Mabus v. Mabus
| Docket Number: | 2001-CA-00381-SCT Linked Case(s): 2001-CA-00381-SCT ; 2001-CA-00381-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-13-2003 Opinion Author: Easley, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Adultery - Evidentiary rulings - Testimony by therapist - Section 73-54-39 - M.R.E. 601 - Testimony of psychotherapist - Testimony of psychiatrist - Amendment of complaint - M.R.C.P. 15(b) - Child custody - Validity of prenuptial agreement - Distribution of marital assets Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Diaz, Carlson and Graves, JJ. Concurs in Result Only: Cobb, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 08-08-2000 Appealed from: Hinds County Chancery Court Judge: Stuart Robinson Disposition: Granted a divorce and divided marital assets. Case Number: G-98-28 R/1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Julia Gates Hines Mabus |
MINOR F. BUCHANAN
WILLIAM B. KIRKSEY |
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| Appellee: | Raymond Edwin Mabus, Jr. | RICHARD C. ROBERTS, III ROBERT W. KING T. ROE FRAZER, III |
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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: Adultery - Evidentiary rulings - Testimony by therapist - Section 73-54-39 - M.R.E. 601 - Testimony of psychotherapist - Testimony of psychiatrist - Amendment of complaint - M.R.C.P. 15(b) - Child custody - Validity of prenuptial agreement - Distribution of marital assets |
| Summary of the Facts: | Julie Mabus filed for divorce from Ray Mabus alleging habitual cruel and inhuman treatment. Ray counterclaimed alleging uncondoned adultery. Julie’s claim was dismissed with prejudice when she stipulated that her claim was without merit. The court granted a divorce to Ray on the grounds of uncondoned adultery. Julie appeals. |
| Summary of Opinion Analysis: | Issue 1: Evidentiary rulings Julie argues that the chancellor made erroneous rulings regarding evidentiary matters including that she was not allowed to present evidence of the children’s excited utterances, rebuttal evidence against Ray's expert witness, and evidence to explain her actions upon which Ray and the expert relied. This issue is procedurally barred because Julie did not support her argument with authority. Issue 2: Testimony by therapist Julie argues that the chancellor erred by excluding testimony from a marriage counselor, because Ray visited the counselor only as a courtesy. Section 73-54-39 provides that a therapist shall not be competent to testify in a divorce proceeding concerning information acquired during the therapeutic relationship if both parties have obtained marriage and family therapy. Although there does appear to be a conflict between the statute and M.R.E. 601 which does not include a family therapist exception, this issue was not raised and is procedurally barred. Julie argues that the therapist would have given testimony pertaining to the custody of the children and their alleged preference to live with Julie. However, other witnesses testified to these matters so that any prejudice was harmless. Issue 3: Testimony of psychotherapist Julie argues that the chancellor abused his discretion by allowing a psychotherapist and licensed professional counselor to testify. Not only did the chancellor accepted this witness as an expert in the field of counseling only, but both parties signed waivers. Issue 4: Testimony of psychiatrist Julie argues that the chancellor made a number of errors with regard to the testimony of a psychiatrist including relying too heavily on the testimony of this witness, the witness’s testimony is flawed because he never interviewed Julie, and the witness relied on many remote facts. The record indicates that the chancellor’s only specific reference to this witness is found under the moral fitness of the parents factor. Although the witness did not interview Julie, he relied on many sources of information, he interviewed the children 21 times, he reviewed 60 depositions, and he heard all the testimony at trial. Issue 5: Amendment of complaint Julie argues that the chancellor erred by denying her motion to amend the complaint to include joint legal custody, because this issue was tried by implied consent. M.R.C.P. 15(b) provides that when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. The only mention of a variation in custody occurred in two instances which does not rise to implied consent. In addition, none of the pleadings or testimony addressed joint custody. Issue 6: Custody Julie argues that the court erred in awarding legal custody to Ray and alternate physical custody to Julie. Factors the court must consider include age, health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and willingness and capacity to provide primary child care; employment of the parent; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of the parents; home, school and community record of the child; preference of the child at the age sufficient to express a preference by law; stability of home environment; and other relevant factors. Both parents are capable of caring for the children's health. Continuity of care weighs evenly for both Julie and Ray. Both parents are willing and capable of providing primary care for the children. Both parents can impart a strong work ethic to the children. While both parents have good physical health, Julie has some anger management problems. The children are bonded to both parents. Moral fitness weighs in Ray’s favor since Julie’s affair interfered with her ability to effectively parent. The children are exceptional and well adjusted, but neither parent can take sole credit for this. Both parents have fine homes to raise the children. The chancellor’s findings with regard to custody are substantially supported by the record. Issue 7: Prenuptial agreement Julie argues that the chancellor erred in ruling that the prenuptial agreement was valid and enforceable, because there was no full disclosure and the agreement was not fair. While an antenuptial agreement is as enforceable as any other contract, there must be fairness in the execution and full disclosure. The chancellor, after listening to all the testimony from the numerous witnesses and being in the position to observe their demeanor and weigh the evidence presented, determined that the agreement was valid and enforceable. The chancellor is in the best position to determine the credibility of the witnesses. Both Julie and Ray signed a valid agreement and made this agreement to protect premarital and inheritance assets. Julie also complains because the prenuptial agreement precluded alimony. Factors the court should consider in determining whether to award lump sum alimony include substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife or by assisting in the spouse's business, a long marriage, the recipient spouse has no separate income or the separate estate is meager by comparison, and the receiving spouse would lack any financial security. In addition, alimony will not be allowed a wife when the husband is granted a divorce because of her fault. Here, Julie was determined to be at fault for uncondoned adultery. In addition, Julie had other assets and separate income, and the chancellor's award of marital property was slightly in her favor. Therefore, she was adequately provided for even with no award of alimony. Issue 8: Distribution of marital assets Because the prenuptial agreement is valid, it is controlling in the distribution of assets. The agreement applied to all property owned by each party at the time of the marriage and to all property which each may acquire in his or her sole and separate right, but did not apply to property as to which title is taken after their marriage in the names of both parties as joint tenants or tenants by the entirety. In dividing marital property, a court should consider substantial contribution to the accumulation of the property; degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets; market value and the emotional value of the assets; value of assets not ordinarily subject to such distribution; tax and other economic consequences; extent to which property division may be utilized to eliminate periodic payments and other potential sources of future friction between the parties; needs of the parties for financial security; and any other equitable factor. During the marriage, the parties maintained separate accounts for their premarital separate property and for the gifts and inheritances that they each received during the marriage. Julie's contribution to the family in keeping track of the records does not amount to active participation in the increase of value of non-marital assets. |
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