Wilbourne v. Wilbourne, No. 1998-CA-00983-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: BEFORE KING, P.J., BRIDGES, AND LEE, JJ.
• Citation: 748 So.2d 184
• Parties: Don R. WILBOURNE, Appellant, v. Mathilde WILBOURNE, Appellee.
• Decision Date: 27 July 1999
• Docket Number: No. 1998-CA-00983-COA.

748 So.2d 184

Don R. WILBOURNE, Appellant,
v.
Mathilde WILBOURNE, Appellee

No. 1998-CA-00983-COA.

Court of Appeals of Mississippi.

July 27, 1999.

Rehearing Denied October 12, 1999.

Certiorari Denied January 13, 2000.

748 So.2d 185

Henry Palmer, Meridian, Attorney for Appellant

Helen J. McDade, DeKalb, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND LEE, JJ.

BRIDGES, J., for the Court:

¶ 1. Don Wilbourne (Don) appeals the decision of the Chancery Court of Kemper County, Mississippi, in which he was denied a divorce on the ground of habitual, cruel and inhuman treatment and ordered to pay separate maintenance to his wife, Mathilde Wilbourne (Mathilde). Don argues on appeal that (1) he was entitled to a divorce on the ground of habitual, cruel

748 So.2d 186

and inhuman treatment, (2) the trial court erred by ordering him to remove himself from his girlfriend's house, and (3) Mathilde was not entitled to separate maintenance. Because we find that the Chancery Court erred in ordering Don by injunction to remove himself from his girlfriend's house and to resume the marriage, we reverse in part and affirm in part

FACTS

¶ 2. The Wilbournes were married on November 15, 1963, and had three children who are now adults and self-supporting. On April 17, 1997, Mathilde filed for separate maintenance, alimony and support, and related relief. On May 23, 1997, Don filed for a divorce on the ground of habitual, cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor issued his order on November 19, 1997, wherein he denied Don's complaint for divorce and awarded separate maintenance to Mathilde in the amount of $150 per month. The court also allowed the appellee's attorney to submit a proposed judgment that included an award of exclusive possession, use, and occupancy of the marital home to Mathilde and required Don to pay all mortgage payments due thereon to Farmers Home Administration. The judgment further ordered Don to provide Mathilde with transportation, to maintain hospital and medical insurance policies, and to pay any expenses not covered by the insurance policies. In addition, the judgment ordered Don by injunction to remove himself from the home of his girlfriend and to resume his marital obligations to his wife. Unhappy with the proposed judgment, Don filed a motion to correct or amend the judgment contending that the language concerning the use of the marital home, the insurance policies, and the transportation was not part of the court's opinion and should not have been included in the judgment. The trial court granted this motion stating that the judgment should be corrected or amended because it was open-ended and vague. After hearing proposed findings of fact by both parties and reviewing all the evidence, the chancellor amended the original judgment on April 3, 1998. The amended judgment ordered that Mathilde was entitled to separate maintenance in the amount of $450 per month. The amended order further awarded Mathilde exclusive possession, use, and occupancy of the marital home and required Mathilde to make the mortgage payments on the home to the Farmers Home Administration. Aggrieved by the chancellor's ruling, Don has perfected this appeal.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER DON WILBOURNE WAS ENTITLED TO A DIVORCE BASED UPON THE EVIDENCE AND LAW ON THE GROUNDS OF HABITUAL, CRUEL AND INHUMAN TREATMENT.

¶ 3. On appeal, this Court will not reverse unless it finds that the findings of the chancellor were manifestly wrong. Steen v. Steen, 641 So.2d 1167, 1169 (Miss. 1994); Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993). Where there is substantial evidence supporting the chancellor's ruling, the decision will be upheld. Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995). Further, we must review these findings in the light most favorable to the appellee. Rawson v. Buta, 609 So.2d 426, 429 (Miss. 1992). Where the chancellor's findings of fact are supported by credible evidence, this Court is not at liberty to disturb those findings. In Polk v. Polk, 559 So.2d 1048, 1049 (Miss.1990), the Mississippi Supreme Court held that the credibility of witnesses and the weight of their testimony, as well as the interpretation of the evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts. Where the matters on appeal concern divorce and child support, this Court must give even greater deference to the chancellor's decisions

748 So.2d 187

in factual matters. Steen, 641 So.2d at 1169-70

¶ 4. Habitual cruel and inhuman treatment may be established by a showing of 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. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). Although the cruel and...