Kumar v. Kumar
| Docket Number: | 2006-CA-01140-COA Linked Case(s): 2006-CA-01140-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-11-2008 Opinion Author: CHANDLER, J. Holding: Affirmed in Part, Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Requests for admission - M.R.C.P. 59(e) - Section 93-5-7 - M.R.C.P. 36(b) - Untimely answer Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, 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: 06-05-2006 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Robert L. Lancaster Disposition: CHANCELLOR ENTERED A JUDGMENT DENYING DIVORCE Case Number: 2004-0795-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | BHAVNA KUMAR |
MARK A. CHINN,
LEE ANN SELF TURNER,
WILLIAM MATTHEW THOMPSON |
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| Appellee: | ARVIND M. KUMAR | EDWARD L. PLEASANTS, WILBUR O. COLOM |
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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 - Requests for admission - M.R.C.P. 59(e) - Section 93-5-7 - M.R.C.P. 36(b) - Untimely answer |
| Summary of the Facts: | Bhavna Kumar filed for a divorce from her husband, Arvind Kumar, on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. At the conclusion of the trial, the chancellor entered an order denying Bhavna’s request for a divorce based on cruel and inhuman treatment. Bhavna appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual cruel and inhuman treatment Bhavna argues that it was against the weight of the evidence to deny her a divorce from Arvind based on cruel and inhuman treatment. Conduct that evinces habitual cruel and inhuman treatment must be such that it either endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance. In making a determination, the chancellor must look to the conduct of the offending spouse and the impact of the conduct upon the plaintiff. In this case, Bhavna testified to continuing abuse and mistreatment at the hands of Arvind beginning at the time they were married and continuing until she left him for the second and final time. Bhavna testified that Arvind physically abused her approximately two to three times per year throughout most of their marriage. She admitted that the frequency of the physical abuse lessened toward the end of the marriage, but it continued to happen at least once a year. In addition to the physical abuse, Bhavna told the court that Arvind would constantly verbally harass her and that he threatened her life on three occasions. Arvind would often stay out all night without telling Bhavna, and he lost excessive amounts of money at the casinos. Bank records that Bhavna entered into evidence reflected thousands of dollars that Arvind spent during each trip to the casino. Arvind was also unfaithful to his wife. Ultimately, Arvind’s treatment of Bhavna led her to attempt to commit suicide twice and to move out of the marital home on two occasions. To corroborate her testimony, Bhavna put her sister on the stand. Bhavna offered into evidence photographs representing some of her injuries and medical records to document Arvind’s abuse and her attempted suicide. On appeal, Arvind argues for condonation. However, Bhavna did not condone Arvind’s abuse of her throughout the years, and even though she moved back home with him, his prior actions were revived for consideration when he resumed his old habits by striking her with a belt. Bhavna met her burden of proving cruel and inhuman treatment by a preponderance of the evidence. The case is remanded to the chancery court with instructions to enter a divorce decree. Issue 2: Requests for admissions Bhavna argues that it was error to deny her motion to alter or amend judgment pursuant to M.R.C.P. 59(e), because the chancellor did not give the proper weight to the requests for admissions that were deemed admitted after Arvind refused to answer. In order to succeed on a Rule 59(e) motion, the movant must show an intervening change in controlling law, availability of new evidence not previously available, or need to correct a clear error of law or to prevent manifest injustice. The chancellor relied on section 93-5-7, which states that, in divorce proceedings, admissions made in the answer shall not be taken as evidence. However, in this case, the admissions at issue were not taken from Arvind’s answer to Bhavna’s complaint. The admissions deemed admitted resulted from Bhavna’s requests for admissions to which Arvind refused to respond. Under M.R.C.P. 36(b), the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. The chancellor took the admissions into consideration, but he found that the admissions, combined with Bhavna’s testimony and the other evidence, were insufficient to establish grounds for divorce. The chancellor’s treatment of the admissions is not error but his determination of the sufficiency of the evidence is. Issue 3: Untimely answer Bhavna argues that it was error for the chancellor to set aside the entry of default and to allow Arvind to file an answer more than a year after Bhavna filed her complaint. In deciding whether to set aside a default judgment, the court should consider the cause of default, whether the defendant has a colorable defense to the claim, and any prejudice to the plaintiff that would result if the judgment was vacated. The chancellor took these factors into account in his decision to set aside the default, and there was no abuse of discretion. |
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