Steen v. Steen, 92-CA-01316

• Decision Date: 11 August 1994
• Docket Number: No. 92-CA-01316,92-CA-01316
• Citation: 641 So.2d 1167
• Parties: Kathy Elizabeth Bennett STEEN v. Gerald Don STEEN.
• Court: Mississippi Supreme Court

Page 1167

641 So.2d 1167

Kathy Elizabeth Bennett STEEN v. Gerald Don STEEN.

No. 92-CA-01316.

Supreme Court of Mississippi.

Aug. 11, 1994.

Cynthia Langston Lott, Langston Frazer Dockins & Sweet, Jackson, for appellant.

Donald A. McGraw, Jr., Montgomery, Smith-Vaniz & McGraw, Canton, for appellee.

Before PRATHER, P.J., and SULLIVAN and ROBERTS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

After nine years of marriage, Kathy Elizabeth Steen ("Kathy") sought a divorce from her husband Gerald Don Steen ("Gerald") on grounds of habitual cruel and inhuman treatment. The Madison County chancellor dismissed

Kathy's complaint for divorce, granted custody of the couple's two children to Kathy, and ordered that she maintain health insurance for them as a form of separate maintenance. Gerald was not required to pay any child support. Kathy appeals, alleging the following errors:

I. THE TRIAL COURT ERRED IN REFUSING TO GRANT KATHY ELIZABETH BENNETT STEEN A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT AND IN DISMISSING HER COMPLAINT FOR DIVORCE.

II. THE TRIAL COURT ERRED IN FINDING THAT GERALD DON STEEN WAS ENTITLED TO SEPARATE MAINTENANCE.

III. THE TRIAL COURT ERRED IN REFUSING TO GRANT ANY AMOUNT OF CHILD SUPPORT TO BE PAID BY THE NON-CUSTODIAL PARENT TO THE CUSTODIAL PARENT, KATHY ELIZABETH BENNETT STEEN.

IV. THE TRIAL COURT ERRED IN REFUSING TO ORDER THE NON-CUSTODIAL PARENT TO SHARE IN THE COST OF HIS CHILDREN'S MEDICAL EXPENSES AND DENTAL EXPENSES.

We affirm the chancellor's dismissal of Kathy's complaint for divorce, as well as his order that she maintain health insurance for the children, but we remand for further findings on the issue of child support only.

II.

FACTS AND PROCEDURAL HISTORY

Gerald and Kathy were married on August 21, 1982, in Attala County, Mississippi. Two children were born of this marriage, Jeffrey Warren Steen, born in 1983, and Gencey Elizabeth Steen, born in 1986. Gerald, thirty-four, is a sales manager for LuVel Dairy. Kathy, thirty-one, is a consultant with the Central Data Processing Authority, State of Mississippi.

Kathy and Gerald experienced marital difficulties for several years prior to the complaint for divorce. They sought counseling with several individuals, to no avail. On April 19, 1991, Kathy filed a complaint for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. An order entered June 10, 1991, granted Kathy temporary custody of Jeffrey and Gencey. Gerald was ordered to pay $375.00 per month in child support, and to maintain medical insurance on the children.

Gerald's answer and counterclaim, filed July 12, 1991, moved to dismiss Kathy's complaint on the ground she had abandoned the marriage without cause. Gerald requested separate maintenance and custody of the children.

Trial was held September 28-29, 1992. During the presentation of her case in chief, Kathy claimed that she had suffered both physical and emotional trauma inflicted by Gerald. She testified that she had begun to show physical manifestations in the form of weakness and fatigue in late 1985 or early 1986. In addition, she testified to two incidents of physical harm. The first incident took place in February or March of 1991. Kathy testified that Gerald became angry, pushed her down on the bed, and while holding her down, repeatedly pinched her hard enough to cause bruises on her arms and upper body. Gerald admitted to the pinching; he testified that Kathy had deliberately provoked his anger by asserting that she had slept with another man, and by expressing further desire to sleep with other men. Kathy, while admitting to an affair with a co-worker in 1984 or 1985, denied telling Gerald of the affair that day. However, she stated that there was a "possibility" she intentionally told Gerald that she wanted to go to bed with other men. Several days after this incident, Kathy and the children moved out of the marital home, into a two bedroom apartment. Kathy testified she left out of fear that Gerald would hit her again and kill her. ¹

