                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2010-CA-01226-SCT

JAMES EDWARD CARAMBAT

v.

STACY RUTH CARAMBAT


DATE OF JUDGMENT:                       02/23/2010
TRIAL JUDGE:                            HON. SANFORD R. STECKLER
COURT FROM WHICH APPEALED:              HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                 STEPHEN J. MAGGIO
ATTORNEY FOR APPELLEE:                  OTTIS B. CROCKER, III
NATURE OF THE CASE:                     CIVIL - DOMESTIC RELATIONS
DISPOSITION:                            AFFIRMED - 10/20/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      KING, JUSTICE, FOR THE COURT:

¶1.   The Hancock County Chancery Court granted Stacy Ruth Carambat a divorce from

James Edward Carambat on the ground of habitual and excessive drug use. Aggrieved,

James appeals, arguing that the chancellor erred by granting the divorce, because his

marijuana use did not affect the marriage, was not excessive, and was not akin to using

opium, morphine, or other, like drugs. We find no error and affirm the chancery court’s

judgment.

                      FACTS AND PROCEDURAL HISTORY
¶2.    James and Stacy married on March 20, 1993, in Metairie, Louisiana. They eventually

moved to Mississippi, where they resided throughout the marriage, finally settling in

Diamondhead, Mississippi, in 2004. The couple had twin boys – James Eugene Carambat

and Tyler William Carambat – who were born on January 9, 1999. James and Stacy

separated in August 2008, and Stacy filed for divorce on September 17, 2008.

¶3.    Stacy alleged three grounds for divorce: irreconcilable differences, habitual cruel and

inhuman treatment, and habitual and excessive drug use. She requested custody of the twins,

child support, equitable distribution of the assets, alimony, and attorney’s fees. James

answered Stacy’s complaint for divorce on July 20, 2009. In his answer, James denied

Stacy’s grounds for divorce, her claim that they had not cohabited since the separation, and

her claim that she should have custody of the twins.

       A. James’s Drug Use

¶4.    During the trial, Stacy, James, and Barbara Ruth (Stacy’s mother) testified about the

couple’s marriage. Before the couple married, Stacy knew that James regularly smoked

marijuana, and James admitted that he had been smoking marijuana since he was fourteen

years old. James continued smoking marijuana throughout the marriage.

¶5.    Although the couple had conversations about James’s need to cease his marijuana use,

James stated Stacy never asked him to quit. Stacy thought James would stop his drug use

once the twins were born. According to Barbara, James called her after the twins were born,

acknowledged his drug use as a problem, and told her he intended to quit. Because of

James’s marijuana use, Stacy was afraid that he would get into legal trouble, especially since

he often picked her up from work with marijuana in the car. Several times during the


                                              2
marriage, James managed to go weeks without using marijuana. He said the longest period

of time was one month. But he would always start using again.

¶6.     Stacy testified that James had used other drugs. He once smoked cocaine at the

beginning of their marriage, and he used Xanax, which was not prescribed to him, to cope

with sleep deprivation. James stated that the cocaine incident had happened one time in 1995

or 1996. He said he took Xanax for two years, but that was several years ago. James

testified that he had not used marijuana since January 2009, and he was willing to take a drug

test.

¶7.     James was questioned about the frequency of his marijuana use. James testified that

he would purchase one quarter-ounce bag of marijuana per month, which cost between thirty-

five and fifty dollars. James could make six to seven cigarettes with this amount. Stacy said

James smoked marijuana multiple times a day, starting in the morning before work. Both

parties stated that the children were never exposed to James’s drug use because James

smoked the marijuana in the garage.

        B. James’s Interaction with the Family

¶8.     According to Stacy, James’s drug use affected his interactions with the family,

causing him to develop a routine:

        [H]e would leave for work and smoke, and then go to work [sic] and then
        come home, and he would get undressed, go out to the garage and smoke
        again, and then he would come home, sit on the couch and wait for dinner to
        be fixed. And then eat dinner and then return back to the couch or to the
        computer room. He almost isolated himself from us totally.

Stacy often went to bed alone, and James would stay awake to use the computer or to watch

television. Stacy stated that this took a toll on their marriage. Stacy also testified that, after


                                                3
the twins were born, she withdrew from James on an intimate level. James agreed and stated

that Stacy’s disinterest caused him to withdraw as well.

¶9.    Stacy also testified that it was a chore to get James to participate in family activities.

Most times, James would stay home instead of coming to family functions. Barbara echoed

Stacy’s sentiments, stating that James had become disinterested in attending family functions

three years ago.

¶10.   James said that his marijuana use was casual, and that he was not dependent on it.

According to James, marijuana had a calming effect on him. He explained that marijuana

did not keep him from family functions; he just did not care to be around Stacy’s family.

James also stated that he was actively involved with the twins and their extracurricular

activities – fishing, “bb” guns, and sports. James said he also helped the twins with their

homework. Stacy agreed, but she said that James had come to only a few of the twins’

school activities – such as parent-teacher conferences.

       C. Financial Trouble

¶11.   Stacy testified that James’s marijuana use affected his work productivity. While

employed with a printing company in Biloxi, Mississippi, James botched a printing job that

cost several thousand dollars to reprint.1 He was demoted as a result.2 The demotion caused

James to lose his bonus pay. According to Stacy, James told her that his drug use probably

played a part in the incident. Stacy said that, afterwards, James tried to stop smoking


       1
      The record does not state specifically what year the printing blunder occurred.
However, the record reveals that the incident occurred some time after the family moved to
Diamondhead in 2004.
       2
           A year later, James was reinstated to his position.

                                                 4
marijuana. On cross examination, James’s trial counsel impeached Stacy with her deposition

testimony. In her deposition, Stacy was asked whether James’s work incident was a mistake

or a result of his drug use. Stacy responded that it was a mistake. She also agreed with trial

counsel’s statement that no one at James’s job had linked the error to his marijuana use.

