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Bradshaw v. Bradshaw

Court of Appeals of Mississippi

August 13, 2019

MARTHA G. BRADSHAW APPELLANT
v.
LOYD E. BRADSHAW APPELLEE

          DATE OF JUDGMENT: 11/17/2017

          JACKSON COUNTY CHANCERY COURT HON. D. NEIL HARRIS SR.

          ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN

          ATTORNEY FOR APPELLEE: GARY L. ROBERTS

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          GREENLEE, J.

         ¶1. In 2017, Loyd Bradshaw was granted a divorce from Martha Bradshaw. Martha appeals the judgment of the Jackson County Chancery Court claiming the chancellor erred by (1) granting Loyd a divorce on the ground of adultery; (2) denying her a divorce on the ground of habitual cruel and inhuman treatment; (3) failing to recuse; (4) awarding physical custody of the minor child to Loyd; (5) dividing the property; and (6) denying her request for attorney's fees. Loyd filed a conditional cross-appeal. However, because we affirm the chancellor's judgment, Loyd's cross-appeal is moot.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Loyd and Martha Bradshaw were married in September 1989. On February 19, 2016, Loyd filed a complaint for divorce, alleging uncondoned adultery and habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Subsequently, Martha filed an answer and a counter-complaint. In her answer, she denied the allegations against her but asserted several affirmative defenses. In her counter-complaint, she requested a divorce, alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Martha also requested custody of their minor child, J.B., [1] alimony, and attorney's fees.

         ¶3. After a hearing, on April 6, 2016, the family master entered a temporary order. Loyd and Martha were awarded temporary legal custody of J.B., and after a "relatively equal Albright analysis, "[2] the family master awarded temporary physical custody to Loyd. Martha was awarded visitation with J.B. And she was awarded temporary use and possession of the marital home. However, she was ordered to pay the property taxes and mortgage and insurance payments on the house.

         ¶4. Subsequently, Martha filed a motion to set aside the temporary order. She asserted that the family master placed too much weight on J.B.'s preference when determining custody. She also asserted that the order left her with insufficient financial resources. After a hearing, the chancellor denied Martha's motion.

         ¶5. Trial began on March 24, 2017, and Loyd's first witness was J.B.[3] Thirteen-year-old J.B. testified that he had a close relationship with both of his parents, but he expressed a desire to continue living with Loyd. According to J.B., prior to his parents' separation, Martha would leave on most weekends and not return until 3:00 a.m. or 4:00 a.m., if at all. Whereas Loyd had "been there all the time."

         ¶6. Then Martha testified as an adverse witness. Loyd's attorney asked Martha whether she had engaged in an extramarital affair, and Martha's attorney asserted her (Martha's) Fifth Amendment right against self-incrimination. At that point, the chancellor granted Loyd a divorce on the ground of adultery.

         ¶7. Then Loyd testified. According to Loyd, Martha left almost every Friday night and would not return until sometime between 4:00 a.m. and 6:00 a.m. on Saturday, "or maybe not even then." Loyd testified that he never suspected that Martha was having an affair. But on or about December 23, 2015, he received a text message that suggested otherwise. Loyd testified that when he confronted Martha in January 2016, she admitted to being with someone else at least four or five times. According to Loyd, he was heartbroken.

         ¶8. Loyd moved out of the marital home on February 14, 2016. He testified that he had previously inherited a double-wide trailer and approximately one acre of land ("the Big Bend property") from his mother. According to Loyd, prior to the separation, Martha rented the property to a third party for approximately one year. Loyd testified that the rent money was deposited into his and Martha's joint checking account, and money from the same account was used to pay the property taxes and insurance payments. Both Loyd and Martha agreed that the income from renting the property was enough to cover the expenses. Loyd explained that he and J.B. did not move into the Big Bend property after the separation because it was uninhabitable. Instead, they moved into a rental house, and Martha remained in the marital home.

         ¶9. According to Loyd, J.B. had a good relationship with both of his parents. However, Loyd believed that J.B.'s relationship with him was better and that physical custody with him was in J.B.'s best interest.

