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State v. Gerty

Supreme Court of Mississippi

December 13, 2018


          DATE OF JUDGMENT: 06/08/2017







         ¶1. In September 2013, the Gertys filed a joint complaint for an irreconcilable-differences divorce. The joint complaint languished in the Harrison County Chancery Court for almost two years, during which the parties cooperated with each other and faithfully abided by the Property Settlement Agreement ("PSA"), which had been filed contemporaneously with the joint complaint. The PSA provided that Michael would have physical custody of the couple's minor child. Joesie had full knowledge that Michael was required to move to the Great Lakes area to fulfill a three-year military commitment when she agreed that their son would move with Michael. Joesie made the decision not to move to the Great Lakes area with their son and Michael. By her own admission, her decision was due to Michael's lack of intimacy and her desire to live as a single woman.[1] It was Joesie's idea that their son and Michael move in with a military family in the Great Lakes area that Joesie knew from the Mississippi coast.

         ¶2. During this same time, without his knowing her connection, Joesie had Michael assist her in moving her belongings into the house of her paramour's mother, Robin Caldwell Fitzgerald.[2] For nearly two years, Michael and their son lived apart from Joesie. She chose to spend Thanksgiving of 2013 and 2014 and Christmas of 2012 and 2013 with Kyle and his family, unknown to Michael. The sexual nature of her affair with Kyle ended in January 2014 or May 2014, depending upon what testimony from Joesie is to be accepted. She further admitted that she continued to engage socially with Kyle until December 2014, unknown to Michael.

         ¶3. In January of 2015, Michael informed Joesie that reconciliation was impossible and that he wanted her to sign and finalize the divorce papers. Joesie, upon the advice of her attorney, [3] surreptitiously told Michael that she also was ready to complete the irreconcilable-differences divorce. Based on the advice of her counsel, Joesie waited until her summer visitation had begun pursuant to the PSA and until her son was physically in Mississippi before withdrawing her consent to an irreconcilable-differences divorce. Joesie and Michael then filed separate complaints for divorce on the ground of adultery, inter alia, and alternatively sought an irreconcilable-differences divorce.

         ¶4. After a temporary hearing on July 13, 2015, the chancellor granted physical custody to Joesie. The trial began in December 2015[4] and concluded May 2016. Six months later, in November 2016, the chancellor entered a final judgment and decreed that a divorce should be granted, but that neither party was entitled to a fault-based divorce. She found that Joesie had failed to establish adultery. She found that Michael had proved adultery because Joesie had admitted it, but that Michael had condoned Joesie's adulterous conduct. Then the chancellor sua sponte declared the statutory scheme under Mississippi Code Section 93-5-2 (Rev. 2013) unconstitutional and granted an irreconcilable-differences divorce. Joesie was granted custody of their child.

         ¶5. Today's case, as described by the State, is unique but not unprecedented-Michael, Joesie, and the State agree that the chancellor erred in declaring Section 93-5-2 unconstitutional.[5] After the chancellor's November 15, 2016, final judgment was entered, Michael and Joesie, along with the State of Mississippi, asked the chancellor to reconsider her judgment, [6] because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute. The chancellor gave the parties and the State an opportunity to brief the constitutionality of Section 93-5-2. In the arguments for reconsideration, all parties conceded that the chancellor had erred in granting an irreconcilable-differences divorce. No other hearings were conducted. Yet the chancellor significantly amended her earlier final judgment, [7] increasing Joesie's award to include a percent of Michael's military-retirement benefit and reducing the noncustodial parent's summer visitation from three months, as provided in the PSA, to one month, contrary to the PSA and the chancellor's original final judgment.

         ¶6. The State appealed the chancellor's sua sponte adjudication of Section 93-5-2 as unconstitutional. Michael also appealed, arguing that the trial court erred by (1) declaring Section 93-5-2 unconstitutional, (2) failing to award Michael a divorce on the ground of adultery, (3) reducing Michael's summer visitation, (4) awarding Joesie a portion of Michael's retirement benefits, and (5) awarding custody to Joesie. We affirm the chancellor's finding regarding custody and child support, but we reverse the remaining judgment and remand the case for proceedings consistent with this opinion.


