        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CA-00413-COA

WILLIAM W. WILLIAMS                                                    APPELLANT

v.

URSEL WILLIAMS                                                           APPELLEE

DATE OF JUDGMENT:                         12/09/2015
TRIAL JUDGE:                              HON. DEBORAH J. GAMBRELL
COURT FROM WHICH APPEALED:                LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   MICHAEL CLAYTON BAREFIELD
ATTORNEY FOR APPELLEE:                    SHAKITA LANETTE TAYLOR
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              AFFIRMED - 08/22/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      LEE, C.J., FOR THE COURT:

¶1.   In this domestic-relations case, we must determine whether the chancellor properly

granted Ursel Williams’s request for separate maintenance from her husband, William

Williams (Wayne). We must also determine whether the chancellor erred in denying

Wayne’s request for a divorce from Ursel on the ground of habitual cruel and inhuman

treatment. Finding no error, we affirm.

                             PROCEDURAL HISTORY

¶2.   Ursel and Wayne married in October 1983. Wayne left the marital home in December

2013, which prompted Ursel to file a complaint in August 2014 for separate maintenance.

In December 2014, the Lamar County Chancery Court entered a temporary support order
awarding Ursel separate maintenance. Wayne then filed a counterclaim for divorce alleging

habitual cruel and inhuman treatment. After a trial, the chancellor denied Wayne’s claim for

divorce, and granted separate maintenance to Ursel. Wayne now appeals.

                                           FACTS

¶3.    Ursel and Wayne married in 1983, later settling in Jones County, Mississippi. Wayne

is a disabled veteran. Wayne testified that he has a variety of illnesses and is in poor health.

Ursel testified that she also has health issues. According to Ursel, her health renders her

unable to work, but she has not been deemed medically disabled and has not actively sought

employment in over six years.              The parties admittedly have a tumultuous

relationship—Wayne described their relationship as “roommates” who argued constantly.

¶4.    Wayne testified that in March 2012, September 2012, August 2013, and December

2013, he had heart trouble while at the marital home, and that in each instance, Ursel refused

to take him to the hospital. On three of those occasions, Wayne stated that he had to rely on

others for transport to receive medical treatment, namely Deloris Williams (no relation) and

Michael Murdoch. In December 2013, however, Wayne testified that he had to drive himself

on his motorcycle to the hospital in Hattiesburg, Mississippi, from the marital home in

Moselle, Mississippi. Instead of returning home following his release from the hospital,

Wayne instead moved into Deloris’s home. Wayne testified that at one time he had a

romantic relationship with Deloris prior to his marriage to Ursel, but his current relationship

with Deloris was platonic. Ursel implied that Wayne was having an affair during the

marriage.



                                               2
                                 STANDARD OF REVIEW

¶5.      It is well settled that appellate courts are bound by a limited standard of review in

domestic-relations matters. Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994). The

Mississippi Supreme Court has held that a chancellor’s findings of fact “will generally not

be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell,

831 So. 2d 1137, 1140 (¶15) (Miss. 2002) (citing Nichols v. Tedder, 547 So. 2d 766, 781

(Miss. 1989)). The chancellor must have been manifestly wrong or clearly erroneous, or

have applied an erroneous legal standard for the findings to be overturned. Montgomery v.

Montgomery, 759 So. 2d 1238, 1240 (¶5) (Miss. 2000). “For questions of law, our standard

of review is de novo.” Shoffner v. Shoffner, 909 So. 2d 1245, 1249 (¶11) (Miss. Ct. App.

2005).

                                        DISCUSSION

         I.     Separate Maintenance

¶6.      Wayne asserts that the chancellor erred in awarding Ursel separate maintenance.

During discovery, Wayne sent requests for admissions to Ursel, who failed to timely answer.

As a result, the chancellor deemed the requests admitted. Because the requests were deemed

admitted, Wayne argues that Ursel was prevented from proving the essential elements of her

separate-maintenance claim. Wayne objected to this issue during trial when Ursel began

giving contradictory testimony regarding Wayne’s refusal to support her. The chancellor

allowed both parties to offer testimony regarding Wayne’s financial support.