         ¶10. After Loyd rested his case-in-chief, the chancellor and attorneys discussed the effect of the judgment of divorce on Martha's coverage under Loyd's health-insurance plan. Because the divorce would have effectively terminated Martha's coverage, the chancellor set the divorce aside and reserved ruling on the ground for divorce until the second day of trial.

         ¶11. The trial resumed several months later on September 15, 2017. In support of her request for a divorce on the ground of habitual cruel and inhuman treatment, Martha testified that Loyd was inattentive to her throughout the marriage. According to Martha, when Jordan was a baby, Loyd left them for three months. Although Loyd returned, Martha testified that the marriage was never the same. Martha also testified that when J.B. was a baby, Loyd would leave them on the weekends. And according to Martha, there were several occasions when she was hospitalized, and Loyd visited for brief periods of time. Martha testified that Loyd gave her the silent treatment for two to three weeks at a time. And she testified that Loyd began sleeping on the couch in September 2015, ignoring her unless he wanted to have sex.

         ¶12. After Martha rested her case-in-chief, Loyd moved to dismiss Martha's counter- complaint for divorce. At that point, Martha moved to reopen her case-in-chief so that her sister, Lisa English, could testify. Loyd objected to the reopening of Martha's case as well as to English's testimony. According to Loyd, English was not identified as a possible witness prior to trial. However, the chancellor held Loyd's objections in abeyance and allowed English to testify.

         ¶13. According to Martha's sister, Loyd treated Martha like she owed him something. She testified that Loyd allowed Martha to take care of everything. And he would not speak to Martha for weeks. According to English, Loyd's inattentiveness caused Martha to be emotional and withdrawn.

         ¶14. The chancery court entered its final judgment, granting Loyd a divorce on the ground of adultery. Both parties retained joint legal custody of J.B. However, the chancellor determined that it was in J.B.'s best interest to remain in Loyd's physical custody. Martha was awarded visitation with J.B., and she was ordered to pay $430 per month in child support.

         ¶15. The chancellor awarded the marital home to Martha. She was ordered to continue paying the property taxes and mortgage and insurance payments on the house. The marital home was appraised at $80, 000, with the secured indebtedness on the house totaling $67, 830.87. The equity in the marital home was therefore $12, 169.13. Martha was awarded half of Loyd's 401k account valued at $188, 589.88, equaling $94, 294.94. The chancellor then reduced that award by the equity in the marital home, or $12, 169.13, ordering that Martha receive $82, 125.81 from the 401k. She was also awarded half of Loyd's retirement security plan. The retirement security plan was valued at $170, 186.54. Therefore, Martha was awarded $85, 093.27. Martha was also awarded the Chrysler Sebring valued at $4, 000 and the Chevrolet Trailblazer valued at $5, 000.

         ¶16. The chancellor classified the Big Bend property (valued at $25, 000) as separate property and awarded it to Loyd. Loyd was awarded half of his 401k ($94, 294.94) plus the equity in the marital home ($12, 169.13) for a total of $106, 464.07. Loyd was also awarded half of his retirement security plan ($85, 093.27). And he was awarded a camper valued at $8, 000, an F-250 valued at $4, 500, and an F-150 with $5, 220.59 in equity.[4]

         ¶17. With respect to the debts, Loyd was ordered to pay the "Handyline debt," and Martha was ordered to pay the "Keesler debt."[5] Otherwise, both parties were responsible for their own debts. Loyd was ordered to provide health-insurance coverage to Martha for six months. And the chancellor denied Martha's requests for alimony and attorney's fees.

         ¶18. Subsequently, Martha filed a motion for reconsideration, alleging that the chancellor's ruling was contrary to the overwhelming weight of the evidence. The court denied Martha's motion, and she filed her notice of appeal. Shortly thereafter, Loyd filed his notice of a cross-appeal.

         STANDARD OF REVIEW

         ¶19. "This Court's standard of review in domestic-relations matters is extremely limited." Stuckey v. Waid, 195 So.3d 872, 875 (¶13) (Miss. Ct. App. 2016) (quoting Phillips v. Phillips, 45 So.3d 684, 692 (¶23) (Miss Ct. App. 2010)). "We 'will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal [standard].'" Id. (quoting Samples v. Davis, 904 So.2d 1061, 1064 (¶9) (Miss. 2004). However, questions of law are reviewed de novo. Id.