¶12.   James denied telling Stacy that marijuana had caused his work error. He said he did

not smoke marijuana before work, and his marijuana use never affected his job performance.

James said the printing industry was stressful, and he smoked marijuana after work to relax.

James also stated that he had never been fired from a job, but he had been laid off by at least

two previous employers.

¶13.   Stacy testified that James’s drug use and mistake on the job affected the family’s

financial stability. James blamed their financial issues on Stacy’s credit-card use. Stacy said

they had borrowed $3,000 to $5,000 from her parents because they could not pay their bills,

and James had continued to purchase marijuana during their financial troubles. Barbara

testified that she and her husband had loaned Stacy and James up to $7,000. In addition,

James said that he had borrowed at least $25,000 from his brother after he was laid off.

James said he had used the money to pay for a dental surgery, credit-card debt, and the

family’s living expenses after Hurricane Katrina.

       D. James’s Behavior

¶14.   Barbara said Stacy always appeared nervous around James and cautioned others to

censor themselves around him. Stacy stated James would make derogatory comments –

sometimes in her family’s presence – about her clothing, income potential, and propensity

to flirt with other men. Barbara had witnessed one such argument four to five years


                                              5
previously at a wedding. According to Barbara, James had yelled at Stacy about her clothing

in front of other guests and eventually had stormed out of the wedding. James denied that

the argument was about Stacy’s clothing. Barbara also said James had argued with Stacy

about other men at a family gathering three years before.

¶15.   Stacy said James cursed at her after she had filed for divorce, and their arguments had

increased from weekly to daily. She stated James called her derogatory names in front of the

children. They also had a big argument in front of the children, after which she and the twins

retreated to the bedroom to avoid confrontation. James stated that he and Stacy did not have

any more problems than any other married couple. He stated that they often argued about

finances, mainly outside the children’s presence. He denied ever physically abusing Stacy,

and Stacy testified that James never physically abused her.

       E. Stacy’s Affair

¶16.   After moving to Diamondhead, James said Stacy met new friends at the country club

and had begun to socialize with them often. Stacy expressed that she needed time away from

the children. At first, James did not think her request was strange. But the frequency of

Stacy’s excursions increased in 2008. Stacy also had lost weight, began dressing differently,

and purchased lingerie. James found Stacy’s lingerie and questioned her about it. She told

him that she had bought it for herself. These events caused James to suspect Stacy of

cheating.

¶17.   According to James, in 2008, he and Stacy attended a party at the home of Royce

Wilkinson, one of Stacy’s male friends.3 James felt uncomfortable at the party because other

       3
           James and Stacy disagree as to the month the events occurred in 2008.

                                               6
men were flirting with Stacy. James stated that, later that year, he had called Stacy and

questioned her about her whereabouts.        Stacy had informed James that she was at

Wilkinson’s home taking care of his dog, and she and the twins had taken a ride in

Wilkinson’s golf cart. James said he was upset because, if anyone had seen his wife and

children in Wilkinson’s golf cart, they might have gotten the wrong idea. An argument

ensued, during which Stacy told James that she was no longer happy and wanted a divorce.

¶18.   When Stacy filed for divorce, James thought that they could work it out. According

to James, Stacy complained only that they were no longer a family and that he was not

helping out at home. James said Stacy never mentioned his marijuana use, and Stacy

testified that she did not give James an ultimatum concerning his marijuana use. James had

suggested that they seek counseling, but he stated that Stacy was not interested. They did

seek counseling individually but not as a couple. James did not believe that his marijuana

use contributed to the demise of the marriage. Instead, he believed that their arguments

caused the separation.

¶19.   At the time of trial, Stacy was dating a man named Tom Henry. Stacy met Henry in

October 2007, but she claimed that their relationship did not develop until April 2008. Stacy

testified that she had been disenchanted with James well before her relationship with Henry,

and that she had contemplated divorcing James at least one to two years earlier. Since filing

for divorce in September 2008, Stacy said that she and Henry had developed a sexual

relationship and were in love. During her relationship with Henry, Stacy and James

remained in the same household until April 2009.

       F. The Chancellor’s Ruling


                                             7
¶20.   Although this was a chancery court matter, James moved for a directed verdict.4 First,

he argued that Stacy had failed to provide evidence of habitual cruel and inhuman treatment.

Stacy agreed. Thus, this ground for divorce was dismissed. Next, James argued that Stacy

had failed to provide evidence of habitual and excessive use of opium, morphine, or other

like drugs. The chancellor found that the evidence regarding James’s habitual and excessive

drug use was more favorable to Stacy. James raised condonation as a defense, and Stacy

objected, arguing that James had failed to plead condonation as an affirmative defense.

James also argued that Stacy’s adultery had caused the divorce. The chancellor stated that

he could not grant a divorce to both parties and reminded James that he had failed to request

a divorce on the ground of adultery. Accordingly, the chancellor denied James’s motion.5

¶21.   The chancellor entered the “Judgment of Divorce” on September 24, 2009. The

chancellor found James’s own admission that he had regularly smoked marijuana from

fourteen years of age to fifty-five years of age was evidence that his use was habitual and

frequent. The chancellor found that James’s drug use was excessive and uncontrollable

because James smoked daily, he could not quit, and his drug use affected his work


       4
        James styled his motion as one for a directed verdict. But pursuant to Mississippi
Rule of Civil Procedure 41(b), a motion to dismiss is the proper procedural mechanism. Rule
41(b) provides that:

       [a]fter the plaintiff, in an action tried by the court without a jury, has
       completed the presentation of his evidence, the defendant, without waiving his
       right to offer evidence in the event the motion is not granted, may move for a
       dismissal on the ground that upon the facts and the law the plaintiff has shown
       no right to relief.
       5
       At this time, James made an oral request for an interlocutory appeal, and the
chancellor orally granted his request. The chancellor did not enter a formal order granting
James’s request, and James did not file a petition for interlocutory appeal with this Court.

