Rodriguez v. Rodriguez

• Decision Date: 20 January 2009
• Docket Number: No. 2007-CA-00132-COA.,2007-CA-00132-COA.
• Citation: 2 So.3d 720
• Parties: Ronald RODRIGUEZ, Appellant/Cross-Appellee v. Anne RODRIGUEZ (Armstrong), Appellee/Cross-Appellant.
• Court: Mississippi Court of Appeals

2 So.3d 720

Ronald RODRIGUEZ, Appellant/Cross-Appellee v. Anne RODRIGUEZ (Armstrong), Appellee/Cross-Appellant.

No. 2007-CA-00132-COA.

Court of Appeals of Mississippi.

January 20, 2009.

Michael P. Younger, attorney for the appellant.

William R. Wright, W. Benton Gregg, Jackson, Trhesa Bryan Barksdale, attorneys for appellee.

EN BANC.

KING, C.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. This appeal stems from a judgment entered by the Rankin County Chancery Court granting Anne Rodriguez (Anne) a divorce from Ronald Rodriguez (Ronnie) on the ground of uncondoned adultery. On January 7, 2006, Anne secretly recorded a conversation between herself and Ronnie. She repeatedly asked if he had an affair with another woman. After much probing, Ronnie admitted to having two affairs early in their marriage. He claimed that one of the women had been from Jackson and the other from New Orleans. This recording was admitted into evidence, during the hearing on September 22, 2006, along with a series of diary entries Anne had kept during the days surrounding this confrontation. These entries purported to document Ronnie's multiple attempts at asking for forgiveness — bringing up such things as Jesus forgiving an adulterer on the cross and women they knew personally forgiving their own husbands for adultery. After hearing testimony from both Anne and Ronnie, along with portions of the tape, and seeing the diary entries, the chancellor found that grounds for divorce existed based on uncondoned adultery. He issued the judgment for divorce on December 12, 2006.

¶ 2. Also on December 12, 2006, the chancellor heard testimony from Anne and Ronnie regarding the marital estate, the amount of alimony requested, and attorneys' fees. Ronnie and Anne stipulated that they would split the marital estate equally. Anne requested $900 a month in periodic alimony and asked for an award of her remaining attorneys' fees which equaled $6,709.20. After the December 12 hearing, at the chancellor's behest, counsel for both parties submitted competing, proposed findings of fact and conclusions of law. The chancellor then adopted, verbatim, Ronnie's proposed property division. This order and opinion, which was released on December 12, 2006, included roughly equal division of the marital estate with Ronnie receiving slightly more out of certain accounts and Anne receiving $300 a month in periodic alimony. Both parties were ordered to pay their own attorneys' fees.

¶ 3. Ronnie and Anne both filed their notices of appeal with the Chancery Clerk of Rankin County on January 22, 2007. Ronnie challenged the sufficiency of the evidence in awarding the divorce based upon adultery. Anne challenged the division of assets, amount of alimony, and denial of attorneys' fees as ordered by the chancellor through his adoption of Ronnie's proposed order and opinion. Finding no error, we affirm the chancellor's decisions.

ISSUE ON APPEAL

WHETHER THE CHANCERY COURT ERRED IN GRANTING A DIVORCE BASED ON ADULTERY.

¶ 4. A chancellor is required to make specific findings of fact when a party alleges adultery as a ground for divorce. Dillon v. Dillon, 498 So.2d 328, 330 (Miss. 1986). When these findings have been made, this Court will only set them aside if they are "manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss.1995).

¶ 5. The supreme court has repeatedly held that "[a]dultery may be shown by evidence or by admissions and either are sufficient to support a decree of divorce." Id. at 1119 (quoting Jordan v. Jordan, 510 So.2d 131, 132 (Miss.1987)). Adultery can be proven through circumstantial evidence due to the inherently secretive nature of the acts involved. Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996). In order to grant a divorce based upon circumstantial evidence there must be clear and convincing evidence of (1) "an adulterous inclination" and (2) a "reasonable opportunity to satisfy that inclination." Id. Evidence of inclination and opportunity must "be inconsistent with a reasonable theory of innocence." Id. Adultery can also be proven by direct proof in the form of the defendant's own admissions. See Davis v. Davis, 832 So.2d 492, 496(¶ 12) (Miss.2002) (wife "satisfied this burden when, on direct examination, [husband] admitted to the adulterous conduct").

