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Attorney(S)
  • Jesse M. Byrd, Leakesville; Ben Stevens, Hattiesburg, for appellant. I. The court below erred in denying the appellant a decree for divorce, as sought in her bill of complaint. II. The court below erred in awarding the custody of the children of the parties to the appellee (to be by him kept in the home of his parents). Cocke v. Hanum, 39 Miss. 423. W.S. Murphy, Lucedale, for appellee. I. The Chancellor was eminently correct denying appellant a divorce and custody of the children, under the circumstances and facts of the case. Ladner v. Ladner, 233 Miss. 222, 102 So.2d 195; Santos v. Santos, 225 Miss. 425, 83 So.2d 636; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; Skelton v. Skelton, 236 Miss. 598, 111 So.2d 392; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Taylor v. Taylor, 235 Miss. 239, 108 So.2d 872; Secs. 399, 2743, Code 1942.
Judges
  • McELROY, J.
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Docket Number
Attorney(S)
  • Jesse M. Byrd, Leakesville; Ben Stevens, Hattiesburg, for appellant. I. The court below erred in denying the appellant a decree for divorce, as sought in her bill of complaint. II. The court below erred in awarding the custody of the children of the parties to the appellee (to be by him kept in the home of his parents). Cocke v. Hanum, 39 Miss. 423. W.S. Murphy, Lucedale, for appellee. I. The Chancellor was eminently correct denying appellant a divorce and custody of the children, under the circumstances and facts of the case. Ladner v. Ladner, 233 Miss. 222, 102 So.2d 195; Santos v. Santos, 225 Miss. 425, 83 So.2d 636; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; Skelton v. Skelton, 236 Miss. 598, 111 So.2d 392; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Taylor v. Taylor, 235 Miss. 239, 108 So.2d 872; Secs. 399, 2743, Code 1942.
Judges
  • McELROY, J.
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Smart Summary

Factual and Procedural Background

Mrs. Virginia Howard (complainant-appellant) and Wesley H. Howard (defendant-cross-complainant-appellee) were married April 12, 1947, and separated July 15, 1959. They have six minor children. Mrs. Howard filed a bill for divorce alleging habitual cruel and inhuman treatment, including habitual nagging, cursing, abuse, and several personal acts of violence that she claimed caused physical and mental anguish and impaired her nervous system and health. Wesley H. Howard denied these allegations and filed a cross-bill for divorce on the ground of obstinate desertion for over a year.

The Chancery Court of George County denied both the complainant's bill and the cross-complainant's cross-bill. The chancellor awarded custody of the six minor children to the cross-complainant, with the children to be kept in the home of the cross-complainant's parents and with visitation rights for the appellant. The court disallowed alimony and allowed an attorney's fee of $150.00. The appellant appealed to the Supreme Court of Mississippi.

Legal Issues Presented

  1. Whether the evidence supported a decree of divorce for the appellant on the ground of habitual cruel and inhuman treatment.
  2. Whether the evidence supported a decree of divorce for the appellee on the ground of obstinate desertion.
  3. Whether custody of the six minor children should be awarded to the appellee (with the children to remain in the home of the appellee's parents) and whether the appellant should have visitation rights.

Arguments of the Parties

Appellant's Arguments

  • The court below erred in denying the appellant a decree for divorce as sought in her bill of complaint alleging cruel and inhuman treatment.
  • The court below erred in awarding custody of the children to the appellee and in allowing the children to be kept in the home of the appellee's parents (citations in her brief included Cocke v. Hanum, 39 Miss. 423).