                A.     Requests for Admissions



                                               3
¶7.    Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions.

The rule states, in pertinent part, that a matter will be deemed admitted if the party upon

whom the request was served does not timely respond or file an objection addressed to the

matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days.

See id. Thereafter, the matter is conclusively established unless the court permits the

admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted

does not require further proof.” Locklear v. Sellers, 126 So. 3d 978, 981 (¶7) (Miss. Ct. App.

2013). Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied

in Draconian fashion.’” In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424,

432 (¶28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss.

2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with

respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So. 2d

508, 514 (¶19) (Miss. 2001) (citation omitted).

¶8.    The problem here is that the admissions produced contradictory results. Some of the

requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to

support her, and Wayne did not abandon her. However, another request asked Ursel to admit

that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of

the marriage contract.” Ursel obviously admitted to this statement in her untimely response.

As such, we fail to see how the matter could be conclusively established as Wayne argues;

thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any

conflicts. Furthermore, the chancellor recognized that it was within her discretion to review



                                               4
the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor

found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion

in this instance. The dissent states that Wayne’s requests for admissions were deemed

admitted for Ursel’s failure to timely reply and that the contradictory admission does not

encompass the essential elements of Ursel’s separate-maintenance claim. However, the

dissent concedes that it is within the chancellor’s discretion whether to take matters as

admitted. In this instance, we cannot find error by the chancellor.

              B.      Amount of Separate Maintenance

¶9.    In the alternative, Wayne argues that the chancellor erred in awarding $600 per month

in separate maintenance to Ursel and ordering him to pay the mortgage of $365 per month.

A chancellor may award separate maintenance when (1) the parties have separated without

fault by the wife and (2) the husband has willfully abandoned the wife and refused to support

her. Jackson v. Jackson, 114 So. 3d 768, 775 (¶17) (Miss. Ct. App. 2013). “[A] wife is not

required to be totally blameless to allow an award of separate maintenance, ‘but her

(mis)conduct must not have materially contributed to the separation.’” Daigle v. Daigle, 626

So. 2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993)).

There are six factors a chancellor should consider in determining the amount of separate

maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning

capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any

children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has

use of the marital home and furnishings; and (6) any other pertinent facts. Id.



                                               5
¶10.   Although the chancellor did not explicitly list each factor, her findings indicate that

she did consider them. The chancellor reviewed the parties’ financial statuses, including

their earning capacity, Wayne’s living expenses, and Ursel’s financial needs. The chancellor

noted that Wayne admitted the following: he willfully abandoned the marital home, Ursel had

asked him to return to the marital home, and he adamantly refused to return. The chancellor

concluded that Wayne’s support of Ursel since the separation had been “haphazard” at best,

even after the temporary support order was entered in December 2014. Although admitting

that they fought constantly, Ursel testified that she loved Wayne and wanted him to return

to the marital home. Ursel further testified that Wayne was not supporting her financially,

that he had “changed the bank accounts and left me no money, no nothing, and I couldn’t pay

the mortgage.” Ursel stated she was unable to work and received help with her groceries and

gasoline from local charities. Ursel testified as follows:

       I have bad asthma, . . . bad arthritis, . . . and my knee – my meniscus was torn
       and . . . I [am] supposed to have [a] knee replacement. I can’t go nowhere; I
       can’t go to the hospital. I have nobody to take care of me. I have no friends.
       Nobody. And, you know, when he left me all the time on the weekends alone,
       I got upset and I moved to my bedroom . . . . I feel safe in the bedroom, I have
       my TV, my dog, you know. I had nothing else no more. When [Wayne] was
       home, he sleep[s] until three or four o’clock in the afternoon.

¶11.   The chancellor clearly found Ursel’s testimony more credible than Wayne’s testimony.

In this instance, we cannot find the chancellor was manifestly wrong or clearly erroneous in

awarding Ursel separate maintenance.