                                             8
productivity and finances. Last, the chancellor found James’s marijuana use met the

definition of “other like drug” and caused his marriage to be repugnant to his spouse.

Although not the same chemical make-up as opium and morphine, the chancellor determined

that marijuana had the same effect, impairing James’s ability to perform his job and to

support his family.

¶22.   For those reasons, the chancellor granted Stacy’s divorce on the ground of habitual

and excessive use of drugs. The chancellor awarded Stacy custody of the twins, the marital

home, and attorney’s fees.6 The chancellor granted James visitation and ordered him to pay

child support and obtain medical insurance for the twins.

¶23.   James filed several post-trial motions regarding his visitation and child-support

obligation. The chancellor denied James’s requested relief. On April 7, 2010, James filed

a motion to reopen the time for appeal. The chancellor granted James’s request on July 20,

2010. On July 26, 2010, James timely filed his notice of appeal.

                                        ANALYSIS

¶24.   In a divorce proceeding, the chancellor is the finder of fact, and the assessment of

witness credibility lies within his sole province. Sproles v. Sproles, 782 So. 2d 742, 746

(¶12) (Miss. 2001). Thus, we will not disturb a chancellor’s findings when supported by

substantial evidence unless the chancellor’s judgment was manifestly wrong, clearly

erroneous or an erroneous legal standard was applied. Id. at 746 (¶¶12-13).

       Whether the chancellor erred by granting Stacy a divorce on the ground
       of habitual and excessive use of opium, morphine, or other like drug.



       6
           The chancellor did not award Stacy alimony.

                                              9
¶25.   James argues that the chancellor erred by granting Stacy a divorce because she did not

prove that his drug use was excessive and an “other like drug” as required by the statute.

James also maintains that Stacy condoned his marijuana use and that his marijuana use did

not cause any family, marital, or work issues. Instead, James blames the marriage’s demise

on Stacy’s extramarital affairs.

¶26.   Conversely, Stacy asks the Court to affirm the chancellor’s judgment. She argues that

there is substantial evidence to support the chancellor’s finding that James’s drug use was

habitual, excessive, and harmful to the family. Stacy also contends that the effect of

marijuana is much like the effect of opium and morphine; thus, it is an “other like drug” for

purposes of the statute. Because James did not specifically plead condonation as a defense,

Stacy argues that it is waived. Stacy also maintains that James waived his recrimination

argument because he failed specifically to plead it. Alternatively, Stacy argues that the

chancellor may still grant a divorce even when both parties are at fault.

       I. Condonation

¶27.   First, we address James’s claim that Stacy was not entitled to a divorce because she

had condoned his drug use. According to Stacy, she dated James two years before marrying

him, and she knew about his drug use all along.         But affirmative defenses, such as

condonation, must be specifically pleaded or else they are waived. M.R.C.P. 8(c); Ashburn

v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007) (citing Goode v. Village of

Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)). Based upon our review of

the record, James failed to plead condonation, and Stacy objected to his raising the defense

at trial. Thus, we find that this argument has been waived.

                                             10
         II. Recrimination

¶28.     Next, James argues, under the doctrine of recrimination, that Stacy’s adultery actually

led to the demise of the marriage. But James did not file a cross-claim for divorce, and he

did not plead recrimination. Even if James had pleaded the doctrine of recrimination, it

would not have precluded Stacy from being granted a divorce.7 See Miss. Code Ann. § 93-5-

3 (Rev. 2004). Thus, we find that this argument is barred from review.

         III. Habitual and Excessive Use of Opium, Morphine, or Other Like Drug

¶29.     Mississippi Code Section 93-5-1 (Rev. 2004) lists “habitual and excessive use of

opium, morphine, or other like drug” as a ground for divorce. A grant of divorce on this

ground requires the plaintiff to establish that the spouse’s drug use was (1) habitual and

frequent, (2) excessive and uncontrollable, and (3) that involved opium, morphine, or drugs

with a similar effect as opium or morphine. Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss.

1983).

         A. Habitual & Frequent Use

¶30.     Habitual use is established by showing that the spouse customarily and frequently

used drugs. Ladner, 436 So. 2d at 1373. Stacy presented evidence that James began

smoking marijuana at the age of fourteen, and his use continued until the age of fifty-five.

James concedes that his drug use was habitual and frequent, testifying that he had used



         7
         Section 93-5-3 provides that “[i]f a complainant or cross-complainant in a divorce
action shall prove grounds entitling him to a divorce, it shall not be mandatory on any
chancellor to deny such party a divorce, even though the evidence might establish
recrimination on the part of such complainant or cross-complainant.”



                                               11
marijuana almost daily. As a result, we find substantial evidence in the record to support the

chancellor’s finding that James’s drug use was habitual and frequent.

       B. Excessive & Uncontrollable Use

¶31.   Excessive drug use requires a showing that the offending spouse abused drugs.

Ladner, 436 So. 2d at 1373-1374. The offending spouse “must be so addicted to the use of

drugs that he cannot control his appetite for drugs whenever the opportunity to obtain drugs

is present.” Id.

¶32. James argues that his drug use was casual, it relaxed him, and he was not dependent

on it. The evidence shows the contrary. Stacy and James testified that James had attempted

to stop smoking marijuana several times, quitting for weeks at a time. But, as James stated

himself, he always went back to it.

¶33.   James argues that his drug use was not as serious as that of the spouses in Ladner and

Ashburn. In Ladner, the spouse deceitfully obtained numerous prescription drugs from

multiple doctors.    Ladner, 436 So. 2d at 1369.          He abused the prescription drugs

continuously for four years and exceeded the prescribed dosages. Id. The spouse’s drug use

negatively affected his attitude, actions, work habits, and family and social relationships. Id.

