95 So. 3d 696
Miss. Ct. App.2012Background
- Khari and Amanda married October 2001, separated March 2009, and had one child.
- Amanda filed for divorce after suspecting Khari’s extramarital affairs; the chancery court found no adultery but granted a divorce on habitual cruel and inhuman treatment.
- Khari admitted to attraction to other women and non-sexual relationships; a hotel-room encounter was disputed, and a pastor testified but was skeptical.
- Amanda testified to threats, profanity, and violent incidents including a phone being knocked from her hand and Khari chasing her.
- Amanda sought a temporary restraining order; evidence focused on adultery, with some incidental testimony about cruel conduct.
- The court later reversed on habitual cruel and inhuman treatment and remanded for a new trial; it also reversed on attorney’s fees for lack of proper findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habitual cruel and inhuman treatment was pled and proved | Alexander contends the ground was not pled or proven | Alexander contends the court improperly granted on cruel treatment | Reversed; habitual cruel and inhuman treatment not proven; remand for new trial |
| Whether the trial court properly permitted amendment to plead habitual cruel and inhuman treatment | Alexander lacked notice that cruel treatment would be pled | Alexander sought to amend; consent implied by proceeding | Reversed; amendment not properly allowed under Rule 15(b) |
| Whether attorney’s fees award was supported by the record | Fees were improper due to lack of findings on ability to pay and reasonableness | Fees should be awarded if reasonable and necessary | Reversed; lack of McKee factors findings; remand for fee determination |
Key Cases Cited
- Fisher v. Fisher, 771 So.2d 364 (Miss. 2000) (adultery as a factor in habitual cruelty analysis)
- Foumet v. Foumet, 481 So.2d 326 (Miss. 1985) (causal relationship required between conduct and separation; proximity in time)
- Peters v. Peters, 906 So.2d 64 (Miss.Ct.App.2004) (habitual cruelty shown through continuous behavior near separation)
- Richard v. Richard, 711 So.2d 884 (Miss. 1998) (credibility-based review of whether conduct supports cruelty)
- Moses v. Moses, 879 So.2d 1043 (Miss.Ct.App.2004) (extreme conduct required for habitual cruelty)
- Keller v. Keller, 763 So.2d 902 (Miss.Ct.App.2000) (extreme facts required for habitual cruelty)
- McKee v. McKee, 418 So.2d 764 (Miss. 1982) (factors for attorney’s fees awards; reasonableness and necessity)
- Dickerson v. Dickerson, 34 So.3d 637 (Miss. Ct. App. 2010) (fee award discretion and proportionality to services)
- Sanderson v. Sanderson, 824 So.2d 623 (Miss. 2002) (standard for reviewing chancellor’s findings)