Ashburn v. Ashburn


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Docket Number: 2006-CA-00554-COA
Court of Appeals: Opinion Link
Opinion Date: 11-27-2007
Opinion Author: BARNES, J.
Holding: Affirmed in Part, Reversed and Remanded in Part
Additional Case Information: Topic: Divorce: Habitual and excessive use of drugs - Condonation - M.R.C.P. 8(c) - M.R.C.P. 15 - Guardian ad litem fees
Judge(s) Concurring: KING, C.J., LEE, P.J.J., MYERS, P.JJ., IRVING, J., CHANDLER, J., GRIFFIS, J., ISHEE, J., ROBERTS, J., CARLTON, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS
Trial Court: Date of Trial Judgment: 10-19-2005
Appealed from: DeSoto County Chancery Court
Judge: Melvin McClure, Jr.
Disposition: CHANCELLOR ENTERED ORDER DISMISSING DIVORCE WITHOUT PREJUDICE AND AWARDED MR. ASHBURN SOLE LEGAL AND PHYSICAL CUSTODY OF THE MINOR CHILD.
Case Number: 02-3-446M
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: PATRICK DOUGLAS ASHBURN




 KAY FARESE TURNER, RACHAEL EMILY PUTNAM



  
  • Appellant #1 Brief
    		•
    Appellee: CHRISTINE DALE ASHBURN CHRISTINE DALE ASHBURN (PRO SE)  
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    Topic: Divorce: Habitual and excessive use of drugs - Condonation - M.R.C.P. 8(c) - M.R.C.P. 15 - Guardian ad litem fees
    Summary of the Facts: Patrick Ashburn filed a complaint for divorce from Christine Ashburn on the grounds of habitual cruel and inhuman treatment and habitual and excessive use of opium, morphine or other like drug. He sought an absolute divorce; custody of and support for the couple’s minor child, both temporary and permanent; and an equitable division of all marital property. Patrick later filed a motion for default judgment based on Christine’s failure to file an answer to the complaint. Christine then filed an answer generally denying that Patrick was entitled to a divorce. The chancellor dismissed Patrick’s complaint for divorce based on condonation. The chancellor assessed all remaining guardian ad litem fees to Patrick, with such fees to be paid on a monthly basis, and awarded sole physical and legal custody of the minor child to Patrick. Patrick appeals.
    Summary of Opinion Analysis: Issue 1: Condonation Patrick argues that the chancellor erred in dismissing his complaint for divorce based on the defense of condonation when Christine did not plead condonation in her answer. Pursuant to M.R.C.P. 8(c), affirmative defenses that are neither pled nor tried by consent are deemed waived. It is generally accepted that condonation is an affirmative defense that must be specifically pled. Moreover, condonation falls squarely within the definition of an affirmative defense. Even if Patrick proves that Christine habitually and excessively used drugs during their marriage, Christine might still avoid a grant of divorce if she was able to prove that Patrick condoned such drug. While the activity upon which Christine’s condonation defense is based occurred after she filed her answer, M.R.C.P. 15 instructs courts to be liberal in allowing amendments to pleadings. Christine at no time sought to amend her answer to plead the defense of condonation; nor is there any reason to believe that the chancellor would not have allowed such an amendment. Accordingly, she waived the right to rely on the affirmative defense of condonation. When Christine moved to dismiss the complaint for divorce based on the fact that she and Patrick had lived together as man and wife for a period of three years after the complaint was filed, Patrick objected to such motion, but not on the grounds that condonation is an affirmative defense. Moreover, he went on to argue, at least to an extent, the merits of the defense. Therefore, the chancellor erred in dismissing Patrick’s complaint for divorce based on the affirmative defense of condonation when Christine did not plead such defense. Patrick also argues that the chancellor erred in denying his complaint for divorce based on the finding that he condoned Christine’s habitual drug use by continuing to cohabit and have sexual relations with her after he filed for divorce. The chancellor did not make a specific finding as to how many times the couple had sexual intercourse between the time Patrick moved back into the marital home and the time he moved out. The chancellor stated that, even if he accepted Patrick’s testimony that the two only had sex one time, such would be sufficient to condone Christine’s drug use until the two separated again. The doctrine of condonation is not applicable to causes of divorce of a continuing character. Just as habitual cruel and inhuman treatment has been held to be a continuing offense, so too is habitual and excessive drug use. Here, the chancellor failed to accord appropriate significance to the evidence of Christine’s drug use after the time of the sexual intercourse but before Patrick moved out of the marital home. Patrick’s ground for divorce was revived when Christine continued to abuse drugs after the condonation. The case is therefore remanded for an entry of divorce not inconsistent with this ruling. Issue 2: Guardian ad litem fees Patrick argues that the chancellor erred in assessing all of the remaining guardian ad litem fees to him when the parties had agreed that such fees would be divided equally amongst them and based on the fact that the guardian ad litem would not have been necessary were it not for Christine’s drug use and propensity for committing criminal acts. However, he cites to no portion of the record indicating that the parties agreed to divide all guardian ad litem fees equally. Also, despite his contention that a guardian ad litem would not have been necessary were it not for Christine’s conduct, the fact remains that he was the one who requested the appointment of the guardian ad litem. He was employed at the time of the chancellor’s ruling while Christine was unemployed and admitted to having no net monthly income. Thus, Patrick was in the best position to pay the guardian ad litem fees.


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