Kimbrough v. Kimbrough


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Docket Number: 2010-CA-01279-COA

Court of Appeals: Opinion Link
Opinion Date: 02-28-2012
Opinion Author: Russell, J.
Holding: Reversed and remanded

Additional Case Information: Topic: Divorce: Desertion - Equal fault ground
Judge(s) Concurring: Lee, C.J., Irving, P.J., Ishee, Roberts and Maxwell, JJ.
Judge(s) Concurring Separately: Griffis, P.J., specially concurs with separate written opinion joined in part by Ishee, J.
Non Participating Judge(s): Fair, J.
Concurs in Result Only: Barnes and Carlton, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 06-30-2010
Appealed from: Smith County Chancery Court
Judge: J. Larry Buffington
Disposition: DIVORCE GRANTED BASED ON DESERTION
Case Number: 2008-0035

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: J. Lane Kimbrough




T. JACKSON LYONS



 
  • Appellant #1 Brief

  • Appellee: Cristal Kimbrough STANLEY A. SOREY  

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    Topic: Divorce: Desertion - Equal fault ground

    Summary of the Facts: Cristal Kimbrough filed for divorce from Lane Kimbrough on the grounds of alleged habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed, alleging habitual cruel and inhuman treatment and adultery by Cristal. The chancery court dismissed all the grounds asserted by the parties and then granted both parties a divorce based on their mutual desertion of each other. Lane appeals, and Cristal cross-appeals.

    Summary of Opinion Analysis: Lane and Cristal both argue that the chancellor erred in granting a divorce on the ground of desertion, because neither party plead the ground of desertion, and the evidence did not support the grant of a divorce on the ground of desertion. There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce. The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error. Thus, the chancery court’s final divorce decree is reversed and vacated.


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