Fulton v. Fulton


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Docket Number: 2004-CA-01215-COA

Court of Appeals: Opinion Link
Opinion Date: 01-03-2006
Holding: AFFIRMED

Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Adultery - Visitation - Admission of medical records
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes and Ishee, JJ.
Dissenting Author : Irving, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 06-03-2004
Appealed from: Adams County Chancery Court
Judge: Kennie Middleton
Disposition: DIVORCE GRANTED ON THE GROUNDS OF HUSBAND’S HABITUAL CRUEL AND INHUMAN TREATMENT
Case Number: 2002-419

  Party Name: Attorney Name:  
Appellant: October Fulton




PATRICIA F. DUNMORE



 

Appellee: Anitra Fulton PAMELA A. FERRINGTON  

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Topic: Divorce: Habitual cruel and inhuman treatment - Adultery - Visitation - Admission of medical records

Summary of the Facts: October Fulton filed a complaint for divorce from Anitra Fulton on the grounds of irreconcilable differences. Anitra filed a counterclaim, alleging that she was entitled to a divorce based on October’s habitual cruel and inhuman treatment. October amended his complaint and alleged that he was entitled to divorce on the grounds of adultery and habitual cruel and inhuman treatment. The chancellor awarded Anitra a divorce on the grounds of habitual cruel and inhuman treatment and denied October a divorce on all grounds he alleged. Anitra received primary physical custody of the couple’s children. October appeals.

Summary of Opinion Analysis: Issue 1: Habitual 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 nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance. Anitra testified to three specific instances of cruel and inhuman treatment on the part of October. One instance occurred before the parties were married and one instance occurred after the parties’ separation. Anitra called three witnesses that were able to verify October’s abuse against Anitra. Although Anitra testified only to three specific instances of physical abuse on the part of October, and only one instance occurred during the course of the parties’ marriage, her own testimony and her corroborating witnesses’ testimony demonstrated a pattern of abuse that enabled the chancellor to grant a divorce on the grounds of habitual cruel and inhuman treatment. Issue 2: Adultery Anitra testified that she ended an adulterous affair in November of 2001 and did not engage in another extramarital relationship after that time. October testified that he tried to make the marriage work after he learned of the affair. He was initially upset about Anitra’s affair but resumed sexual relations with her approximately two months after he learned of the affair. Condonation is the express or implied forgiveness of a marital wrong on the part of the wronged party. The chancellor was presented with sufficient evidence that October condoned Anitra’s adultery. Issue 3: Visitation The chancellor awarded October visitation with his children on Sunday and Monday of each week and at other times that October’s schedule permitted and the parties could agree. October argues that the chancellor erred by imposing visitation restrictions on his children and argues that the chancellor erred for allowing his wife to have custody of the children while she is working. Awarding visitation on the days that October does not work is a logical arrangement. The fact that Anitra has custody of the children on the days she works does not constitute a restriction on October’s visitation rights. Issue 4: Medical records When October kicked Anitra during her pregnancy, she obtained medical care from her obstetrician. She submitted the obstetrician’s notes into evidence. She also submitted into evidence the medical records of her emergency room visit and follow-up visit from the altercation involving October’s then-girlfriend. October argues that the medical records were not properly authenticated. Medical records conducted in the regular course of business are admissible under the business records exception to the hearsay rule. Accordingly, such records must be admitted by a witness who is familiar with the contents, terms, and meaning of the record. In the present case, the medical records were admitted solely through Anitra’s testimony. Such testimony does not establish that the medical records submitted into evidence possessed indicia of trustworthiness. However, the medical records admitted into evidence were cumulative. As such, admission of the records was harmless error.


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