       II.    Habitual Cruel and Inhuman Treatment

¶12.   Wayne asserts that the chancellor erred in denying his claim for divorce because he



                                              6
proved by a preponderance of the evidence habitual cruel and inhuman treatment by Ursel.

This ground for divorce is established by evidence that the conduct of the spouse either:

       (1) endangers life, limb, or health, or creates a reasonable apprehension of
       such danger, rendering the relationship unsafe for the party seeking relief, or
       (2) is so unnatural and infamous as to make the marriage revolting to the
       non-offending spouse and render it impossible for that spouse to discharge the
       duties of marriage, thus destroying the basis for its continuance.

Rakestraw v. Rakestraw, 717 So. 2d 1284, 1287 (¶8) (Miss. Ct. App. 1998) (citation

omitted). Here, Wayne was required to prove habitual cruel and inhuman treatment by a

preponderance of the evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).

Furthermore, “[t]he party alleging cruel and inhuman treatment typically must corroborate

the testimony.” Id.

¶13.   The record clearly indicates that the parties did not get along—Wayne described their

relationship as “roommates” who argued constantly—but this is not enough to meet the

burden required for a divorce based on habitual cruel and inhuman treatment. “Our cases

require more than mere unkindness, rudeness, or incompatibility to support the granting of

a divorce on the grounds of cruel and inhuman treatment.” Stone v. Stone, 824 So. 2d 645,

646 (¶4) (Miss. Ct. App. 2002). In any event, the conduct generally “must be routine and

continuous.” Lomax v. Lomax, 172 So. 3d 1258, 1261 (¶6) (Miss. Ct. App. 2015); see also

Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972) (The “conduct must be habitual, that is,

done so often, or continued so long, that its recurrence may be reasonably expected whenever

occasion or opportunity presents itself.”).

¶14.   Wayne’s testimony focused on four occasions in the two years prior to the couple’s



                                              7
separation when he alleged Ursel refused to take him to the hospital: in March 2012;

September 2012; August 2013; and December 2013.1 According to Wayne, he suffered from

a litany of medical issues, and her refusal to take him to the hospital on these occasions

created an apprehension of danger. Wayne said that in December 2013, he asked Ursel for

a ride to the hospital and she allegedly told him, “You can sit there and die, you S.O.B.”

Ursel admittedly refused to take Wayne to the hospital on one occasion, although the

testimony is not clear as to when this occurred. She testified that he had been gone all

weekend, insinuating that Wayne was with another woman. Ursel stated that she told him

to find someone else to drive him, and Wayne did so. On the other three occasions, Ursel

testified that Wayne never asked for her help. Ursel stated she was unable to drive him to

the hospital in August 2013 due to a broken arm. Wayne also admitted that since 2000, he

often had to be taken to the hospital due to his poor health, but that other than the four times

previously mentioned, Ursel always drove him to the hospital.

¶15.   “This Court requires corroboration of the offensive conduct complained of by the

moving party when seeking a divorce based on the ground of habitual cruel and inhuman

treatment, except in unusual cases such as isolation.” Jones v. Jones, 43 So. 3d 465, 478

(¶30) (Miss. Ct. App. 2009). Additionally, “the corroborating evidence need not be sufficient

in itself to establish the ground,” but rather “need only provide enough supporting facts for

a court to conclude that the plaintiff’s testimony is true.” Deborah H. Bell, Bell on

Mississippi Family Law § 4.02[8][d], at 74 (2005). Wayne called two corroborating

       1
        Wayne produced two hospital bills as evidence; however, both bills are for hospital
services rendered on August 4, 2015—almost two years after Wayne left the marital home.

                                               8
witnesses—Michael and Deloris.

¶16.   Michael, Wayne’s friend, testified that he took Wayne to the hospital two times in

2012. On one of these occasions, Michael stated that he was at Wayne’s house when Wayne

complained of chest pain. Michael said Wayne asked for a ride to the hospital. Michael

testified that he did not see Ursel at the house either time he drove Wayne to the hospital, so

he was unable to corroborate Wayne’s testimony.