The wife testified that her husband was hyperactive in the morning – having taken Ritalin

– and practically immobile in the evening – after taking tranquilizers. Id. He worked only

two days per week and spent the rest of the time in idleness and agitation. Id. He also

ceased communicating with friends.        Id.    Because of his drug habit, the spouse had

squandered his son’s savings account, and had taken many valuable items from the home.

Id.

                                                12
¶34.   Likewise, in Ashburn, the spouse’s drug use was excessive and uncontrollable. In

this case, the wife abused prescription drugs throughout the marriage, also deceitfully

obtaining prescriptions and exceeding the prescribed dosages. Ashburn, 970 So. 2d at 207

(¶7). She once left home and did not return for weeks. Id. The husband testified that his

wife would be yelling one day and drooling in a drug-induced state the next. Id. at 208 (¶8).

She forged his name on checks and also stole someone else’s written prescription. Id. at 208

(¶¶8-9). The wife’s drug use increased to the point where she used a three-month supply of

pills in one month and overdosed. Id. at 208 (¶7).

¶35.   The extent of James’s addiction may not be as drastic as that of the spouses in Ladner

and Ashburn, but it is obvious that James had a problem. Quitting for weeks at a time but

then always going back to achieve a high is the nature of addiction. Like the spouse in

Ladner, James abused the drug almost daily for years – approximately forty years in James’s

case. This is evidence that, at the time, James could not control his appetite for marijuana.

Also, the chancellor found that James’s marijuana use negatively impacted his interaction

with his family, work productivity, and the family’s financial stability. There is substantial

evidence in the record to support the chancellor’s findings. Thus, we hold that the chancellor

did not err by finding that James’s drug use was excessive and uncontrollable.

       C. Opium, Morphine, or Other Like Drug

¶36.   Next, James argues that Stacy failed to prove that marijuana is an “other like drug”

similar to opium or morphine. In Section 93-5-1, the language “other like drug” does not

mean a drug similar in chemical makeup to opium or morphine. Ladner, 436 So. 2d at 1374.




                                             13
Instead, it refers to drugs with similar adverse effects.8 Id. at 1374-1375 (finding that

spouse’s abuse of prescription drugs produced similar effects as abuse of opium or

morphine). In Ladner, the Court set forth factors to consider, along with other relevant

circumstances, to determine whether a drug is an “other like drug” for purposes of Section

93-5-1:

       [S]uch factors as the guilty spouse’s inability to support his wife and family
       or to properly attend to business should be considered. Additionally, the guilty
       spouse’s incapacity to perform other marital duties or his causing the marital
       relationship to be repugnant to the innocent spouse are equally important.

Id. at 1375.

¶37.   In this case, the chancellor determined that James’s marijuana use had isolated him

from the family and had caused him to botch a costly printing job. Consequently, James was

demoted, and the chancellor determined that this had negatively impacted the family’s

finances.

¶38.   James points out that neither party cited a decision in which a divorce was granted

based on marijuana use alone. We are not convinced that the absence of such a decision has

any bearing on this case.

¶39.   James argues that no credible evidence supported the chancellor’s finding that his

marijuana use interfered with his ability to support and interact with his family and that his

marijuana use caused the marital relationship to be repugnant to Stacy. Instead, James

maintains that the evidence shows that Stacy sexually withdrew from him, pursued her own




       8
         In Ladner, the spouse abused barbiturates, amphetamines, Dalmane, Libriam,
Ativan, Nolundar, Mellaril, Sinequan, Vivactil, Talwin, and Tylenol No. 3 with Codeine.

                                             14
activities, and engaged in extramarital affairs. But the chancellor is the finder of fact, and

the assessment of witness credibility lies within his sole province. Sproles, 782 So. 2d at 746

(¶12). The chancellor resolved any conflicts in the evidence in favor of Stacy, and the

evidence supports his decision.

¶40.   The evidence shows that the family’s financial problems were due mainly to James’s

layoffs. But by smoking marijuana, James, at least once, affected his work productivity and

lost his bonus pay. In addition, he continued to purchase marijuana during the family’s

economic troubles. James maintains that his marijuana expenditures were minimal and did

not affect the family’s income. But he cannot escape the fact that spending money on illegal

drugs is wasteful, especially when the family is suffering financially.9 According to Stacy,

James’s drug use created a routine in their marriage by which he would work, come home,

use drugs and then sit on the couch or stay on the computer all night. Perhaps he did not

isolate himself from his children, but he definitely isolated himself from Stacy. Stacy was

worried that James would get arrested for possession of marijuana. And although Stacy did

not give James an ultimatum, she was exasperated over his failed attempts to remain clean,

causing her to file for divorce.

¶41.   The evidence supports the chancellor’s finding that James’s marijuana use had a like

effect to the use of opium or morphine. James evidenced an inability to support his family

and to properly attend to business. This made the marriage repugnant to Stacy. Accordingly,

we hold that the chancellor did not err by finding that James’s drug use involved opium,

morphine, or a drug with a similar effect.

       9
           During the trial, James admitted that buying illegal drugs is wasteful.

                                              15
                                      CONCLUSION

¶42.   Stacy was entitled to a divorce based on James’s habitual and excessive use of

marijuana. James conceded that his drug use was habitual and frequent. Evidence that James

continuously used marijuana for approximately forty years and continuously failed at

sobriety supports the chancellor’s finding that James’s drug use was excessive and

uncontrollable. Furthermore, evidence that James’s marijuana use caused him to isolate

himself from the family and affected his work productivity, which impacted the family’s

finances, supports the chancellor’s finding that James’s marijuana use was similar in effect

to opium or morphine. As a result, we affirm the chancellor’s judgment of divorce.

¶43.   AFFIRMED.

     WALLER, C.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ.,
CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J., AND KITCHENS, J.

