Matthew Reed v. Gloria Reed
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CA-01363-COA
MATTHEW REED
APPELLANT
v.
GLORIA REED
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
7/19/2001
HON. JOHN C. LOVE, JR.
KEMPER COUNTY CHANCERY COURT
MARVIN E. WIGGINS
HELEN J. MCDADE
CIVIL - DOMESTIC RELATIONS
JUDGMENT FOR DIVORCE GRANTED ON
GROUND OF HABITUAL CRUEL AND
INHUMAN TREATMENT.
REVERSED AND RENDERED - 03/04/2003
BEFORE SOUTHWICK, P.J., THOMAS AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
This is a divorce action brought by Gloria Reed against Matthew Reed on the grounds of habitual,
cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor granted her
a divorce on the grounds of habitual, cruel and inhuman treatment. Feeling aggrieved, Matthew appeals.
He first argues that the chancellor created manifest error by incorrectly assessing the facts when granting
Gloria a divorce on the grounds of habitual, cruel and inhuman treatment. Secondly, he states the chancellor
erred in not considering all the factors in Armstrong before granting periodic alimony. Finally, he contends
that the chancellor erred in not considering all of the Ferguson factors before dividing the marital assets.
We find the chancellor manifestly in error in granting the divorce on grounds of habitual, cruel and inhuman
treatment. Finding the first issue dispositive, it is not necessary to respond to the other asserted issues.
Accordingly, we reverse.
FACTS
¶2.
Gloria and Matthew Reed were married in Kemper County, Mississippi on February 25, 1981,
and separated September 27, 1999. They have two children, Gregory Little who is 25, and Stella
Monique Reed who is 16. On August 18, 2000, Gloria filed for divorce upon the statutory ground of
habitual, cruel and inhuman treatment pursuant to Mississippi Code Annotated Section 93-5-1 (Rev.
1994).
¶3.
Gloria claimed that for the last two months of her nineteen year marriage to Matthew she had been
physically and emotionally abused. Gloria stated that up until those last two months they had a "good
relationship" and that Matthew was a "good husband" and a "good father." She also testified that during
this time Matthew began having affairs. She specifically accused him of being romantically involved with
the next door neighbor based on seeing them talking in the yard. Matthew denied any such adulterous
involvement, stating that he had merely helped the neighbor fix a lawnmower. He also made an accusation
that Gloria was the one engaged in an affair.
¶4.
Gloria cited to one specific incident of physical violence. Throughout her testimony she indicated
four different dates as to when this alleged incident took place (August 1999, July 1999, the first Sunday
in August 1999, and the day before Labor Day). She testified that the episode occurred when Matthew
attempted to leave the house with the couple's bank records or checkbook. Gloria stated she grabbed
Matthew's arm and asked him what he was doing. She testified that Matthew then shoved her across the
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bed, cursed her and began to choke her. She said her son came into the room and physically removed
Matthew from the room.
¶5.
Their daughter Stella was the only person to testify other than Gloria and Matthew. Stella said she
witnessed the choking incident, and said her parents fought regularly. She described these fights as a "lot
of screaming and stomping and stuff." Stella stated that sometimes these fights turned physical. Stella said
she witnessed her father push her mother several times and saw him slap her mother on one occasion.
¶6.
Matthew denied being physically abusive to Gloria at any time. His version of the choking incident
was that when he went to get the bank book Gloria grabbed his arm, demanded to know where he was
going and ripped his shirt sleeve. He stated that this incident occurred after Gloria had accused him of
being involved with the neighbor. Matthew testified that Gloria several times attacked him by scratching
and tearing his clothes. He also stated Gloria charged at him with a butcher knife on numerous occasions.
¶7.
Gloria also accused Matthew of emotional abuse. She said Matthew, his brother and sister-in-law
conspired to drive her from the marital home by performing "mean tricks." These mean tricks she stated
included "voodoo." Her conclusion that voodoo was being performed in her house was based on the fact
that strange smells were being emitted throughout the house. However, she admitted that she did not know
what the practice of voodoo entailed and said she did not believe in voodoo. She stated that Matthew
engaged in these activities in order to advance his romantic involvement with the neighbor. Gloria also
alleged that her sister-in-law, Mary Lou Reed, plotted these evil tricks because she was jealous of her good
marriage.
¶8.
Gloria testified that Matthew emotionally abused her using verbal attacks. She said he threatened
to "blow her head off" if he caught her passing the house. She also stated that Matthew verbally abused
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Gloria's mother. Gloria claimed that Matthew would not sleep with her and that he placed a lock on the
family's food to prevent her from eating, and that he burned her clothes she left at the marital home.
Matthew denied all of these allegations.
¶9.
