case, in which there was no corroborating witnesses except where there is proof showing where that is not available. The only thing that you have got are those two pictures. I am not sure whether that will withstand the rule of corroborat[ion].

The court asked the attorneys to provide authority on what constitutes sufficient corroboration: "Does it have to be done by a witness or can it be done by physical evidence such as photographs ...?" After a recess, the court stated:

The law in this state is well-established that, in divorce cases, there must be a witness to the acts of actual grounds for divorce and there must be corroboration of that witness's testimony to the acts in this case of habitual, cruel and inhuman treatment. The only corroborative evidence in this case are two pictures that show acts of what the witness testified to as physical abuse by her husband. Those pictures were admitted without objection. The court is going to consider those as corroborative evidence.

On September 11, 1990, the chancellor granted the divorce on the grounds of Rawson's habitual cruel and inhuman treatment, pursuant to Section 93-5-1 of the Mississippi Code. On September 21, Rawson filed a notice of appeal.

II.

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. Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310, 1312 (Miss.1986); Fournet v. Fournet, 481 So.2d 326, 328 (Miss.1985).

Rawson admits that his answer to the complaint was late. He nonetheless complains that, procedurally, Buta was not entitled to the judgment of divorce because she failed to give him written notice of her request under M.R.C.P. Rule 55. Rawson also claims that, despite the fact that he missed the deadline to answer, he should nonetheless have been allowed to answer because he agreed to an early trial date. Rawson also contends that the chancellor granted an uncontested divorce without the requisite proof. We find the procedural arguments of both parties off track, as the divorce proceeding is governed by statute and the statute in effect at the Rawson's divorce did not require an answer.

Mississippi divorce actions are governed by the divorce and alimony provisions of section 93, chapter 5 of the Mississippi Code. See Miss.Code Ann., Sec. 93-5-1 et seq. (1972). The procedural provisions of this chapter limit the applicability of the Mississippi Rules of Civil Procedure, which govern only where the divorce statute stands silent. Miss.R.Civ.P. 81(a)(9) and comment. See also Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss.1988); Clark v. Whiten, 508 So.2d 1105, 1107 (Miss.1987). Miss.Code Ann. Sec. 93-5-7 (1972) ³, in effect at the time of trial, provides:

The proceedings to obtain a divorce shall be by bill in chancery, and shall be conducted as other suits in chancery, except that (1) the defendant shall not be required to answer on oath; (2) the bill shall not be taken as confessed; (3) admissions made in the answer shall not be taken as evidence; (4) the clerk shall not set down on the issue docket any divorce case unless upon the request of one of the parties; and (5) the court shall have full power in its discretion...