       CARLSON, PRESIDING JUSTICE, DISSENTING:

¶44.   The Hancock Country Chancery Court granted Stacy Carambat’s divorce from her

husband, James Carambat, on the ground that he was a habitual and excessive user of opium,

morphine, or other like drug,10 where the drug in question was marihuana. This Court has

never found this ground for divorce to be satisfied by marihuana use alone; nor, indeed, has

any appellate court in the United States. It is my opinion that granting the divorce on this

basis will dramatically expand this ground for divorce far beyond the language of the statute,

effectively legitimizing divorce based on the use of any illegal drug. Because I believe that




       10
            Miss. Code Ann. § 93-5-1 (Rev. 2004).

                                             16
the majority’s opinion goes far beyond the intent of the Legislature and creates new law, I

must respectfully, but fervently, dissent.

       I. Nature of the Appeal

¶45.   James argues that marihuana is not a like drug to opium or morphine. There is no

relevant caselaw from Mississippi granting a divorce on this ground for the abuse of

marihuana alone.    Indeed, both parties, as well as the judge, conducted searches for

persuasive precedent from all U.S. jurisdictions. Their research, and my own, indicate that

no appellate court in the United States has ever granted a divorce based on marihuana use

alone, or indeed has ever faced this question.11 This is a novel issue, and one that the

chancery court specifically intended for us to consider. Accordingly, I respectfully believe

we must thoroughly address this issue.

¶46.   The chancery court in the initial case adjudicated that marihuana was a like drug to

opium and morphine, but granted James leave to petition us for an interlocutory appeal. The

chancellor explained that the relevant substances were alike in that they were habit-forming,

mood-altering or hallucinogenic, and illegal. However, the chancellor did not enter a formal

order granting James’s request for appeal, and James did not file a petition for interlocutory

appeal with this Court, due to what he later claimed was a misunderstanding. The chancellor

rendered final judgment. On motion for rehearing or to amend judgment, the chancellor




       11
        However, marihuana use has played a part in analysis of an alternate divorce ground,
“habitual cruel and inhuman treatment.”See, e.g., Boutwell v. Boutwell, 829 So. 2d 1216,
1220 (Miss. 2002).



                                             17
offered James another opportunity for an interlocutory appeal, and Stacy’s counsel indicated

that they were amenable to this procedure.

¶47.   James’s counsel considered taking the proffered interlocutory appeal option in

discussions in open court, but decided that “an interlocutory appeal may result in multiple

trips to the Supreme Court when one only may really be necessary on the issue that we want

to get before them . . . we would withdraw our request for an interlocutory appeal.” Final

judgment and this direct appeal followed, but the urgency of fully addressing the issue

remains. As the chancellor stated, “the fact is, it’s one of those things that needs to be

clarified in the Mississippi Supreme Court.”

       II. Standard of Review

¶48.   “We review a chancellor's legal conclusions de novo; that is, we reach our own

conclusions as to the applicable law.” Bluewater Logistics, LLC v. Williford, 55 So. 3d 148,

155 (Miss. 2011). “But we ordinarily accept a chancellor's factual findings unless – given

the evidence in the record – we conclude that the chancellor abused his or her discretion, and

no reasonable chancellor could have come to the same factual conclusions.” Bluewater

Logistics, LLC, 55 So. 3d at 155. Thus, we will not disturb a chancellor’s findings of fact

when supported by substantial evidence, unless the chancellor abused his or her discretion,

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

Limbert v. Miss. Univ. For Women Alumnae Ass’n, Inc., 998 So. 2d 993, 998 (Miss. 2008)

(quoting Hamilton v. Hopkins, 834 So. 2d 685, 699 (Miss. 2003)). In a divorce proceeding,

the chancellor is the finder of fact, and the assessment of witness credibility lies within the

chancellor’s sole province. Sproles v. Sproles, 782 So. 742, 746 (Miss. 2001).

                                              18
       III. Illegality

¶49.   Before addressing our standard as to what drugs are like opium and morphine, I must

address an alternate standard, illegality, that, in my opinion, the chancellor mistakenly

invoked. On motion for rehearing to amend the judgment, Stacy’s counsel argued that “the

question about whether or not marijuana falls within the statute . . . can best be explained by

looking at the fact that the mere possession of marijuana is illegal in this state.” The

chancellor stated that “the fact that the children are exposed to the dad getting away with this

illegal act, in my judgment, contributes to the delinquency of minors . . . . Mr. Carambat is

setting an example for his children, and this Court has to find some way of overcoming that.”

¶50.   Respectfully, I believe the chancellor homed in on the wrong grounds for considering

whether marihuana is a like drug to opium and morphine. The “opium, morphine, or other

like drug” ground for divorce entered the Mississippi Code in 1892. Deborah H. Bell,

Mississippi Family Law § 4.02[7] (2005), Miss. Code Ann. § 1562 (1892). At that time,

neither possession, distribution, nor use of opium and morphine was illegal in the State of

Mississippi. Indeed, in perusing the 1892 code, only two crimes related to that drug can be

found. It was a misdemeanor to sell morphine in a container without a scarlet label with

white letters, and it was similarly a misdemeanor to sell morphine to any customer who did

not have a physician’s certificate. Miss. Code Ann. §§ 1213, 1214 (1892). Violation of

either statute by the druggist was punishable by a fine of between ten dollars and fifty

dollars.

¶51.   Even if this Court analyzes the status of opiates and marihuana today, the two

substances are not legally alike. Marihuana possession is still regulated in Mississippi, but


                                              19
in a special section involving lighter penalties than those prescribed for all other scheduled

substances. Possession of thirty grams or less of marihuana is penalized, for a first offender,

with a fine of between $100 and $250. Miss. Code Ann. § 41-29-139(c)(2)(A) (Rev. 2004).

