Rives v. Rives, 53256
| Decision Date | 30 June 1982 |
| Docket Number | No. 53256,53256 |
| Citation | 416 So.2d 653 |
| Parties | Mary George Peterson RIVES v. Don Shurden RIVES, Deceased, First United Bank of Meridian, Ms., Administrator. |
| Court | Mississippi Supreme Court |
Deramus, Lewis & Tucker, Frank Deramus, Louisville, W. O. Dillard, Jackson, for appellant.
Keyes, Moss & Piazza, Ben J. Piazza, Jackson, Kenneth Bridges, Louisville, for appellee.
Before WALKER, P. J., and BROOM and HAWKINS, JJ.
This is an appeal from the Chancery Court of Winston County wherein a divorce was granted to Don Shurden Rives from the appellant, Mary George Peterson Rives.
Mary George Peterson Rives had first filed her bill of complaint for divorce against Don Shurden Rives. Don Shurden Rives answered together with a cross-bill charging Mary George Peterson Rives with habitual cruel and inhuman treatment.
When trial was begun, the appellant, Mary George Peterson Rives, moved to amend her bill of complaint for divorce and in lieu thereof made her bill of complaint one for separate maintenance.
The appellee, Don Shurden Rives, opposed the motion. The court ruled:
We have the Motion of the Complainant to drop her prayer for a divorce and in lieu thereof to seek separate support and maintenance. This is opposed by the Defendant and Cross-Complainant. Cross-Complainant contends that he is entitled to a divorce himself. The Court is certainly of the opinion that if Mrs. Rives does not want a divorce, the Court would not be in a position to force her to seek a divorce. If she has grounds that would support separate maintenance, I think she is entitled to that. Since she is in effect seeking lesser relief on the same pleadings, I see no reason to deny the Motion. Therefore, the Court will permit the amendment of the Bill of Complaint so During the course of the trial the parties stipulated as follows:
that Mrs. Rives will not be entitled to a divorce. She will only be entitled to separate support and maintenance. If Mr. Rives establishes that he is entitled to a divorce, then he might be granted a divorce himself.
At this time both parties move in view of the evidence to stipulate that the Complainant does in fact have grounds for separate maintenance and support and would like to confine the issue toward the amount relative thereto and to our Cross Bill.
In accepting the stipulation, the court made it clear that it was being accepted subject to the court making a determination of the amount of separate maintenance and support, if it should award any, the rights of visitation and the rights of the appellee, Don Shurden Rives, with reference to his cross-bill for divorce.
After hearing much conflicting testimony and observing the demeanor of the witnesses, weighing their testimony, the court filed a lengthy and comprehensive written opinion in which it made the specific finding:
The Court further concludes that the continuation of the marriage will simply further damage both parties as well as the children. Though the Court finds both parties to be guilty of cruelty and both parties at fault, the Court concludes that considering all the actions of the Cross Defendant [Mrs. Rives] and the effects that these have had on him, [Mr. Rives] that the Cross Complainant is entitled to a divorce on the grounds of habitual cruel and inhuman treatment. Having determined that the husband should be awarded a divorce, the Court must now address the issue of child custody. There is no controversy over this issue in that the husband admits that the wife is a proper parent and the custody of the children should be awarded to her.
The court awarded the two automobiles, a 1980 Cadillac and a 1978 Lincoln Continental to the wife for her and the children's use, and required the husband to provide tags and insurance on these automobiles. The court also ordered that Mr. Rives provide a reasonable supply of gasoline for the use of the children, if they asked him for it. The wife was awarded the use of the house and all of its contents provided she reestablished it as her permanent place of residence within ninety days. Mrs. Rives was awarded the sum of $750.00 per month alimony, plus $250.00 per month per child (a total of $750.00 per month for the children). The court further awarded additional sums required to provide college educations for the children. Additionally, Mr. Rives was required to pay all reasonable and necessary medical expenses for the three minor children.
Mr. Rives was awarded the income from the farm but was required to satisfy the obligations to the Federal Land Bank and Small Business Administration for the notes secured by the farm from this income.
The court further ordered that Mr. Rives pay the complainant the sum of $2,500.00 to cover legal expenses incurred.
