         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CA-00609-COA

CHRISTOPHER DANIEL LEE                                                      APPELLANT

v.

NIKKI G. LEE                                                                  APPELLEE

DATE OF JUDGMENT:                          01/09/2013
TRIAL JUDGE:                               HON. E. VINCENT DAVIS
COURT FROM WHICH APPEALED:                 ADAMS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    M. DEVIN WHITT
ATTORNEY FOR APPELLEE:                     LISA JENKINS CHANDLER
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                   DIVORCE GRANTED ON THE GROUND
                                           OF HABITUAL DRUNKENNESS;
                                           VISITATION SET
DISPOSITION:                               AFFIRMED: 11/25/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Christopher D. Lee appeals the judgment of divorce granted in favor of Nikki G. Lee.

He argues that the chancellor erred when he found that there was sufficient evidence to grant

Nikki a divorce on the ground of habitual drunkenness, and that Chris was required to pay

for transportation costs for visitation. We find no error and affirm.

                                          FACTS

¶2.    Chris and Nikki met in 2006 and dated for two years. They were married on May 31,

2008. At the time, Nikki worked at Corr-Williams, and Chris worked offshore.

¶3.    Their son, Will, was born on July 31, 2009. Chris had a child from a previous
relationship. Shortly after Will’s birth, Chris changed jobs and started work as a contractor

for Denbury. This gave him more time at home, even though he still worked seven days on

and seven days off.

¶4.    On May 3, 2011, Nikki filed a complaint for divorce on the grounds of habitual cruel

and inhuman treatment and habitual drunkenness. After the trial, the chancellor granted

Nikki a divorce on the ground of habitual drunkenness. The chancellor awarded sole

physical custody to Nikki, “reasonable” visitation to Chris, and joint legal custody to both.

The chancellor also divided their property. Because of Nikki’s planned relocation to

Wisconsin once the divorce was final, the responsibility of paying transportation costs for

visitation exchanges between Wisconsin and Mississippi fell to Chris. It is from this

judgment that Chris now appeals.

                                STANDARD OF REVIEW

¶5.    The scope of review in domestic cases is limited by the substantial evidence/manifest

error rule. Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002) (citing Magee

v. Magee, 661 So. 2d 1117, 1122 (Miss. 1995)). This Court will not disturb a chancellor's

findings unless they were manifestly wrong or clearly erroneous, or the chancellor applied

an erroneous legal standard. Id. (citing Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss.

1994)).

                                         ANALYSIS

       I.     Whether the chancellor committed manifest error in the grant of a
              divorce to Nikki on the ground of habitual drunkenness.

¶6.    Chris asserts that it was error for the chancellor to grant Nikki a divorce on the ground



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of habitual drunkenness. Chris argues that Nikki did not meet her burden in proving habitual

drunkenness. Alternatively, Chris argues that Nikki’s knowledge of his drinking habits prior

to their marriage barred the suit.

              A.      Burden of Proof

¶7.    On appeal, Chris argues the chancellor erred in finding sufficient grounds for divorce.

“A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves

that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected

the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner,

73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).

¶8.    In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found

that the husband’s habit of drinking a case of beer each night, which caused him to become

abusive and critical, constituted grounds for divorce under habitual drunkenness. On the

other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that

the husband’s habit of drinking four to five beers a night that did not negatively impact the

marriage failed to support a divorce under habitual drunkenness.

¶9.    At trial, Nikki testified that Chris often made negative comments about her weight.

While drunk once, Chris told Nikki that he only finds her attractive and wants to have sex

with her when he is intoxicated. On a separate occasion, Chris woke Nikki by urinating on

her leg, and, when Nikki protested, Chris started laughing. Chris testified that he had never

heard of this incident until trial. On another night, Chris and Nikki got into an argument, and

Chris took Will into the house so Nikki could cool off outside. When Nikki decided to go

back inside, she found the door locked. After she called Chris and knocked on the door with


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no answer, she was forced to crawl inside through a back door. She found Chris passed out

on their waterbed, with Will face down and wedged between the corner of the bed.

¶10.   Nikki testified that Chris often drank five to six beers per day. Chris worked offshore

for extended periods of time. When he would return home, he would always have alcohol

in his hand. Nikki also testified that on several occasions, Chris would pass out drunk and

not remember anything that happened. Finally, Nikki testified that being with Chris after

awhile made her depressed, and when they separated, she felt happy again.

¶11.   Chris contends that he did not drink as much as Nikki claimed he did. He argues that

because Nikki’s testimony was not corroborated by any other witness, it is “wildly

inconsistent at best.” However, Nikki's father, Thomas Godleske, testified that on an ice-

fishing trip Chris drank so much that he passed out in a stranger’s vehicle. Further, Chris

testified that he continued to drink at the time of the trial.

