Talbert v. Talbert, 97-CT-00088-SCT.

• Decision Date: 29 July 1999
• Docket Number: No. 97-CT-00088-SCT.,97-CT-00088-SCT.
• Parties: Nathaniel Lewis TALBERT v. Charlotte TALBERT.
• Court: Mississippi Supreme Court

759 So.2d 1105

Nathaniel Lewis TALBERT v. Charlotte TALBERT.

No. 97-CT-00088-SCT.

Supreme Court of Mississippi.

July 29, 1999.

Rehearing Denied September 30, 1999.

T.K. Moffett, Tupelo, Attorney for Appellant.

Mary Lee Walker Brown, Hernando, Attorney for Appellee.

EN BANC.

ON PETITION FOR WRIT OF CERTIORARI

SULLIVAN, Presiding Justice, for the Court:

¶ 1. We granted Lew Talbert's petition for writ of certiorari to review the Court of Appeals's judgment affirming the chancellor's granting of a divorce to his wife, Charlotte Talbert, on the grounds of habitual cruel and inhuman treatment, and the exclusion of certain letters which the Court of Appeals found to be harmless error. Mr. Talbert also asserts that the chancellor and the Court of Appeals improperly ruled that his counterclaim of adultery requires proof of causal connection to the separation of the parties.

¶ 2. We hold that the exclusion of the documents in question was reversible error and that the chancellor erred when he granted Mrs. Talbert a divorce for habitual cruel and inhuman treatment and refused Mr. Talbert's evidence of adultery. For these reasons, we reverse the judgment of the Court of Appeals, reverse the trial court's judgment, and remand this case to the DeSoto County Chancery Court for a new trial.

STATEMENT OF THE FACTS

¶ 3. Charlotte and Lew Talbert were married on June 14, 1969, in Memphis, Tennessee. At that time he was 19, and she was 17. Two sons were born of the marriage, Wesley, born November 23, 1977, and Benjamin, born October 1, 1981. Mr. Talbert went to college and earned his Certificate in Public Accounting. Mrs. Talbert earned a high school degree and worked early in the marriage when Mr. Talbert was in school, but stayed home after the children were born. Mr. Talbert had several jobs before finally becoming comptroller at First Mortgage Strategy Group in June of 1987. On the side during tax season, Mr. Talbert prepared tax returns as a CPA. Together, Mr. and Mrs. Talbert operated a billing and bookkeeping service for two rural water systems known as Water Systems Management.

¶ 4. The marriage was a rocky one. Constant bickering and name-calling were common. Both Mr. and Mrs. Talbert sought out and received treatment both for marital problems and depression. During Mrs. Talbert's many sessions for depression, her psychologist recommended that she write down her thoughts as a form of therapy. Mrs. Talbert gave the letters to her husband to read. When Mr. Talbert was through reading them, he gave them back to Mrs. Talbert who burned them. Without her knowledge Mr. Talbert kept copies of some of the letters. The trial judge refused to admit the letters into evidence but allowed Mr. Talbert to testify regarding the letters.

¶ 5. Mr. Talbert worked at First Mortgage until May of 1993, when he was laid off. Mr. Talbert fell back on his private practice as a CPA, primarily preparing tax returns, and also doing the accounting for a plumbing company and a few other businesses. In March of 1994, Mrs. Talbert demanded that Mr. Talbert move out of their home. Mrs. Talbert petitioned for divorce on the grounds of habitual cruel and inhuman treatment on April 7, 1994. Mr. and Mrs. Talbert reunited sexually in late May of 1994. Mr. Talbert answered the complaint in June of 1994, but did not counterclaim for divorce. However, any chance for reconciliation ended when Mrs. Talbert began having a sexual relationship with another man. Mrs. Talbert amended her petition for divorce in August of 1994, to allege June 1, 1994, as the date she and Mr. Talbert finally separated. On December 7, 1994, Mr. Talbert filed a counterclaim for divorce on the grounds of adultery and habitual cruel and inhuman treatment or in the alternative irreconcilable differences.

¶ 6. After five days of trial the chancellor awarded a divorce to Mrs. Talbert on the grounds of habitual cruel and inhuman treatment, denying Mr. Talbert's claim for divorce on adultery. Mrs. Talbert was given custody of the two children and title to the family home. Mr. and Mrs. Talbert were each granted a one-half interest in the family home, but Mrs. Talbert was awarded lump sum alimony in the amount of $25,000, to be taken out of Mr. Talbert's interest in the home, giving full title to Mrs. Talbert. The chancellor's order required Mr. Talbert to pay child support based upon the guidelines of 20% of his adjusted gross income, pay Mrs. Talbert the sum of $1,200 for rehabilitative alimony, transfer a one-sixth interest in his 401(k) plan to Mrs. Talbert, and pay $5,000 of Mrs. Talbert's attorney's fees. It is from this decree that Mr. Talbert appealed.