James bought approximately one quarter ounce of marihuana a month -- just over seven

grams. The offense is not considered a misdemeanor and entails no jail time. In comparison,

possession of even less than one tenth of a gram of any controlled substance classified in

Schedule I or II, except marihuana, may be charged as either a misdemeanor or a felony, and

may entail a fine of up to $10,000 and prison time of up to four years. Miss. Code Ann. §

41-29-139(c)(1)(A) (Rev. 2004).

¶52.   Regardless of the legal status of marihuana, granting a divorce based on illegal

conduct is not in the spirit of the common law. An instructive analogy can be made to the

legal problem that was resolved by modern slayer’s statutes, like that Mississippi has

enacted. Miss. Code Ann. § 91-1-25 (Rev. 2004). At common law, many courts held that

one who murdered a decedent was still eligible to inherit property from him.12 See e.g., In

re Duncan's Estates, 40 Wash. 2d 850, 854, 246 P.2d 445, 447-48 (1952). The law held that

the remedy for murder was criminal prosecution, not disinheritance.             Similarly, the

possession and use of marihuana is certainly criminalized in Mississippi. Whether such use

may be grounds for a divorce is another question entirely.

       IV. Precedent




       12
            Other courts disagreed, holding that one should not profit from an injustice.

                                                20
¶53.   This Court must consider whether marihuana is a like drug to opium and morphine.

In construing the statute, it must be given its ordinary meaning. Mississippi Code Section

1-3-65 (Rev. 2005) provides that “all words and phrases contained in the statutes are used

according to their common and ordinary acceptation and meaning. . . .”

¶54.   In Lawson v. Lawson, 821 So. 2d 142, 145 (Miss. Ct. App. 2002) the Court of

Appeals held that, in determining whether a drug is an “other like drug” under Section 93-5-

1, “[so] far as the kind of drug is concerned, chemical content is not important, but effect

caused by use is the test.” Id. at 145 (quoting Ladner v. Ladner, 436 So. 2d 1366, 1375

(Miss. 1983)) (emphasis in original). In Ladner, this Court set forth factors to consider:

“[S]uch factors as the guilty spouse’s inability to support his wife and family or to properly

attend to business should be considered. Additionally, the guilty spouse’s incapacity to

perform other marital duties or his causing the marital relationship to be repugnant to the

innocent spouse are equally important.” Id. at 1375.

¶55.   Two prior cases are relevant to this analysis. In Ladner, the spouse deceitfully

obtained numerous prescription drugs and abused them for four years, exceeding the

prescribed dosage. The spouse’s drug use negatively affected his attitude, actions, work

habits, and family and social relationships.      The wife testified that her husband was

hyperactive in the morning (after taking Ritalin) and practically immobile in the evening

(after taking tranquilizers). He worked only two days per week, ceased communicating with

friends, squandered his son’s savings account, and took many valuable items from the home.

Ladner, 436 So. 2d at 1369.




                                             21
¶56.   In another Court of Appeals case, the wife abused prescription drugs throughout the

marriage. Ashburn v. Ashburn, 970 So. 2d 204, 207 (Miss. Ct. App. 2004). She once left

home and did not return for six weeks. Id. at 207. She forged her husband’s name on checks

and stole someone else’s prescription. Id. at 208. The wife’s drug use increased to the point

that she started obtaining three month’s worth of pills in one month through her husband’s

insurance coverage, and in one instance, two witnesses observed her overdosing on pills. Id.

       V. Effect of the Drug

              A. Physical Effect

¶57.   I first wish to address the effect of marihuana usage, which, this Court has held to be

the key determinant in finding that a drug is sufficient for this ground for divorce. See

Lawson, 821 So. 2d 145, Ladner, 436 So. 2d 1375. While the chemical content of the like

drug is irrelevant, I would hold that the physical or physiological effect of the drug was

meant to be considered in the Ladner effect test.

¶58.   In Ladner, this Court found “a physical effect [on the husband] similar to morphine

or opium.” Ladner, 436 So. 2d at 1375. Furthermore, if “effect” and thus “like drug” mean

no more than work productivity, marital duties, and repugnancy of the marriage, the term

would become synonymous with the “excessive” standard already incorporated into the test.

As a result, I have analyzed the physical effects of marihuana and find it to be unlike opium

and morphine as a matter of law.




                                             22
¶59.   For information on the effects of marihuana, and of the most commonly utilized

opiates, I consulted the Research Report Series of the National Institutes of Health’s National

Institute on Drug Abuse.13

¶60.   Marihuana, per this resource, is ingested to cause the user to feel a euphoria or “high”

by stimulating brain cells to release the chemical dopamine -- a phenomenon also associated

with most drugs of abuse, as well as alcohol, tobacco, chocolate, and sexual activity. Acute

dangers associated with marihuana intoxication include short-term memory loss, impaired

attention and judgment, increased heart rate and blood pressure, decreased coordination and

balance, and occasionally feelings of anxiety, distrust, or panic. Cumulative use may lead

to addiction, though it is considered less addictive than “hard” drugs.

¶61.   The following information is also gleaned from the Research Report Series of the

National Institutes of Health’s National Institute on Drug Abuse. The most commonly used

opiate in the United States today is heroin. Heroin is severely addictive, and withdrawal can

cause painful physical symptoms, including vomiting and bone pain. Since users are

typically unaware of the amount and purity of the drug they are using, the drug can lead to

nearly instantaneous death upon use. In the brain, the heroin converts to morphine and binds

rapidly to opioid receptors, triggering a surge of pleasurable sensation called a “rush.”

Several drug analogs to opium have been produced, some by pharmaceutical companies for

medical reasons, but others, known as “designer drugs,” by illegal laboratories. This latter

category may be more dangerous than the original compound. Several of the most abused



       13
         N ational Institute on D rug Abuse, Research Report Index
http://www.nida.nih.gov/researchreports/researchindex.html, (last accessed Oct. 18, 2011).