¶12.   Where there is conflicting testimony, the chancellor is the trier of fact and adjudicates

the credibility of each witness. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008).

“An appellate court is to affirm findings of fact by chancellors in domestic cases when they

are ‘supported by substantial evidence unless the chancellor abused his discretion, was

manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Robison

v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (quoting Holloman v. Holloman, 691

So. 2d 897, 898 (Miss. 1996)).

¶13.   In review of the record, we find that the chancellor had sufficient evidence to grant

Nikki a divorce on the ground of habitual drunkenness: Chris’s alcohol consumption,

combined with the negative impact it had on the family, and his continued drinking at the


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time of trial. Additionally, the chancellor, as the trier of fact, was in the best position to

determine each witness’s credibility and to weight the conflicting testimony. Because the

evidence supports the chancellor’s findings, we find that he did not commit manifest error

in his findings on this issue.

              B.      Condonation and Antenuptial Knowledge

¶14.   Next, Chris argues that Nikki’s condonation of his drinking served as a defense to

divorce on the grounds of habitual drunkenness. Chris, in the alternative, contends Nikki

knew of Chris’s drinking habits before marriage, she married him in spite of this knowledge,

and this antenuptial knowledge barred any divorce proceedings on habitual drunkenness.

Regardless of these contentions, Chris failed to assert these affirmative defenses in his

pleadings or raise them at trial. Therefore, this issue is barred.

¶15.   Condonation or antenuptial knowledge, as affirmative defenses, must be specifically

pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27)

(Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss.

Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed

waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen

Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).

¶16.   Chris did not raise condonation or antenuptial knowledge as an affirmative defense

in his pleadings. However, parties may try an affirmative defense through implied consent.

Mississippi Rules of Civil Procedure 15(b) provides:

       When issues not raised by the pleadings are tried by expressed or implied
       consent of the parties, they shall be treated in all respects as if they had been
       raised in the pleadings. Such amendment of the pleadings as may be necessary


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       to cause them to conform to the evidence and to raise these issues may be
       made upon the motion of any party at any time, even after judgment; but
       failure so to amend does not affect the result of the trial of these issues.

See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).

¶17.   In his order, the chancellor found that Chris had waived the affirmative defense of

condonation, because he did not plead it as an affirmative defense. The chancellor ruled:

“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that

Chris may have been attempting to raise a defense of condonation, the Court finds that this

defense has been waived.”      The chancellor did not address a defense of antenuptial

knowledge or if the parties tried condonation by express or implied consent.

¶18.   From the record, there is no indication the parties agreed to try condonation or

antenuptial knowledge by express consent. Therefore, the question remains whether the

parties tried the issue through implied consent. While issues not raised in the pleadings may

be tried by implied consent, the party relying on implied consent for an issue must

demonstrate certain requirements.

¶19.   First, in order to find the parties tried the issue by implied consent, this Court must

determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v.

Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211,

1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions

asked or the evidence presented at trial are relevant to the issues actually raised in the

pleadings.’” Id. (citation omitted).

¶20.   At trial, the following cross-examination of Nikki occurred:

       Q:     Yeah. Those two years before you got married y’all had, you and Chris


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               had a good relationship? Did he drink back then?

       A:      Yes.

       Q:      He did?

       A:      Yes.

       Q:      Did he drink a lot back then?

       A:      Yes.

       Q:      Did he drink basically the same amount you’ve testified he drinks to
               now?

       A:      Yes.

       Q:      And you still married him with that?

       A:      Yes.

       ....

       Q:      Before you got married[,] Chris’[s] behavior was pretty much the same
               as you’ve testified today as during the marriage. It was the same
               behavior prior to the marriage? I’m talking about going down to his
               parents’ house and going to a friend’s house or something like that and
               drinking?

       A:      Yes.

       Q:      He hasn’t changed, has he?

       A:      No.

In response to her cross-examination, Nikki did not make any objections to this line of

questioning.

¶21.   Here, the record fails to demonstrate that both parties knew Chris asserted the defense

of condonation or antenuptial knowledge during trial. As Nikki's testimony illustrated, she



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knew of Chris’s habitual drunkenness prior to their marriage, but decided to go forth with the

marriage anyway. However, Nikki’s testimony regarding Chris’s drinking habits served as

relevant evidence for the asserted ground for divorce. The line of questioning about Chris’s

habitual drunkenness did not place Nikki on notice of any defense and directly related to the

alleged ground for divorce.       Because Chris failed to properly raise any defense of

condonation or antenuptial knowledge, either through his pleadings or consent at trial, this

issue has no merit.