¶ 6. This Court is reluctant to disturb the factual findings of a chancellor because of "[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts." Rainey v. Rainey, 205 So.2d 514, 515 (Miss. 1967). The chancellor's factual findings are "insulated from disturbance on appellate review" if they are "supported by substantial credible evidence." McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992) (citing Jones v. Jones, 532 So.2d 574, 581 (Miss.1988)). However, we "may reverse a divorce decree based on adultery when the evidence is lacking." Lister v. Lister, 981 So.2d 340, 344(¶ 25) (Miss.Ct.App.2008). The evidence must rise above a mere suspicion or mere jealousy before this Court can accept the findings as sufficient. McAdory, 608 So.2d at 701 ("`Trifles light as air' may be sufficient to convince the jealous or the suspicious, but they do not impress the court with the same degree of credulity. Before accepting charges so seriously affecting the character of a person, the evidence must be clear and convincing.") (quoting Banks v. Banks, 118 Miss. 783, 788, 79 So. 841, 842 (1918)).

¶ 7. The chancellor found that Anne provided sufficient evidence to prove adultery through the presentation of the taped conversation and her supplemental diary entries. The chancellor deemed the tape to be a credible source and found that the statements made by Ronnie on the tape recording were truthful. On the tape, Ronnie swears that he had sex with "only those two." He informs Anne that the affairs were with a woman in New Orleans and another from Jackson. He claims that he did not remember their names, but he had intercourse with each of the women more than once. These admissions are supplemented by Anne's diary entries which detail Ronnie's multiple requests for Anne's forgiveness. The tape recording and the diary entries sufficiently support the chancellor's finding that Anne proved the adultery by clear and convincing evidence. Finding that the evidence presented met the clear and convincing standard required for adultery, there was no abuse of discretion by the chancellor. Because this Court finds that the chancellor did not manifestly err in his findings of fact or conclusions of law regarding the grounds for divorce, we must affirm his decision to grant Anne the divorce based upon uncondoned adultery.

ISSUES ON CROSS-APPEAL

I. WHETHER THE CHANCERY COURT ERRED IN THE MANNER IN WHICH IT DISTRIBUTED THE MARITAL ASSETS.

¶ 8. "This Court employs a limited standard of review of property division and distribution in divorce cases." Bowen v. Bowen, 982 So.2d 385, 393(¶ 32) (Miss.2008) (quoting Owen v. Owen, 928 So.2d 156, 160(¶ 10) (Miss.2006)). The chancellor's distribution of the marital assets will be affirmed as long as "it is supported by substantial credible evidence." Id. at 394. We will not overturn a decision of the chancellor "even if this Court disagrees with the lower court on the finding of fact and might [arrive] at a different conclusion." Id.

¶ 9. When ruling on the distribution of marital assets, the chancellor must make certain findings regarding the application of the factors set out in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Ronnie and Anne entered into a stipulation on December 12, 2006, which stated that the chancery court would "proceed with its financial inquiries in this cause as if the Court's analysis of equitable distribution under Ferguson ... had resulted in a finding that the marital estate should be divided equally."

¶ 10. After the hearing on December 12, 2006, the parties' respective counsel(s) submitted competing, proposed findings of fact and conclusions of law. Ronnie's proposal was adopted verbatim by the chancellor as the equitable division of the marital estate. The supreme court has stated that "whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court's sound discretion." Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1266 (Miss.1987). When a chancellor does adopt, verbatim, the proposed findings of fact and conclusions of law prepared by a party, this Court "analyzes such findings with greater care and the evidence is subjected to heightened scrutiny." Gutierrez v. Bucci, 827 So.2d 27, 31(¶ 13) (Miss.Ct.App.2002) (quoting Brooks, 652 So.2d at 1118). The findings will be viewed with a more critical eye than if the chancellor had made independent judicial findings of fact and conclusions of law. Rice Researchers, 512 So.2d at 1265. "Where the chancellor has failed to make his own findings of fact and conclusions of law, this Court will `review the record de novo.'" Holden, 680 So.2d at 798 (citing Brooks, 652 So.2d at 1118). This will ensure that the chancellor has adequately performed his judicial function and made decisions regarding the facts of the case because he is the one who can most fairly make decisions based upon the credibility of the evidence as a whole. Rice Researchers, 512 So.2d at 1265. Thus, we will analyze the record under the Ferguson factors to ensure that the chancellor was not manifestly wrong in his adoption of Ronnie's proposed property division. See Ferguson, 639 So.2d at 928.

1. Substantial contribution to the accumulation of the property.

¶ 11. The three sub-factors that should be considered in determining the parties' contributions are:

(a) direct or indirect economic contribution...