         DISCUSSION

         I. Whether the chancellor erred by granting Loyd a divorce on the ground of adultery.

         ¶20. "Adultery may be proven by either direct evidence or, because of its 'secretive nature,' circumstantial evidence." Id. at 875 (¶14) (citing Dillon v. Dillon, 498 So.2d 328, 330 (Miss. 1986)). "To prove adultery by circumstantial evidence, the plaintiff must provide clear and convincing evidence supporting a finding of: (1) an adulterous inclination, and (2) a reasonable opportunity to satisfy that inclination." Id. (citing Atkinson v. Atkinson, 11 So.3d 172, 177 (¶20) (Miss. Ct. App. 2009)). When a chancellor misperceives the correct legal standard, the error becomes one of law and is reviewed de novo. Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss. 1995).

         ¶21. Here, the chancellor made the following findings of fact and conclusions of law:

At the trial, Loyd testified that he believed that Martha was having an extramarital affair during the marriage. When questioned about this affair, Martha pled the Fifth Amendment and refused to answer. Loyd also propounded interrogatories to Martha in which he asked her to name the individuals with which she had sexual relations during the marriage. (Exhibit No. 1). Martha also invoked her Fifth Amendment rights in her response to this interrogatory. The Mississippi Supreme Court has held that someone refusing to answer questions about an alleged affair is clear and convincing evidence sufficient to satisfy the evidentiary requirement to prove adultery.

Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss. 1995).

         ¶22. We find the chancellor misperceived the correct legal standard. In Brooks, Jane testified that her husband, Robert, had given numerous gifts to another woman-Beverly. Id. Jane also believed she had enough evidence to prove that Robert had been involved in an adulterous relationship with yet another woman-Phyllis. Id. "At trial, when Robert was asked about the alleged relationship with Phyllis . . ., he pled the Fifth Amendment and refused to answer." Id. Our supreme court held that "the uncontradicted evidence proffered by Jane was sufficient to satisfy the evidentiary criterion . . . that requires clear and convincing proof of Robert's adulterous inclinations." Id. The Mississippi Supreme Court did not hold that Robert's refusal to answer questions was clear and convincing evidence that he committed adultery or had adulterous inclinations. Rather, the court held that the uncontradicted evidence proffered by Jane was sufficient evidence. Concerning a witness's "taking the Fifth" in civil cases, the trier of fact may draw an adverse inference from a defendant's refusal to testify. Gibson v. Wright, 870 So.2d 1250, 1260 (¶42) (Miss. Ct. App. 2004). However, we have failed to find a case that allows a divorce to be granted based solely on that inference.

         ¶23. Although the chancellor in this case initially granted Loyd a divorce based on Martha's refusal to answer questions, that judgment of divorce was set aside. And although the chancellor's final judgment indicated that the divorce was granted for the same reason, after reviewing the record de novo, we find that substantial evidence exists to sustain a divorce granted on the ground of adultery by clear and convincing evidence.

         ¶24. At trial, J.B. testified that his mother would leave at night and not return until 3:00 a.m. or 4:00 a.m., if at all. Similarly, Loyd testified that Martha would leave almost every Friday night and not return until sometime between 4:00 a.m. and 6:00 a.m. on Saturday. Loyd also testified that in January 2016, he questioned Martha about having an affair, and she admitted to being with someone else at least four or five times. We find that the adverse inference from Martha's refusal to testify combined with the uncontradicted evidence proffered by Loyd as corroborated by J.B. was sufficient to prove Martha's adultery by clear and convincing evidence.

         ¶25. Martha also asserts that because the chancellor granted a divorce immediately after she pled the Fifth Amendment, she was prevented from raising affirmative defenses. However, as discussed, the chancellor's initial judgment of divorce was set aside on March 30, 2017. During the second day of trial, on September 15, 2017, Martha testified as to why she believed she was entitled to a divorce on the ground of habitual cruel and inhuman treatment. For Martha to now assert that she was unable to raise affirmative defenses to adultery is disingenuous. This issue is without merit.

         II.Whether the chancellor erred by failing to grant Martha a divorceon the ground of habitual ...


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