The decree awarding Mr. Rives a divorce was entered on February 5, 1981. An appeal was immediately taken to this Court. Thereafter on September 6, 1981, the appellee, Don Shurden rives, died. The executor named in the last will of Mr. Rives resigned as executor, and the Chancery Court of Winston County by order dated October 16, 1981, named the First United Bank of Meridian, Mississippi, Administrator De Bonis Non Cum Testamento Annexo of the Estate of Don Shurden Rives, deceased.
Thereafter, upon proper motion made, this appeal was revived in the name of First United Bank of Meridian, Mississippi, administrator d.b.n.c.t.a.
On March 25, 1982, the administrator moved for leave to withdraw the brief of appellee and other papers filed in this cause by the appellee. In support of the motion, the administrator alleged that he had been advised and was of the opinion that his The court was of the opinion that it would not be in the best interest of the estate to resist the divorce appeal and authorized the bank administrator to withdraw the appellee's brief and to allow the divorce to be reversed.
fiduciary duty as administrator required the withdrawal of the brief of appellee and other papers in order to best serve the interest of the estate of Don Shurden Rives, deceased, and the beneficiaries of the estate. Attached to said motion was an order of the Chancery Court of Winston County dated March 18, 1982, in which the court found that there appeared to be a substantial monetary savings to the estate by the estate's withdrawal from the appeal of the divorce case between the decedent, Don Shurden Rives, and Mary George Peterson Rives; and, the court further found that the heirs, Mary Donna Rives, Gennifer George Rives, and Don Shurden Rives, Jr., would receive approximately $11,991.00 more per individual if the divorce was overturned. However, the court specifically found that Don Shurden Rives' will clearly showed that he intended that the divorce appeal be carried out by his estate.
The appellant, Mary George Peterson Rives, had no objection to the motion or order.
The question presented is whether the monetary interest of the estate overrides the express will of the deceased that his executor (administrator d.b.n.c.t.a) pursue the appeal on his behalf.
We are of the opinion that the executor is bound by the wishes of the deceased, as found by the chancellor in his order, that the divorce appeal be pursued. In our opinion, the administrator would be derelict in his duty to willfully fail to carry out the express wishes of the deceased and substitute his own judgment therefor.
Therefore, the motion to withdraw appellee's brief is overruled.
The appellant, Mary George Peterson Rives, first assigns as error that the court erred in overruling her motion for a continuance.
We find no merit in this assignment of error. The appellant has not demonstrated in what way, if any, she was harmed or prejudiced by the court's refusal to grant a continuance. Moreover, a chancellor has broad discretion relative to the matter of continuances and will not be reversed unless there is shown a manifest abuse of discretion. We find none here.
The appellant next contends that the court erred in dismissing the bill of complaint for separate support and maintenance after it was stipulated that the complainant had grounds for the same.
In support of this proposition, the appellant argues that both parties cannot be guilty and innocent of habitual cruel and inhuman treatment at the same time. The complainant was asking for separate support and maintenance on the grounds of habitual cruel and inhuman treatment, and Mr. Rives was asking for a divorce on the grounds of habitual cruel and inhuman treatment. It is Mrs. Rives' position that when the defendant voluntarily stipulated that she had grounds for separate support and maintenance, that if both parties cannot be guilty and innocent of habitual cruel and inhuman treatment, then the court was manifestly wrong in granting the divorce to the appellee.
As authority, the appellant cites Hinton v. Hinton, 254 Miss. 50, 179 So.2d 846 (1965) where it is said:
We are of the opinion that this Court should not affirm a decree granting a divorce to both parties on the ground that both are guilty of habitual cruel and inhuman treatment. In order for habitual cruel and inhuman treatment to warrant a divorce, it must be the proximate cause of the separation. Bunkley and Morse's Amis, Divorce and Separation in Mississippi § 3.14(17), page 131 (1957). The two parties cannot be both guilty and innocent of habitual cruel and inhuman treatment. The divorce laws of this State do not provide that the habitual However, that opinion observed, "We have carefully studied the testimony and conclude that the chancellor could have resolved this question in favor of either party, or he could have denied both a divorce." ( Id. at 847-48).
cruel and inhuman treatment of both parties can be concurring proximate causes of the separation, entitling both to a divorce. The...
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