                                              23
prescription drugs are also opioids, commonly prescribed because of their pain-relieving

properties. These opioids, such as OxyContin, also produce euphoria as a side effect.

Withdrawal leads to the same physical symptoms caused by heroin withdrawal, and a large

enough dose of these drugs may lead to death. Id.

¶62.   The effect of marihuana is unlike the effect of opiates. The only real similarities

between the drugs appear to be the euphoric rush or high associated with their use, and the

addiction. Neither of these features is alike in degree. Marihuana, according to the Research

Report Series of the National Institutes of Health’s National Institute on Drug Abuse, never

leads to immediate death, lacks physical withdrawal symptoms, and is much less addictive

than opium. While this resource indicates that marihuana clearly leads to decreased activity

in the abuser, holding that marihuana is like an opiate on these grounds is analogous to

holding that caffeine is like cocaine.

¶63.   Our state’s caselaw on this issue, scant though it is, has been dominated by the abuse

of prescription drugs including opiates, and without exception, a divorce has been granted

only when individuals were much more severely incapacitated than James was in this case.

See Ladner, 436 So. 2d at 1375 (spouse abused prescription drugs including barbiturates,

amphetamines, Dalmane, Librium, Ativan, Nolundar, Mellaril, Sinequan, Vivactil, Talwin,

and Tylenol No. 3 with Codeine, which constituted opium, morphine, or other like drug);

Smithson v. Smithson, 113 Miss. 146, 74 So. 149, 150 (1917), modified on suggestion of

error, 113 Miss. 644, 74 So. 609 (1917) (unspecified “drugs to palliate her physical pains to

such an extent and period of time that she became an habitual and excessive user of these

insidious drugs. . . .” constituted opium, morphine, or other like drug); Ashburn v. Ashburn,

                                             24
970 So. 2d at 209-10 (Miss. Ct. App. 2007) (morphine prescribed by a physician, abuse of

prescription drugs including Lortab, Effexor, Lithium, Neurontin, Klonopin, and OxyContin,

as well as abuse of hydrocodone and marihuana, together constituted opium, morphine, or

other like drug); and Lawson, 821 So. 2d at 145 (abuse of the prescription drugs Darvocet-N,

Lortab, hydrocodone, and Tylenol No. 3 with Codeine constituted opium, morphine, or other

like drug).

¶64.   With this caselaw in mind, in today’s case, James was able to function on a relatively

normal level while abusing marihuana, hardly a behavior associated with abusers of drugs

as depicted in the cases cited in the preceding paragraph.

¶65.   In addition, given the unfortunate prevalence of marihuana in American society, it is

a dangerous precedent to allow divorce for marihuana use alone. As already revealed,

marihuana is considered to be a relatively mild drug, and remains the least regulated of all

illegal drugs in the State of Mississippi. Marihuana is less addictive, less immediately

dangerous, and less incapacitating than the major opiates, and indeed than most other illegal

drugs. Allowing a divorce based on marihuana abuse will effectively hold that divorce is

available for the abuse of any drug -- which is not a natural reading of “opium, morphine or

other like drug.”

¶66.   To be sure, marihuana abuse, like alcohol abuse, has the propensity to destroy a

marriage. However, the Legislature has not seen fit to provide for divorce on such grounds,

and it is not this Court’s responsibility to create new grounds for divorce ex nihilo. In my

opinion, the natural meaning of “opium, morphine or other like drug” is not so broad as to

cover marihuana. Accordingly, I would find that the chancery court erred in granting a


                                             25
divorce on the ground of using “opium, marihuana or other like drug,” where the sole drug

habitually and excessively used was marihuana.

              B. The Ladner Factors

¶67.   Although I would hold that marihuana, as a matter of law, is too unlike opium or

morphine to satisfy the definition of a “like drug” to opium and morphine, I have considered

its effects in the present case. Under Ladner, factors this Court is to consider include “the

guilty spouse’s inability to support his wife and family or to properly attend to business . .

. [as well as] incapacity to perform other marital duties or his causing the marital relationship

to be repugnant to the innocent spouse.” Ladner, 436 So. 2d at 1375. The chancellor’s order

referenced this language and analyzed these factors, but does not specify which grounds the

chancellor found to have been satisfied in finding that marihuana met the effect test as a like

drug to opium and morphine. Thus, I have reviewed the evidence as to all of these factors.

¶68.   An analogy may be drawn to habitual drunkenness, the most similar ground for fault-

based divorce in Mississippi law.14 In Culver v. Culver, 383 So. 2d 817, 817-18 (Miss.

1980), this Court did not find habitual drunkenness where the husband consumed four or five

beers a night, without significant impact on his family or work. It must be recognized that

divorce is not to be granted under these two fault-based grounds due to the mere fact that the

husband abused alcohol or opiates and like drugs, but only due to the effect that these

substances might have on the marriage.




       14
       Professor Bell draws this analogy in considering these two grounds for divorce.
Deborah H. Bell, Mississippi Family Law § 4.02[6] (2005)

                                               26
¶69.    Here, even assuming arguendo that marihuana is not an unlike drug to opium and

morphine as a matter of law, the effect of the marihuana abuse was minimal. In my opinion,

the chancellor abused his discretion in finding that James was a habitual and excessive user

of opium, morphine, or other like drug, thus justifying granting a divorce to Stacy on this

ground. The evidence indicates that marihuana usage at worst marginally affected James’s

business life and did not substantially harm James’s relationship with his children. While

James’s relationship with his wife Stacy sharply declined, the evidence does not indicate that

James’s marihuana usage was responsible for this deterioration.