In the daughter's testimony she stated that she was not sure if voodoo had been practiced in their
home. However, Stella testified to noticing strange smells throughout the house. As to verbal abuse, Stella
first said she heard her father threaten to kill her mother only one time. She then recanted her statement
and said she heard her father threaten Gloria's life several times.
¶10.
Gloria testified that she left the marriage because she feared for her life. She stated that those two
months of abuse nearly caused her to have a nervous breakdown. She said she suffered from high blood
pressure and a "bad heart." Gloria said after the separation she made several attempts to reconcile with
Matthew but he was unwilling.
¶11.
In August 2000, Gloria filed for divorce based on habitual, cruel and inhuman treatment and, in the
alternative, irreconcilable differences. The chancellor granted a divorce on the grounds of habitual, cruel
and inhuman treatment. He stated that the wife and child's testimony of multiple assaults and multiple
threats to kill were enough to entitle her to a divorce. The chancellor awarded custody of Stella to Gloria
and awarded visitation rights to Matthew. Matthew was ordered to pay $285 per month in child support
and $200 in alimony.
LAW AND ANALYSIS
I.
WHETHER THE TRIAL COURT ERRED IN AWARDING GLORIA REED A DIVORCE
ON THE GROUND OF HABITUAL, CRUEL AND INHUMAN TREATMENT.
¶12.
Matthew argues that the chancellor abused his discretion by granting Gloria a divorce on the
grounds of habitual, cruel and inhuman treatment because it was granted based upon incorrect or inaccurate
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findings of fact. Matthew contends that the court's findings indicate Gloria testified to multiple acts of
violence. He asserts that Stella, the daughter, is the only one who alleged that her father had slapped her
mother on a separate occasion. Matthew points out that Gloria never testified to this event. He then argues
that even if the one choking event occurred, that single act alone is insufficient grounds for a divorce. He
also states that the other alleged incidences involving "mean tricks," name-calling, and voodoo do not arise
to the level of proof required to establish cruelty.
¶13.
"This Court will not reverse a chancellor's decree of divorce unless it is manifestly wrong as to law
or fact." Chamblee v. Chamblee, 637 So. 2d 850, 859 (Miss. 1994). "The chancellor, as the trier of fact,
evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony."
Id. While the chancellor's determinations of the events that preceded the divorce are findings of fact, his
finding that Matthew's conduct constitutes habitual, cruel and inhuman treatment is a determination of law.
Potts v. Potts, 700 So. 2d 321, 322 (¶ 10) (Miss. 1997). To obtain a divorce on the grounds of habitual,
cruel and inhuman treatment, a petitioner must prove by a preponderance of the evidence, acts which
constitute such treatment. Chamblee, 637 So. 2d at 859. It is reversible error where the chancellor has
employed an erroneous legal standard. Potts, 700 So. 2d at 322 (¶ 10).
¶14.
The test for the fault-based grounds of divorce of habitual, cruel and inhuman treatment was set out
in 1930 by Russell v. Russell, 157 Miss. 425, 430, 128 So. 270, 272 (1930). The Mississippi Supreme
Court held that the conduct must be so unkind, unfeeling or brutal as to endanger, or put one in reasonable
apprehension of danger to life, limb or health. Id. In Wilson v. Wilson, 547 So. 2d 803, 805 (Miss.
1989), the court held that this conduct must be done so "often that it may reasonably be said a permanent
condition."
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¶15.
Prior to the legislature's addition of irreconcilable differences as a ground for divorce in 1978, the
court's interpretation of the definition of cruelty was construed liberally. Fournet v. Fournet, 481 So. 2d
326, 328 (Miss. 1985). Divorces were often granted on grounds closer to irreconcilable differences than
cruelty. Id. In Marble v. Marble, 457 So. 2d 1342, 1343 (Miss. 1984) the court announced a clear
return to a more stringent standard. The court ruled that the cruelty required is not such as "merely to
render the marriage undesirable or unpleasant, but impossible except at the risk to life and limb or health,
must be real rather than imaginary, and must be clearly established by the proof." Id.
¶16.
The facts alleged by Gloria as constituting habitual, cruel and inhuman treatment are as follows.
According to Gloria in the last two months of her marriage, Matthew: 1) choked her, 2) called her dirty
names, 3) engaged in affairs, 4) threatened to kill her, 5) played mean tricks on her including voodoo, 6)
would not sleep with her, 7) locked up the family's food, 8) burned her clothes, and 9) verbally attacked
her mother. Matthew testified that he never physically or emotionally abused his wife. He stated that these
were all false accusations and these accusations arose after Gloria accused him of having an affair with the
next door neighbor. He testified that Gloria was the one who was physically abusive. He said he believed
she was the one who was having an affair.
¶17.
