Spence v. Spence

930 So. 2d 415, 2005 WL 1950340
CourtCourt of Appeals of Mississippi
DecidedAugust 16, 2005
Docket2004-CA-00096-COA
StatusPublished
Cited by1 cases

This text of 930 So. 2d 415 (Spence v. Spence) 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
Spence v. Spence, 930 So. 2d 415, 2005 WL 1950340 (Mich. Ct. App. 2005).

Opinion

930 So.2d 415 (2005)

Charles W. SPENCE, Appellant
v.
Donna G. SPENCE, Appellee.

No. 2004-CA-00096-COA.

Court of Appeals of Mississippi.

August 16, 2005.

Lawrence Primeaux, Meridian, attorney for appellant.

Henry Palmer, attorney for appellee.

Before KING, C.J., MYERS and ISHEE, JJ.

MYERS, J., for the Court.

¶ 1. This case arises from the Chancery Court of Lauderdale County where Donna Spence was granted a divorce from Charles Spence on the grounds of habitual, cruel and inhuman treatment and adultery. Further, the chancellor divided the marital assets between the parties, awarded Donna custody of the two children, and ordered Charles to pay child support and alimony. Aggrieved by the ruling of the *416 chancellor, Charles appeals, raising the following four issues, which we recite verbatim:

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DIVORCE.
II. WHETHER THE CHANCELLOR ERRED IN AWARDING DONNA AN EXCESSIVE AMOUNT OF ALIMONY.
III. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DISPROPORTIONATE SHARE OF THE MARITAL ESTATE.
IV. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA AN ATTORNEY'S FEE IN THIS CASE.

¶ 2. Finding that the chancellor erred in the grant of divorce, we reverse and render the trial court's ruling.

STATEMENT OF FACTS

¶ 3. On December 29, 1981, Charles and Donna were married, and two children, Leah and Josh, were born of the marriage. On April 25, 2002, Donna filed her complaint for divorce, alleging habitual, cruel and inhuman treatment as grounds for divorce and, alternatively, irreconcilable differences. On March 6, 2003, Donna filed an amended complaint for divorce which alleged habitual, cruel and inhuman treatment as well as adultery as the fault based grounds for divorce and, alternatively, irreconcilable differences. It was upon Donna's amended complaint that the divorce was granted.

¶ 4. At trial, Donna testified to several incidents which she contends constituted habitual, cruel and inhuman treatment. Donna argues that the instances about which she testified support a grant of divorce based upon this ground. Further, Donna argues that the circumstances surrounding the relationship between Charles and a neighbor, Gail Gullette, provides sufficient grounds for a finding of adultery.

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DIVORCE.

STANDARD OF REVIEW

¶ 5. "A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss. 2002) (citing Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961(¶ 13) (Miss.1999)). "This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999) (quoting Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss.1993)).

DISCUSSION

¶ 6. Charles first argues that the chancellor erred in awarding Donna a divorce on the grounds of habitual, cruel and inhuman treatment and adultery. Charles argues each of these two grounds separately and we will address each ground in like fashion.

Adultery

¶ 7. In order to prevail on a claim of adultery, a party must prove his or her claim by clear and convincing evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss. 1986). This showing by clear and convincing evidence must demonstrate both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Id. Although circumstantial evidence may aid *417 in proving such a claim, the proponent retains the burden of presenting satisfactory evidence which is sufficient to lead the trier of fact to a conclusion of guilty. Id. (citing Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973)).

¶ 8. Charles argues that though there was evidence of affection between he and Gail, there was no evidence of a sexual relationship, and any proof of an adulterous relationship was circumstantial at best. Donna argues that due to this Court's highly deferential standard of review in examining the decision of a chancellor, that based upon the evidence presented, the decision must be affirmed.

¶ 9. In making the decision to grant a divorce on the ground of adultery, the chancellor was required to make a finding of fact. Dillon, 498 So.2d at 330. "Where chancellors make such findings of fact, this Court has consistently held that their decisions will not be set aside on appeal unless they are manifestly wrong." Id.

¶ 10. The chancellor's opinion, when addressing the ground of adultery, focused on the testimony given regarding the relationship between Charles and Gail. The chancellor noted that the proof of an adulterous relationship was circumstantial in nature. In determining that such a relationship existed, the chancellor concentrated on Charles's testimony in which he admitted to having affection for Gail, admitted having hugged Gail, admitted having kissed Gail, and admitted that he loved her as a friend. The chancellor takes this a step further, reasoning that because the two parties communicate regularly and share a close friendship, that even though there is no direct evidence of a sexual relationship, only innuendo, "it is not a stretch to believe that this has developed over the time that they have spent together."

¶ 11. There are several instances of testimony which at first blush would lead one to believe that such a relationship was indeed present, but when viewing the testimony as a whole, it becomes readily apparent that such a determination was manifest error. The testimony pertaining to the relationship between the two was given by Charles, Gail, Leah, who is the daughter of the parties, and Donna's cousin, Stacey Bozeman. As stated previously, Charles testified that he has hugged Gail, that he has kissed Gail, and that he loves her as a friend. When explaining his feeling towards Gail, he stated:

I feel close to her in the way that we have become friends. We found common ground together in the divorce matter. She's been through a divorce. She seems to relate and understand what I'm going through. And she's become a good friend and we do a lot of things together.

Though Charles testified about his affections for Gail, he denied any type of romantic involvement or sexual relationship, and denied any plans of marriage. Gail testified in a similar manner. When asked about Charles's feelings towards her, she stated that he "[l]ove[s] me as a person. Maybe the person I am, you know. But as far as being in love with someone, you know—(witness shakes head in negative response)." Both parties testimony stated that the two were not romantically involved, only that they had developed a strong friendship, as they both shared the experience of going through divorce.

¶ 12. Leah further corroborated the testimony of Charles and Gail. Her testimony on the relationship between the two is as follows:

Q. Do you know a woman named Gail Gullette?
A. Yes.
Q. And how do you know her?
*418 A. From the apartments.
Q. From your dad's apartment?
A. Uh-Hun.

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930 So. 2d 415, 2005 WL 1950340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spence-v-spence-missctapp-2005.