Alexander v. Alexander
| Docket Number: | 2010-CA-01765-COA Linked Case(s): 2010-CA-01765-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-27-2012 Opinion Author: Lee, C.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - M.R.C.P. 15(b) - Attorney’s fees - Reasonableness of fees Judge(s) Concurring: Griffis, P.J., Roberts, Russell and Fair, JJ. Non Participating Judge(s): Irving, P.J., Barnes and Maxwell, JJ. Dissenting Author : Ishee, J. Dissent Joined By : Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-25-2010 Appealed from: Hinds County Chancery Court Judge: Billy G. Bridges Disposition: GRANTED DIVORC E ON GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT; AWARDED APPELLEE CUSTODY, ALIMONY AND CHILD SUPPORT, AND ATTORNEY’S FEES Case Number: G2009-352 T/1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Khari Kamau Alexander |
EVERETT T. SANDERS |
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| Appellee: | Amanda Green Alexander | DAVID NEIL MCCARTY | ||
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| Topic: | Divorce: Habitual cruel and inhuman treatment - M.R.C.P. 15(b) - Attorney’s fees - Reasonableness of fees |
| Summary of the Facts: | Amanda Alexander filed for divorce from Khari Alexander after she suspected Khari was having an extra-marital affair. The chancellor found Amanda failed to prove adultery, but he granted a divorce based on habitual cruel and inhuman treatment. Khari appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual cruel and inhuman treatment Khari argues the chancellor erred in granting Amanda a divorce based on habitual cruel and inhuman treatment. M.R.C.P. 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Here, the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. However, the chancellor found Amanda failed to prove adultery. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that either endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Amanda testified on cross-examination as to two incidents during the marriage: once when she fled the marital home and once when Khari came at her forcefully. The claimant must show habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs in order to prove habitual cruel and inhuman treatment. The evidence presented by Amanda focused on adultery. It was only during cross-examination that the other incidents were mentioned. Thus, the chancellor erred in granting a divorce based on habitual cruel and inhuman treatment. Issue 2: Attorney’s fees The chancellor ordered Khari to pay Amanda’s $31,705.45 in attorney’s fees. Khari argues this award should be overturned because the chancellor failed to make any findings of fact regarding Amanda’s inability to pay the fees or the reasonableness of the fees. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Since the chancellor failed to make findings pursuant to the McKee factors, this issue is reversed and remanded. |
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