Christopher Jerome Moses v. Kindalin Kay Moses
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00673-COA
CHRISTOPHER JEROME MOSES
APPELLANT
v.
KINDALIN KAY MOSES
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/17/2003
HON. PATRICIA D. WISE
HINDS COUNTY CHANCERY COURT
JAMES ELDRED RENFROE
ROY J. PERILLOUX
RAJITA IYER MOSS
BOBBY OWENS
CIVIL - DOMESTIC RELATIONS
DIVORCE AWARDED WITH JOINT CUSTODY
OF MINOR CHILD AND CHILD SUPPORT
PROVISIONS.
REVERSED AND RENDERED - 03/23/04
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
The Chancery Court for the Second Judicial District of Hinds County, Mississippi granted Kindalin
Kay Moses a divorce from Christopher Jerome Moses on the ground of habitual cruel and inhuman
treatment. Joint custody was granted of the minor child with Kindalin having primary physical custody
subject to Christopher’s visitation rights. Child support was granted with Christopher being required to
pay 14% of his income for support and maintenance as provided by law. In addition, Christopher was
required to maintain health insurance for the child, pay half of all costs not covered by insurance and pay
half of parochial school tuition and expenses. Of the marital property Christopher was granted sole use
and possession of the marital home provided that he continue paying expenses related to the home and pay
Kindalin half the adjudicated equity in the home, otherwise the home would be offered for public sale. The
rest of the marital property was divided according to lists provided by the parties and the division of debt
was left to be considered by the attorneys.
¶2.
Christopher filed a motion to reconsider which was denied. Now Christopher appeals on the
following issues:
STATEMENT OF THE ISSUES
I. DID THE CHANCELLOR COMMIT ERROR IN FINDING SUFFICIENT EVIDENCE TO
AWARD APPELLEE A DIVORCE OF AND FROM APPELLANT ON THE GROUNDS OF
HABITUAL CRUEL AND INHUMAN TREATMENT?
II. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING APPELLANT TO PAY THE
MINOR CHILD’S PRIVATE SCHOOL TUITION, IN ADDITION TO HIS MONTHLY CHILD
SUPPORT OBLIGATION?
III. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING WITNESSES AND PHYSICAL
EVIDENCE INTO THE EVIDENCE DESPITE SUCH BEING SUPPLEMENTED ONLY SHORTLY
BEFORE TRIAL?
IV. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING DR. LORI FULTON TO
TESTIFY AS TO THE SOURCE OF APPELLEE’S DISEASES?
V. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING THE DIVISION OF MARITAL
HOMESTEAD WHEREIN APPELLEE OFFERED NO PROOF OF HER PORTION OF
CONTRIBUTION TO THESE ASSETS AND THE CHANCELLOR FAILED TO ENUMERATE
THE REQUIRED FERGUSON FACTORS?
FACTS
¶3.
Christopher and Kindalin were married in 1994 in Hinds County. From this marriage a female one
child was born in 1998. In 2001, while both were citizens and residents of Hinds County, the parties
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separated. Kindalin filed for temporary relief and divorce on the grounds of adultery, habitual cruel and
inhuman treatment and irreconcilable differences later that same year. Later she dropped the charge of
adultery. Christopher filed and later withdrew a counter claim for divorce also on the grounds of habitual
cruel and inhuman treatment and irreconcilable differences.
¶4.
Prior to the filing of her complaint for divorce a complaint was lodges with the Department of
Health and Human Services that an “Uncle Johnny” was molesting the minor child. Therefore, in 2002 the
trial court ordered an independent psychological evaluation of the child and appointed a guardian ad litem
for her during these proceedings. Also, there was a question during the hearings as to whether Christopher
was the source of Kindalin’s sexually transmitted diseases. Two hearings were conducted with a third for
procedural matters but at the close of the second hearing a judgment of divorce was entered.
ANALYSIS
¶5.
“In this and many other contexts, findings of fact made by a chancellor may not be set aside or
disturbed on appeal unless manifestly wrong. This is so whether the finding relates to an evidentiary fact
question . . . or an ultimate fact question.” Tucker v. Tucker, 453 So.2d 1294, 1296 (Miss. 1984). This
standard of review will apply to all five issues on appeal.
I. DID THE CHANCELLOR COMMIT ERROR IN FINDING SUFFICIENT EVIDENCE TO
AWARD APPELLEE A DIVORCE OF AND FROM APPELLANT ON THE GROUNDS OF
HABITUAL CRUEL AND INHUMAN TREATMENT?
