MARTHA G. BRADSHAW APPELLANT
LOYD E. BRADSHAW APPELLEE
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
CARLTON, P.J., GREENLEE AND McCARTY, JJ.
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.
AND PROCEDURAL HISTORY
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.,  alimony, and attorney's fees.
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, " 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
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.
Trial began on March 24, 2017, and Loyd's first witness
was J.B. 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
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.
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
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.
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.
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.
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.
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
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.
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
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.
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
With respect to the debts, Loyd was ordered to pay the
"Handyline debt," and Martha was ordered to pay the
"Keesler debt." 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
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.
"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.
Whether the chancellor erred by granting Loyd a
divorce on the ground of adultery.
"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.
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).
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
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
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.
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