265 So. 3d 121
Miss.2018Background
- Michael and Joesie Gerty executed a 2013 Property Settlement Agreement (PSA) with Michael awarded physical custody during the school year and Joesie summer custody; the PSA was filed with a joint irreconcilable-differences complaint.
- Michael moved for a military tour to the Great Lakes and, with Joesie’s knowledge, their son moved with him; Joesie remained on the Mississippi coast and later engaged in a multi-year extramarital relationship with Kyle.
- Nearly two years after the PSA, Joesie withdrew consent to the irreconcilable-differences divorce, took the child to Mississippi for summer visitation, and filed for divorce alleging adultery (and alternatively irreconcilable differences); Michael counterclaimed and sought enforcement of the PSA.
- After trial, the chancery court found neither party proved fault-based grounds, sua sponte declared Miss. Code § 93-5-2 unconstitutional and granted an irreconcilable-differences divorce, awarded custody to Joesie, child support, and later amended the judgment to award Joesie a portion of Michael’s military retirement and reduce Michael’s summer visitation.
- The State and both parties appealed or sought reconsideration, agreeing the court erred to raise and decide the statute’s constitutionality sua sponte; this Court reviewed custody, condonation, visitation, retirement division, and alimony issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could sua sponte declare § 93-5-2 unconstitutional and grant an irreconcilable-differences divorce | State & Michael: court lacked authority because no party pleaded or tried constitutional challenge and AG lacked notice | Chancellor: declared statute unconstitutional and granted ID divorce (but parties did not request this) | Reversed: court may not raise and decide constitutional invalidity sua sponte; vacate that aspect of judgment |
| Whether Joesie’s admission and conduct satisfied or were barred by condonation such that Michael was not entitled to a fault-based (adultery) divorce | Michael: Joesie’s extended undisclosed affair revived adultery ground; condonation limited to the brief 2013 fling and was not sustained | Joesie: pleaded condonation as defense (claimed forgiveness) so adultery claim should be barred | Reversed: condonation not proven as to extended post-confession adultery; Michael entitled to divorce for adultery |
| Whether the chancellor properly modified visitation (summer custody) from the PSA | Michael: original PSA summer schedule should control; reduction to one month lacked evidentiary basis | Joesie: sought custody and temporary order granted her summer custody; later argued amended relief | Reversed/Remand: reduction to one month unsupported; chancellor must reconsider visitation consistent with best interests and record |
| Division of marital assets (military retirement and alimony) and effect of fault on awards | Joesie: sought share of Michael’s military retirement and awards; argued PSA ambiguous on retirement | Michael: PSA silent; requested enforcement and argued fault should affect alimony/division | Remanded: chancellor must reconsider division of retirement assets and alimony in light of finding that Michael is entitled to fault-based divorce for adultery |
Key Cases Cited
- Martin v. Lowery, 912 So.2d 461 (Miss. 2005) (issues limited to pleadings; constitutionality not to be raised sua sponte)
- City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So.2d 742 (Miss. 1996) (issues are bounded by pleadings and proof)
- In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010) (standard of review for chancery findings in domestic-relations cases)
- Holden v. Frasher-Holden, 680 So.2d 795 (Miss. 1996) (elements required to prove adultery)
- Wood v. Wood, 495 So.2d 503 (Miss. 1986) (condonation doctrine and revival of grounds upon resumed misconduct)
- Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994) (chancery court authority to equitably divide military retirement)
- Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994) (alimony and equitable division considerations)
- In re Estate of Miller v. Miller, 409 So.2d 715 (Miss. 1982) (trial court may not raise constitutional issues sua sponte)
- Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993) (fault must be considered in alimony determinations)
- Dillon v. Dillon, 498 So.2d 328 (Miss. 1986) (chancellor required to make factual findings on adultery)