¶17.   Deloris testified that she drove Wayne to the hospital in August 2013. According to

Deloris, Wayne told her Ursel would not drive him to the hospital. When Deloris arrived,

she said Ursel told Wayne, “I hope you die.” Deloris did not hear Ursel refuse to drive

Wayne to the hospital. Deloris testified to the couple’s contentious relationship, admitting

that she had heard both Wayne and Ursel call each other derogatory names. After leaving

the marital home, Wayne began renting a room in Deloris’s house. Although Wayne and

Deloris admittedly had a romantic relationship prior to Wayne’s marriage to Ursel, both

stated that they were platonic roommates.

¶18.   The dissent contends that Wayne met his burden of proof since the testimony of both

Ursel and Deloris corroborated his claim. In regard to Ursel, the dissent claims she admitted

to refusing to transport Wayne to the hospital in August 2013, thus corroborating Wayne’s

testimony on that one occasion. However, the testimony was that Ursel could not physically

drive him to the hospital due to a broken arm, not that Ursel refused to drive him. Since

much of Wayne’s testimony was confusing in regard to the material facts, we cannot find the

chancellor erred in finding Ursel’s testimony more credible in this instance. In regard to



                                              9
Deloris, her testimony only corroborates the parties’ contentious relationship. Her testimony

regarding the August 2013 trip to the hospital is based upon Wayne’s statement that Ursel

would not drive him to the hospital—Deloris did not hear Ursel refuse. And much of

Deloris’s testimony was unclear as to the timing of these incidents.

¶19.   Our courts have consistently refused to sanction divorces based on habitual cruel and

inhuman treatment where much more serious conduct occurred. See Stennis v. Stennis, 464

So. 2d 1161, 1162 (Miss. 1985) (insufficient evidence of habitual cruel and inhuman

treatment where a husband slapped his wife, put her in a headlock, and washed her mouth

out with soap); Gwathney v. Gwathney, 208 So. 3d 1087, 1090 (¶8) (Miss. Ct. App. 2017)

(affirmed a chancellor’s finding that a wife lacked sufficient corroborating evidence to prove

her husband physically abused her); Reed v. Reed, 839 So. 2d 565, 571 (¶26) (Miss. Ct. App.

2003) (reversed a chancellor’s decision to grant a divorce, notwithstanding physical violence

and threats); Wilbourne v. Wilbourne, 748 So. 2d 184, 187 (¶5) (Miss. Ct. App. 2000)

(affirmed a chancellor’s denial of a divorce despite occasional physical violence, finding the

evidence insufficient to prove habitual cruel and inhuman treatment).

¶20.   The chancellor found Wayne’s testimony was not credible, and the testimony of his

corroborating witnesses was inconsistent at best.       The chancellor believed Wayne’s

apprehension was due to his poor health and marital strife, not due to Ursel’s purported

refusal to drive him to the hospital. As previously stated, “mere unkindness, rudeness, or

incompatibility” is not enough to support a cruel-and-inhuman-treatment divorce. Stone, 824

So. 2d at 646 (¶4). Keeping in mind our limited standard of review, we cannot find the



                                             10
chancellor’s decision to deny Wayne a divorce was manifestly wrong or clearly erroneous.

¶21.   AFFIRMED.

      IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, GREENLEE AND
WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY WILSON, J. FAIR,
J., NOT PARTICIPATING.

       ISHEE, J., DISSENTING:

¶22.   The majority would uphold the chancellor’s findings as to both Ursel’s award of

separate maintenance, and the dismissal of Wayne’s counterclaim for divorce on the ground

of habitual cruel and inhuman treatment. Finding error below, however, I respectfully must

dissent.

       I.     Separate Maintenance

¶23.   As the majority acknowledges, Wayne asserts that the chancellor erred in awarding

Ursel separate maintenance because the court disregarded requests for admissions that had

previously been deemed admitted for failure to timely respond; as a result, he argues the

matters were conclusively established, thus preventing Ursel from proving the essential

elements of her claim. I agree.