         ¶7. On September 18, 2013, Joesie[8] and Michael Gerty filed a Joint Complaint for Divorce (Irreconcilable Differences), which Joesie admited was precipitated by her self-described summer 2013 "fling" with Kyle and her desire to be a single woman. After numerous revisions, concessions and negotiations, Joesie and Michael executed and filed as an exhibit to their complaint for divorce a Separation and Child Custody and Property Settlement Agreement, which provided that their minor son[9] would live with Michael during the school year and with Joesie during the summer. The following clause was included in the PSA:

It is agreed and understood that this Agreement is not contingent upon a divorce [sic] being granted. However, if the parties are granted a divorce on any grounds, the parties agree that this Agreement shall be made a part of the Judgment and that such Judgment shall not conflict with the terms of the Agreement [sic] except to the extent disapproved by the Court [sic] the [sic] parties agree that each mutually submits to the personal jurisdiction of the Chancery Court of Harrison County, State of Mississippi, so that said Court has the power to decide any and all matters and questions concerning the dissolution of the parties' marriage . . . and the division of the parties' property and debts.

         ¶8. Neither party sought to finalize the divorce or to change the PSA for nearly two years. At the same time, with Joesie's participation and agreement, the minor child moved to Wisconsin and later to Illinois pursuant to the PSA. Joesie visited sparingly, with Michael paying all her travel expenses. The minor child also traveled with his mother at Michael's expense to reside with Joesie during the summers.

         ¶9. Joesie admitted to deceiving Michael in May 2015 by telling him that she would agree to finalize the divorce papers. Two weeks later, Joesie picked up their then eight-and-one-half-year-old son and brought him back to Mississippi, ostensibly for the agreed-upon summer-visitation period. On June 10, 2015, Joesie withdrew her consent to the pending irreconcilable-differences complaint. She alleged that the best interest of the minor child required that she have physical custody. One week later, Joesie filed a separate complaint for divorce, pleading adultery, habitual cruel and inhuman treatment, and desertion as grounds. Alternatively, Joesie sought a divorce based on irreconcilable differences. To support her claim for custody, Joesie falsely pleaded in the complaint that their son had resided with her in Pass Christian since January 2014.[10] Joesie also filed a motion for temporary relief, requesting temporary custody, an increase in child support, exclusive use of the marital home (which she already had under the PSA), exclusive rights to all of Michael's accounts (including his military retirement), and an increase in alimony until the final hearing on her complaint for divorce.

         ¶10. Michael answered her complaint, asserting that both he and Joesie had been abiding by the 2013 PSA for nearly two years and that the PSA should be given full force and effect. Michael also pleaded that Joesie "mislead[] the court in a fraudulent manner" regarding the residence of their son. Michael averred that he and his son had lived in the Great Lakes area for six months since December 2014 and that, before that, they had lived in Wisconsin from September 2013 through December 2014. Michael pleaded that he had been the primary parent to their son and that he should be awarded custody and support.

         ¶11. Michael included in his answer a separate countercomplaint, alleging that the parties had agreed to a divorce and had agreed that Michael would have custody of their son. Michael asked the court to ratify the PSA, at least on a temporary basis, and to return the child to the temporary custody of Michael.

         ¶12. Joesie responded to Michael's countercomplaint for divorce by admitting adultery but by affirmatively pleading condonation by Michael. Joesie asked the chancellor to dismiss Michael's countercomplaint.

         ¶13. On July 13, 2015, after a temporary-custody hearing, the chancellor awarded temporary custody of the child to Joesie and awarded child support. The chancellor also ordered spousal support and exclusive use and possession of the marital home as provided by the PSA.

         ¶14. A five-day trial began in December 2015 and was completed in May 2016.[11] Six witnesses testified and twenty-eight exhibits consisting of hundreds of pages of documents were entered into evidence.

