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LINDA C. DEVEREAUX v. JOHN C. DEVEREAUX

SEPTEMBER 10, 1986

LINDA C. DEVEREAUX
v.
JOHN C. DEVEREAUX



BEFORE HAWKINS, P.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

The Chancery Court of Tate County granted a divorce to John C. Devereaux on grounds of habitual cruel and inhuman treatment and denied relief on those same grounds to Linda C. Devereaux. From that judgment both parties appeal.

I.

 WAS IT MANIFEST ERROR TO DENY DIVORCE TO LINDA DEVEREAUX AND GRANT DIVORCE TO JOHN DEVEREAUX?

 In summary the testimony supporting Linda's charge of habitual cruel and inhuman treatment against John was supported by her testimony in that John hit her 15 or 20 times during the course of their marriage, cursed her on several occasions, frequently questioned her fidelity to him, and occasionally stayed out all night.

 This testimony was supported by Cheryl Devereaux, daughter of the parties, when she testified that her father was always the main instigator of the problems between her parents. Cheryl has seen her father hit her mother twice but has never seen her mother strike her father. Cheryl testified that she had heard her father vilify her mother on several occasions.

 Wesley Devereaux, the son of the parties, testified that he had never seen his father hit his mother but he had seen his mother after she had been struck. He further testified that he had heard his father vilify his mother on several occasions. Wesley said that his mother never started any arguments between the parties.

 To contradict this testimony John Devereaux himself testified that he only hit Linda four times and only once with his fist in order to stop her from hitting him. He complained that Linda cursed him on several occasions, their sex life had decreased in frequency, and since their reconciliation Linda had been cold toward him. In further support of his grounds for divorce John testified that he was suspicious of Linda's relationship with one H. H. House and that he had in fact on April 20, 1982, found Linda and H. H. House engaged in an act of adultery.

 We will not reverse the chancellor's finding of fact on contradictory testimony unless it is manifestly wrong. Voss v. Stewart, 420 So.2d 761, 765 (Miss. 1982); and legions of other cases and citations. The converse of that truism is that we will reverse a chancellor on his finding of fact when upon the record it is manifestly wrong. In order for the chancellor to deny Linda Devereaux a divorce from John Devereaux on the grounds of habitual cruel and inhuman treatment, he would have to find that the testimony as to those grounds by Linda Devereaux, Cheryl Devereaux and Wesley Devereaux was incredible and

 unbelievable. Nothing in the record would substantiate that finding by the chancellor. We are of the opinion that on the evidence offered by the appellant she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and accordingly this cause will be reversed and remanded to the Chancery Court of Tate County for the entry of a judgment of divorce to Linda Devereaux on the ground of habitual cruel and inhuman treatment.

 Applying the same test to the testimony of John Devereaux which the chancellor found more believable and upon which he granted a divorce to John Devereaux, we find that excluding the testimony concerning the alleged adultery on April 20, 1982, that the testimony offered by John Devereaux is insufficient to support an award of divorce to him on the grounds of habitual cruel and inhuman treatment. See Fournet v. Fournet, 481 So.2d 326 (Miss. 1985); Kergosien v. Kergosien, 471 So.2d 1206 (Miss. 1985); Stennis v. Stennis, 464 So.2d 1161 (Miss. 1985); Gallaspy v. Gallaspy, 459 So.2d 283 (Miss. 1984); and Marble v. Marble, 457 So.2d 1342 (Miss. 1984).

 The chancellor found that Linda Devereaux and H. H. House had committed adultery on April 20, 1982, and while he did not grant a divorce to John Devereaux on those grounds, he did consider the adultery when entering the decree of habitual cruel and inhuman treatment.

 For the reasons set forth below the chancellor was manifestly in error when he found that Linda Devereaux had committed adultery on April 20, 1982.

 John and Linda married on September 6, 1963. On March 25, 1982, Linda was granted a divorce from John on the grounds of cruel and inhuman treatment and irreconciliable differences.

 This divorce was revoked on July 7, 1982, under a joint application of John and Linda Devereaux by the authority of ...


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