Fore v. Fore

109 So. 3d 137, 2013 WL 599892
CourtCourt of Appeals of Mississippi
DecidedFebruary 19, 2013
DocketNo. 2011-CA-01564-COA
StatusPublished
Cited by1 cases

This text of 109 So. 3d 137 (Fore v. Fore) 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
Fore v. Fore, 109 So. 3d 137, 2013 WL 599892 (Mich. Ct. App. 2013).

Opinion

FAIR, J.,

for the Court:

¶ 1. After a five-day divorce trial, Darlene and Cotton Fore found themselves still married. Each had accused the other of adultery and sought fault divorces solely on that ground. The chancellor found that neither party had established adultery and denied both of their claims. Both parties appeal. Because the chancellor’s decision was one of fact and was within his discretion, we affirm.

FACTS

¶ 2. Darlene, fifty-three years old at trial, and Cotton, then seventy years old, had married on August 1, 1998. Darlene permanently left the marital home eleven years later and filed her complaint for divorce in October 2009. Cotton counterclaimed in January 2010.

¶ 3. The divorce was vigorously litigated, as evidenced by the twenty-five single-spaced pages of the trial court docket. For eighteen months the parties enthusiastically pursued all means of discovery allowed by the Mississippi Rules of Civil Procedure. Private investigators were hired. Contempt pleadings, motions for continuances, mediation attempts, amendments of pleadings, and volumes of subpoenas were filed, pursued, and argued.

¶ 4. Because each party sought a divorce solely on the ground of the other’s alleged post-separation adultery,1 the chancellor bifurcated the trial and tried grounds first. Five days of trial produced a transcript well in excess of 800 pages.

¶ 5. Aided by briefs, speaking pleadings, and proposed findings of fact and conclusions of law, the chancellor filed a seven-page final judgment on July 6, 2011. In it, he denied a divorce to both parties and denied separate maintenance to Darlene because she averred that she would never return to living with Cotton under any circumstances. Both sides sought reconsideration, which was denied, and both parties thereafter appealed.

STANDARD OF REVIEW

¶ 6. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶9) (Miss.2004). We “will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). This Court “views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless manifestly wrong or unsupported by substantial evidence.” Fisher v. Fisher, 771 So.2d 364, 367 (¶ 8) (Miss.2000). Questions of law, however, are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000).

DISCUSSION

¶ 7. Most reported cases addressing adultery as a ground for divorce deal with judgments granting a divorce — not denial of divorce on that ground. The most recent reported decision by the Mississippi Supreme Court addressing a chancellor’s denial of divorce on the ground of adultery is Davis v. Davis, 832 So.2d 492 (Miss. [139]*1392002). The question was whether a post-separation “one night stand” was sufficient to support a divorce on the ground of adultery. The supreme court held that it was. Id. at 496 (¶ 15). In that case, as in many in recent years, sexual relations outside of marriage were readily admitted.

¶ 8. A few months prior to Davis, in Hensarling v. Hensarling, 824 So.2d 583 (Miss.2002), the supreme court upheld a grant of divorce on the ground of adultery where sexual involvement outside of marriage was denied, as in this case. That case contains the supreme court’s most recent and perhaps most thorough summary of the law on adultery and the evidence necessary to support a divorce on that ground:

This issue lies within the discretion of the chancellor as the trier of fact and must be decided based on the weight and sufficiency of the evidence. The standard of proof in cases involving allegations of adultery as grounds for divorce was clearly and succinctly stated by this Court in Holden v. Frasher-Holden, 680 So.2d 795 (Miss.1996). In that case we stated as follows:
“A charge of adultery may be grounds for divorce upon a showing of either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant.” [McAdory v. McAdory, 608 So.2d 695, 700 (Miss.1992).] There must be evidence of one or the other before a divorce may be granted on these grounds. Id. In [Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995) ], this Court recited the proper evidentiary standard to be applied to the proof set forth by the complaining party, as articulated in [Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986) ]: In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilt. Rodgers, 274 So.2d at 673. However, such evidence need not prove the alleged acts beyond a reasonable doubt and the plaintiff is not required to present direct testimony as to the events complained of due to their secretive nature. Bunkley & Morse’s Amis, Divorce & Separation in Mississippi, §§ 3.09(5) (1957). Nevertheless, the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence. Owen, 422 So.2d at 287, citing and quoting Banks v. Banks, 118 Miss. 783, 79 So. 841 (Miss.1918). Brooks, 652 So.2d at 1116 (quoting Dillon, 498 So.2d at 330) (emphasis added).
Holden, 680 So.2d at 798.
We also held in McAdory “that the elements of infatuation or proclivity toward adulterous behavior must be supported by evidence of a reasonable opportunity to satisfy the infatuation or proclivity.” McAdory, 608 So.2d at 700. Brenda testified that she did not know Art Sharpe until after Ken had left home and filed for divorce and that she was never sexually involved with him. However, in this case there is substantial evidence in the record to support the [140]*140chancellor’s conclusion that proclivity and opportunity were present in the relationship between Brenda and Art Sharpe. The burden of proof was met with regard to this issue. As such, the chancellor’s finding of adultery is not clearly erroneous.

Hensarling, 824 So.2d at 594-95 (¶¶ 36-37) (emphasis in original, some citations omitted).

¶ 9. Turning to the facts of the case at hand, after Darlene left Cotton and the employ of Fore Trucking, she was called by Lucas Tillman, the owner of Tillman’s Heating and Air. Lucas said he understood Darlene knew Quickbooks, and he needed help with setting it up for his business. When she went to his office, she learned he was separated from his wife.

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Related

Jackson v. Jackson
114 So. 3d 768 (Court of Appeals of Mississippi, 2013)

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109 So. 3d 137, 2013 WL 599892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fore-v-fore-missctapp-2013.