Killen v. Killen


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Docket Number: 2009-CA-00765-COA
Linked Case(s): 2009-CA-00765-COA ; 2009-CT-00765-SCT
Court of Appeals: Opinion Link
Opinion Date: 08-17-2010
Opinion Author: Maxwell, J.
Holding: Affirmed.
Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Separate maintenance - Attorney's fees
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
Trial Court: Date of Trial Judgment: 04-07-2009
Appealed from: Lauderdale County Chancery Court
Judge: Lawrence "Larry" Primeaux
Disposition: ORDERED JAMES TO PAY SEPARATE MAINTENANCE AND ATTORNEY’S FEES TO MATTIE KILLEN
Case Number: 08-717-P
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: James Donald Killen




 STEVEN DETROY SETTLEMIRES



  
  • Appellant #1 Brief
    		•
    Appellee: Mattie Beatrice Jenkins Killen ROBERT JAMES BRESNAHAN  
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    Topic: Divorce: Habitual cruel and inhuman treatment - Separate maintenance - Attorney's fees
    Summary of the Facts: Mattie Killen was awarded $200 per month in separate maintenance after the chancellor concluded her husband, James Donald Killen (J.D.), caused the couple to separate and then refused to support Mattie. J.D. appeals.
    Summary of Opinion Analysis: Issue 1: Habitual cruel and inhuman treatment J.D. argues that the chancellor erred in denying his cruelty-based divorce request. To obtain a divorce based on cruel and inhuman treatment, the party must establish the spouse’s conduct 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 this case, Mattie admittedly refused to attend J.D.’s brother’s funeral. But she claimed she did so to stay away from the attention surrounding J.D.’s other brother, Edgar Ray Killen. Mattie admitted asking J.D. not to attend her aunt’s funeral based on another family member’s request. Mattie’s justifications for avoiding being seen in public with J.D. centered on his problems getting along with people. According to Mattie, J.D. was prone to throw fits and argue with others, even friends. J.D.’s daughter testified she felt uncomfortable around Mattie, but she explained the two were always pleasant to one another. Mattie denied having ill feelings toward J.D.’s daughter, though she did admit calling her a derogatory name on one occasion. Mattie also suspected J.D. had been involved with other women. While there is some disagreement over the facts, resolutions of factual disputes are always entrusted to the sound discretion of the chancellor. Given Mattie’s explanations to J.D.’s alleged corroborating evidence and the chancellor’s resolution of the disputed facts, the chancellor did not manifestly err or abuse his discretion in determining the marriage was not revolting enough to grant a cruelty-based divorce. Issue 2: Separate maintenance A separate maintenance award is appropriate where the separation occurred without fault by the wife, and the husband willfully abandoned and refused to support the wife. The wife need not be totally blameless, but her misconduct must not have materially contributed to the separation. J.D.’s primary argument against the separate-maintenance award rests on his assertion that Mattie left the marital residence by her own free will. According to J.D., this action coupled with her refusal to return, precludes an award of separate maintenance. However, J.D. admitted he had told Mattie to leave the home. He even presented her with a joint complaint for divorce. Though J.D. previously claimed he wished to resume cohabitation, his later testimony and actions clearly depict his desire for a divorce. An award of separate maintenance should be sufficient to maintain the wife in the same standard of living she enjoyed prior to separation, without unduly depleting the husband's estate. Here, the award is reasonable. Issue 3: Attorney’s fees The chancellor awarded Mattie $500 for her attorney’s fees. She now also seeks attorney’s fees for her appeal. The appellate court will generally award attorney’s fees on appeal in the amount equal to one-half what was awarded in the lower court. Mattie’s request is reasonable and she is awarded $250 for her attorney’s fees on appeal.


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