Case law indicates that it is crucial for the chancellor to look not only at the offending spouse's
conduct but also at the impact made on the plaintiff spouse. Mitchell v. Mitchell, 823 So. 2d 568, 571
(¶ 9) (Miss. Ct. App. 2002). Thus, the Court must employ a subjective standard. Faries v. Faries, 607
So. 2d 1204, 1209 (Miss. 1992). Physical violence in the marriage does not create a per se ground for
a divorce under habitual, cruel and inhuman treatment. Mitchell, 823 So. 2d at 571 (¶ 9).
¶18.
In Wilbourne v. Wilbourne, 748 So. 2d 184, 187 (¶ 5) (Miss. Ct. App. 2000), this Court affirmed
the chancellor's ruling that a petition for divorce based on cruelty should be denied. The Court held that
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the evidence of the couple's arguments which occasionally included physical violence was insufficient to
prove cruelty. Id. In Stennis v. Stennis, 464 So. 2d 1161, 1161 (Miss. 1985), the chancellor ruled in
favor of the wife for a divorce based on cruel and inhuman treatment. The chancellor based his decision
on the fact that the husband had slapped his wife, had put her in a hammerlock, and had once washed out
her mouth with soap. Id. Notwithstanding this finding, this Court ruled the conduct was not sufficiently
cruel or inhuman. Id.
¶19.
"Physical violence or threats of physical violence are not necessary to prove habitual cruel and
inhuman treatment." Mitchell, 823 So. 2d at 571 (¶ 9). The conduct may be in the form of emotional
abuse; however, it must be more than mere "unkindness, rudeness, or incompatibility." Brooks v. Brooks,
652 So. 2d 1113, 1124 (Miss.1995). Emotional abuse must fall more along the lines of habitual ill-founded
accusations, insults and threats. Holladay v. Holladay, 776 So.2d 662 (¶ 64) (Miss. 2000).
¶20.
In Bullock v. Bullock, 699 So. 2d 1205, 1210 (¶ 19) (Miss. 1997), the Mississippi Supreme
Court found sufficient evidence of cruelty where the husband kept a calendar on the refrigerator indicating
when the couple had intercourse and drank heavily and became abusive while drinking. In Potts, 700 So.
2d at 323 (¶ 13), the court reversed the chancellor's finding of habitual, cruel and inhuman treatment. Mrs.
Potts proved that when her husband did not "get his way," he would move out of the bedroom and sleep
in another room. Id. at 322 (¶ 2). She stated that his storming out of the bedroom and returning when he
was ready to have sex hurt her emotionally. Id. at (¶ 3). In addition, he grabbed her once and demanded
to know whether she intended to have sex with him. Id. at (¶ 4). Emphasizing that cruelty requires more
than unkindness or rudeness or incompatibility, the court reversed the trial court's decision. Id. at 323 (¶
12).
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¶21.
As a general rule the charge of cruel and inhuman treatment must be founded on conduct that is
continuous and not based on one isolated incident. Ellzey v. Ellzey, 253 So. 2d 249, 250 (Miss. 1971).
However, where that one incident is of such "a violent nature as to endanger the life of the complainant
spouse" then the court will recognize the evidence as sufficient to establish cruel and inhuman treatment.
Id. For example, the conduct described in Ellzey rises to the level required for establishing cruelty even
though the abuse was limited to two incidences. Id. Mrs. Ellzey filed for divorce under the ground of cruel
and inhuman treatment after her husband commenced to shoot at her after accusing her of stealing twenty
dollars from his pocket. Id. Her case was also strengthened by the fact that twenty-five years before, Mr.
Ellzey had hit her with a shovel causing injuries. Id.
¶22.
In the course of a nineteen-year marriage, Gloria cites to one isolated physical attack and verbal
threat. All of her other accusations such as Matthew's mean tricks, name-calling, and refusal to sleep with
her, fall more in the categories of mere unkindness, rudeness, and incompatibility. The conduct alleged by
Gloria, even if true, does not rise to the necessary level to prove cruelty.
¶23.
Whether the conduct imposed by the offending spouse warrants a divorce for cruelty depends on
the conduct's effect on the suffering spouse. Mitchell, 823 So. 2d at 571 (¶ 9). The negative impact upon
the complaining spouse may be to their physical or mental health. Rakestraw v. Rakestraw, 717 So. 2d
1284, 1288 (¶ 11) (Miss. Ct. App.1998). In Bullock, 699 So. 2d at 1210 (¶ 20), the court emphasized
Mrs. Bullock's medical condition. She was hospitalized for depression and had attempted suicide. Id. at
(¶ 19). She also went through counseling and had bouts with hyperventilation, high blood pressure, and
stomach problems as a result of her unhappiness with the marriage and her husband's demeaning behavior.
Id. In Potts, 700 So. 2d at 323 (¶ 13), the court, in reversing the trial court's decision, stressed that Mrs.
Potts never sought treatment for the emotional problems she allegedly suffered.
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¶24.