The second incident occurred after the separation, when Gerald went to Kathy's apartment and attempted to take Jeffrey home with him against Kathy's wishes. Kathy asserted that after she ordered him to leave, Gerald dragged her back inside the apartment, scraping her arm on the door facing. Gerald testified that when he picked Jeffrey up and attempted to leave the apartment, Kathy tried to intervene, and her arm was scratched. ²

Kathy testified that during the marriage, she and Gerald were in constant conflict over finances. Kathy complained that Gerald made all financial decisions in the marriage, and that he made major investments without consulting her. Gerald testified that he did in fact consult Kathy, or attempted to consult with her, on major business decisions.

Other problems complained of by Kathy included a lack of privacy from Gerald's family; Gerald's nagging and constant criticism for her failure to attend church on Sunday or Wednesday nights; disagreement over their sons' involvement in baseball; a lack of intimacy; her sole responsibility for the children; Gerald's complaints that she did not keep an immaculate house, along with his refusal to perform household chores; Gerald's constant bullying and intimidation. Kathy also testified that Gerald became very judgmental after being elected a deacon.

Kathy acknowledged during her testimony that she was dissatisfied with the marriage from its inception until the separation in March of 1991. Kathy also testified that she did not love Gerald and was afraid of him.

Gerald testified he still loved Kathy, despite their marital problems, and that he had never wanted a divorce. Gerald stated that shortly after he became a deacon in the First Baptist Church of Ridgeland in January of 1991, Kathy told him that she wanted a divorce, that she could not be a deacon's wife, and that she wanted her space and freedom. According to Gerald, Kathy also told him that she did not love him, that she had never loved him, and that she never even wanted to marry him. Gerald testified that after their separation, Kathy often brought up the subject of divorce. Gerald stated that he told Kathy he had forgiven her adultery, and desired only that she return to the marital home; he did not wish to divorce and would not agree to one.

At the conclusion of Kathy's case in chief, her complaint for divorce was dismissed. After hearing Gerald's evidence, which focused on custody of Jeffrey and Gencey, the chancellor awarded custody of the children to Kathy. Gerald was awarded visitation rights, use and benefit of the marital home and ordered to make the mortgage payments on the home. Kathy was ordered to pay medical insurance for the children and costs of court, in place of separate maintenance paid to Gerald. The chancellor stated in his judgment that Gerald should not be required to pay child support to Kathy "at this time."

Kathy's motion to amend the chancellor's judgment was denied.

III.

DISCUSSION OF ISSUES

Scope of Review

Our scope of review in domestic relations matters is limited. "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). In other words, "[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true "in the areas of

divorce and child support." Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

1. Habitual Cruel and Inhuman Treatment

Kathy claims her proof was sufficient to establish by a preponderance of the evidence that she was entitled to a divorce from Gerald on the ground of habitual cruel and inhuman treatment.

We have studied the testimony and disagree. The standard applicable to a divorce sought on the ground of habitual cruel and inhuman treatment was recently stated:

In years gone by, this Court consistently held that habitual cruel and inhuman treatment could be established only by a continuing course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition.

Smith v. Smith, 614 So.2d 394, 396 (Miss.1993), citing Wilson v. Wilson, 547 So.2d 803, 805 (Miss.1989). See also Stennis v. Stennis, 464 So.2d 1161 (1985); Gallaspy v. Gallaspy, 459 So.2d 283 (Miss.1984); Marble v. Marble, 457 So.2d 1342 (Miss.1984).

While habitual cruel and inhuman treatment may be established by a preponderance of the credible evidence, as opposed to clear and convincing evidence, the charge "means something more than unkindness or rudeness or mere incompatibility or want of affection." Wires v. Wires, 297 So.2d 900, 902 (1974). "(T)here must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility." Parker v. Parker, 519 So.2d 1232, 1234 (Miss.1988). We have counseled against the awarding of a divorce on the grounds of habitual cruel and inhuman treatment where the lawsuit is based merely "on petty indignities, frivolous quarrels, general incompatibility and the petulant temper of one or both parties." Howard v. Howard, 243 Miss. 301, 303-04, 138 So.2d 292, 293 (1962).

Kathy was asked why the separation took place and testified as follows: "I was afraid to stay in the house with Gerald any longer. I was afraid that he would hit me again and that he...