Cassell v. Cassell
| Docket Number: | 2006-CA-01001-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: KING, C.J. Holding: Affirmed in Part; Vacated and Remanded in Part; The judgment of the Hancock County Chancery court granting the divorce is affirmed. The child visitation determination is vacated and remanded to the chancery court for further proceedings. |
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| Additional Case Information: |
Topic: Divorce: Habitual, cruel and inhuman treatment - Restricted visitation Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-23-2006 Appealed from: Hancock County Chancery Court Judge: Sanford R. Steckler Disposition: FINAL JUDGMENT OF DIVORCE ENTERED. Case Number: 2301-05-00387(3) |
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| Party Name: | Attorney Name: | |||
| Appellant: | NOLEN CASSELL, JR. |
JAMES (JAY) R. FOSTER |
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| Appellee: | MARY LOU CASSELL | JAMES L. GRAY |
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| Topic: | Divorce: Habitual, cruel and inhuman treatment - Restricted visitation |
| Summary of the Facts: | Mary Lou Cassell filed a complaint for divorce from Nolen Cassell on the grounds of habitual, cruel, and inhuman treatment and, alternatively, for irreconcilable differences. Mary Lou sought temporary and permanent custody of the couple’s two minor children and child support. Nolen answered Mary Lou’s complaint for divorce and filed a counter complaint, alleging habitual, cruel, and inhuman treatment and, alternatively, irreconcilable differences. Nolen requested permanent custody of the children and child support. The court granted the divorce to Mary Lou on the grounds of habitual, cruel, and inhuman treatment. Mary Lou received primary physical custody of the children and Nolen was given restricted, supervised visitation. Nolen appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual, cruel and inhuman treatment Habitual, cruel, and inhuman treatment requires the non-offending spouse to show that the conduct either endangers his or her life, limb, or health, or that the conduct creates a reasonable apprehension of such danger, making the relationship unsafe for the party seeking relief, or is so unnatural and infamous that it makes the marriage revolting and impossible for the spouse to perform his or her marital duties, thus destroying the basis for the marriage to continue. In both his bench ruling and the written judgment, the chancellor merely stated that Mary Lou had proven cruel and inhuman treatment. Although he failed to state with particularity the facts upon which he relied to make this finding, there is substantial and uncontradicted evidence in the record to support the grant of divorce on the grounds of habitual, cruel, and inhuman treatment. Mary Lou testified that Nolen was emotionally and mentally abusive throughout the course of the marriage. According to Mary Lou, Nolen cursed her, called her names, berated her, and kept her diabetes medicine away from her. She testified that her husband also threw things during arguments and, on one occasion, he threw a filing cabinet across the laundry room that barely missed the couple’s adult son. The son provided corroborating testimony regarding the effect of his father’s treatment on his mother’s health and well-being. This uncontradicted testimony provided substantial, credible evidence upon which the chancellor could have granted Mary Lou a divorce upon the grounds of cruel and inhuman treatment. Issue 2: Restricted visitation Nolen argues that there is no evidence that supports the chancellor’s award of restricted, supervised visitation. It is within the chancellor’s power to restrict visitation in situations that present an appreciable danger of hazard cognizable in our law, but these restrictions should be imposed on a limited basis. When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child. Here, the record fails to demonstrate that the restrictions on visitation were reasonable or necessary to prevent harm to the minor children. The only testimony as to any threat related to the minor children refers to a one-time conversation, which occurred approximately ten years prior to the divorce action. There is no testimony that Nolen made any such subsequent statements about taking the children away or that Nolen had ever made any effort, at all, to harm the minor children. Therefore, the chancellor’s restricted visitation award is vacated. |
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