Sullivan, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice, For The Court
DATE OF JUDGMENT: 04/03/97
TRIAL JUDGE: HON. PERCY LEE LYNCHARD, JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED 9/24/98
¶1. Cleta Jean Labella filed a complaint for divorce against David Paul Labella alleging as grounds for divorce habitual cruel and inhuman treatment pursuant to Miss. Code Ann. § 93-5-1 (1994). The Honorable Percy L. Lynchard, Jr., sitting as Special Chancellor, *fn1 granted the Appellee's divorce on the grounds of habitual cruel and inhuman treatment. Appellant timely appealed to this Court and assigns the following as error: I. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE A DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT? II. WHETHER THE LOWER COURT ERRED IN ITS PROPERTY DIVISION AND DEBT ASSIGNMENTS? III. WHETHER THE LOWER COURT ERRED IN AWARDING ATTORNEY FEES?
¶2. David Paul Labella ("David") and Cleta Jean Labella ("Jean") were married on June 11, 1983. Three children were born to the marriage. At the time of trial, the children were ages 12, 11, and 6. David and Jean ceased to cohabit as husband and wife in November, 1996, though they continued to reside in the same house. At trial, Jean presented the testimony of three witnesses, including her own, and David testified as the only defense witness.
¶3. Jean testified to at least ten (10) separate episodes of physical abuse starting as early as 1984, including being kicked out of bed when she was pregnant; being thrown to the floor resulting in a jaw injury; bruises when her arm was slammed in a refrigerator; bruises from being slapped in the buttocks; being pushed into a barstool; and being hit 3-4 times while she was attempting to pick up her children from visitation with David while they were separated. Jean testified to other lesser incidents including cursing, name calling, verbal abuse and threats, and on one occasion having her car door kicked in by David. David acknowledges that some of these encounters occurred, but denied any of the injuries. He countered that he suffered injuries from being struck in the legs with a broom and slapped across the face with a newspaper.
I. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE A DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?
¶4. The scope of review by this Court in domestic relations appeals is limited by the substantial evidence/manifest error rule. Magee v. Magee, 661 So.2d 1117, 1122 (Miss. 1995). "`This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Id. (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss. 1990)). Additionally, this Court views the facts in a light most favorable to the appellee, Ms. Labella. See Rawson v. Buta, 609 So.2d 426, 429 (Miss. 1992). This Court will take her testimony and evidence at its best. Jones v. Jones, 532 So.2d 574, 578 (Miss. 1988).
¶5. The issue before this Court is whether there was sufficient evidence for the chancellor to grant Jean a divorce on the grounds of cruel and inhuman treatment. In order to justify divorce on grounds of habitual cruel and inhuman treatment, the treatment must be so continuous and of such nature that the offended spouse can no longer live with the other spouse on account of that treatment and, therefore, separates herself from that spouse. Gallaspy v. Gallaspy, 459 So.2d 283, 285 (Miss. 1984). It is apparent that Jean cannot live with David any longer, primarily because of the repeated instances of physical abuse. The chancellor found that the parties lived in a continued state of marital conflict and that numerous physical confrontations occurred between David and Jean. The conduct of David appeared from the record to be "so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance." See Hassett v. Hassett, 690 So.2d 1140, 1146 (Miss. 1997).
¶6. This divorce boils down to Jean's word against David's word. Jean did provide corroboration of physical abuse through photographs and the testimony of her father, Jacob Pongetti. There is sufficient evidence in the ...