¶24.   Regarding separate maintenance, our supreme court has stated:

       [T]he jurisdictional basis of a separate-maintenance decree stems from
       equitable principles first laid down in Mississippi in Garland v. Garland, 50
       Miss. 694 (1874). The very power of the court to grant separate maintenance
       was based upon the following two requirements: (1) a separation without fault
       on the part of the wife, and [(2)] the husband’s willful abandonment of her
       with refusal to provide support to her. Rodgers [v. Rodgers], 349 So. 2d
       [540,] 541 [(1977)]. The Rodgers court explained that these two requirements
       must be satisfied in order for the court to possess the equitable power to order


                                             11
       separate maintenance. Id.

Jackson v. Jackson, 114 So. 3d 768, 775 (¶17) (Miss. Ct. App. 2013) (emphasis added). Our

supreme court has also held: “While the law does not require a wife who leaves her husband

to be blameless, misconduct on her part which materially contributes to the separation, so that

it may be said that the fault of the wife is equal to or greater than that of the husband, . . . is

a defense to her suit for separate maintenance.” King v. King, 246 Miss. 789, 152 So. 2d

889, 891 (1963) (citing Hilton v. Hilton, 88 Miss. 529, 41 So. 262 (1906)).

¶25.   Following the requests for admissions submitted by Wayne to Ursel, Ursel failed to

timely respond and, therefore, the court deemed the requests admitted. Certain requests

deemed admitted stated the following:

       REQUEST NO.1: Please admit that [y]our course of conduct is a material
                     factor in the separation of the parties at least equal to, if
                     not greater than, that of [y]our husband.

       REQUEST NO.4: Please admit that separation of the parties was not
                     without fault on [y]our part.

       REQUEST NO.5: Please admit that [y]our husband did not and has not
                     willfully abandoned [y]ou with refusal to provide support
                     to [y]ou.

¶26.   As noted by the majority, Rule 36 of the Mississippi Rules of Civil Procedure governs

requests for admissions. Under the rule, a matter will be deemed admitted if the party the

request was served upon does not timely respond or file an objection. M.R.C.P. 36(a). A

timely response is one made within thirty days. See id. The matter is then conclusively

established unless the court allows a withdrawal or amendment. M.R.C.P. 36(b). “A matter

that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So. 3d 978,

                                                12
981 (¶7) (Miss. Ct. App. 2013). Most important here, however, is the guidance set forth in

the advisory committee’s note to Rule 36, which reads:

       Rule 36 will be enforced according to its terms; matters admitted or deemed
       admitted upon the responding party’s failure to timely respond are
       conclusively established unless the court, within its discretion, grants a motion
       to amend or withdraw the admission. “Any admission that is not amended or
       withdrawn cannot be rebutted by contrary testimony or ignored by the court
       even if the party against whom it is directed offers more credible evidence.”
       DeBlanc [v. Stancil, 814 So. 2d 796, 80[1] (Miss. 2002)] (citing 7 James W.
       Moore, et al., Moore’s Federal Practice ¶36.03[2], at 36 (3d ed. 2001)).

M.R.C.P. 36 advisory committee’s note to 2014 amendment (emphasis added).

¶27.   Thus, because Wayne’s requests for admissions were deemed admitted by the

chancellor, he argues that it was erroneous for the chancellor to ignore those admitted

requests, and instead rely upon trial testimony regarding the merits of Ursel’s separate-

maintenance claim. I agree, as Rule 36 explicitly prohibits such. Wayne objected to this

issue during trial when Ursel began giving contradictory testimony regarding Wayne’s

refusal to support her; yet, the chancellor stated:

       Well, the only problem is the court can allow [the requests] to be confessed,
       but when I’ve heard something contrary to the testimony from [Wayne,]
       namely, I left and said I’m not coming back, then I have to proceed with what
       I’ve heard in sworn testimony.

