BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.
PRATHER, JUSTICE, FOR THE COURT:
This domestic relations action from the Chancery Court of the First Judicial District of Hinds County, Mississippi, challenges the sufficiency of evidence to sustain an award of separate maintenance.
Nancy Lynn Robinson sought separate maintenance from her husband John T. Robinson. John answered the complaint, challenging the constitutionality of judicially awarded separate maintenance, and counterclaimed seeking a divorce on the grounds of habitual cruel and inhuman treatment. In an amended opinion, the chancellor denied a divorce to John and awarded separate maintenance to Nancy. In addition, the chancellor rejected John's claim that separate maintenance is improperly based on gender and, therefore, violative of the Equal Protection Clause of the United States Constitution.
From this decision John appeals, assigning as error the following:
(1) The chancellor erred in denying a divorce to John T. Robinson on the ground of habitual cruel and inhuman treatment.
(2) The chancellor erred in granting separate maintenance to Nancy Lynn Robinson.
(3) The chancellor erred in refusing to hold that awards of separate maintenance in Mississippi are gender based and violate the Equal Protection Clause of the Fourteenth Amendment.
(4) The amount of support awarded by the chancellor was excessive.
John T. Robinson and Nancy L. Robinson were married on December 28, 1963. During their twenty-three year marriage, they had three children, Thomas Alan (age 20), John Clark (age 18), and Mary Frances (age 10), (their ages at the time of the hearing). Upon John's separation from his wife on January 9, 1986, Nancy brought suit against him seeking an award of separate maintenance. John counterclaimed for a divorce on the ground of habitual cruel and inhuman treatment.
The proof offered by the husband upon which to sustain his ground for divorce was based upon adverse physical effects, job demotion, and physiological effects. John contended he suffered weight loss, stomach problems and respiratory disorders as a result of the alleged mistreatment by Nancy. Although he had seen physicians regarding his physical problems, there was no corroboration of medical testimony in support of his claim of failing health. John testified that he ended treatment for his stomach disorders in early 1985 and that his ulcers healed. He further admitted that he had confided in Nancy that his job was causing him to have stomach problems and was causing his hands to break out. However, any health problems were well at the time of separation.
John further blamed Nancy for his job demotion. John testified that his company had demoted him due to poor job performance, but that he told people it was because he wanted to do more technical and detailed work than he was doing as an actuary. However, John's secretary testified that the demotion was voluntary and that it occurred in May, 1986, five months after the parties' separation. John testified that Nancy had been supportive of his job by working to help him earn his degree, entertaining in their home, and traveling with him to conventions.
John further testified that he and his wife maintained normal sexual relations up until the time of the separation, and that he sent her flowers and told her he loved her on their anniversary on December 28, 1985, only 14 days before leaving the marital home because he" just couldn't continue. "John maintained that sexual relations were a burden for Nancy and that she couldn't respond to him; yet he also testified that sexual relations were continuing the week of his departure from the marital home.
Finally, John maintained that his father-in-law's contributions to the family finances (a home valued at approximately $200,000.00 of which John is half owner, educational trust funds for their children, paying the private school tuition for their daughter, a monthly allowance for the son in college, and periodic gifts for as much as $15,000.00) affected his self-confidence. However, he neither refused his father-in-law's gratuities nor requested his father-in-law to discontinue his financial gifts.
John admitted that he had had an adulterous affair with another woman, but that the affair did not begin until after the separation. John's witness, Mrs. Estes, testified that she had seen John and his mistress at employment functions together prior
to the separation. John terminated the affair after detectives discovered the relationship.
Nancy testified that she did everything in her power to keep the marriage together, including seeing a marriage counselor. After meeting with the counselor once, John refused to continue the sessions. He now refuses to return to the marital home under any circumstances. Nancy testified that she's willing to accept the return of her husband to the marital domicile and does not want a divorce.
At the conclusion of the trial, the chancellor rendered his bench opinion awarding John a divorce on the ground of habitual cruel and inhuman treatment. Nancy was awarded use and possession of the home, custody of the minor children, child support in the amount of $900.00 per month per child and $6,000.00 to pay debts incurred by Nancy after the separation.
Some of the chancellor's pertinent findings in his first bench opinion were as follows:
Arguments ensued growing in intensity and frequency over the years and the very acts of generosity on the part of Nancy's family . . . tended in the long run to be part of the difficulties which ensued between them. John thought he was making a good salary and that they should live on his income. Nancy wanted . . . to live in the style to which she had become accustomed in her father's home . . . . [T]he effect of her drive in this direction was to drive a wedge between herself and her husband. Her efforts, her attitude and her desires were not necessarily bad in themselves but given the psychological makeup of her husband, Nancy in effect brought about the separation of the parties.
[T]he interminable arguments that lasted well into the night that made it difficult if not impossible for him to carry on his work, made it totally impossible for him to continue to live under such circumstances. I am satisfied that he was justified in leaving and that the actions of Nancy, given all the circumstances of the case, did truly in fact amount to habitual cruel and inhuman treatment entitled John to grounds for divorce. The relief from a situation at home that was intolerable did nothing to enhance John's judgment and he soon entered an affair with another woman.
While I am sure she did not approve in any way, the affair obviously was no deterrent to Nancy who
states that she would take him back if he would come back to her. I saw no real understanding on the part of Nancy as to what had broken up her marriage and I do not believe that there would be any possibility of a resumption of the marriage given the psychological backgrounds of each one of these parties. The marriage has ended.
The following day, the chancellor requested that both attorneys meet with him at his office. He informed counsel that he had made an error in judgment and felt compelled to rewrite his bench opinion. Thereafter, on August 22, 1987, an amended bench opinion was filed. The findings of the opinion remained unchanged, but the end result was to deny John a divorce and to award Nancy and the children separate maintenance in the amount of $2,925.00 per month until January 1, 1988, when the amount would increase to $3,000.00 per month. Further, this amount would decrease to $2,500.00 per month when the oldest child reached 21 years of age. This amount will continue until the two remaining children are emancipated at which time the payments will cease. John was also ordered to maintain medical insurance on the children, and Nancy was awarded use and possession of the home until such time as the last child became emancipated.
A final judgment was entered in accordance with the amended opinion from which this ...