Dissolution of Sanford v. Sanford

749 So. 2d 353, 1999 WL 810565
CourtCourt of Appeals of Mississippi
DecidedOctober 12, 1999
Docket97-CA-00651-COA, 97-CA-01503
StatusPublished
Cited by14 cases

This text of 749 So. 2d 353 (Dissolution of Sanford v. Sanford) 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
Dissolution of Sanford v. Sanford, 749 So. 2d 353, 1999 WL 810565 (Mich. Ct. App. 1999).

Opinion

749 So.2d 353 (1999)

In the Matter of the DISSOLUTION OF the Marriage Gerlinde Ulm SANFORD, Appellant,
v.
William F. SANFORD, Appellee.

Nos. 97-CA-00651-COA, 97-CA-01503.

Court of Appeals of Mississippi.

October 12, 1999.

*354 Jolly W. Matthews III, Hattiesburg, Attorney for Appellant.

Anthony Sakalarios, Hattiesburg, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, AND IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. This is an appeal from a judgment in the Chancery Court of Lamar County that denied a motion to set aside a divorce that had been granted on the grounds of irreconcilable differences. We find sufficient doubt about the wife's agreement to the divorce to cause reversal and a remand.

FACTS

¶ 2. William F. Sanford and Gerlinde Ulm Sanford were married in 1966 but have lived in separate parts of the country for the last fifteen years. Mrs. Sanford worked as an associate professor of German and German literature at Syracuse University in New York. Mr. Sanford engaged in various pursuits in Mississippi. A complaint for divorce was filed on July 7, 1997. The parties prepared a settlement agreement and met with the chancellor on August 13, which was prior to the passage of the statutorily required sixty days. The chancellor informed them of the need to delay further. A hearing was then held on October 31, 1997. Mrs. Sanford was not represented by an attorney at this hearing. She was asked several times by the chancellor if she desired counsel. She said that she did not. Following an off-the-record meeting in the chancellor's chambers, Mrs. Sanford agreed to a divorce on the basis of irreconcilable differences, but only by nodding her head affirmatively.

¶ 3. Soon after the divorce Mrs. Sanford finally retained counsel and petitioned the court to set the decree aside. After conducting a hearing at which Mrs. Sanford testified, the chancellor by order of March 24, 1998, refused to set aside the divorce. Mrs. Sanford has appealed.

DISCUSSION

¶ 4. Though there is some allegation of fraud on appeal, Mrs. Sanford's principal contention is that she never wished a divorce and made that plain in the trial court. At the hearing she reluctantly *355 nodded assent only because of a mistaken belief that her husband could get an irreconcilable differences divorce regardless of whether she agreed to it.

¶ 5. Evidence of her opposition to the divorce is offered in the form of letters written by her both to the court and to her husband's attorney. These letters were written beginning immediately after the August 13 meeting with the chancellor and continuing even after the October 31 divorce. They express Mrs. Sanford's strong desire not to be divorced. She pleads with the chancellor not to "force" her to be divorced. She requested the chancellor's assistance in convincing her husband to avoid divorce. She also proposed that she be able to adopt the baby that her husband had fathered with his present girlfriend, and thereby with her husband attempt to start their marriage anew.

¶ 6. Had Mrs. Sanford followed both the chancellor's and opposing counsel's advice to get her own lawyer, presumably the predicament in which she says that she now finds herself could have been avoided. In a statement striking and poignant for its probable uniqueness in appellate records, she stated in a pre-divorce letter that she regarded retaining counsel as an act of disloyalty to her husband. On several occasions and in several ways she revealed her belief that a divorce was inevitable and would be granted regardless of whether she agreed.

¶ 7. There is support for this belief in her letters to the chancellor and to her husband's counsel, Anthony Sakalarios. In addition, a letter to her from Mr. Sakalarios stated in part, "You need to reconcile yourself that there is going to be a divorce[;] it is just a question about whether or not it can be done amicably and that it is fair to everyone or whether it is going to be battled out in the courtroom." That may well be a fair analysis of the situation and at the very least a reasonable statement for opposing counsel to make considering that his client was alleging constructive desertion as fault-based grounds if Mrs. Sanford would not agree to a divorce. However, the evidence to prove who, if anyone, deserted whom is not in the record.

¶ 8. Mr. Sanford's interpretation of events is that his wife ignored repeated advice to retain counsel and instead resigned herself to the inevitability of the divorce. Helping to convince her was the fact that at the hearing some mention was made that her retirement pension from the university might be equitably divided if a fault-based divorce were ultimately granted. In Mr. Sanford's view her consent was voluntary and no grounds for setting the divorce aside were shown. The chancellor agreed.

Issue 1: Mrs. Sanford's agreement to and understanding of the divorce

¶ 9. The starting point is that an irreconcilable differences divorce in Mississippi requires that neither spouse contest its granting. Miss.Code Ann. § 93-5-2(5) (Rev.1994). This does not mean that both spouses must fervently desire a divorce. Unless a spouse exercises the right to contest it, a decree of divorce may be entered.

¶ 10. How objections are expressed is partly explained in the statute:

(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

Miss.Code Ann. § 93-5-2(5) (Rev.1994). A cross-complaint or counterclaim may be a contest to a divorce; a second complaint, inconsistent with the first complaint that was jointly filed, may also serve as a contest. Massingill v. Massingill, 594 So.2d *356 1173, 1177 (Miss.1992); McCleave v. McCleave, 491 So.2d 522, 523 (Miss.1986). Though neither is the situation here, we do have considerable pro se equivalents of contests to the divorce.

¶ 11. Wavering on whether a divorce should be entered may often occur and does not invalidate the divorce. During the sixty day period for reflection after the filing of a divorce complaint, there may be oscillating from complete agreement to complete opposition and every level between. What is important is that agreement be validly expressed on the day that the chancellor is considering the issue. Mrs. Sanford did not vacillate prior to the hearing: her opposition to the divorce was constant and frequently expressed. The record contains nine lengthy letters from Mrs. Sanford to the chancellor. The first one was sent a few days after the abbreviated court appearance in August 1997 and others followed even after the decree of divorce was granted. All of these letters expressed Mrs. Sanford's strong desire not to be divorced from her husband. Some indicate her misunderstanding of the process by which a divorce is granted in Mississippi. She stated repeatedly in her letters that she thought she had no choice in the matter and that her husband could get a divorce regardless of whether or not she objected to it.

¶ 12.

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Bluebook (online)
749 So. 2d 353, 1999 WL 810565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dissolution-of-sanford-v-sanford-missctapp-1999.