Gregory v. Gregory


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Docket Number: 2001-CA-01978-COA
Linked Case(s): 2001-CT-01978-SCT ; 2001-CA-01978-COA

Court of Appeals: Opinion Link
Opinion Date: 11-18-2003
Opinion Author: Southwick, P.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Evidence of sexual abuse - Sufficiency of evidence - Visitation - Attorney’s fees
Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 11-21-2001
Appealed from: Pontotoc County Chancery Court
Judge: Jacqueline Mask
Disposition: DIVORCE GRANTED TO HUSBAND ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT. VISITATION AWARDED TO HUSBAND. WIFE ORDERED TO PAY HUSBAND'S ATTORNEY'S FEES
Case Number: 2000-290

  Party Name: Attorney Name:  
Appellant: Angela Leann Gregory




JAK MCGEE SMITH



 

Appellee: Daniel C. Gregory WILL R. FORD  

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Topic: Divorce: Habitual cruel and inhuman treatment - Evidence of sexual abuse - Sufficiency of evidence - Visitation - Attorney’s fees

Summary of the Facts: Leann Gregory filed for a divorce from Daniel Gregory on the grounds of adultery, habitual cruel and inhuman treatment, and in the alternative, irreconcilable differences. Daniel filed an answer and a counter complaint alleging adultery, habitual cruel and inhuman treatment, and irreconcilable differences. Leann accused her husband of sexually abusing their older son during the couple’s separation. The court granted Daniel a divorce on the basis that his wife's allegations of child abuse were intentionally false. According to the court, this constituted habitual cruel and inhuman treatment. The court found Leann in contempt of court for ending visitation and ordered that she pay her husband's attorneys' fees in the amount of $9,013.98 and guardian ad litem fees of $1,500. Leann appeals.

Summary of Opinion Analysis: Issue 1: Evidence of sexual abuse The chancellor heard the contested testimony presented on the question of sexual abuse and concluded the child had not been sexually abused. There is evidence in the record to support this finding. Issue 2: Habitual cruel and inhuman treatment Leann argues that the court erred by granting a divorce on the ground of habitual cruel and inhuman treatment. Honestly made claims, even when later found to have been erroneous, do not constitute habitual cruel and inhuman treatment. Here, there is no meaningful evidence that even if the claim of sexual abuse was untrue, that it was a fabrication by Leann intended in a cruel and inhuman way to injure her husband. Opinions of reputable doctors and specialists were that the boy had been abused, and that the child had not been instructed on what to say. The obligation of a parent to confront reasonably suspected abuse cannot become cruelty or inhumanity. Leann also argues that she be granted a divorce based on her husband's adultery. That issue is remanded for consideration by the lower court. Issue 3: Visitation Since the divorce has been set aside, visitation will again need to be addressed if a divorce is granted. Issue 4: Attorney’s fees When a party is held in contempt for violating a valid judgment of the court, attorney's fees should be awarded to the party that has been forced to seek the court's enforcement of its own judgment. Although an award of some amount of fees incurred by Daniel allocable to enforcing the visitation order may be supportable, the court must first make a finding of contempt. Therefore, the award made so far, which is based on a greater range of inappropriate conduct than actually occurred, is reversed and remanded for further consideration.


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