Appellee's Arguments

  • The chancellor was correct in denying the appellant a divorce and in awarding custody to the appellee under the circumstances and facts of the case.
  • The appellee cited several precedents and statutory provisions in support of the chancellor's action (Ladner v. Ladner, 233 Miss. 222, 102 So.2d 195; Santos v. Santos, 225 Miss. 425, 83 So.2d 636; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; Skelton v. Skelton, 236 Miss. 598, 111 So.2d 392; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Taylor v. Taylor, 235 Miss. 239, 108 So.2d 872; and statutory sections cited in brief).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Cocke v. Hanum, 39 Miss. 423 Cited by appellant in connection with custody issues. Cited in appellant's brief regarding custody; not otherwise discussed in the court's written opinion.
Ladner v. Ladner, 233 Miss. 222, 102 So.2d 195 Cited by appellee to support the chancellor's action in denying divorce. Cited in appellee's brief; the opinion does not expressly rely on this case in its analysis.
Santos v. Santos, 225 Miss. 425, 83 So.2d 636 Cited by appellee to support the chancellor's action in denying divorce. Cited in appellee's brief; the opinion does not expressly rely on this case in its analysis.
Scott v. Scott, 219 Miss. 614, 69 So.2d 489 Quoted for the definition of "cruel and inhuman treatment" when unaccompanied by personal violence (conduct that endangers life, limb, or health or creates reasonable apprehension thereof). The Court quoted Scott v. Scott (which itself quoted Russell v. Russell) to explain the statutory standard for cruelty and endorsed that standard in affirming the chancellor's findings.
Skelton v. Skelton, 236 Miss. 598, 111 So.2d 392 Cited by appellee to support the chancellor's action in denying divorce. Cited in appellee's brief; the opinion does not expressly rely on this case in its analysis.
Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791 Authority for deferring to the chancellor's findings of fact when supported by direct evidence and reasonable deductions. The Court relied on Stringer to justify accepting the chancellor's findings and conclusions supported by the record and direct evidence.
Taylor v. Taylor, 235 Miss. 239, 108 So.2d 872 Cited by appellee to support the chancellor's action in denying divorce. Cited in appellee's brief; the opinion does not expressly rely on this case in its analysis.
Price v. Price, 181 Miss. 539, 179 So. 855 Cited in support of the description of the nature, gravity, and duration of cruelty required by statute to warrant divorce. Referenced by the Court as part of authorities explaining the statutory cruelty standard; used to support the conclusion that alleged conduct did not meet that standard in this record.
Nichols v. Nichols, 197 Miss. 302, 20 So.2d 72 Cited alongside Price as authority on the cruelty standard required for divorce. Referenced by the Court as part of authorities explaining the statutory cruelty standard; used to support the Court's view that evidence did not establish the required cruelty.
Russell v. Russell, 157 Miss. 425, 128 So. 270 Quoted (via Scott v. Scott) defining cruelty unaccompanied by personal violence as conduct endangering life, limb, or health or creating reasonable apprehension thereof. Quoted by the Court through its citation to Scott v. Scott to articulate the legal standard for cruelty under the statute.
Crutcher v. Crutcher, 86 Miss. 231, 38 So. 337 Cited in the line of authorities defining cruelty within the statute. Included among authorities cited in the Court's discussion of the nature of cruelty required to justify divorce.
Humber v. Humber, 109 Miss. 216, 68 So. 161 Cited in the line of authorities defining cruelty within the statute. Included among authorities cited in the Court's discussion of the nature of cruelty required to justify divorce.
McNeill v. McNeill, 125 Miss. 277, 87 So. 645 Cited in the line of authorities defining cruelty within the statute. Included among authorities cited in the Court's discussion of the nature of cruelty required to justify divorce.

Court's Reasoning and Analysis

The Supreme Court affirmed the chancellor's ruling based on deference to the chancellor's factfinding and an assessment that the evidence in the record was insufficient to justify granting a divorce to either party. The Court emphasized that the chancellor personally observed the witnesses and their demeanor and therefore was in the best position to weigh their testimony.

The Court applied the settled statutory and case-law standard for "habitual cruel and inhuman treatment," explaining (through citation to authorities such as Stringer, Price, Nichols, Scott, and Russell) that the cruelty required by statute is not mere petulant quarrels or incompatibility but must be so gross as to render further cohabitation impossible except at risk to life, limb, or health, or create a reasonable apprehension of such danger. Applying that standard to the facts, the Court found substantial evidence supporting the chancellor's conclusion that the appellant had not proved the level of cruelty necessary to warrant divorce.

Regarding custody, the Court concluded there was sufficient factual basis to justify the chancellor's determination as to the best interests of the six minor children and affirmed the award of custody to the cross-complainant, with visitation rights for the appellant. The Court declined to reiterate testimonial details, noting the case reflected household conditions in which both parents worked and had greater interest in outside activities than domestic affairs, and observed the appellant was willing to resume the marital relationship.

Holding and Implications

AFFIRMED

Holding (direct effect): The Supreme Court affirmed the Chancery Court's denial of both the appellant's complaint for divorce (on grounds of habitual cruel and inhuman treatment) and the appellee's cross-complaint (on grounds of obstinate desertion). The court affirmed the custody award to the cross-complainant, with the children to remain in the home of the cross-complainant's parents and the appellant granted visitation. The chancellor's denial of alimony and allowance of an attorney's fee of $150.00 were also left in place.

Implications: The decision upholds the chancellor's factual findings and the application of the established statutory standard for cruelty (as articulated in prior Mississippi decisions). The opinion does not announce a new legal rule; its immediate consequence is the resolution of the parties' rights as described above (denial of divorces, custody and visitation arrangement, no alimony, attorney's fee awarded).

