Shavers v. Shavers


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Docket Number: 2000-CA-01867-SCT

Supreme Court: Opinion Link
Opinion Date: 05-22-2008
Opinion Author: Smith, C.J.
Holding: AS TO 2000-CA-01867-SCT AND 2001-CA- 00164-SCT, APPEALS DISMISSED. AS TO 2001-CA-01519-SCT, AFFIRMED

Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Waiver of issues on appeal - M.R.A.P. 28(a)(3) - Corroborating testimony
Judge(s) Concurring: Waller and Diaz, P.JJ., Easley, Carlson, Graves and Randolph, JJ.
Non Participating Judge(s): Dickinson and Lamar, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 10-03-2000
Appealed from: Harrison County Chancery Court
Judge: Walter Wesley Teel
Disposition: Prior to the final judgment of divorce, Ann filed two separate motions to find John in contempt of the trial court's temporary order. John was found in contempt on both occasions, and he filed a notice of appeal with this Court as to each judgment of contempt.
Case Number: 99-00193
  Consolidated: Consolidated with 2001-CA-00164-SCT John E. Shavers v. Ann B. Shavers; Harrison Chancery Court 1st District; LC Case #: 99-00193; Ruling Date: 01/08/2001; Ruling Judge: Walter Teel; Consolidated with 2001-CA-01519-SCT John E. Shavers v. Ann B. Shavers; Harrison Chancery Court 1st District; LC Case #: 99-00193; Ruling Date: 06/01/2001; Ruling Judge: Walter Teel.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: John E. Shavers




B.G. Perry; L.C. James; Robert Harenski; Michael C



 
  • Appellant #1 Brief

  • Appellee: Ann B. Shavers D. Scott Gibson; Herbert J. Stelly, Jr.  

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    Topic: Divorce: Habitual cruel and inhuman treatment - Waiver of issues on appeal - M.R.A.P. 28(a)(3) - Corroborating testimony

    Summary of the Facts: Ann Shavers filed a complaint for divorce against John Shavers, alleging habitual cruel and inhuman treatment and irreconcilable differences in the alternative. Ann filed an amended complaint, adding an additional fault ground of adultery. John filed his answer to the amended complaint contemporaneously with his counter-complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment, or irreconcilable differences in the alternative. Due to the extensive nature of the parties' assets as they existed at the time, the chancery court sought the parties’ agreement on the appointment of an expert to value their property. The chancery court also ordered that John pay the retainer fee of the expert. Ann later filed a motion to cite John for contempt for failing to advance the appraiser’s fees. The chancellor found John in contempt of court but stayed John's punishment for contempt pending compliance and ordered John to provide the appraiser with financial documents and information within ten days. Ann later filed another complaint to cite John for contempt for failing to comply with the provisions of the order which directed John to furnish the appraiser with financial information. The chancellor found John in contempt for his failure to provide the documents. The chancellor granted Ann a divorce on the ground of habitual, cruel and inhuman treatment. John appeals both contempt orders and the order granting the divorce.

    Summary of Opinion Analysis: In his brief, John has abandoned any issues he may have wanted to raise in the first two appeals dealing with contempt. Not only has he failed to identify the issues in his brief pursuant to M.R.A.P. 28(a)(3), John has not argued or cited any authority in support of any issues that could have been raised. Thus, those appeals are dismissed. With regard to the divorce, John argues that the divorce judgment is invalid because, when it was granted, the matter had been removed to federal court, leaving the chancery court without jurisdiction. On January 2, 2001, John filed his Notice of Federal Removal in the federal court and with the chancery clerk. The federal court order remanding the matter was not issued until August 17, 2001. Additionally, on January 8, 2001, John filed an amended and supplemental notice of removal. However, it is clear from the notice and the pleading attached to it that John sought only to remove “the attached Motion to Cite for Contempt of Court.” Likewise, the amended and supplemental notice added only a “Motion in Limine to Cite for Contempt of Court” and a “Motion to Lift Stay,” which also relate only to the contempt proceedings. The facts of the case strongly support a finding that John waived any such objection and is estopped from now raising the objection. By John’s own actions, he confirmed that the federal removal was limited to the contempt proceedings. John argues that Ann failed to meet her burden of proof with testimony of a corroborating witness and, therefore, Ann should not have been granted a divorce on the ground of habitual cruel and inhuman treatment. John again has failed specifically to identify the issue in his statement of the issues as required by M.R.A.P. 28(a)(3). In order to establish the basis for divorce on the ground of habitual, cruel and inhuman treatment, the claimant should produce evidence to prove conduct of the defendant that endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. There is no question that Ann established the basis for a divorce on the ground of habitual, cruel and inhuman treatment through her own testimony. The transcript from the temporary hearing reveals testimony from both parties regarding physical altercations between John and Ann. It is clear from the transcript of that hearing that John corroborated Ann's testimony. Thus, this issue is without merit.


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