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JUDY C. SHELTON v. JIMMY D. SHELTON

OCTOBER 16, 1985

JUDY C. SHELTON
v.
JIMMY D. SHELTON



BEFORE PATTERSON, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

This divorce was heard in the Chancery Court of Lee County, Mississippi, Honorable Glenn Fant, Jr., special chancellor, presiding. At the conclusion of the hearing, the chancellor denied a divorce to Mrs. Shelton on the grounds that her testimony was uncorroborated and granted a divorce to Mr. Shelton, on the grounds of habitual cruel and inhuman treatment. Mr. Shelton also received the custody of the two children of the parties, ages 6 and 8. Mrs. Shelton was awarded periodic alimony and lump sum alimony but was denied a property settlement.

She has assigned five assignments of error. We take up only the first.

 DID THE CHANCERY COURT ERR IN GRANTING JIMMY D. SHELTON ANY RELIEF?

 Mrs. Shelton filed a motion to strike Mr. Shelton's answer on the grounds that he was intimidating and harassing her witnesses or, in the alternative, for the court to enter an order enjoining him from such conduct.

 Judy Franks testified concerning this motion. She stated that, subsequent to her testimony at the temporary hearing and her being subpoenaed to testify then, Mr. Shelton called her three or four times to discuss her testimony. Mr. Shelton told her if she said anything against him he would have her job; for her to watch and see what happened to another witness and then she would be afraid to testify. On cross-examination, Judy Franks said that she had previously worked for Mr. Shelton but had taken another job.

 Tommy Franks, husband of the previous witness, testified that he had talked with Mr. Shelton concerning his and his wife's testimony. He testified that Mr. Shelton once stated to him that Judy Franks would be sorry if she testified, but Mr. Shelton made no attempts to prevent Mrs. Franks or Mr.

 Franks from testifying, nor did Mr. Shelton make any threats to Mr. Franks to prevent him from testifying.

 At the conclusion of the testimony concerning the motion, the chancellor stated, "on the undisputed testimony, I do find an instance of intimidation, . . . I don't know of any authority to strike this, but I do know that it is contemptuous . . . ." The chancellor later executed an order enjoining Jimmy D. Shelton from intimidating or harassing witnesses, or carrying out threats already made.

 Late in the trial, a conference in chambers was had concerning witness Shirley Holloway. Her deposition had been taken, the substance of which was that she had no material knowledge about the case. She told Mrs. Shelton's lawyer outside the courtroom that she had lied during the deposition and wanted to testify truthfully at the trial.

 Holloway testified in chambers first as to the alleged intimidation. In essence, she testified that she had lied at the deposition because of threats made by Mr. Shelton. Again, the chancellor signed an order enjoining Jimmy D. Shelton from any action against Holloway, though he pointed out that the witness had impeached herself. Mr. Shelton denied that he had intimidated or harassed any witnesses. Holloway later testified in the divorce proceedings that she had had an affair with Mr. Shelton. The chancellor did not believe her testimony.

 He who comes into equity must come with clean hands.

 In Cole v. Hood, 371 So. 2d 861, 863-64 (Miss. 1979), we said the following:

 He who comes into equity must come with clean hands. - It is the meaning and purpose of this maxim to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by willful inequity or illegality. . . . It may be described as such willful misconduct, in equity or fraud . . . as would be condemned and pronounced wrongful by honest and fairminded men. It is not necessary that it be pleaded by the defendant - although it will require a plainer case if it is not so pleaded, - for if at any time during the progress of the ...


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