                      1. Marital Duties and Repugnance

¶70.    As the majority recognizes, James’s marihuana abuse was in no way comparable to

the facts of Ashburn or Ladner. James did use the drug almost daily for more than forty

years. Stacy testified that James’s routine was to come home from work, smoke marihuana,

and wait for her to prepare dinner. He would then isolate himself on the couch or in the

computer room and sometimes come to bed late after staying awake to use the computer or

watch television. James testified that he withdrew from his wife because she had withdrawn

from him sexually after their children were born, in 1999, ten years before this divorce action

was filed. Stacy admitted that she had withdrawn from James on an intimate level at that

time.

¶71.    Stacy testified that James had remained involved in their children’s lives, taking them

to church, helping them with their homework, and participating in their social activities,

particularly fishing, sporting events, and shooting “bb” guns. Stacy complained that he came

to only a few school activities, such as parent-teacher conferences. James did attend events

                                              27
with his wife’s family less frequently and with Stacy’s mother, Barbara Ruth in particular,

stating that he became disinterested in these family events about three years before these

proceedings began. James testified that this was because he did not like his wife’s family.

¶72.   On the whole, James’s relationship with his inlaws is far less significant in divorce

proceedings than his relationship with his children and with his spouse. The evidence is clear

that James’s relationship with his children remained strong and healthy. In contrast, his

relationship with Stacy clearly declined. However, this decline was due to reasons other than

the marihuana abuse. James testified, and Stacy admitted, that she had withdrawn from him

sexually ten years prior, when their children were born.

¶73.   Stacy testified that she began dating a man named Tom Henry before filing this

divorce. James suspected or became aware of Stacy’s adultery, and this affected the

relationship between them. James also testified, and Stacy agreed, that Stacy never

specifically asked James to stop smoking marihuana, though she claimed that his continued

use exasperated her. The evidence is uncontroverted that Stacy was aware of James’s

marihuana habit two years before they married. While James failed to timely plead the

affirmative defense of condonation, this testimony can hardly be irrelevant to our analysis.

Since Stacy married James with the knowledge that he was a heavy abuser of marihuana, and

never asked him to quit, in my opinion, it was unreasonable to conclude that James’s

marihuana abuse made the marriage repugnant to her.

¶74.   James did stop performing certain marital duties, though there is no evidence that this

was due to incapacity to perform them. The marriage obviously did become repugnant to

Stacy. However, since Stacy had withdrawn from James sexually, engaged in an adulterous


                                             28
affair, and was aware of James’s marihuana use even before marriage but never asked James

to quit using it, the chancellor, in my opinion, abused his discretion by holding that

marihuana abuse was responsible for this state of affairs.

                      2. Support of Family and Attending to Business

¶75.   There was minimal evidence that James’s marihuana use substantially affected his

earning capability. Trial testimony showed that James worked every day of the marriage

except for brief periods of time when he lost employment due to his job being discontinued

or, in one case, his company going bankrupt after Hurricane Katrina. As the majority notes,

the Carambats’ financial difficulties were primarily caused by these layoffs. Stacy was able

to argue only one instance in which marihuana use affected James’s job performance: an

instance where James was demoted for botching a printing job. Stacy testified that James

had told her that his drug use played a part in this incident.

¶76.   On cross-examination, Stacy was impeached with her deposition, in which she was

questioned about the demotion. Stacy admitted that, to her knowledge, James’s demotion

was not caused by, and was never connected to, James’s drug use. When specifically asked

whether this work incident was due to a mistake or a result of James’s drug use, Stacy

answered that it was a mistake. The evidence does not show that, by smoking marihuana,

James’s work productivity was affected. The majority finds that James’s marihuana use did

affect his work productivity, but solely based on James’s demotion, which the evidence does

not show was based on James’s marihuana usage. A statement by Stacy, later contradicted

on cross-examination, that James had stated to her that his demotion was based on his drug




                                              29
use, is insufficient to show that James’s drug use caused him to fail to attend to his business

or support his family.

¶77.   Stacy admitted that James’s expenditures on marihuana were a minimal portion of the

family income – approximately $300 annually out of a combined annual income of

approximately $70,000. James’s expenditures on marihuana may have been wasteful, but

a $300-a-year habit for a family with an annual income of $70,000 is hardly grounds for a

divorce.

¶78.   James’s abuse of marihuana was heavy, but there is minimal evidence that his family

or work was impacted. James’s admittedly wasteful spending on the marihuana was minor,

and only one incident was reported indicating that James had failed to attend normally to

business as a result of his drug use, and the only testimony concerning this one incident was

successfully impeached by prior testimony. There was also uncontested evidence that the

main cause for the decline in the family income was linked to events outside James’s control,

as the majority opinion concedes. After consideration of these factors, I conclude that it was

an abuse of discretion for the chancellor to find that James’s use of marihuana met the effect

test as a like drug to opium and morphine.

       VI. Suggested Disposition and Future Proceedings

¶79.   For these reasons, I respectfully dissent from the majority and would reverse and

remand for further proceedings. I recognize that remanding this case after a divorce has been

granted would be an unfortunate step. The obvious effect is that James and Stacy would

continue to be bound together, unhappily, in matrimony. However, from the record before

us, it is abundantly apparent that, on remand, the parties would have alternate grounds for


                                              30
divorce to consider. Admittedly, this Court is not in the business of issuing advisory

opinions, so I go no further as to what might or might not happen if this case were remanded.

¶80.   However, in sum, I conclude that it was error for the chancery court to find that James

was a habitual and excessive user of opium, morphine, or other like drug. If the Legislature

wishes to provide for divorce on the grounds of abusing any illegal drug, or any dangerous

drug, it of course may do so. To date, however, it has not. What the Legislature has provided

is that parties may seek a divorce on the grounds of “[h]abitual and excessive use of opium,

morphine or other like drug.” Miss. Code Ann. § 93-5-1 (Rev. 2004). Because marihuana

is unlike opium or morphine, both in physical effect and in its effect on family life, I would

reverse and remand. Because the majority finds otherwise, I respectfully dissent.

       DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.




                                             31