As the advisory-committee note makes clear, however, “[a]ny admission that is not amended

or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the

party against whom it is directed offers more credible evidence.” Id. Therefore, because the

record reveals no such motion to amend or withdraw was made by Ursel, the admissions

could neither be ignored nor rebutted by testimony at trial. See id. Furthermore, the fact that



                                              13
Wayne offered contradictory testimony—namely, that he did willfully abandon the marital

home (for Ursel’s refusal to assist him during medical emergencies)—is of no consequence,

as the admissions are only binding upon the party against whom they are offered. See Shell

Oil Co. v. Murrah, 493 So. 2d 1274, 1277 (Miss. 1986) (holding that the purpose of Rule 36

is to bind the party making the admission, not the party requesting it). Thus, the chancellor’s

statement, wherein she valued trial testimony over the requests for admissions, was improper,

as she did not give the required weight to the respective admissions.

¶28.   The majority, however, finds otherwise. Instead, it would affirm the chancellor’s

disregarding of Rule 36. In doing so, it points to Wayne’s third request for admission, which

stated: “Please admit that there is no significant conduct on [y]our part that negatively

impacts the enjoyment of the marriage contract.” Relying on this request alone, the majority

argues that the admitted requests produced overall contradictory results—therefore, the

matter of Ursel’s separate-maintenance claim was not conclusively established. As a result

then, the majority asserts the chancellor was well within her discretion to rely on trial

testimony to resolve any conflicts found within these requests. Citing no authority to support

this proposition (and having found none myself), however, I find this argument wholly

unpersuasive.

¶29.   Put simply, the request from which the majority erects its argument is not an essential

element of a claim for separate maintenance. See Jackson, 114 So. 3d at 775 (¶17). And so,

whether contradictory or not, under Rule 36, the requests were all admitted. And though

“Rule 36 provides a harsh penalty for the failure to comply,” requests four and five of those



                                              14
deemed admissions encompassed the essential elements of Ursel’s claim for separate

maintenance—a claim upon which she bore the ultimate burden of proof. Hawkins v. Hale,

185 So. 3d 1076, 1078 (¶7) (Miss. Ct. App. 2016).

¶30.   Thus, Wayne’s requests for admissions were deemed admitted for Ursel’s failure to

timely reply. The power to deem those requests admitted was well within the chancellor’s

discretion, which we clearly acknowledge. See Scoggins v. Baptist Mem’l Hosp.-Desoto, 967

So. 2d 646, 648 (¶8) (Miss. 2007) (holding “[a] certain amount of discretion is vested in the

trial judge with respect to whether he or she will take matters as admitted”). To this point,

however, the majority apparently mischaracterizes my acknowledgment that a chancellor

possesses this discretion and conflates this acknowledgment with my overall conclusion here

that the chancellor erred—to be clear, I find no abuse of discretion on the chancellor’s part

in deeming these requests admitted for failure to timely reply. It appears, however, that the

majority blends this discretion “pre-admittance” with that of “post-admittance.” Make no

mistake, the chancellor here deemed all the requests admitted—and that being the case, she

could not pick and choose which requests to keep or disregard post-admittance (as the

majority seems to assert); only upon a permitted motion to amend or withdraw could those

originally admitted requests be overlooked by the court. See M.R.C.P. 36(b).

¶31.   As such, being conclusively established, and with no motion to amend or withdraw

having been made, I find the chancellor committed reversible error—in both her disregarding

of the admitted requests for admissions as well as her subsequent awarding of separate

maintenance to Ursel. To that end, I would reverse and render as to this issue, and in doing



                                             15
so, urge this Court to recall that a rule not enforced is no rule at all.

       II.     Habitual Cruel and Inhuman Treatment

¶32.   In Rakestraw v. Rakestraw, 717 So. 2d 1284 (Miss. Ct. App. 1998), this Court

reiterated the long-held principle that:

       Habitual cruel and inhuman treatment may be established by a showing of
       conduct that either (1) endangers life, limb, or health, or creates a reasonable
       apprehension of such danger, rendering the relationship unsafe for the party
       seeking relief, or (2) is so unnatural and infamous as to make the marriage
       revolting to the non-offending spouse and render it impossible for that spouse
       to discharge the duties of marriage, thus destroying the basis for its
       continuance.