¶6.
Chancellor Patricia Wise granted Kindalin a divorce on the grounds of habitual cruel and inhuman
treatment and based her decision on two evidentiary findings. First, Christopher was found to be the
source of Kindalin’s numerous sexually transmitted diseases (STDs). This finding was based on the
testimony of Kindalin, her treating physician, the refusal of the court to accept Christopher’s interpretation
of his medical records and Christopher’s failure to deny accusations of being a carrier of these STDs when
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confronted by Kindalin’s physician. The second basis for the chancellor’s decision was the undisputed
testimony that Christopher taped the phone conversations of Kindalin before and after the separation of
the parties.
¶7.
In order to establish the basis for divorce on the ground of habitual cruel and inhuman treatment
the claimant should produce evidence to prove conduct that: “either endanger[s] life, limb, or health, or
create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking
relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending
spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the
basis for its continuance.” S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed.
Supp.1991); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). A causal connection between
the treatment and separation must exist. Id. (citing Fournet v. Fournet, 481 So.2d 326, 328
(Miss.1985)).
¶8.
Since this was not an uncontested divorce, according to Mississippi case law, the plaintiff must
prove the ground for divorce by a preponderance of the credible evidence. Cooper v. Cooper, 518 So.2d
664, 666 (Miss.1988). Then the trier of fact will evaluate the sufficiency of the proof based on the
credibility of witnesses and the weight of their testimony. Rainey v. Rainey, 205 So.2d 514, 515
(Miss.1967). Therefore, in the present case the chancellor was required to find that Kindalin met the
evidentiary requirements required for divorce on the grounds of habitual cruel and inhuman treatment by
a preponderance of the credible evidence.
¶9.
“Habitual cruel and inhuman treatment is not the catch-all category to permit a divorce when a
marriage is suffering difficulties, and absent an agreement by the spouses that would permit an irreconcilable
differences divorce, neither party is entitled to be granted a divorce without providing the proof necessary
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to support the grounds that are alleged.” Crenshaw v. Crenshaw, 767 So.2d 272, 276 (¶14) (Miss. Ct.
App. 2000). The evidence Kindalin presented to support the findings that Christopher recorded her phone
conversations was through his admission during cross examination. He admitted that in 1995 he taped her
conversations with her mother because he wanted to know if she was cheating. The Mississippi Supreme
Court has found that it is not a crime for a husband to record the conversations of his spouse within the
marital home. Stewart v. Stewart, 645 So.2d 1319, 1321 (Miss.1994). She also offered evidence that
more recently in the marriage his suspicions led him to smash her cell phone. “It is an extreme set of facts
that will prove a divorce based upon habitual cruel and inhuman treatment.” Keller v. Keller, 763 So.2d
902, 908 (¶29 ) (Miss. Ct. App. 2000). His ability to record her conversations and destroying her cell
phone do not rise to the level of extremes necessary to constitute habitual cruel and inhuman treatment.
The granting of a divorce on the ground of habitual cruel and inhuman treatment on these findings did
constitute manifest error on the part of the chancellor and is reversed.
¶10.
The chancellor also based her finding of habitual cruel and inhuman treatment on the alleged
transmission of numerous STDs to Kindalin by Christopher. The evidence presented by Kindalin for the
transmission of numerous STDs by Christopher was through her own testimony and the testimony of her
physician, Dr. Lori Fulton. Kindalin testified that she had a virginal gynecological exam by Dr. Banks the
end of her junior year of college before she started dating Christopher, meaning that Kindalin had not had
sex with anyone prior to that doctor’s appointment in her junior year. She offered into evidence the
medical records from Dr. Banks to prove this. Her doctor’s visit was in July of 1993 and she married
Christopher in November of 1994. However, they dated a year before they were married.
¶11.
The only evidence she offered as to the source of her sexually transmitted diseases was her own
testimony; the testimony of Dr. Lori Fulton was only to address treatment and diagnosis, not the source of
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her diseases. Christopher offered evidence that Kindalin had at least one STD, herpes, before their
marriage. He also produced his medical records which indicate the only STD he had during the marriage
was herpes which he claims to have contracted from Kindalin. His medical records also indicate that he
made three visits to the doctor due to his wife’s having been diagnosed with an STD.
¶12.