Show full summary ...

HOWARD v. HOWARD

1. Divorce — evidence — wife's complaint and husband's cross-complaint for divorce denied.

Evidence supported action of Chancellor, denying wife's complaint for divorce on grounds of cruel and inhuman treatment and husband's cross-complaint on grounds of obstinate desertion and granting husband custody of children, who were in home of his parents, with right of visitation in wife. Sec. 2735, Code 1942.

Headnote as approved by McElroy, J.

McELROY, J.

This is an appeal from the Chancery Court of George County, Mississippi, by the complainant-appellant Mrs. Virginia Howard against the defendant-cross-complainant-appellee Wesley H. Howard. Mrs. Virginia Howard alleged she and defendant were married April 12, 1947, and separated July 15, 1959. They have six minor children; she filed a bill for divorce on the ground of cruel and inhuman treatment. She alleged that the defendant habitually nagged, cursed and abused her and committed personal acts of violence upon her on several occasions. Such mistreatment and misconduct has caused her to suffer physical and mental anguish to the extent that her nervous system was greatly impaired and her health and life endangered thereby.

Wesley H. Howard, defendant, denied all of these allegations and filed a cross bill for divorce from the complainant on the grounds of obstinate desertion for over a year. The court after hearing the evidence in the case denied both the complainant and cross-complainant a divorce, but did grant the cross-complainant custody of the children who were in the home of the cross-complainant's father and mother. The appellant had the right of visitation. The court disallowed alimony but did allow attorney's fee of $150.00.

The chancellor had before him all of the witnesses who testified. He had the opportunity to observe the witnesses, the manner in which they testified, and their appearance and demeanor on the stand. From all of the facts in the record, he was of the opinion that there was not sufficient evidence to justify a decree for either the appellant or appellee. (Hn 1) We believe there is substantial evidence to support the finding of fact disallowing a divorce, and also sufficient findings of fact to justify his holding as to the best interest of the six minor children.

We will not reiterate the testimony in this case for we do not believe it would serve any useful purpose. It is one of those cases that shows the conditions of our modern home where both parents are working; both the appellant and appellee appearing to have more interest in their outside activities rather than domestic. The appellant is perfectly willing to take the appellee back and live with him.

In the case of Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791, this Court held the Supreme Court should accept the chancellor's findings upon those matters which are supported by direct evidence as well as upon all conclusions which may be reasonably deducted. The Court said: "Section 2735 of the Mississippi Code of 1942 authorizes the granting of a divorce upon any one of twelve different grounds, among which is habitual cruel and inhuman treatment. In discussing this ground Judge Amis in his excellent work, Divorce and Separation in Mississippi, Section 104, says: `The popular idea is that, like charity, it covers a multitude of marital sins, and is the easiest road to freedom from the marital bonds. As a result suits are often brought, based on petty indignities, frivolous quarrel, general incompatibility and the petulant temper of one or both parties, seeking divorce for habitual cruel and inhuman treatment, without ever realizing or understanding, in the remotest degree, what is meant by the words as used in the statute. They do not realize the nature, gravity, or duration of the cruelty required to warrant a divorce. * * * The cruelty required by the statute is not such as merely to render the continuance of cohabitation undesirable, or unpleasant, but so gross, unfeeling and brutal as to render further cohabitation impossible, except at the risk of life, limb, or health on the part of the unoffending spouse; and that such risk must be real rather than imaginary merely, and must be clearly established by proof'." See Price v. Price, 181 Miss. 539, 179 So. 855, and Nichols v. Nichols, 197 Miss. 302, 20 So.2d 72.

In Scott v. Scott, 219 Miss. 614, 69 So.2d 489, the Court, quoting from Russell v. Russell, 157 Miss. 425, 128 So. 270, said: "Cruel and inhuman treatment, unaccompanied by personal violence, within the meaning of the statute, is such conduct only as endangers life, limb, or health, or creates a reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse, or such unnatural and infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible for him or her, as the case may be, to discharge the duties thereof, thus defeating the whole purpose of that relation. Crutcher v. Crutcher, 86 Miss. 231, 38 So. 337; Humber v. Humber, 109 Miss. 216, 68 So. 161; McNeill v. McNeill, 125 Miss. 277, 87 So. 645; 19 C.J. 44."

The case is therefore affirmed.

Affirmed.

Lee, P.J., and Arrington, Rodgers and Jones, JJ., concur.

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HOWARD v. HOWARD
(Feb 26, 1962)