         ¶15. Joesie admitted that the factor precipitating the filing of the joint complaint and the PSA was Michael's August 2013 discovery of and Joesie's admission to her 2013 summer "fling" with Kyle. Joesie told Michael that her "fling" had ended. At the time Michael found out about her "fling," he had already received orders to be stationed in the Great Lakes area. Michael testified that Joesie decided that "she would be much happier if she stayed [on the Mississippi coast] and [if Michael and their son] moved up to the Great Lakes area without her." Michael further testified that he drafted the joint complaint, and both agreed on all terms of the PSA.

         ¶16. The day before Michael and their son moved, Michael helped Joesie move from base housing to the home of her paramour's mother. In fact, Michael was not aware of Fitzgerald's relationship to Kyle until he began preparing for trial. Joesie admitted that she never revealed to Michael that Fitzgerald was Kyle's mother. Joesie accompanied Michael and their son to the Great Lakes area to help them get settled. She was present for their son's first day of school. Joesie recommended that they move in with Amy Malatag[12] and her then-husband, Joe Dunka, so that Amy could help take care of their son.

         ¶17. Testimony and evidence presented by Joesie and her witnesses at both the temporary hearing and the trial reveal that her affair with Kyle started before the summer of 2013 and continued into 2014. She admits that she only disclosed to Michael her summer 2013 "fling." During the temporary hearing, Marion Haffner, Joesie's best friend, testified that Kyle was a friend of her boyfriend's. Haffner testified that she and her boyfriend double dated with Joesie and Kyle. Joesie admitted that after Michael and their son moved in September 2013, Joesie, Kyle, Haffner, and Haffner's boyfriend spent the night at Haffner's boyfriend's condo in Gulf Shores, Alabama.[13] Joesie also testified that she underwent a tubal ligation during their separation after Michael moved to the Great Lakes area, because she was not "intentionally planning on hav[ing] another kid."[14]

         ¶18. The trial began in December 2015.[15] Joesie called her best friend Haffner as a witness. Haffner testified that she was aware that Joesie had dated other men besides Kyle. She also testified that Joesie had been in a relationship with Kyle beginning in 2011 and continuing through the time of her testimony. Haffner testified that she was aware that Joesie and Kyle still socialized together. Haffner admitted that she was aware that Joesie exposed her own daughter Joy (from her first marriage) to her adulterous relationship with Kyle. Haffner was shown numerous pictures, some taken by her, depicting Joesie, Kyle, Joy, her, and others together. The pictures of Joesie and Kyle showed them embracing or otherwise exhibiting affection, one to the other. Haffner identified a picture of Joesie with a dog and testified that Kyle had given her the dog as a gift. Haffner testified that to her knowledge Michael did not know that Joesie continued to see Kyle after she confessed to a summer romance. Haffner testified that she discouraged Joesie from having the affair with Kyle and encouraged her to be honest with Michael.

         ¶19. Joesie testified that after she informed Michael about her summer 2013"fling," she continued to communicate through social media and text messaging and to see Kyle because "[w]e stayed friends. They-his family loves me, so they invite me if there is a get-together at their house." She spent numerous holidays, including Thanksgiving in 2013 and 2014 and Christmas in 2012 and 2013, with Kyle and his family away from Michael and their son. Joesie was shown numerous screenshots from Facebook demonstrating that she had continued to comment on pictures and other posts on Kyle's page. Joesie testified that she was still seeing Kyle, having a sexual relationship with him, texting him when she was visiting Michael and their son, and commenting on Kyle's Facebook posts while she was attempting to reconcile with Michael.

         ¶20. When the trial resumed in May 2016, Joesie testified that, in addition to her beach vacation, she also went to Bellingrath Gardens with Kyle and others. She testified that she went out drinking and dancing with Kyle and other friends numerous times. All of these outings occurred when their son was living with Michael. She admitted that she never revealed to Michael that she was still seeing Kyle during the fall of 2013 into 2014 and that she never sought his forgiveness for or condonation of her multiple acts of adultery.

         ¶21. Amy Malatag, who has known Joesie since 2009, was also called to testify during the trial telephonically. She testified that she communicated with Joesie on Facebook in their shared Filipino dialect prior to Michael's moving to the Great Lakes area. Joesie had confessed to Amy that she was dating someone in the military.[16] When Joesie ...

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