Moses v. Moses
| Docket Number: | 2003-CA-00673-COA Linked Case(s): 2003-CA-00673-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-23-2004 Opinion Author: Bridges, J. Holding: Reversed and rendered |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Sufficiency of evidence - School tuition - Equitable distribution Judge(s) Concurring: King and Southwick, P.JJ., Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Concurs in Result Only: McMillin, C.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-17-2003 Appealed from: Hinds County Chancery Court Judge: Patricia D. Wise Disposition: DIVORCE AWARDED WITH JOINT CUSTODY OF MINOR CHILD AND CHILD SUPPORT PROVISIONS. Case Number: G2001-105 W/4 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Christopher Jerome Moses |
JAMES ELDRED RENFROE
ROY J. PERILLOUX |
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| Appellee: | Kindalin Kay Moses | RAJITA IYER MOSS BOBBY OWENS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Habitual cruel and inhuman treatment - Sufficiency of evidence - School tuition - Equitable distribution |
| Summary of the Facts: | Kindalin Moses was granted a divorce from Christopher Moses on the ground of habitual cruel and inhuman treatment. The court granted the parties joint custody of the minor child, with Kindalin having primary physical custody subject to Christopher’s visitation rights. Christopher was required to pay 14% of his income for support and maintenance and to maintain health insurance on the child. Christopher appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual cruel and inhuman treatment Christopher argues that there was insufficient evidence to award a divorce on the ground of habitual cruel and inhuman treatment. In order to establish the basis for divorce on the ground of habitual cruel and inhuman treatment, the claimant should produce evidence to prove conduct that either endangers life, limb, or health, or creates a reasonable apprehension of such danger, or is so unnatural and infamous as to make the marriage revolting to the offending spouse. The basis of the chancellor’s decision was that Christopher was found to be the source of Kindalin’s numerous sexually transmitted diseases and that Christopher taped the phone conversations of Kindalin before and after the separation of the parties. Christopher’s ability to record Kindalin’s conversations and destroying her cell phone do not rise to the level of extremes necessary to constitute habitual cruel and inhuman treatment. In addition, there was no credible evidence presented that Christopher transmitted to Kindalin any sexually transmitted diseases. Kindalin married Christopher after she claims he infected her with that condition. Since she knowingly married him believing he infected her with herpes she cannot later claim that such infection is grounds for habitual cruel and inhuman treatment. Therefore, the court erred in granting the divorce. Issue 2: School tuition While the issue of whether the court erred in requiring Christopher to pay the child’s private school tuition is moot, pre-college tuition is considered part of child support, not an extraordinary expense. Requiring Christopher to pay half of the tuition over and above the statutory 14% without a written or specific finding by the chancellor as to why the deviation is needed renders the award inappropriate. Issue 3: Equitable distribution While the issue of the equitable distribution of marital assets is also moot, the chancellor’s order is too indefinite to be enforced. The court failed to consider the Ferguson factors in the division of the marital assets especially the marital home. Chancellors should consider the eight factors laid out in Ferguson throughout the entire process of dividing the marital assets. |
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