       II.     Whether the chancellor committed manifest error in requiring Chris to
               bear the burden of all transportation costs in exercising his visitation
               rights.

¶22.   In his second issue on appeal, Chris argues the chancellor erred by placing the entire

burden of transportation costs for his visitation on him rather than dividing the costs. Chris

asserts that Nikki agreed in court to share the transportation costs and the best interests of the

child necessitate the division of costs. Nikki counters that Chris failed to raise the issue at

trial and the chancellor did not abuse his discretion in requiring Chris to bear the costs of his

visitation.

¶23.   This Court cannot review an issue on appeal if the parties failed to present the issue

to the chancellor at trial. In re Dissolution of Marriage of De St. Germain, 977 So. 2d 412,

418 (¶19) (Miss. Ct. App. 2008) (citing Birrages v. Ill. Cent. R.R., 950 So. 2d 188, 194 (¶18)

(Miss. Ct. App. 2006)). However, an appellant may preserve an issue outside of the

pleadings, transcripts, or rulings for appeal if he raised the issue in a motion for a new trial.

Moore v. State, 131 So. 3d 1228, 1231 (¶7) (Miss. App. Ct. 2013).

¶24.   While the issue of costs for visitation if Nikki gained primary physical custody of Will


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and relocated to Wisconsin arose through Nikki’s testimony, Chris did not address the issue

at trial. Chris, however, argued against the chancellor’s ruling regarding transportation costs

in his motion to reconsider, which the chancellor treated as a motion for a new trial. The

chancellor subsequently denied Chris’s motion.

¶25.   When a chancellor denies a motion for a new trial, this Court shall reverse the

decision only if the chancellor committed an abuse of discretion. Smith v. Crawford, 937 So.

2d 446, 447 (¶5) (Miss. 2006) (citations omitted).

¶26.   The chancellor applied the proper legal analysis in determining that under Mississippi

Rule of Civil Procedure 59, Chris failed to demonstrate a basis for a new trial. Additionally,

the chancellor evaluated the motion under Mississippi Rule of Civil Procedure 60, in the

event Chris intended to seek relief under this rule, and found no merit to the motion under

that rule as well. Therefore, the chancellor did not abuse his discretion.

¶27.   Even if Chris successfully raised the issue of the burden of transportation costs on

appeal, “[t]he chancellor enjoys substantial discretion in deciding visitation issues, guided

essentially by the consideration of what arrangement is in the child's best interests.” Ballard

v. Ballard, 843 So. 2d 76, 80 (¶15) (Miss. Ct. App. 2003) (citing Harrell v. Harrell, 231 So.

2d 793, 797 (Miss. 1970)). While Mississippi law does not mandate the noncustodial parent

bear the burden of transportation costs, a relocation by the custodial parent does not require

a division of costs. Id. Ballard is instructive for this case.

¶28.   In Ballard, the noncustodial father sought a modification of the child-visitation

arrangements regarding travel costs to exercise his visitation rights. Id. at (¶3). After the

mother and child relocated across the state, the father argued the voluntary relocation by the


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mother required her to bear a portion of the costs incurred by the father. Id. While the

chancellor awarded the father liberal visitation rights, the chancellor also found that

compelling the mother to bear any of the transportation costs would not support the best

interests of the child. Id. at (¶12). In affirming the decision, this Court determined the

chancellor did not abuse his discretion and that any contribution to transportation expenses

by the mother would detract from her financial support of the child. Id. at (¶15).

¶29.   Also, the Court alluded to the possibility that if the father showed that the expense of

additional travel would prevent the exercise of his visitation, then a modification could occur.

Id. However, the father in Ballard, just as Chris in this case, failed to demonstrate that the

costs of transportation would adversely affect his visitation rights. Id. Chris claims that in

order to exercise his rights, he would have to spend four days and over $1,000 each visitation

period for travel. While Chris explains his commercial driver’s license limits the number of

hours he can drive each day, which would potentially extend travel time to and from

Wisconsin to four days, he does not show how each visit would cost $1,000. Additionally,

Chris fails to show how these costs would substantially burden or preclude his visitation or

would go against the best interests of the child.

¶30.   Because the chancellor did not abuse his discretion in denying Chris’s motion for a

new trial, and Chris failed to prove the transportation costs placed an unfair burden on the

exercise of his visitation rights, we affirm.

¶31. THE JUDGMENT OF THE CHANCERY COURT OF ADAMS COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

       LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,

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MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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