Ayers v. Ayers

734 So. 2d 213, 1999 WL 27564
CourtCourt of Appeals of Mississippi
DecidedJanuary 26, 1999
Docket97-CA-01148-COA
StatusPublished
Cited by9 cases

This text of 734 So. 2d 213 (Ayers v. Ayers) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ayers v. Ayers, 734 So. 2d 213, 1999 WL 27564 (Mich. Ct. App. 1999).

Opinion

734 So.2d 213 (1999)

Cynthia Louise (Mitchell) AYERS, Appellant,
v.
Jimmy George AYERS, Appellee.

No. 97-CA-01148-COA.

Court of Appeals of Mississippi.

January 26, 1999.

*214 Samuel J. Waits, Grenada, Attorney for Appellant.

Mitchell M. Lundy, Jr., Grenada, Attorney for Appellee.

BEFORE BRIDGES, C.J., PAYNE, AND SOUTHWICK, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. Cynthia Louise Ayers and Jimmy George Ayers were married on December 16, 1993, in Carroll County, Mississippi. The couple separated on January 31, 1997. Two children were born from this union.

¶ 2. Cynthia filed a bill of complaint for divorce on March 24, 1997, on grounds of habitual cruel and inhuman treatment. She also asked for paramount care and custody of the children. Jimmy filed his answer stating that Cynthia was not entitled to a divorce and filed a cross-complaint for separate maintenance.

¶ 3. The chancery court denied the divorce sought by Cynthia and denied the separate maintenance sought by Jimmy. The chancery court gave both parties joint legal custody of the children, with primary custody awarded to Jimmy. No child support was granted to either party and the chancery court ordered that the children were to attend school in Grenada County, Mississippi. Cynthia was also prohibited from removing the children from the State of Mississippi unless she posted a $1,000 ne exeat bond approved by the sheriff.

¶ 4. Having read the trial transcripts and reviewed the law, we affirm the chancellor in part and reverse and render in part.

FACTS

¶ 5. Cynthia and Jimmy Ayers were married in December 1993. From this union two children were born, James Tyler Ayers and Katherine Brooke Ayers.

¶ 6. Friction grew between Cynthia and Jimmy. Cynthia testified to several problems that she had with her husband. She complained that Jimmy ignored her at times and gave her the "silent treatment." However, Cynthia did intimate on one occasion that Jimmy's actions may have been caused by his long work hours.

A. And it would be a week or so, we would go without talking. And if he did talk to me, he would be angry about something, because he was tired. He was working a lot of hours at work.

Further, she testified that rarely would he ask her for sex. She also indicated that she did not approve of the marital home (hot in the summer, cold in the winter, ants in the yard). Concerning the couples *215 religious beliefs, she stated that she was Baptist and that he attended the Church of Christ. According to her testimony, she felt uncomfortable attending his church.

¶ 7. Cynthia characterized herself as being sensitive and prone to tears. She also stated that she had a nervous stomach and had visited with Dr. Haley[1] about her ailments. Cynthia testified that she visited Dr. Haley once, then she visited Dr. Tarzi.[2]

STANDARD OF REVIEW

¶ 8. Our standard of review is well known. This Court will not reverse a chancery court's findings of fact where they are supported by substantial credible evidence in the record. Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987); Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Gilchrist Machinery Co. v. Ross, 493 So.2d 1288, 1292 (Miss.1986); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-09 (Miss.1983); Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). This fact is as true of ultimate facts as of evidentiary facts. Norris, 498 So.2d at 814; Gilchrist, 493 So.2d at 1292; Spain v. Holland, 483 So.2d 318, 320 (Miss.1986). In other words, this Court will generally affirm a trial court sitting without a jury on a question of fact unless, based on substantial evidence, the court be manifestly wrong. Brown v. Williams, et al., 504 So.2d 1188, 1192 (Miss.1987); Harkins v. Fletcher, 499 So.2d 773, 775 (Miss.1986). This Court must examine the entire record and accept

that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact....

Cotton, 435 So.2d at 685.

¶ 9. Finally, the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963).

ISSUES PRESENTED

I. WHETHER THE COURT ERRED IN DENYING APPELLANT A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 10. As her first argument, Cynthia insists that the chancery court erred in denying her a divorce on the grounds of habitual cruel and inhuman treatment. Both parties cited Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993). In Daigle, the Mississippi Supreme Court stated that in order to establish cruel and inhuman treatment, the evidence produced should prove conduct that:

[E]ither endangers life, limb, or health or creates 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.

Furthermore, a charge of habitual cruel and inhuman treatment must be proven by a preponderance of the evidence, and the chancellor, as the trier of fact, evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994).

¶ 11. Cynthia testified that Jimmy gave her the silent treatment. She also stated that he has called her stupid on occasion and sometimes would not listen to her. Cynthia also stated that she suffered *216 from stress. Such conduct she contends entitles her to a divorce on the grounds of habitual cruel and inhuman treatment. Furthermore, Cynthia argued that Jimmy's conduct endangered her health and created apprehension of danger, to such an extent, that she felt the relationship was unsafe. She did state, several times in the record, that Jimmy never physically abused her.

¶ 12. A review of the trial transcripts clearly establishes that this marriage has had problems. However, basing her argument for divorce on marital friction is not legally persuasive. In a case similar to that presented today, the supreme court noted that habitual cruel and inhuman treatment "means something more than unkindness or rudeness or mere incompatibility or want of affection." Smith v. Smith, 614 So.2d 394, 396 (Miss.1993).

¶ 13. With that said, we affirm the chancellor.

II. WHETHER THE COURT ERRED WHEN IT GAVE THE PARTIES JOINT LEGAL CUSTODY OF THE TWO MINOR CHILDREN, AWARDED PARAMOUNT CUSTODY TO THE FATHER, GAVE ONLY TWO DAYS PER WEEK VISITATION TO THE MOTHER, AND FAILED TO PROVIDE CHILD SUPPORT TO THE MOTHER.

¶ 14. Next, Cynthia insists that when the chancellor gave the couple joint legal custody of the two minor children, and awarded paramount custody of the children to the father and gave the mother only two days a week visitation, the court erred. Citing Miss.Code Ann. § 93-5-24

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Bluebook (online)
734 So. 2d 213, 1999 WL 27564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayers-v-ayers-missctapp-1999.