Smith v. Smith
90 So. 3d 1259
| Miss. Ct. App. | 2011Background
- Billy and Sue Smith married in 1965 and had one child; Sue filed for divorce after separation in Feb 2006.
- Billy developed a severe gambling addiction from 2000 to 2007, dissipating over $300,000 of marital assets.
- The chancery court found habitual cruelty based on gambling losses, deceit to finance gambling, unwelcome sexual advances, and Sue’s health impact, and granted the divorce in 2009.
- FRP (Fulton Rental Properties, Inc.) was a marital asset; initially Billy owned 50%, Sue 25%, and Billy Jr. 25%; after separation Billy Jr. sold to Billy for $50,000.
- The court valued Billy’s gambling losses at $314,000 and ordered Billy to reimburse Sue half ($157,000) from marital assets in the estate distribution.
- The chancellor classified FRP as largely marital and ordered sale of Billy’s 25% interest acquired post-separation with marital funds to be divided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Grounds for divorce based on habitual cruelty | Sue contends Billy’s conduct, including gambling, deceit, and sexual advances, renders the marriage revolting and intolerable. | Billy argues gambling alone cannot sustain habitual cruelty and disputes the degree of harm. | Yes; court affirms divorce on habitual cruelty based on cumulative conduct. |
| Valuation and dissipation of gambling losses | Sue proved $314,000 in gambling losses and that losses were dissipation of marital assets. | Billy disputes amount and approach to dissipation and reimbursement. | Court upholds $314,000 loss finding and that $157,000 (half) is reimbursable as dissipation. |
| Classification of FRP as marital property | Post-separation acquisition with marital funds supports classification as marital. | Billy challenges the post-separation purchase as separate property. | FRP largely marital; court affirms classification and equal sharing of dissipated proceeds. |
Key Cases Cited
- Richard v. Richard, 711 So.2d 884 (Miss.1998) (dual-prong test for habitual cruelty; evidence and causation considerations)
- Shavers v. Shavers, 982 So.2d 397 (Miss.2008) (proof burden and corroboration in cruelty cases)
- Bodne v. King, 835 So.2d 52 (Miss.2003) (subjective impact of cruelty on offended spouse)
- Faries v. Faries, 607 So.2d 1204 (Miss.1992) (health impact standard for cruelty findings)
- McIntosh v. McIntosh, 977 So.2d 1257 (Miss.App.2008) (forging signatures and harmful financial conduct)
- Jones v. Jones, 43 So.3d 465 (Miss.Ct.App.2010) (gambling losses plus abusive conduct as cruelty)
- Lowrey v. Lowrey, 25 So.3d 274 (Miss.2009) (dissipation framework and equal division rationale)
- Dunaway v. Dunaway, 749 So.2d 1112 (Miss.Ct.App.1999) (recovery of dissipated assets proportional to marital share)
- Criswell v. Criswell, 254 Miss. 746 (Miss.1966) (gambling not per se cruel; context matters)
- Godwin v. Godwin, 758 So.2d 384 (Miss.1999) (line-of-demarcation for marital property accumulation)
- Curtis v. Curtis, 796 So.2d 1044 (Miss.Ct.App.2001) (gambling not per se cruelty; case-by-case evaluation)
- Jones v. Jones, 471 So.2d 1209 (Miss.1992) (health impact in cruelty analysis (note: cited for health impact context))