Curtis v. Curtis

796 So.2d 1044

Glen E. CURTIS, Appellant v. Glenda C. CURTIS, Appellee.

No. 1999-CA-02002-COA.

Court of Appeals of Mississippi.

October 9, 2001.

Phillip M. Whitehead, Booneville, for Appellant.

Talmadge D. Littlejohn, New Albany, for Appellee.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Glenda C. Curtis was granted a divorce on the ground of adultery by the Itawamba County Chancery Court. Glen E. Curtis appeals, arguing that the court erred in not granting him a divorce on the ground of habitual cruel and inhuman treatment. He also argues that the court erred in the amount of alimony, in its resolution of issues regarding the sale of the marital home, and in awarding attorneys' fees. Finding no error, we affirm.

FACTS

¶ 2. Glen and Glenda Curtis were married in Illinois on June 9, 1962. They later moved to Itawamba County, Mississippi. At the time of the divorce, Mr. Curtis was fifty-seven years old and operated Quality Transmissions, Inc., in which he owned a 43% interest. His net monthly salary from the business was $2,515.49. Mrs. Curtis, who was fifty-three at the time of the decree, draws $389.00 per month in Social Security disability benefits, which she has drawn since 1986. They have two adult daughters.

¶ 3. Toward the end of their marriage, Mrs. Curtis informed Mr. Curtis of substantial debts that she had incurred due to gambling. As a result they refinanced their home to pay off credit cards and other small loans. The couple continued to live together for eighteen months after the discovery of the gambling debts. In March 1997, they separated and Mr. Curtis left the marital home.

¶ 4. Mr. Curtis filed for divorce on the grounds of habitual cruel and inhuman treatment. Mrs. Curtis filed an amended complaint on the same grounds and for adultery. A temporary support hearing was held after which the chancellor awarded temporary alimony and the use of the marital home to Mrs. Curtis. Mr. Curtis was ordered to maintain the mortgage payments.

¶ 5. Due to the family's financial problems, the chancellor later ordered the house to be sold. At the sale a bid of about $103,000 was received from Mr. Curtis's brother. Mrs. Curtis objected on the basis of inadequacy of purchase price and collusion between her husband, his brother and a bank that provided the brother a letter of credit. The chancellor ordered the home again offered for sale along with a 1.28 acre lot adjacent to the home. In addition, the chancellor ordered Mrs. Curtis to pay the expenses of the second sale if the home did not bring its appraised value ($125,000) or twenty percent more than the bid from the first sale. No bids were offered at the second sale. The bank foreclosed on the home. At a public auction, the bank ended up purchasing the home for $87,500.

¶ 6. Mrs. Curtis was granted a divorce based on her husband's adultery; Mr. Curtis's complaint was dismissed. Alimony was awarded to her of $900 per month. She was also given the 1.28 acre lot adjacent to the former marital home and miscellaneous personal items. Mr. Curtis was ordered to maintain a life insurance policy with his former wife as the beneficiary and to pay $10,000 in her attorneys' fees. He was awarded personal items and his interest in Quality Transmission, Inc.

DISCUSSION

1. Habitual Cruel and Inhuman Treatment

¶ 7. Mr. Curtis argues that he was entitled to a divorce based on habitual cruel and inhuman treatment. The cruelty allegedly arose from his wife's gambling. Her debts created a financial crisis, led to animosity between the couple and damaged Mr. Curtis's mental and physical health.

¶ 8. In Mississippi, gambling has not been found per se to be cruel and inhuman treatment. However, any behavior that becomes addictive or obsessive has the potential to cause problems in relationships. In order to be grounds for divorce, such problems must reach this egregious level:

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, if the conduct 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.

Rawson v. Buta, 609 So.2d 426, 431 (Miss. 1992), citing SHELTON HAND, MISSISSIPPI DIVORCE, ALIMONY AND CHILD CUSTODY § 4-12 (2d ed. Supp.1991). Habitual cruel and inhuman treatment usually must be shown to have been "systematic and continuous," though one significantly violent act may prove the claim. Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971).

