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PATSY L. DILLON v. CLYDE W. DILLON

NOVEMBER 12, 1986

PATSY L. DILLON
v.
CLYDE W. DILLON



BEFORE WALKER, C.J., DAN LEE & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Clyde W. Dillon obtained a divorce from his wife, Patsy L. Dear Dillon in the Chancery Court of Franklin County, Mississippi. The divorce was granted on the ground of adultery and Stacy Clyde Dillon, the eighteen year old son of the parties, elected to live with his mother and she was granted his custody. Clyde Dillon was ordered to pay to her $250.00 per month for child support and further ordered to pay the remaining indebtedness on a car owned by the minor, Stacy Dillon. Clyde Dillon was further ordered to pay the remaining indebtedness on a car used by his former wife, Patsy Dillon. Patsy Dillon was awarded all the remaining personal items located in their home and she was awarded one-half (1/2) of all the sheets, blankets, linens, towels, pots, pans, dishes and utensils of the parties at the time of their separation. The chancellor further ordered that the home and real property that was jointly owned by the parties was to be partited according to 11-21-7, Miss. Code Ann. (1972), and that the proceeds from this sale would be divided among the parties. Dissatisfied with the judgment of the trial court, Mrs. Dillon prosecutes this appeal.

The chancellor in his final decree made a detailed finding of facts in this case. It would add nothing to the jurisprudence of this State that those facts be repeated for publication. Suffice to say, this Court has carefully reviewed the record in this case and the finding of facts of the chancellor.

 I.

 WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE GRANTING OF A DIVORCE ON THE GROUND OF ADULTERY?

 We begin with the basic statement that unless the chancellor's determination of fact is manifestly wrong this Court will uphold his decision. Dubois v. Dubois, 275 So. 2d 100 (Miss. 1973).

 It is also well accepted law in this jurisdiction that in order to grant a divorce on the ground of adultery, adultery must be proven by clear and convincing evidence. McCraney v. McCraney, 208 Miss. 105, 43 So. 2d 872 (1950).

 In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982); Magee v. Magee, 320 So. 2d 779, 783 (Miss. 1975); Rogers v. Rogers, 274 So. 2d 671, 673 (Miss. 1973). Where the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to conclusion of guilt. Rogers, 274 So. 2d at 673. However, such evidence need not prove the alleged acts beyond a reasonable doubt and the plaintiff is not required to present direct testimony as to the events complained of due to their secretive nature. Bunkley & Morse's Amis, Divorce & Separation in Mississippi, 3.09(5) (1957). Nevertheless, the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence. Owen, 422 So. 2d at 287, citing and quoting Banks v. Banks, 118 Miss. 783, 79 So. 841 (Miss. 1918).

 Additionally, a decision concerning such a claim ultimately requires the chancellor to make a finding of fact. See Cheek v. Ricker, 431 So. 2d 1139, 1143 (Miss. 1983) (adulterous relationship necessarily requires finding of fact). Where chancellors make such findings of fact, this Court has consistently held that their decisions will not be set aside on appeal unless they are manifestly wrong. Devereaux v. Devereaux, 493 So. 2d 1310, 1312 (Miss. 1986); Culbreath v. Johnson, 427 So. 2d 705, 707-708 (Miss. 1983); Voss v. Stewart, 420 So. 2d 761, 765 (Miss. 1982).

 Upon this record we are satisified that there is sufficient evidence to support the chancellor's granting of a divorce on the grounds of adultery and that that finding was not manifestly wrong. There is no merit to this assignment of error.

 II.

 DID THE CHANCELLOR ERR IN DIVIDING THE JOINTLY ACCUMULATED PROPERTY OF THE MARRIAGE?

 Mrs. Dillon complains under this assignment that the chancellor did not equally divide the jointly ...


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