Lister v. Lister
| Docket Number: | 2005-CA-00494-COA Linked Case(s): 2005-CA-00494-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-06-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Adultery - Clear and convincing evidence 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: 02-11-2005 Appealed from: Jackson County Chancery Court Judge: Jaye A. Bradley, Sr. Disposition: DIVORCE GRANTED ON THE GROUND OF ADULTERY Case Number: 200-0597JB |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ORVILLE MCDAVID LISTER |
GARY L. ROBERTS |
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| Appellee: | JUDY LYNETTE LISTER | MICHAEL V. RATLIFF, EARL L. DENHAM |
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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 - Clear and convincing evidence |
| Summary of the Facts: | Judy Lister was granted a divorce on the ground of uncondoned adultery from her husband, Orville Lister. The judgment also provided for the equitable distribution of the marital assets between the parties. Orville appeals. |
| Summary of Opinion Analysis: | Orville argues that Judy did not prove adultery by clear and convincing evidence; therefore, the chancellor erred in granting the divorce. The party seeking the divorce may establish adultery by showing an adulterous inclination coupled with an opportunity to consummate the inclination. The inclination may be proven by showing either an infatuation with a particular person or a general adulterous propensity. Direct evidence is not necessary to prove adultery, but the evidence must be clear and convincing. Here, the chancellor found that the testimony of several witnesses established by clear and convincing evidence the existence of an adulterous relationship between Orville and another woman. There was no evidence tending to show that Orville had an adulterous nature, but there was evidence of an infatuation with the woman. Supporting the chancellor’s finding was the testimony of the woman’s husband who said he had no doubt that his wife had committed adultery. He said his wife began staying at Orville’s house shortly after she left him. Judy testified that Orville and the woman spent a lot of time together and would often be absent from the office at the same time. Judy also took issue with the fact that Orville gave the woman money. Orville told Judy that he did not love her anymore and that he wanted a divorce. He allowed the other woman to move into the mobile home next to his own house shortly after Judy left him. The woman admitted that she rode on the motorcycle with Orville, and they took long trips together. Given this testimony, there was no error in the chancellor’s decision to enter a divorce on the ground of adultery. Despite his denial of any sexual relationship with the other woman, the facts were sufficient to establish that Orville had an infatuation with her sufficient to be an adulterous inclination. There was also sufficient testimony that the two had opportunities to consummate that inclination. |
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