¶ 7. In a split decision, the Court of Appeals affirmed the trial court's judgment awarding Mrs. Talbert a divorce on grounds of habitual cruel and inhuman treatment. The Court also found that the chancellor did not err in ruling that Mr. Talbert was not entitled to a divorce upon grounds of adultery, because Mrs. Talbert's adultery was not a proximate cause of the couple's separation. The Court further held that although the trial court erred in excluding Mrs. Talbert's letters, the error was harmless, because Mr. Talbert was allowed to testify regarding their contents. Judge Southwick dissented, asserting that Mrs. Talbert presented insufficient evidence to support her claim for divorce upon grounds of habitual cruel and inhuman treatment. The dissenters also found that the trial court committed reversible error in failing to consider Mr. Talbert's complaint for divorce upon grounds of adultery.

STATEMENT OF THE LAW

I. ADEQUACY OF PROOF OF HABITUAL CRUEL AND INHUMAN TREATMENT

¶ 8. Although not raised by Mr. Talbert as an assignment of error in his petition, we agree with the position taken in the Court of Appeals's dissent that Mrs. Talbert's proof of habitual cruel and inhuman treatment was inadequate to support the chancellor's judgment. In Potts v. Potts, 700 So.2d 321 (Miss.1997), we said:

We have previously held that:

Cruel and inhuman treatment, unaccompanied by personal violence is such conduct only as endangers life, limb, or health, or creates reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse or such unnatural or infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible to discharge duties thereof.

Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144 (1952). We reiterated this standard in Wilson v. Wilson, 547 So.2d 803 (Miss.1989):

In years gone by, this Court has 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 be reasonably said a permanent condition.

Id. at 805 (Miss.1989) (denying divorce on the ground of habitual cruel and inhuman treatment although husband and wife were found to genuinely despise each other), cited in Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995) (affirming chancery court's failure to find the ground of habitual cruel and inhuman treatment where husband's complaint boiled down to the fact that wife was not congenial).

This Court has required more than mere unkindness or rudeness, or incompatibility or want of affection to support a finding of cruel and inhuman treatment. Churchill v. Churchill, 467 So.2d 948 (Miss.1985) (holding that party had not shown cruel and inhuman treatment even though they had irreconcilable differences and probably would never be able to live together in harmony). See also Steen v. Steen, 641 So.2d 1167 (Miss.1994) (affirming denial of divorce on ground that husband was habitually cruel and inhumane where parties fought constantly over money, husband bullied and intimidated wife, and husband had pinched her on one occasion and dragged her against a door facing on another occasion over the course of a nine year marriage; chancery court had concluded that wife was merely dissatisfied with marriage); Wires v. Wires, 297 So.2d 900, 902 (Miss.1974). We have repeatedly counseled against finding the ground based on petty indignities, frivolous quarrels, general incompatibility or petulant tempers. Howard v. Howard, 243 Miss. 301, 303-04, 138 So.2d 292 (1962); see also Wilson v. Wilson, 547 So.2d 803 (reversing divorce where sole ground pled, that spouse had been habitually cruel and inhumane, was not proven). And we have further noted that "[w]e recognize that courts have become liberal in the application of proof on the habitual cruel and inhuman treatment ground. However, by no means have they made a farce and mockery of the requirement to prove the ground." Gallaspy v. Gallaspy, 459 So.2d 283 (Miss. 1984).

Potts, 700 So.2d at 323.

¶ 9. We agree with the Court of Appeals's dissent that the facts in this case do not meet the standard for habitual cruel and inhuman treatment. The chancellor relied upon Mr. Talbert's raising his voice to Mrs. Talbert, belittling her, and a few acts of violence very early in the twenty-seven-year marriage. The record indicates that Mr. Talbert exhibited insensitive and somewhat boorish, obnoxious, and selfish behavior throughout the period of the marriage, but again, the fact that one spouse eventually grows weary of the other's established behavior pattern does not give rise to the requisite standard for habitual cruel and inhuman treatment. Furthermore, Mr. Talbert put on proof of Mrs. Talbert's mental instability, recurring unsubstantiated accusations of infidelity, ridicule of his lack of sexual prowess, blame of the separation on his lay off and the subsequent lack of income, and Mrs. Talbert's own temper and aggressive behavior. Mrs....