Before Sullivan, P.j., Mills And Waller, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court
DATE OF JUDGMENT: 06/17/97
TRIAL JUDGE: HON. THOMAS WRIGHT TEEL
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶1. Jackie and Nancy Robison were married on January 30, 1976. During the course of their twenty-one-year marriage they had one daughter together, Ashley, who was thirteen at the time of the hearing. On April 5, 1996, Jackie moved out of the marital home. He testified that he began living with his girlfriend, Debbie Catania in early July, 1996, and admits to having a sexual relationship with Debbie beginning at that time. Jackie filed for divorce on July 18, 1996, in the Harrison County Chancery Court, and Nancy filed her counterclaim for divorce in her answer.
¶2. Based in part upon Jackie's adultery, Chancellor Thomas Wright Teel awarded Nancy a divorce upon grounds of habitual cruel and inhuman treatment and custody of Ashley. Jackie appeals to this Court from the chancellor's decree, assigning as error his finding of habitual cruel and inhuman treatment, amendment of the pleadings, award of lump sum and periodic alimony, award of attorney's fees, restriction of overnight visitation, and failure to attach the standard visitation schedule to the divorce decree.
¶3. "The chancellor's decree of divorce will not be reversed unless it is manifestly wrong as to law or fact." Benson v. Benson, 608 So.2d 709, 710-11 (Miss. 1992). We find no manifest error in the divorce judgment and therefore affirm the chancellor's decision in this case. However, because the trial court inadvertently failed to attach the standard visitation schedule to the divorce decree, we remand this case to the Harrison County Chancery Court for the limited purpose of incorporating the visitation schedule.
I. THE CHANCERY COURT ERRED IN AWARDING NANCY FAYE ROBISON A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.
¶4. Jackie complains that the evidence at trial did not support a finding of habitual cruel and inhuman treatment, because Nancy testified that she was not afraid of Jackie and that Jackie never hit her. He also asserts that no causal connection was established between his treatment of Nancy and the couple's separation. However, this Court has held that conduct both before and after the separation may be considered in determining whether sufficient evidence was presented to support the chancellor's award of divorce upon grounds of habitual cruel and inhuman treatment. Bias v. Bias, 493 So.2d 342, 345 (Miss. 1986).
¶5. "[H]abitual cruel and inhuman treatment could be established only by a continuing course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition." Wilson v. Wilson, 547 So.2d 803, 805 (Miss. 1989). "Our cases require more than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of 'cruel and inhuman treatment.'" Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss. 1995). "On the other hand, habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy health and endanger the life of an innocent spouse." Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss. 1994) (quoting Kergosien v. Kergosien, 471 So.2d 1206, 1210 (Miss. 1985)). "This Court has held that impact of the conduct on the plaintiff is crucial, thus we employ a subjective standard." Faries v. Faries, 607 So.2d 1204, 1209 (Miss. 1992).
¶6. Jackie's emotional and mental abuse resulting in Nancy's depression were sufficient for an award of divorce on grounds of habitual cruel and inhuman treatment. Nancy testified that Jackie told her that he couldn't stand to be around her and that there was nothing she could do to make herself desirable to him. He kept late hours and talked about having to engage in sexual relations with women at work to advance his career. Jackie confirmed that the couple never had sex anymore. Nancy stated that the last three times they did have sex, Jackie threw her off of the bed. Nancy also said that Jackie continually criticized her appearance, never took her anywhere, and showed absolutely no affection towards Nancy. She also testified regarding his controlling nature, how Jackie would restrict her social life to the point of telling her who she could be friends with, what social functions she could attend, and where and under what circumstances she could go anywhere. After the separation, Jackie admittedly moved in with his girlfriend and began an adulterous relationship with her. He was neglectful of his family to the point that they could not afford groceries, and Nancy's co-workers had to hold a food drive for her and Ashley. Jackie did not deny any of Nancy's allegations, but did say that Nancy unjustly accused him of having an affair ...