Rakestraw, 717 So. 2d at 1287 (¶8) (citing Daigle v. Daigle, 626 So. 2d 140, 144 (Miss.

1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that

its recurrence may be reasonably expected whenever occasion or opportunity presents itself.”

Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972). “Although the cruel and inhuman

treatment usually must be shown to have been ‘systematic and continuous,’ a single incident

may provide grounds for divorce.” Rakestraw, 717 So. 2d at 1287 (¶8). “While ordinarily

one act or an isolated incident will not establish a charge of habitual cruel and inhuman

treatment, one incident of personal violence may be of such a violent nature as to endanger

the life of the complainant spouse and be of sufficient gravity to establish the charge of

habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So. 2d 44, 48 (Miss. 1993).

“[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility

or want of affection.’” Rakestraw, 717 So. 2d at 1287 (¶8) (quoting Daigle, 626 So. 2d at

144). Habitual cruel and inhuman treatment must be shown by a preponderance of the



                                               16
evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).

¶33.   “The party alleging cruel and inhuman treatment typically must corroborate the

testimony.” Id. Nonetheless, “[c]orroborating evidence need not be sufficient in itself to

establish habitual cruelty, but rather need only provide enough supporting facts for a court

to conclude the plaintiff’s testimony is true.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶12)

(Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009)

(quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).

¶34.   On appeal, Wayne asserts that the chancellor erred in denying his claim for divorce

because he proved, by a preponderance of the evidence, with corroborated testimony, that

Ursel’s conduct endangered his life, limb, and health, thus creating a reasonable

apprehension of such danger, and thereby rendering the relationship unsafe for him. Based

upon the evidence presented surrounding Wayne’s medical emergencies, I agree.

¶35.   Wayne testified that at four separate times, he experienced medical emergencies while

at home, and that Ursel refused to assist him in seeking medical treatment during each

instance. Though Ursel denied refusing to assist Wayne on three of those occasions, she

corroborated Wayne’s testimony by admitting that she refused to assist Wayne during at least

one of those times. Wayne testified further that on three of those occasions—other than the

instance in which Ursel admitted to refusing—he had to rely on Deloris, Murdoch, and

himself for transport to receive emergency medical treatment.

¶36.   At trial, Deloris testified that while at the Williamses’ home in February 2013, Wayne

began experiencing trouble breathing. When Wayne asked for Ursel’s assistance with his



                                             17
oxygen, Deloris stated that Ursel told Wayne, “I will be glad when you go ahead and die and

get it over with.” Deloris further testified that later, around August 2013, Wayne called her

requesting assistance because Ursel would not help him while he was having severe chest

pains. Deloris also said that when she arrived to pick up Wayne, Ursel yelled out at him, “I

hope you die,” as well as other explicit language. In addition, Deloris testified that, while

with Wayne and Ursel following a medical procedure of Wayne’s, Ursel asked the doctor,

“Why didn’t you just let him die?” Lastly, Deloris stated that Ursel threatened Wayne, and

told him “the next time he got on his motorcycle, she hoped he had a wreck and die[d].”

Murdoch also testified to assisting Wayne at various times for emergency medical needs, but

never saw Ursel on those occasions, and thus, did not provide corroborating testimony with

respect to her alleged conduct.