There was no credible evidence presented that Christopher transmitted to Kindalin any STD. Also,
there was evidence that Kindalin had herpes before their marriage, but Kindalin offered no proof that
Christopher had herpes prior to the marriage. Herpes is the only STD both were proven to have. Kindalin
married Christopher after she claims he infected her with that condition. Therefore, since she knowingly
married him believing he infected her with herpes she cannot later claim that such infection is grounds for
habitual cruel and inhuman treatment.
¶13.
The ruling of the Chancery Court of the Second Judicial District of Hinds County is reversed and
rendered.
II. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING APPELLANT TO PAY THE
MINOR CHILD’S PRIVATE SCHOOL TUITION, IN ADDITION TO HIS MONTHLY CHILD
SUPPORT OBLIGATION?
¶14.
Due to the Court’s decision above, this issue is moot. However, the Court will address one aspect
of this issue. The chancellor required Christopher to pay in child support 14% of his adjusted gross
income and half of the child’s parochial school tuition. Pre-college tuition is considered part of child
support, not an extraordinary expense. Southerland v. Southerland, 816 So.2d 1004, 1006 (¶11)
(Miss. 2002). Requiring Christopher to pay half of the tuition over and above the statutory 14% without
a written or specific finding by the chancellor as to why the deviation is needed renders the award
inappropriate. Miss. Code Ann. § 43-19-101(2) (Rev. 2000). Such awards should be consistent with
the provisions laid out in Mississippi Code Annotated section 43-19-103.
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¶15.
The chancellor’s only basis for requiring Christopher to pay half the tuition was that Christopher
was Catholic and that the couple had already placed their daughter in Catholic school. “While a father’s
agreement prior to divorce to send a child to private school may be one legitimate factor to be considered,
it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory
guidelines.” Southerland, 816 So.2d at (¶13)1007. Thus, Christopher’s agreement with Kindalin about
sending their daughter to Catholic school prior to the divorce cannot be the sole basis for the chancellor’s
decision.
III. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING WITNESSES AND PHYSICAL
EVIDENCE INTO THE EVIDENCE DESPITE SUCH BEING SUPPLEMENTED ONLY SHORTLY
BEFORE TRIAL?
IV. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING DR. LORI FULTON TO
TESTIFY AS TO THE SOURCE OF APPELLEE’S DISEASES?
¶16.
Due to the Court’s decision above, these issues are moot.
V. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING THE DIVISION OF MARITAL
HOMESTEAD WHEREIN APPELLEE OFFERED NO PROOF OF HER PORTION OF
CONTRIBUTION TO THESE ASSETS AND THE CHANCELLOR FAILED TO ENUMERATE
THE REQUIRED FERGUSON FACTORS?
¶17.
Due to the Court’s decision above, this issue is also moot. However, the Court will address two
aspects of the issues. In the chancellor’s amended final judgment of divorce, the orders given in paragraphs
six, seven and eight are too indefinite to be enforced.
¶18.
Paragraph six concerns the purchase of the home and the division of the equity but it does not give
a specific adjudicated value of the home and equity and it does not give specific time parameters for
Christopher’s option to purchase and the conditions of the public sale if one is necessary. Paragraph seven
lists the identifiable assets the couple possess in the home. Initially, this paragraph contained no actual
order of division; however, in the amended judgment this paragraph is more specific but should preferably
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include a catch-all provision for omitted assets. Finally, in paragraph eight the chancellor instructs “the
attorneys to look at any indebtedness to determine the amount owed.” Again, this order is too indefinite
to be enforced.
¶19.
Lastly, this Court notes the lack of consideration of the Ferguson factors in the division of the
marital assets especially the marital home. Upon review, this Court could find no reason as to why Kindalin
was entitled to half of the equity in the home and found no reason for awarding possession of the home to
Christopher other than the fact that his father helped him build it. This chancellor casually mentioned the
Ferguson factors at the very close of her ruling. She stated, “I need to say for the record that in dividing
and considering the division of property, the Court considered the factors in Ferguson v. Ferguson, so
that we can have that on the record.” This capricious mention of the case merely to have it on the record
was not the intent of the Mississippi Supreme Court. Rather, chancellors should consider the eight factors
laid out in Ferguson throughout the entire process of dividing the marital assets.
¶20. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED
AND RENDERED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEE.
KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER
AND GRIFFIS, JJ., CONCUR. MCMILLIN, C.J., CONCURS IN RESULT ONLY.
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