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DECEMBER 21, 1988




Gregory Lamar Cheatham appeals the divorce, lump sum alimony and attorney's fees granted in the Chancery Court of Neshoba County, Mississippi, in favor of Judy Stokes Cheatham. He assigns four errors:

I. The Honorable Chancellor Committed Reversible Error by Granting an Award of Lump Sum Alimony to the Appellee.

 II. The Honorable Chancellor Committed Reversible Error in Awarding Lump Sum Alimony in the Amount of $40,000 to the Appellee.

 III. The Honorable Chancellor Committed Reversible Error in Awarding Attorney's Fees to the Appellee.

 IV. The Honorable Chancellor Committed Reversible Error in Awarding a Divorce to the Appellee on the Grounds of Uncondoned Adultery.


 Gregory L. Cheatham and Judy Stokes Cheatham were wed September 6, 1974. They lived together until Judy moved out on August 2, 1985. There were no children, but as will be seen, the subject of children caused friction. Judy's complaint for divorce alleged uncondoned adultery on the part of Gregory. In

 the alternative, Judy alleged irreconcilable differences. Gregory answered denying the adultery charge and alleged in a cross-complaint irreconcilable differences.

 The two major factual disputes at trial concerned 1) whether Judy condoned the adultery and 2) the value of Gregory's business interests, mostly a convenience store he owned jointly with his mother.

 Gregory admitted having sexual intercourse outside the marriage while married to Judy. Judy's proof tended to show at least two adulterous episodes on June 30, 1985, and July 13-14, 1985, with a divorcee and mother of a child, who was subpoenaed but did not appear to testify.

 Judy testified that prior to June 30, 1985, she heard rumors from friends and relatives that Gregory was having an affair. She heard rumors in August 1983 and in April 1984, and confronted Gregory both times but he denied the affair. Only the second time did Judy's informer mention the name of Gregory's partner. Then, in April 1985, Judy's mother told Judy that a friend told her of Gregory's infidelity with the same named partner. This time, Judy again confronted Gregory and he again denied it. Judy, however, left that Friday and did not return home until the following Monday. She spoke with a lawyer who advised her she needed proof of the adultery, and she then sought the aid of a private investigator.

 Judy's brother Jimmy assisted the investigator, and the week following June 30, 1985, Jimmy brought pictures linking Gregory and Vicki to a rendezvous at a camp house. Her attorney told her that one incident might be explained and that she needed more proof. Judy continued to sleep in Gregory's bed, though she testified she did not engage in sexual intercourse with Gregory while Jimmy and the investigators gathered more evidence.

 July 13, 1985, a Saturday, investigators followed the partner to a motel where she was later joined by Gregory. She and Gregory stayed at the motel that night and into the next afternoon. Investigators testified they took up observation in the adjoining room and heard moaning and groaning through the walls on several occasions.

 The record is unclear exactly when Judy learned of this subsequent transgression, but it appears she did not learn of it until July 30, 1985. She moved out August 2, 1985.

 She testified that Gregory never admitted his illicit affair, and she never encouraged him to see another woman. Even after the June 30 meeting, when she first received some tangible

 proof of the affair, she continued to live with and sleep in the same bed with Gregory in order to obtain more proof. Judy testified that she did not have sexual intercourse with Gregory after June 30, 1985, though Gregory never tried to have relations during this time.

 Judy also acknowledged that the couple's relationship had changed as a result of the inability to have children and Gregory's unwillingness to adopt. Judy and Gregory had seen a fertility expert for several years and Judy had six miscarriages during the marriage.

 Gregory testified that he admitted to Judy that he had an affair in April 1985, and Judy seemed more concerned with her mother's knowledge of the affair than with the affair's existence. Gregory also testified that he did have sexual relations with Judy the Wednesday before she moved out.

 The couple's financial picture centered around Cheatham's Mini Mart, owned jointly by Gregory and his mother, Roma. At the time they were married, Gregory had a job with U. S. Motors, but he was soon laid off. He received unemployment compensation for several weeks and then worked almost two years with the Kemper County Employment Security Commission office before opening the store in October 1977. Gregory originally agreed to start the store with another man, Marshall Fulton. Without Judy's consent or knowledge, Gregory and Fulton bought the property for $3,000 and jointly obtained a loan. Before the store could be completed, however, Fulton realized it would not be profitable enough for both partners and offered to buy out Gregory or sell out to him. Roma Cheatham, mother of Gregory, then bought the other half of the business. Roma and Gregory paid off the old loan and arranged new financing.

 Of course, with any new business, it did not turn a profit immediately. Judy's salary provided the major income source to the family during Gregory's unemployment and the beginning period of the store. Judy continued to work at the hospital until 1979 when she took a job with the Kemper County Health Department. She continued to receive raises and by trial her annual income was $18,000.

 The couple's expenses were few during this period, however. For nine of the eleven years of the marriage the couple lived rent-free in a home owned and furnished by Judy's mother. After the store opened, Greg brought home most of the groceries from the family store. Judy also filled up her car at the store, but did not pay for the gas. Sometimes she would settle up at the end of the month, but not always.

 Judy contributed about $1,000 a year to the state retirement fund in her name. She received virtually all the couple's personal effects by agreement; thus, little evidence of its value appears in the record.

 Judy also helped around the store, as much as eight hours a week at first, but gradually she worked fewer hours which declined to almost nothing the last couple of years. Gregory testified that Judy had no obligation to work and her help was not needed.

 The store did become profitable quickly, though there was confusing evidence of exactly how much Gregory's interest was worth. In 1978, the first full year the store operated, Gregory took out income of $13,537.47. Gregory took out $29,430 in income in 1984. In 1985 Gregory testified he took out $18,000, but his income tax return for 1985 reflected partnership income of only $7,771. Gregory offered some unclear explanation about a credit investment for this discrepancy and said his accountant could explain it. The accountant was not called to testify and the 1985 partnership income return was not introduced.

 There was little evidence of the Mini Mart's net worth. As noted, no 1985 financial statement appears in the record; however, the 1984 partnership income tax return lists total assets of $73,914 and total liabilities of $25,124, for a net capital worth of $48,790. In his answer to interrogatories, Gregory listed the insured value of the store at $88,000, and listed a loan debt of $32,000 to the Commercial Bank of Dekalb.

 Gregory did testify that recently profits were down at the store because he had to cut prices to meet increased competition.

 In addition to the Mini Mart, Gregory was a farmer and cattle rancher. Gregory originally borrowed $21,000 from FHA to finance his cattle endeavor. In 1985 Gregory owned 213 cattle, mostly calves. By trial he had sold 99, leaving him with 114. He owed $14,000 on the loan at trial. Gregory testified, however, that the farming and cattle operation never paid its way. Gregory's income tax return noted a $5,109 farming loss in 1985. In 1984 Gregory reported a farm loss of $8,672.24.

 At the conclusion of the trial, the chancellor found that Judy did not condone the adultery by sleeping with Gregory when there" was no resumption of marital cohabitation and the parties remained strangers to each other in the marriage bed. . . . "He thus found that Judy Cheatham was entitled to a divorce on the grounds of adultery.

 Based on Judy's plea for an equitable division of property,

 the chancellor awarded her lump sum alimony of $40,000, payable in five annual installments of $8,000 beginning July 1, 1986. The chancellor based this finding on the fact that the store was the" only property right of any substantial value "to which Judy had contributed by supporting the family and by working in the store at various times. The chancellor also awarded attorney's fees to Judy in the amount of $1,700. The chancellor entered judgment accordingly, and Gregory timely perfected this appeal.


 Did the Chancellor Err in Awarding Lump ...

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