Gloria testified that she "almost" had a nervous breakdown due to the stress endured during the last
two months of her marriage. However, she never indicated that she received any treatment. She also
testified that she was unhealthy due to high blood pressure and a "bad heart;" yet, she submitted no medical
evidence that these alleged health problems arose due to Matthew mistreating her.
¶25.
Mississippi rules require that "[i]n all uncontested divorce cases, except irreconcilable differences,
the testimony of the Plaintiff must be substantially corroborated." Unif. Chan. Ct. R. 8.03.
The corroborative evidence will be sufficient if it proves such substantial facts and
circumstances as will serve to engender in a sound and prudently cautious mind a confident
conclusion that the testimony of the complainant is true in all essential particulars, and is not
the exaggerated product of those wishful mental processes which passion and the
consuming present desire for the relief prayed, so often present in this type of cases.
Anderson v. Anderson, 190 Miss. 508, 513, 200 So. 726, 728 (1941).
¶26.
In addition to Gloria's testimony, Stella testified that she witnessed the choking incident and said
her father had once slapped Gloria. However, Gloria testified that the physical abuse was limited to the
one choking incident. Stella first said Matthew threatened Gloria's life only one time. She then changed
her statement and said he had done it multiple times. Gloria's testimony only referred to one incident of a
verbal attack.
¶27.
We find insufficient evidence to support the trial court's granting a divorce on the ground of habitual,
cruel and inhuman treatment and are therefore compelled to reverse and vacate that decree.
¶28. THE JUDGMENT OF THE CHANCERY COURT OF KEMPER COUNTY IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
McMILLIN, C.J., AND SOUTHWICK, P.J., THOMAS, AND MYERS, JJ., CONCUR.
KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES
AND LEE, JJ. IRVING AND GRIFFIS, JJ., NOT PARTICIPATING.
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KING, P.J., DISSENTING:
¶29.
With due regard for the majority opinion, I dissent. Under the guise of deciding a question of law,
the majority opinion is really re-weighing the evidence, and substituting its judgment for that of the
chancellor.
¶30.
In granting the divorce, the chancellor stated:
As to the divorce, there is a conflict in the evidence. The wife and child testified
as to his cruelty to her. He denies this. There are no other witnesses testifying on the
subject. The wife and child both testified to multiple assaults by Mr. Reed on Mrs. Reed
and to him having made multiple threats to kill her. With that evidence I find that she is
entitled to a divorce on the grounds of habitual cruel and inhuman treatment.
¶31.
"Habitual cruel and unusual treatment is defined as conduct that (1) endangers life, limb, or health,
or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the offended
party, (2) is so unnatural and infamous as to make the marriage revolting to the offended spouse and render
it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its
continuance." Bodne v. King, 2000-CT-00610 SCT (¶20) (Jan. 23, 2003); Daigle v. Daigle, 626 So.
2d 140, 144 (Miss. 1993);Gardner v. Gardner, 618 So. 2d 108, 113-14 (Miss. 1993); Rawson v. Buta,
609 So. 2d 426, 431 (Miss. 1992).
¶32.
The chancellor noted the conflicts in testimony, but resolved the issue of credibility in favor of Mrs.
Reed and her daughter, and accepted as fact their testimony of habitual cruel and inhuman treatment.
¶33.
Mrs. Reed testified that (1) Mr. Reed physically assaulted her on several occasions, (2) Mr. Reed
threatened to kill her on several occasions, (3) she was afraid of him, (4) he was verbally abusive, and (5)
these types of conduct, combined with other actions over a period of several months, almost caused her
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to have a nervous breakdown and made it impossible for her to stay with him and maintain a marital
relationship.
¶34.
The daughter, Stella Reed, gave testimony consistent with that of Mrs. Reed.
¶35.
Stella testified that Reed (1) choked her mother, (2) slapped her mother, (3) fought with her mother
on several occasions and (4) threaten to kill her mother on several occasions.
¶36.
The testimony of Mrs. Reed and Stella is sufficient to demonstrate a pattern of conduct by Mr.
Reed toward Mrs. Reed, which (1) endangered life, limb or health and created a reasonable apprehension
of such danger rendering the relationship unsafe for Mrs. Reed, and (2) was so unnatural and infamous as
to make the marriage revolting to Mrs. Reed and rendered it impossible for her to discharge the duties of
marriage thus destroying the basis for its continuance. That is how the Mississippi Supreme Court defined
habitual cruel and inhuman treatment on January 23, 2003, in Bodne v. King, supra at (¶20) in a decision
reversing this Court's setting aside the grant of an habitual cruel and inhuman treatment divorce.
¶37.
Because I believe Mrs. Reed met the standard stated in Bodne, I would affirm the grant of an
habitual cruel and inhuman treatment divorce.
BRIDGES AND LEE, JJ., JOIN THIS SEPARATE OPINION.
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