¶37.   During the fourth and final occasion, however, Wayne experienced a heart attack. He

testified that Ursel told him, “You can sit there and die, you S.O.B.” With no available

assistance, he was forced to drive himself on his motorcycle from Moselle, Mississippi, to

Hattiesburg, Mississippi. Rather than return home following his release from the hospital,

Wayne opted to reside at Deloris’s home, and has resided there since. Following the

conclusion of testimony, the chancellor dismissed Wayne’s claim for divorce, and stated:

       Well, you know, let me just tell you both, I know what the burden is for getting
       a divorce on the grounds of habitual[] cruel[] and inhuman treatment, and it’s
       just not there. Your client has failed to meet any showing with his
       corroborating witnesses . . . . [Wayne] has testified that . . . since he last
       worked . . . he has had problems with his heart, problems with his back,
       problems with C.O.P.D. Those illnesses themselves would have anybody
       apprehensive of continuing to live. Now his perception of what’s going on, it
       appears that his own testimony and the witnesses showed that every time he

                                             18
       thought he was in a crisis, he could call either Mr. Murdoch . . . [or Wayne]
       has a [motorcycle] that could have been traded for a car where he could take
       himself, or he had . . . [Deloris] . . . sitting in his house, who on occasion is
       available. So the Court doesn’t see—if there was a brandishment of guns,
       knives, something of that effect . . . . [T]hey both cuss and fuss and that’s it.
       And I don’t see that being habitual. And I don’t see that your claim for
       divorce is meritorious based on what the current law is, and that [m]otion [t]o
       [d]ismiss is granted. All right, so y’all will stay married to each other.

¶38.   I disagree with this ruling by the chancellor. We are reminded that when analyzing

a divorce based on habitual cruel and inhuman treatment, “there is a dual focus on the

conduct of the offending spouse and the impact of that conduct on the offended spouse.”

Smith, 90 So. 3d at 1263 (¶11). “Evaluating the impact on the offended spouse is a

subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not

its effect on an ordinary, reasonable person.” Id. Lastly, “[w]hen there is no violent conduct

involved, we review the facts on a case-by-case basis, taking into account the frequency and

severity of the conduct, as well as the impact on the plaintiff.” Id. at (¶13).

¶39.   Reviewing the record before this Court, I would submit that Wayne proved, by a

preponderance of the evidence and through corroborated testimony, that the effect of Ursel’s

conduct endangered the life, limb, and health of Wayne. Between the dates of March 2012

and December 2013, Wayne testified to having four medical emergencies—in all four, Ursel

did not provide any assistance. Ursel corroborated at least one of these occasions by

admitting she refused to assist him during a life-threatening emergency. The fact that Wayne

was fortunately able to rely on the kindness of others when in times of need is immaterial.

Likewise, whether he could have chosen a more suitable means of transportation than his

motorcycle is irrelevant to our analysis. What is more, the chancellor’s commentary related

                                              19
to Wayne’s illnesses—that such ailments would cause any person to have an apprehension

of living—is misguided; the standard is not viewed in the objective, but rather the subjective.

Id. at (¶11).

¶40.   The majority, however, would find the facts of this case do not amount to habitual

cruel and inhuman treatment. I respectfully disagree for all the reasons listed herein. In

particular, focusing on the frequency and severity of Ursel’s conduct with respect to the

subjective effect it had on Wayne, I find that Ursel’s conduct endangered the life, limb, or

health of Wayne, creating a reasonable apprehension of such danger, and thus, rendering the

relationship unsafe for him. This is because it was “reasonably expected whenever occasion

or opportunity present[ed] itself” that Ursel would not aid Wayne. See Burnett, 271 So. 2d

at 92. Refusing to assist a spouse during severe, life-threatening medical emergencies is

surely of such sufficient gravity to establish a charge of habitual cruel and inhuman

treatment. As a result, I would find the chancellor erred in dismissing Wayne’s counterclaim

for divorce, and therefore, reverse and remand as to this issue.

                                      CONCLUSION

¶41.   Upon careful review of the record, I would find the chancery court committed

reversible error in both the granting of Ursel’s award of separate maintenance, and the

dismissal of Wayne’s counterclaim for divorce on the grounds of habitual cruel and inhuman

treatment. For these reasons, I would reverse and render the judgment awarding separate

maintenance, and reverse and remand the judgment dismissing Wayne counterclaim for

divorce.



                                              20
WILSON, J., JOINS THIS OPINION IN PART.




                           21