¶ 9. Mr. Curtis testified that he became depressed upon discovering his wife's gambling and the debts that she incurred. Their daughters testified that he had lost weight, was not as happy, and often cried after the separation. It also distressed him that Mrs. Curtis was not remorseful.

¶ 10. However distressing Mrs. Curtis's gambling away their security may have been, her actions did not sink to the level of cruel and inhuman treatment as defined by the Mississippi Supreme Court. Life, limb and health were not threatened to such a degree as to warrant a divorce on this ground. The chancellor did not abuse his discretion on this issue.

2. Adultery

¶ 11. Mr. Curtis argues that the court erred in granting the divorce to Mrs. Curtis on the ground of adultery because the chancellor failed to articulate any findings of fact or conclusions of law.

¶ 12. When adultery is alleged, the chancellor "is required to make findings of fact." Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996). In Holden, there were no findings at all. Nonetheless, and perhaps because the appellant did not complain about that omission, the court reviewed the evidence and affirmed. Id. Here, Mr. Curtis does complain so the effect of the failure to make specific findings regarding the adultery must be considered.

¶ 13. What we find are several Supreme Court decisions in which it was said that chancellors were "required" to make findings of fact. Holden, 680 So.2d at 798; Brooks v. Brooks, 652 So.2d 1113, 1114 (Miss.1995); McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992); Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). Dillon is the earliest precedent that we have discovered to state this. "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." McAdory, 608 So.2d at 699, citing Dillon, 498 So.2d at 330. When the requirement is not met, and it was not met here, what happens next is the question. Two possibilities logically exist. One is to reverse for that reason; the other is for the appellate court to examine the chancellor's decision in a less deferential fashion.

¶ 14. If the chancellor merely adopts the successful party's proposed findings, it has been said in at least one case that the appellate court is to review the evidence de novo. Holden, 680 So.2d at 798, citing Brooks v. Brooks, 652 So.2d 1113 (Miss. 1995). However, that is not the result only when the chancellor adopts a litigant's proposed findings. In McAdory, though the chancellor made some findings, he did not address the issue of infatuation or adulterous nature. McAdory, 608 So.2d at 700. The Supreme Court did not reverse for that reason, but reviewed the evidence and found that it was insufficient on this point. Id.

¶ 15. In Dillon, the chancellor made detailed findings of fact. The court held that when those findings exist, the chancellor will affirm on appeal "unless they are manifestly wrong." Dillon, 498 So.2d at 330. Cited for that proposition was a case that also said that as "to issues of fact where the chancellor made no specific finding, we are required by our prior decisions and by sound institutional considerations to assume that the chancellor resolved all such fact issues in favor of appellee." Id., citing Cheek v. Ricker, 431 So.2d 1139, 1143-44 (Miss.1983). That is potentially important, as it suggests that the absence of findings as to adultery may require a review of the record, but credibility choices and factual disputes are resolved in favor of the decision reached by the chancellor.

¶ 16. As previously mentioned, in one of the more recent cases the chancellor merely adopted the proposed findings of the successful party. Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995).

Under our standard of appellate review, great deference is given to the findings of fact by the chancellor.... The chancellor failed to make his own findings of fact and conclusions of law. Here, the chancellor adopted verbatim and by incorporation, the findings of fact and conclusions of law prepared by a litigant's attorney as those of the lower court.

Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, Omni Bank [Omnibank of Mantee] v. United Southern Bank, 607 So.2d 76, 83 (Miss.1992), and the evidence is subjected to heightened scrutiny, Matter of Estate of Ford, 552 So.2d 1065, 1068 (Miss.1989). Because the chancellor erred in adopting the litigant's findings of facts and conclusions of law in the case sub judice, the deference normally afforded a chancellor's findings of fact is lessened.

Brooks, 652 So.2d at 1117-1119. The court may not have meant to say that the chancellor "erred" by adopting proposed findings of one of the parties, because the cited precedents only provided that more intense scrutiny is given the findings. See also Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265-66 (Miss.1987) (Such findings are "entitled to deference, though sensibly not as much as in the ordinary case."). Seven justices concurred in Brooks in order to reject the view that adoption is "error." Brooks, 652 So.2d at 1125 (Roberts, J.,...