Reed v. Reed, No. 2001-CA-01363-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
• Citation: 839 So.2d 565
• Parties: Matthew REED, Appellant, v. Gloria REED, Appellee.
• Decision Date: 04 March 2003
• Docket Number: No. 2001-CA-01363-COA.

839 So.2d 565

Matthew REED, Appellant,
v.
Gloria REED, Appellee

No. 2001-CA-01363-COA.

Court of Appeals of Mississippi.

March 4, 2003.

839 So.2d 567

Marvin E. Wiggins, DeKalb, attorney for appellant

Helen J. McDade, DeKalb, attorney for appellee.

Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.

CHANDLER, J., for the court.

¶ 1. This is a divorce action brought by Gloria Reed against Matthew Reed on the grounds of habitual, cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor granted her a divorce on the grounds of habitual, cruel and inhuman treatment. Feeling aggrieved, Matthew appeals. He first argues that the chancellor created manifest error by incorrectly assessing the facts when granting Gloria a divorce on the grounds of habitual, cruel and inhuman treatment. Secondly, he states the chancellor erred in not considering all the factors in Armstrong before granting periodic alimony. Finally, he contends that the chancellor erred in not considering all of the Ferguson factors before dividing the marital assets. We find the chancellor manifestly in error in granting the divorce on grounds of habitual, cruel and inhuman treatment. Finding the first issue dispositive, it is not necessary to respond to the other asserted issues. Accordingly, we reverse.

FACTS

¶ 2. Gloria and Matthew Reed were married in Kemper County, Mississippi on February 25, 1981, and separated September 27, 1999. They have two children, Gregory Little who is 25, and Stella Monique Reed who is 16. On August 18, 2000, Gloria filed for divorce upon the statutory ground of habitual, cruel and inhuman treatment pursuant to Mississippi Code Annotated Section 93-5-1 (Rev. 1994).

¶ 3. Gloria claimed that for the last two months of her nineteen year marriage to Matthew she had been physically and emotionally abused. Gloria stated that up until those last two months they had a "good relationship" and that Matthew was a "good husband" and a "good father." She also testified that during this time Matthew began having affairs. She specifically accused him of being romantically involved with the next door neighbor based on seeing them talking in the yard. Matthew denied any such adulterous involvement, stating that he had merely helped the neighbor fix a lawnmower. He also made an accusation that Gloria was the one engaged in an affair.

¶ 4. Gloria cited to one specific incident of physical violence. Throughout her testimony she indicated four different dates as to when this alleged incident took place (August 1999, July 1999, the first Sunday in August 1999, and the day before Labor Day). She testified that the episode occurred when Matthew attempted to leave the house with the couple's bank records or checkbook. Gloria stated she grabbed Matthew's arm and asked him what he was doing. She testified that Matthew then shoved her across the bed, cursed her and began to choke her. She said her son came into the room and physically removed Matthew from the room.

¶ 5. Their daughter Stella was the only person to testify other than Gloria and Matthew. Stella said she witnessed the choking incident, and said her parents fought regularly. She described these fights as a "lot of screaming and stomping and stuff." Stella stated that sometimes these fights turned physical. Stella said she witnessed her father push her mother several times and saw him slap her mother on one occasion.

839 So.2d 568

¶ 6. Matthew denied being physically abusive to Gloria at any time. His version of the choking incident was that when he went to get the bank book Gloria grabbed his arm, demanded to know where he was going and ripped his shirt sleeve. He stated that this incident occurred after Gloria had accused him of being involved with the neighbor. Matthew testified that Gloria several times attacked him by scratching and tearing his clothes. He also stated Gloria charged at him with a butcher knife on numerous occasions

¶ 7. Gloria also accused Matthew of emotional abuse. She said Matthew, his brother and sister-in-law conspired to drive her from the marital home by performing "mean tricks." These mean tricks she stated included "voodoo." Her conclusion that voodoo was being performed in her house was based on the fact that strange smells were being emitted throughout the house. However, she admitted that she did not know what the practice of voodoo entailed and said she did not believe in voodoo. She stated that Matthew engaged in these activities in order to advance his romantic involvement with the neighbor. Gloria also alleged that her sister-in-law, Mary Lou Reed, plotted these evil tricks because she was jealous of her good marriage.

¶ 8. Gloria testified that Matthew emotionally abused her using verbal attacks. She said he threatened to "blow her head off" if he caught her passing the house. She also stated that Matthew verbally abused Gloria's mother. Gloria claimed that Matthew would not sleep with her and that he placed a lock on the family's food to prevent her from eating, and that he burned her clothes she left at the marital home. Matthew denied all of these allegations.

¶ 9. In the daughter's testimony she stated that she was not sure if voodoo had been practiced in their home. However, Stella testified to noticing strange smells throughout the house. As to verbal abuse, Stella first said she heard her father threaten to kill her mother only one time. She then recanted her statement and said she heard her father threaten Gloria's life several times.

¶ 10. Gloria testified that she left the marriage because she feared for her life. She stated that those two months of abuse nearly caused her to have a nervous breakdown. She said she suffered from high blood pressure and a "bad heart." Gloria said after the separation she made several attempts to reconcile with Matthew but he was unwilling.

¶ 11. In August 2000, Gloria filed for divorce based on habitual, cruel and inhuman treatment and, in the alternative, irreconcilable differences. The chancellor granted a divorce on the grounds of habitual, cruel and inhuman treatment. He stated that the wife and child's testimony of multiple assaults and multiple threats to kill were enough to entitle her to a divorce. The chancellor awarded custody of Stella to Gloria and awarded visitation rights to Matthew. Matthew was ordered to pay $285 per month in child support and $200 in alimony.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN AWARDING GLORIA REED A DIVORCE ON THE GROUND OF HABITUAL, CRUEL AND INHUMAN TREATMENT.

¶ 12. Matthew argues that the chancellor abused his discretion by granting Gloria a divorce on the grounds of habitual, cruel and inhuman treatment because it was granted based upon incorrect or inaccurate findings of fact. Matthew

839 So.2d 569

contends that the court's findings indicate Gloria testified to multiple acts of violence. He asserts that Stella, the daughter, is the only one who alleged that her father had slapped her mother on a separate occasion. Matthew points out that Gloria never testified to this event. He then argues that even if the one choking event occurred, that single act alone is insufficient grounds for a divorce. He also states that the other alleged incidences involving "mean tricks," name-calling, and voodoo do not arise to the level of proof required to establish cruelty

¶ 13. "This Court will not reverse a chancellor's decree of divorce unless it is manifestly wrong as to law or fact." Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss. 1994). "The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their...