Oswalt v. Oswalt

981 So. 2d 993, 2007 WL 2840359
CourtCourt of Appeals of Mississippi
DecidedOctober 2, 2007
Docket2006-CA-01254-COA
StatusPublished
Cited by11 cases

This text of 981 So. 2d 993 (Oswalt v. Oswalt) 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
Oswalt v. Oswalt, 981 So. 2d 993, 2007 WL 2840359 (Mich. Ct. App. 2007).

Opinion

981 So.2d 993 (2007)

Samuel Thomas OSWALT, Appellant
v.
Sandra Lynne Muirhead OSWALT, Appellee.

No. 2006-CA-01254-COA.

Court of Appeals of Mississippi.

October 2, 2007.
Rehearing Denied February 19, 2008.

*994 George M. Mitchell, Jr., Eupora, attorney for appellant.

Luther Putnam Crull, Jr., attorney for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Sandra Lynne Muirhead Oswalt (Sandi) and Samuel Thomas Oswalt (Sammy) were married on November 27, 1998, and separated on May 30, 2004, when Sandi moved out of the marital home. No children were born of the marriage. Details of the marriage will be discussed as relevant.

¶ 2. On June 21, 2004, Sandi filed for divorce in the Chancery Court of Choctaw County alleging habitual drunkenness and habitual cruel and inhuman treatment. Sammy filed a counter complaint alleging he was entitled to a divorce based on habitual cruel and inhuman treatment and desertion. During the trial, Sammy made a motion for directed verdict arguing that Sandi had failed to meet her burden of proof as to the two grounds that were the basis of her action. The chancellor sustained Sammy's motion in part finding that Sandi failed to prove her allegation of habitual drunkenness. However, the court *995 granted Sandi a divorce based on habitual cruel and inhuman treatment on March 17, 2006, and awarded Sandi forty percent of the marital assets.

¶ 3. Sammy now appeals to this Court citing the following issues: (1) the trial court erred in granting a divorce to Sandi on the ground of habitual cruel and inhuman treatment without the necessary proof to sustain such a ruling; (2) the trial court failed to properly address the requirements of Ferguson v. Ferguson in making an equitable division of the marital property; (3) the trial court failed to include in the evaluation and equitable division of the marital assets Sandi's increase in education and earning ability and other items; (4) the trial court erred by restricting the examination of witnesses concerning Sandi's relationship with members of the opposite sex; and (5) the trial court failed to characterize certain commingled property as separate. Issues two, three, and five will be discussed together as each asserts similar arguments.

¶ 4. Finding no error, we affirm.

I. DID THE TRIAL COURT ERR IN GRANTING A DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶ 5. The standard of review in domestic relations cases is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(¶ 13). "This court will not substitute its judgment for that of the chancellor `even if this Court disagrees with the lower court on the findings of fact and might . . . [arrive] at a different conclusion.'" Owen v. Owen, 798 So.2d 394, 397-98(¶ 10) (Miss. 2001) (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978)). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

¶ 6. Habitual cruel and inhuman treatment is defined as conduct that (1) endangers life, limb or health or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the offended spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 14) (Miss.2002). The burden of proof in a habitual cruel and inhuman treatment case is a preponderance of evidence. Id.; Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993). Cruel and inhuman treatment is something more than unkindness or rudeness or mere incompatibility or want of affection. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). As a general rule, the habitual cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be grounds for a divorce. Richard v. Richard, 711 So.2d 884, 888(¶ 13) (Miss.1998).

¶ 7. Sammy argues that insufficient evidence was presented for the chancellor to grant a divorce to Sandi based on habitual cruel and inhuman treatment. Sandi offered the following evidence in support of a divorce based on habitual cruel and inhuman treatment. On Sandi's birthday, in September 1999, the couple had been out but not together. Sammy arrived home first and went upstairs. Sandi came in later and decided to sleep downstairs to avoid waking Sammy. When Sammy discovered Sandi sleeping downstairs they had a physical confrontation from which Sandi suffered injuries. Photographs of her injuries were admitted into evidence *996 and her mother testified as to the injuries. Sammy argues that he was just trying to restrain her during this confrontation. The chancellor found that given the nature of her injuries it did not appear as if he was just trying to restrain her and thus chose to accept Sandi's version of the incident. Next, in July 2000, Sammy bruised Sandi's arm during a confrontation about going to a NASCAR race. A photograph of the bruise provided corroborating evidence of this altercation. Sandi further testified that Sammy was violent once or twice a month, but Sammy denied that physical altercations occurred.

¶ 8. Sandi testified that Sammy drank every day, and was drunk four days a week. Sandi's mother testified that Sammy frequently consumed beer. She also testified that Sandi telephoned her once or twice a month crying and upset over Sammy's actions. Sammy threatened suicide on more than one occasion and fired a shotgun to make Sandi think he had shot himself. On another occasion when he was drinking and the couple was arguing, he got out a shotgun and Sandi left the house out of fear. Sandi also testified that Sammy belittled her and threatened to burn her clothes.

¶ 9. The chancellor noted that although Sandi alleged that she feared Sammy she was in his presence several times after their separation. Most of these times were explained by Sammy's desire for her to return home. Regardless, Sandi's testimony at trial was that her returning to the marriage was not a possibility. We cannot find that the chancellor erred in finding that this did not prevent Sandi from obtaining a divorce.

¶ 10. Given the above allegations and evidence corroborating Sandi's testimony, we cannot find that the chancellor committed manifest or clear error as to law or fact in granting Sandi a divorce based on habitual cruel and inhuman treatment. Substantial evidence existed to support the chancellor's ruling. The physical assaults on Sandi together with Sammy's tendencies toward suicide were enough to give Sandi a reasonable apprehension of danger to her life, limb, and health. Having found no merit in Sammy's arguments and having found no manifest error, we affirm the judgment of the chancellor granting Sandi a divorce on the ground of habitual cruel and inhuman treatment.

II. DID THE TRIAL COURT PROPERLY ADDRESS THE FERGUSON FACTORS IN MAKING AN EQUITABLE DIVISION OF THE MARITAL PROPERTY?

¶ 11. This Court employs a limited standard of review of property division and distribution in divorce cases. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997).

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Bluebook (online)
981 So. 2d 993, 2007 WL 2840359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oswalt-v-oswalt-missctapp-2007.