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PAUL DAY v. ELLEN B. DAY

JANUARY 07, 1987

PAUL DAY
v.
ELLEN B. DAY



BEFORE WALKER, C.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal born of a decade of domestic intranquility presents three questions which, once the correct legal standards have been identified, are largely ones of fact.

 For the reasons explained below, we find well within the evidence the Chancery Court's findings that the husband had not established entitlement to a divorce on grounds of habitual cruel and inhuman treatment or constructive desertion. We further regard the finding that the husband had made no good faith offer of reconciliation, so that a prior separate maintenance decree might be avoided, as within the evidence and thus beyond our authority to disturb. We affirm.

 II.

 Although Paul and Ellen Day have been in and out of court for almost nine years, regarding a myriad of real and imagined reciprocal sins arising out of the their marital relationship, the present proceeding dates only back to September 14, 1984. On that date Paul filed a new complaint seeking a divorce from Ellen on grounds of habitual cruel and inhuman treatment and desertion. Alternatively, Paul sought relief from the financial terms of a March 9, 1979, separate maintenance decree pursuant to which he had been providing support for Ellen. In that regard Paul alleged an attempt to reconcile the parties' conjugal differences and Ellen's refusal thereof.

 The matter came on for hearing in the Chancery Court of Yazoo County, Mississippi, on December 20, 1984, and in due course thereafter the Court rendered an opinion dismissing Paul's complaint for divorce and denying his request for

 termination of the separate maintenance payments. The final judgment carrying that decision into effect was entered July 3, 1985. It is from that final judgment that Paul presents the instant appeal.

 Paul and Ellen Day were married on May 26, 1956. Three children have been born of the marriage, Lee Allen Day, Steven Matthew Day and Roland Andrew Day. The two oldest boys are now adults, being at least 26 and 25 years of age, respectively. We are not clear whether Andy Day is 20 or 21 years old.

 By way of further background, this litigational saga began May 15, 1978, one year to the day after Paul and Ellen separated. On May 15, 1978, Paul Day filed a complaint for divorce alleging habitual cruel and inhuman treatment. Ellen Day answered, alleging she was entitled to a divorce on the grounds of desertion, and filed a bill for separate maintenance. On March 9, 1979, the Chancery Court dismissed Paul's complaint, and granted Ellen's bill for separate maintenance. No appeal was taken. Thereafter, on August 6, 1980, Paul filed a petition to modify the bill for separate maintenance, but the Court ruled in Ellen's favor. Again there was no appeal.

 On September 3, 1982, Ellen filed a petition for contempt alleging that Paul was in arrears in child support, and seeking money for home repair and an automobile. Paul subsequently filed his answer denying the contempt charges. On October 29, 1982, the court awarded Ellen monetary relief, but held that Paul was not in contempt. On April 6, 1984, Ellen filed another motion to cite Paul in contempt for failure to pay the amount awarded on October 29, 1982. Thereafter Paul filed an answer denying contempt and a counterclaim for divorce. Prior to the hearing on this matter, Paul paid the amount sought by Ellen, and the court dismissed the motion for contempt citation with prejudice. The complaint for divorce led ultimately to the July 3, 1985 judgment from which this appeal has been taken.

 III

 Paul Day's first assignment of error is that the Chancery Court erred when it refused to grant him a divorce. As at trial, Paul here asserts alternative grounds. He claims that his proof entitled him to a divorce on grounds of habitual cruel and inhuman treatment, Miss. Code Ann. 93-5-1 [Seventh] (1972), or, in the alternative, on grounds of ...


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