DATE OF JUDGMENT: 02/26/2013.
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT. TRIAL JUDGE: HON. TALMADGE
FOR APPELLANT: RICHARD SHANE MCLAUGHLIN, NICOLE H. MCLAUGHLIN.
FOR APPELLEE: LUANNE STARK THOMPSON.
BEFORE GRIFFIS, P.J., ISHEE, ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
[¶1] On May 20, 2009, Rosie Jackson filed for a divorce from her husband, Michael Jackson. Following a three-day trial, the Monroe County Chancery Court granted Rosie a divorce on the ground of habitual cruel and inhuman treatment. The chancery court also divided the marital estate and awarded lump-sum alimony to Rosie. Aggrieved, Michael appeals.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
[¶2] Michael and Rosie married on December 26, 1976. Together, they had two children, both of whom were emancipated by the time of these proceedings. Rosie filed for divorce on May 20, 2009, on the ground of habitual cruel and inhuman treatment. Michael answered her complaint, and later filed a motion in limine requesting the court to limit testimony regarding sexual allegations. At trial, the motion was overruled. A three-day trial was held on April 2, 2012, May 21, 2012, and August 21, 2012.
[¶3] From the date of their marriage until around 1986, Rosie made more money than Michael. Michael obtained his bachelor's degree in special education in 1975. He later obtained a master's degree in guidance education in 1977 and a master's degree in special education in 1979 or 1980. Michael worked several different part-time jobs in addition to teaching with the Aberdeen Public School System and later with the Okolona Public School System. While Michael continued his education, Rosie supported the family working full-time as a cosmetologist at Vasser's Beauty Shop, which is owned by her sister, Lillie Vasser. In 2008, Rosie began to work as a caregiver to the elderly in addition to working at Vasser's Beauty Shop seeing two to three clients a week. Due to health problems, Michael retired in 2010.
[¶4] In 1980, Michael and Rosie built a home located in Monroe County. Nearly a decade later, Rosie's sister, Marian Vasser, moved into the home with the Jacksons after she suffered a stroke that left her in need of assistance. The home was later modified to be handicap-accessible to accommodate Vasser's disabilities. Vasser contributed to the cost of the alterations and still resides with Rosie in the home today. The parties stipulated at trial that the marital home was worth $78,000. There was also evidence presented that a mortgage balance of $50,103 remained on the home, with $27,897 remaining in equity.
[¶5] The marriage between Rosie and Michael had deteriorated years prior to the divorce proceedings. Rosie claimed that they had not been together sexually since 1999, and that she had moved out of the marital bedroom in 2007. In 2008, Rosie received information involving sexual allegations about Michael.
[¶6] At trial, Rosie testified regarding a phone conversation she had with Michael's friend, John Doe. She stated that, in
February 2008, John called the Jacksons' home and told her, " Will you please tell your husband to leave me alone?" John testified at trial and was asked whether he had any kind of sexual relationship with Michael, to which he said no. Rosie also stated under oath that, in April 2008, she was approached by one of Michael's former students, James Doe, who informed her that Michael had sexually molested him twenty-six years earlier. James testified, in detail, that Michael molested him once when James was ten years old and was attending the same church as the Jacksons. Alma Jackson Flowers, the Jacksons' daughter, also testified that in 2008 she participated in a three-way phone conversation with Michael and another man, unbeknownst to Michael, where Michael solicited the man for oral sex.
[¶7] Both Rosie and Flowers stated that they confronted Michael about the sexual allegations, but he denied them. At trial, Michael denied all sexual allegations regarding homosexuality and child molestation. After confronting Michael, Rosie testified that the atmosphere in the home became very bad. She stated that Michael started coming home late, bringing men into the home, and cutting off the phone and electricity. Further, she claimed that he intimidated her, bullied her, and talked cruelly to her.
[¶8] Rosie testified that she was traumatized by the information she learned about Michael. She stated that she began to experience problems with her blood sugar and blood pressure, could not sleep at night, and was prescribed Xanax to help with her anxiety. As a result, Rosie moved out of the home on February 23, 2009. Michael remained in the home until a temporary order was entered in September 2009 granting Rosie possession of the house.
[¶9] Following trial, the chancellor concluded that Rosie had proven habitual cruel and inhuman treatment by providing evidence of Michael's homosexual behavior, and the effect that this conduct had on Rosie's health. The chancellor granted the divorce, divided the marital estate, and awarded Rosie lump-sum alimony.
[¶10] On appeal, Michael argues that the chancery court erroneously granted Rosie a divorce where: (1) the evidence was insufficient to support a divorce on the ground of habitual cruel and inhuman treatment, (2) the evidence relied upon by the chancellor was inadmissible, and (3) the equitable distribution and the alimony award were based on incorrect calculations.
[¶11] Additional facts, as necessary, will be related during our analysis and discussion of the issues.
STANDARD OF REVIEW
[¶12] " This Court employs a limited standard of review when considering domestic-relations cases." Jackson v. Jackson, 114 So.3d 768, 773 (¶ 10) (Miss. Ct.App. 2013) (citations omitted). " Consequently, an appellate court will not disturb the chancery court's findings unless such findings are manifestly wrong [or] clearly erroneous, or the court applied the wrong legal standard." Id. However, questions of law are reviewed de novo. Gordon v. Gordon, 126 So.3d 922, 925 (¶ 9) (Miss. Ct.App. 2013) (citations omitted).
I. Habitual Cruel and Inhuman Treatment
[¶13] " The chancellor's determination of whether a spouse's conduct rose to the level of cruel and inhuman treatment
is a determination of law." Jones v. Jones, 43 So.3d 465, 469 (¶ 7) (Miss. Ct.App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1 (Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and inhuman treatment. In order to establish a divorce on such ground, the offended spouse must show conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or (2) is 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.
Jones, 43 So.3d at 469 (¶ 9) (citations omitted).
[¶14] In reviewing whether the conduct reaches that of cruel and inhuman treatment, the chancellor must consider: " 1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff." Fisher v. Fisher, 771 So.2d 364, 367 (¶ 10) (Miss. 2000) (internal quotations and citations omitted). The evaluation of the impact of the conduct on the plaintiff is subjective. Smith v. Smith, 90 So.3d 1259, 1263 (¶ 11) (Miss. Ct.App. 2011) (citing Faries v. Faries, 607 So.2d 1204, 1209 (Miss. 1992)). " The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person." Id.
[¶15] " The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection." Fisher, 771 So.2d at 367 (¶ 9). The chancellor granted Rosie a divorce based on a finding that Michael's homosexual relations were such that they made the marriage revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual cruelty - whether Michael's conduct was so unnatural and infamous as to make the marriage revolting to Rosie.
[¶16] There has only been one case where the Mississippi Supreme Court has found that a homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court found that " [u]nnatural practices of [pederasty] are an infamous indignity to the wife . . . which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife." Id. Since Crutcher, this Court has found that evidence of homosexual affairs, when combined with other misconduct, can justify a divorce based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So.2d 681, 689 (¶ ¶ 27-28) (Miss. 2001).
[¶17] The record here reflects it was not only alleged that Michael was involved in homosexual affairs, but that he had also molested a child. Rosie testified to learning about both allegations within rapid succession of one another. We find that the combination of this conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties. However, it is well settled that a spouse's testimony regarding an offending spouse's behavior must be corroborated when habitual cruel ...