DATE OF JUDGMENT: 10/19/95 TRIAL JUDGE: HON. WILLIAM H. MYERS COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
The opinion of the court was delivered by: Smith, Justice
ON PETITION FOR WRIT OF CERTIORARI
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
MOTION FOR REHEARING FILED:
¶1. This case comes to the Court on Petition for Writ of Certiorari filed by Everett Clyde Richard. The Jackson County Chancery Court granted Everett Richard a divorce from Deborah A. Richard on the ground of habitual cruel and inhuman treatment and awarded him custody of the couple's three minor daughters. The Court of Appeals denied the divorce finding that none of the acts complained of by Everett constituted grounds of habitual cruel and inhuman treatment and reversed and rendered. The Court of Appeals did not reach any other assignments of error on appeal. The petition for writ of certiorari was filed with this Court on November 19, 1997, and granted on January 22, 1998. The issue presented for certiorari review is whether the judgment of the Court of Appeals is contrary to stare decisis and a departure from the case law promulgated by this Court defining cruel and inhuman treatment. We find that the crux of Everett's complaint of cruelty lies more in the habitual, wrongful accusations of infidelity and incest rather than in physical abuse or fear of such. These accusations and proof thereof alone are extreme enough to constitute cruel and inhuman treatment. Further, when all the things complained of are viewed as a whole, keeping in mind the habitual nature of the acts, they amount to habitual cruel and inhuman treatment. We therefore find that the judgment of the Chancery Court of Jackson County, granting Everett a divorce on the ground of habitual cruel and inhuman treatment should be affirmed.
¶2. Everett and Deborah Richard were married for the first time in August of 1978 and divorced in March of 1984. The couple remarried in December of 1986, and separated again in October of 1994. The couple has three minor daughters who were ages fourteen, twelve and ten at the time of the divorce hearing. The two older daughters both testified at the hearing and stated that they wished to live with their father.
¶3. At the time of the trial, Everett was employed with the U.S. Post Office and had a gross salary of approximately $35,000 per year. He has completed two years of college. After Deborah forced Everett to leave the house in 1994, he worked at an additional job so that he could support Deborah and the three children. He testified that he worked from 8:30 a.m. until 11:00 p.m. Deborah is not employed. She worked for a time as a rural mail carrier, but was involved in an accident. Following the accident, Deborah refused to be examined by the postal services' doctor, as required by the statute, and eventually was terminated. An attorney was hired, who got Deborah reinstated, but she refused to return to her job.
¶4. Deborah did not appear in court for the trial in this matter, although the chancellor ascertained that Deborah was well aware of the hearing. The hearing went forward before the chancellor. Deborah's attorney was present, and cross-examined Everett and the two older daughters, both of whom testified at length. Documents and financial data were admitted into evidence.
¶5. The testimony and evidence showed that Deborah sat in front of the television set all day long watching QVC, the "home shopping" network, and purchased many items. She ran up large telephone bills, including one call to the "psychic friends" network for $500 for a single call. The telephone company eventually disconnected the telephone. In an effort to keep up with the bills, Everett worked two jobs, paid Deborah $500 every two weeks, made the second mortgage payment on the house of $350, paid Deborah's car note, and paid off a signature loan at the credit union made to Deborah, yet Deborah's expenses far exceeded Everett's ability to provide. Deborah did not make the first mortgage payment on the house during the separation, and at the time of the divorce hearing, the house had been foreclosed. The purchaser was in the process of beginning eviction proceedings.
¶6. Testimony was presented to the chancellor that physical violence took place in front of the children. Deborah hit Everett, and Everett hit Deborah. The children corroborated this as well as Everett. Further, Deborah, during the marriage, constantly accused Everett of adultery, and accused him of sexually molesting the two older daughters. Deborah asked Everett how it felt to have sexual intercourse with the oldest daughter in her presence. Both children testified at the hearing that their father had never touched them in an inappropriate manner, that he took them to church, and took them shopping for school clothes, etc. The girls and Everett testified that after the washing machine developed problems, Deborah stopped washing clothes, and the carport floor was covered with dirty clothes. Everett took clothes to the laundromat when he visited, but Deborah would not allow him to visit often, and he was allowed to visit for only a short period of time. The girls testified that when Everett attempted to visit, and before the separation, their mother cursed their father with unprintable epithets. The girls testified that Deborah did not cook, but sometimes took them to a fast food drive-through to purchase food. Testimony was that the kitchen was "disgusting." The girls stated they each had an alarm, set the alarm, and got themselves off to school either by walking or riding bicycles.
¶7. Everett visited a psychiatrist who prescribed an antidepressant. He testified that Deborah's actions caused him to lose his temper, and he went to the psychiatrist to get this problem under control. Everett did not have a problem with his temper under any other circumstances or with other people.
¶8. Everett testified that when the children were ill, Deborah would not take them to a regular doctor, despite the fact that his insurance would have covered such a visit, but instead, took them to the nearest emergency room, even if the girls had only a cold. The chancellor in his ruling of the court stated that if Deborah continued ...