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PENNY J. ALEXANDER v. BOBBIE GERALD ALEXANDER

SEPTEMBER 10, 1986

PENNY J. ALEXANDER
v.
BOBBIE GERALD ALEXANDER



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

PRATHER, JUSTICE, FOR THE COURT:

This appeal questions whether a chancery court may grant a contested divorce on the ground of irreconcilable differences. Finding that no such statutory authority exists this Court reverses the Chancery Court of Stone County and remands the case for further proceedings.

I.

 Penny J. Alexander filed a complaint for divorce,

 alimony, and property settlement against her husband, Bobbie Gerald Alexander, on the grounds of adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences. A cross-complaint was filed by the husband seeking a divorce on the same three grounds. No property settlement agreement was reached. At the conclusion of the contested trial, the chancellor granted to the wife a divorce announcing, in part, his opinion:

 While clear proof of the second listed ground under Section 93-5-1 of the Mississippi Code of 1972, as amended, was presented against the defendant, the Court is of the opinion that a divorce upon the ground of irreconcilable differences is warranted under the facts of this case and should be awarded. The Court is of the opinion that alimony is not warranted because the plaintiff is well-educated, intelligent, and is employed in a good job where she now earns more than the defendant. Her situation in life is the basic reason for awarding a "no-fault" divorce instead of a divorce upon another ground.

 A property settlement was also ordered by the trial judge.

 Mrs. Alexander appeals to this Court asserting as error the granting of the divorce on the ground of irreconcilable differences, rather than on the ground of adultery.

 II.

 The Mississippi Legislature adopted irreconcilable differences as a thirteenth ground for divorce effective July 1, 1976. However, to utilize such ground, prescribed procedures were set forth in Miss. Code Ann. 93-5-2 (Supp.1985).

 Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint bill of the husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. No divorce shall be granted on the ground of irreconcilable differences unless the court shall find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement may be

 incorporated in the decree, and such decree may be modified as other decrees for divorce. Bills for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. A joint bill of husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, shall be taken as confessed and a final decree entered thereon, pro confesso, as in other cases and without proof or testimony in term time or vacation, the provisions of section 93-5-17 to the contrary notwithstanding. No divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or canceled by the party filing same by leave and order of the court. Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in section 93-5-1.

 Thus, married partners who could reconcile their property matters and satisfy the chancery court as to the adequacy of their agreement regarding custody and maintenance of children could obtain a divorce on the ground of irreconcilable differences.

 The appellant argues that, without such written agreement regarding property, and with a contest as to the grounds, the chancery ...


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