Smith v. Smith

• Decision Date: 28 June 2012
• Docket Number: No. 2009–CA–01661–COA.,2009–CA–01661–COA.
• Citation: 90 So.3d 1259
• Court: Mississippi Court of Appeals
• Parties: Billy Pink SMITH, Appellant v. Sue Yielding SMITH, Appellee.

90 So.3d 1259

Billy Pink SMITH, Appellant

v.Sue Yielding SMITH, Appellee.

No. 2009–CA–01661–COA.

Court of Appeals of Mississippi.

Nov. 1, 2011.

Rehearing Denied March 13, 2012.

Certiorari Denied June 28, 2012.

Richard Shane McLaughlin, attorney for appellant.

Jak McGee Smith, Tupelo, attorney for appellee.

Before LEE, C.J., MYERS and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. The Itawamba County Chancery Court granted Sue Smith a divorce from her husband Billy Smith based partly on Billy's gambling losses, which exceeded $300,000. We find Billy's extensive dissipation of marital assets, when combined with his pattern of fraudulent conduct and unwelcome sexual advances toward Sue, satisfy the criteria for divorce based on habitual cruelty. We further find the chancellor correctly applied the law and committed no manifest error in classifying and distributing the marital property. Thus, we affirm.

FACTS

¶ 2. Billy and Sue married in 1965. They had one child, Billy Smith Jr., who was emancipated by the time of the trial in this case.

¶ 3. Both Billy and Sue were school teachers for many years. After retiring, they started an internet business, which sold computer software to school districts throughout Mississippi. The parties eventually sold their software business for a profit. They used some of the proceeds to start a business, Fulton Rental Properties, Inc. (“FRP”). Initially, Billy owned 50% of the stock in FRP, Sue owned 25%, and Billy Jr. owned 25%. After the parties separated, Billy Jr. sold his twenty-five-percent interest to his father for $50,000.

¶ 4. After the parties had been married for about thirty-five years, Billy developed a severe gambling addiction. He gambled away substantial sums of money—over $300,000—from 2000 to 2007. The vast majority of the losses occurred from 2003 to 2006.

¶ 5. Billy and Sue separated in February 2006. Approximately two months later, Sue filed for divorce. Her amended complaint alleged the fault-based grounds of habitual cruel and inhuman treatment and constructive desertion. On July 7, 2009, the chancellor granted the divorce, finding Sue had proven both grounds. In dividing the property, the chancellor valued Billy's gambling losses at $314,000. Finding Billy had committed wasteful dissipation, the chancellor ordered him to reimburse Sue one-half of this amount—$157,000. The chancellor's overall distribution of the marital estate was roughly equal between the parties.

¶ 6. On appeal, Billy argues the chancellor erred by: (1) granting the divorce; (2) finding he had accrued $314,000 in gambling losses and ordering him to reimburse Sue for one-half of this amount; and (3) determining Billy owned no separate-property interest in FRP.

STANDARD OF REVIEW

¶ 7. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). We do not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003).

¶ 8. When reviewing a chancellor's interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001). A chancellor's determination that a spouse's conduct rose to the level of habitual cruel and inhuman treatment is a determination of law, which we review de novo. Potts v. Potts, 700 So.2d 321, 322 (¶ 10) (Miss.1997); Anderson v. Anderson, 54 So.3d 850, 851 (¶ 7) (Miss.Ct.App.2010).

DISCUSSION

I. Habitual Cruel and Inhuman Treatment

¶ 9. Billy argues the chancellor erred by granting the divorce based primarily on his gambling losses. He contends gambling can never, in itself, constitute a ground for divorce based on habitual cruelty. Sue responds that Billy's excessive gambling, when combined with his pattern of deceptive conduct to finance his gambling, his unwelcome sexual advances, and poor hygiene, made the marriage revolting to her.

A. General Requirements

¶ 10. In Mississippi, one of the twelve fault-based grounds for divorce is habitual cruel and inhuman treatment. Miss.Code Ann. § 93–5–1 (Supp. 2011). To obtain a divorce on this ground, the plaintiff must show conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Richard v. Richard, 711 So.2d 884, 889 (¶ 22) (Miss.1998). The plaintiff must prove one of these two prongs by a preponderance of the credible evidence. Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss.2008).

