Gerty v. Gerty
| Docket Number: | 2017-CP-00828-SCT Linked Case(s): 2017-CP-00828-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-13-2018 Opinion Author: Randolph, P.J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Constitutionality of section 93-5-2 - Raising of constitutional issue sua sponte - Adultery - Condonation - Findings of fact - Alimony - Visitation - Division of marital assets Judge(s) Concurring: Waller, C.J., Kitchens, P.J., King, Coleman, Maxwell, Beam, Chamberlin and Ishee, JJ. Procedural History: Trial on Merits Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-08-2017 Appealed from: HARRISON COUNTY CHANCERY COURT Judge: HON. JENNIFER T. SCHLOEGEL Disposition: Granted the parties an irreconcilable-differences divorce; divided marital estate; set summer visitation of noncustodial parent at one month contratray to the Property Settlement Agreement; and sus sponde held Mississippi Code Section 93-5-2 unconstitutional Case Number: 24CH1:13-cv-02446-JS |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Michael T. Gerty and State of Mississippi Ex Rel. Jim Hood, Attorney General |
MICHAEL T. GERTY (PRO SE), OFFICE OF THE ATTORNEY GENERAL: JUSTIN L. MATHENY |
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| Appellee: | Joesie R. Gerty | M. CHANNING POWELL | ||
| Amicus #1: | Mississippi Coalition Against Domestic Violence |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Irreconcilable differences - Constitutionality of section 93-5-2 - Raising of constitutional issue sua sponte - Adultery - Condonation - Findings of fact - Alimony - Visitation - Division of marital assets |
| Summary of the Facts: | Joesie Gerty and Michael Gerty filed a joint complaint for an irreconcilable-differences divorce in 2013. Nothing happened on the complaint for almost two years, during which the parties cooperated with each other and abided by the Property Settlement Agreement, which had been filed contemporaneously with the joint complaint. The PSA provided that Michael would have physical custody of the couple’s minor child. Joesie had full knowledge that Michael was required to move to the Great Lakes area to fulfill a three-year military commitment when she agreed that their son would move with Michael. Joesie made the decision not to move to the Great Lakes area with their son and Michael. During this same time, Joesie had Michael assist her in moving her belongings into the house of her paramour’s mother. For nearly two years, Michael and their son lived apart from Joesie. The sexual nature of her affair ended sometime in 2014. In 2015, Michael informed Joesie that reconciliation was impossible and that he wanted her to sign and finalize the divorce papers. Joesie, on the advice of her attorney, told Michael that she also was ready to complete the irreconcilable differences divorce. Based on the advice of her counsel, Joesie waited until her summer visitation had begun pursuant to the PSA and until her son was physically in Mississippi before withdrawing her consent to an irreconcilable-differences divorce. Joesie and Michael then filed separate complaints for divorce on the ground of adultery, inter alia, and alternatively sought an irreconcilable-differences divorce. After a temporary hearing, the chancellor granted physical custody to Joesie. After a trial, the chancellor entered a final judgment and decreed that a divorce should be granted, but that neither party was entitled to a fault-based divorce. She found that Joesie had failed to establish adultery. She found that Michael had proved adultery because Joesie had admitted it, but that Michael had condoned Joesie’s adulterous conduct. Then the chancellor sua sponte declared the statutory scheme under section 93-5-2 unconstitutional and granted an irreconcilable-differences divorce. Joesie was granted custody of their child. Michael and Joesie, along with the State of Mississippi, asked the chancellor to reconsider her judgment, because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute. The chancellor gave the parties and the State an opportunity to brief the constitutionality of section 93-5-2. In the arguments for reconsideration, all parties conceded that the chancellor had erred in granting an irreconcilable-differences divorce. The chancellor significantly amended her earlier final judgment, increasing Joesie’s award to include a percent of Michael’s military retirement benefit and reducing the noncustodial parent’s summer visitation from three months, as provided in the PSA, to one month, contrary to the PSA and the chancellor’s original final judgment. The State appeals the chancellor’s sua sponte adjudication of section 93-5-2 as unconstitutional. Michael also appeals. |
| Summary of Opinion Analysis: | Issue 1: Constitutionality of section 93-5-2 A statute’s constitutionality will not be considered unless it has been specifically pleaded, and a trial court may not raise a constitutional issue sua sponte. The chancellor acknowledges that the litigants did not raise the constitutionality of section 93-5-2 in their pleadings or proof. The chancellor’s ruling exceeded her authority. Thus, the chancellor’s judgment declaring the statute unconstitutional is reversed and vacated. Issue 2: Condonation One seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. In cases concerning an allegation of adultery, the chancellor is required to make a finding of fact. Here, both parties charged the other with adultery. However, the chancellor failed to make any findings of fact regarding Joesie’s multiple adulterous acts, nor did she make any findings of fact about whether Michael knew about or condoned any adulterous acts. No factual dispute exists about whether Joesie had an extended affair while she still was married to Michael, but she admitted only a very limited time frame of her overall adulterous conduct to Michael in August 2013 when he confronted her. Joesie admitted during the trial that the affair had spanned portions of 2012, 2013, and 2014. Her witnesses testified that in addition to those years, the affair occurred also during portions of 2011 and 2015. Ample evidence in the record supports a finding that Joesie failed to disclose the extent and time frame of her extramarital affairs. There is no proof in the record that Michael condoned anything other than a summer “fling” in 2013. Michael cannot condone extramarital conduct that he did not know about or that was ongoing after Joesie’s admission. Joesie had the burden of proving that Michael had condoned her infidelity. Joesie’s continued secretive, evasive, and deceptive relationship with another man, after she informed Michael of her brief fling leading him to attempt to reconcile, evidences an intent not to perform the conditions of the condonation in good faith. These facts preclude application of the affirmative defense of condonation and revive her previous adulterous offenses, entitling Michael to a divorce on the ground of adultery. A fault-based divorce on the ground of adultery should have been granted to Michael. Because Michael is entitled to a divorce on the ground of adultery, this factor must be considered in the chancellor’s subsequent findings. On remand, once a judgment of divorce has been entered in favor of Michael and in light of the attribution of fault to Joesie, the chancellor is instructed to revisit alimony. The chancellor must also revisit the issues of visitation and the division of marital assets. |
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