Mary M. Deen v. Charles Deen
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00198-COA
MARY M. DEEN
APPELLANT
v.
CHARLES DEEN
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
1/8/2002
HON. J. LARRY BUFFINGTON
JEFFERSON DAVIS COUNTY CHANCERY
COURT
OBY THOMAS ROGERS
DEBORAH J. GAMBRELL
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED BASED ON
CONSTRUCTIVE DESERTION
AFFIRMED: 10/14/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
KING, P.J., FOR THE COURT:
¶1.
On January 8, 2002, Charles Deen was granted a divorce from Mary M. Deen based on
constructive desertion. Ms. Deen has appealed the judgment by the Chancery Court of Jefferson Davis
County and has raised the following issues:
I. Did the trial court err in granting a divorce to Mr. Deen on the ground of constructive desertion?
II. Did the trial court err in denying Ms. Deen's request for attorney's fees?
FACTS
¶2.
The Deens were married in 1979 in Harrison County, Mississippi. Mr. Deen became legally blind
in 1997. The Deens lived together until a final separation occurred in June 1998. No children were born
to this union.
¶3.
On September 15, 2000, Mr. Deen filed a complaint seeking a divorce from Mrs. Deen on the
primary grounds of habitual cruel and inhuman treatment, and the alternative grounds of irreconcilable
differences. A prior complaint for divorce had been denied in October of 1998.
¶4.
During the trial of this action on April 26, 2001, Mr. Deen testified that a pattern had been
established where he spent most weekends with his sister. Mrs. Deen would take him to the sister's house
on Friday and pick him up on Sunday. He indicated that this was true even on many weekends when Mrs.
Deen was informed of his desire not to visit his sister. According to Mr. Deen, on the last visit to his sister’s
house in 1998, Mrs. Deen neither called to check on him nor came to pick him up for approximately nine
days.
¶5.
Mr. Deen testified that Mrs. Deen mistreated him. He stated that Mrs. Deen would go to
work during the week, and leave him without food while she was working.
¶6.
Mr. Deen indicated that Mrs. Deen, without consulting him, brought her grandson, Grammar Lee
Lockhart, to stay with them. Lockhart stayed with the Deens for approximately three years. Mr. Deen
testified that during that period of time, the grandson treated him with disrespect and on at least one
occasion in 1995, threatened him. According to Mr. Deen, when he informed Mrs. Deen of her grandson's
conduct, she stated that he (Mr. Deen) should leave Lockhart alone before Lockhart hurt him. While
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putting a different spin on the matter, this disrespect was corroborated by the grandson who testified that
both he and Mr. Deen had made negative remarks to each other.
¶7.
Mr. Deen testified that since their separation in June 1998, the only contact between them was at
the first trial on October 20, 1998. He noted that if Mrs. Deen had come for him after the first trial, he
would have gone home with her. Mr. Deen also stated their marriage would have remained viable if Mrs.
Deen had continued to treat him well. Mr. Deen indicated that he now rents a small trailer on someone
else's property and pays someone to assist him as needed.
¶8.
Mrs. Deen testified that despite the separation, she did not want a divorce. Mrs. Deen testified that
while she worked daily from 7:00 a.m. to 3:30 p.m. , she would leave food for Mr. Deen. Mrs. Deen
indicated that it was the desire of Mr. Deen’s sister to have someone stay with her on the weekend, which
caused Mr. Deen to be there on the weekend. Mrs. Deen testified that Mr. Deen’s sister would not allow
him to return home. Mrs. Deen testified that she did not go and pick up her husband because it was her
belief that he had a relationship with someone else.
¶9.
At the trial, Mr. Deen amended his pleadings to also charge constructive desertion. The chancellor
denied the divorce on the grounds of cruel and inhuman treatment, but granted a divorce based on
constructive desertion. Mrs. Deen's request for attorney's fees was denied.
ISSUES AND ANALYSIS
I.
Did the trial court err in granting a divorce to Mr. Deen on the ground of constructive
desertion?
¶10.
Ms. Deen contends that the trial court's ruling "is manifestly wrong and not supported by substantial,
credible evidence."
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¶11.
Desertion requires a showing of wilful, continued and obstinate desertion for the space of one year,
Miss. Code Ann.§93-5-1 (Rev. 1994), the principle of constructive desertion may be applied in extreme
cases. Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949).
Constructive desertion may occur if either party by reason of such conduct on the part of
the other, as would reasonably render the continuance of the marital relation, unendurable
or dangerous to life, health or safety, is compelled to leave the home and seek safety,
peace and protection elsewhere; or if the husband negligently or wilfully fails or refuses to
support the wife, reasonably, in accordance with his means and ability, then the innocent
one will, ordinarily, be justified in severing the marital relation and leaving the domicile of
the other so long as such conditions shall continue. And in such event the one so leaving
will not be guilty of desertion but the one whose conduct caused the separation will be
guilty of constructive desertion.'
Griffin, 42 So. 2d at 722.
¶12.
In this case, the chancellor determined the following:
The Court finds that Mr. Deen is entitled to a divorce on the grounds of constructive
desertion in that the testimony is quite obvious from all that has been done, that Mr. Deen
has been blind. That he may be living in Bassfield. I don't know who he's living with.
She's testified that he's been down there for two years. She says she has no business
down there. But if her husband is down there and she wanted her husband back, then it
sounds like she's got business to go down there. She has failed to do so within the one
year as pertain [sic] to by the statute and therefore the Court finds that since Mr. Deen
could not drive himself back down there, she has not appeared to take him back, that she
is guilty of constructive desertion.
¶13. In reviewing domestic relations matters, this Court is limited by the substantial evidence/manifest error
rule. We may only reverse a chancellor's finding of fact when there is no substantial and credible evidence
in the record which supports that finding. Where the chancellor is not manifestly wrong, is not clearly
erroneous and has not applied an erroneous legal standard, this Court is will not disturb his findings.
Hensarling v. Hensarling, 824 So. 2d 583 (¶7) (Miss. 2002) (citations omitted).
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¶14.
The chancellor found that the course of conduct by Mrs. Deen amounted to constructive desertion.
The record before this Court contains substantial, credible evidence which supports the chancellors’s
holding. Because this holding is supported by substantial, credible evidence, this Court is required to defer
to that decision.
II.
Did the trial court err in denying Mrs. Deen's request for attorney's fees?
¶15.
Mrs. Deen contends that the trial court erred in denying her request for attorney's fees. She
maintains that "[i]t appears from a review of the transcript and the court record that there was no ruling by
the Chancellor regarding the Appellant's request for attorney's fees; however, it was assumed denied by
the Appellant given the fact that the divorce was granted." Mrs. Deen asserts that the divorce action was
not filed in good faith and that she is without sufficient funds to pay her attorney.
¶16.
The question of attorney's fees in a divorce action is a matter largely entrusted to the sound
discretion of the trial court. East v. East, 775 So. 2d 741 (¶4) (Miss. Ct. App. 2000). "If a party is
financially able to pay her attorney, an award of attorney's fees is not appropriate." Id. Mrs. Deen offered
no evidence of any inability to pay her own attorney's fees. The party requesting attorney’s fees has that
burden of proof on that issue. Mrs. Deen did not meet that burden of proof. If the record does not
demonstrate the wife's inability to pay her attorney's fees, then an award of the fees is an abuse of
discretion. Benson v. Benson, 608 So. 2d 709, 712 (Miss. 1992). Because Mrs. Deen did not
demonstrate an inability to pay her attorney fees, we find no error in the chancellor's decision to deny
attorney's fees.
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¶17. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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