¶ 11. In reviewing a divorce based on cruelty, “[t]here is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Bodne v. King, 835 So.2d 52, 59 (¶ 24) (Miss.2003). Evaluating the impact on the offended spouse is a subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person. Faries v. Faries, 607 So.2d 1204, 1209 (Miss.1992). The plaintiff must show a casual connection between the defendant's conduct and the impact on the plaintiff. Id. And the defendant's cruelty must not be too temporally remote from the separation. See Richard, 711 So.2d at 890 (¶ 23) (finding a divorce may be granted based on “habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs[.]”); see also Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][b]-[c] (2005) (explaining that a strict causal connection between the conduct and the separation is no longer a required element of proof).

¶ 12. Generally, the party alleging habitual cruelty must corroborate his or her own testimony. Shavers, 982 So.2d at 403 (¶ 35). An exception is made in cases where corroboration is not reasonably possible because of the nature of the accusation. Bell § 4.02[8][d]; see also Jones v. Jones, 43 So.3d 465, 478 (¶ 30) (Miss.Ct.App.2009). “ ‘[C]orroborating evidence need not be sufficient in itself to establish [habitual cruelty],’ but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff's testimony is true.’ ” Jones, 43 So.3d at 478 (¶ 30) (quoting Bell § 4.02[8] [d] ).

¶ 13. To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility. Robison v. Robison, 722 So.2d 601, 603 (¶ 5) (Miss.1998). Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct. See Curtis v. Curtis, 796 So.2d 1044, 1047 (¶ 8) (Miss.Ct.App.2001). When there is no violent conduct involved, we review the facts on a case-by-case basis, taking into account the frequency and severity of the conduct, as well as the impact on the plaintiff. See Bell § 4.02[9] [b]. “There are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Jackson v. Jackson, 922 So.2d 53, 57 (¶ 8) (Miss.Ct.App.2006).

¶ 14. Because it is undisputed that Billy did not create a danger to Sue's safety, nor an apprehension of danger, we focus on the second prong of the test for habitual cruelty—whether any of Billy's conduct was so “unnatural and infamous” that the marriage became revolting to Sue and rendered it impossible to discharge her marital duties without risk to her health.

B. “Unnatural and Infamous”

¶ 15. Our supreme court has observed “[t]he words ‘unnatural and infamous' have not been precisely defined by precedent because the plain meanings of those words are sufficient.” To determine the plain meaning of words, we look to their dictionary definition. Gilmer v. State, 955 So.2d 829, 834 (¶ 13) (Miss.2007). The American Heritage Dictionary 1956 (3d ed. 1992) defines“unnatural” as “[d]eviating from a behavioral or social norm [.]” “Infamous” means “[c]ausing or deserving infamy; heinous[.]” Id. at 924.

¶ 16. In McIntosh v. McIntosh, 977 So.2d 1257, 1267 (¶¶ 37–38) (Miss.Ct.App.2008), this court found a wife's conduct relating to the parties' finances amounted to habitual cruelty under the “unnatural and infamous” prong. The wife in McIntosh forged her husband's name to savings bonds, cashed them without notifying him, and pretended to help him look for them afterward. We found: “Such acts certainly qualify as conduct that could have rendered the marriage revolting ... and could have made it impossible ... to discharge the duties of marriage.” Id. at 1267 (¶ 38). In Jones, 43 So.3d at 471–72 (¶ 10), 473–74 (¶¶ 15–16), 477–78 (¶¶ 26, 29), we found a husband's substantial gambling losses—when combined with his verbal abuse and sexual demands—rose to the level of habitual cruel and inhuman treatment. Though proof of the gambling losses was limited, the wife testified the losses were $100,000. Id. at 471 (¶ 10).

C. Chancellor's Findings

¶ 17. The chancellor thoroughly analyzed this issue. She granted the divorce because “the cumulative effect of Billy's conduct ... rendered the marriage intolerable for Sue.” Her findings included that:

[T]he undisputed proof is that Billy has been...