        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01702-COA

BRIAN S. BOOKER                                                           APPELLANT

v.

AMY TURNER BOOKER                                                           APPELLEE

DATE OF JUDGMENT:                         11/19/2014
TRIAL JUDGE:                              HON. WILLIAM R. BARNETT
COURT FROM WHICH APPEALED:                COVINGTON COUNTY CHANCERY
                                          COURT
ATTORNEY FOR APPELLANT:                   DANIEL DEWAYNE WARE
ATTORNEY FOR APPELLEE:                    AMY TURNER BOOKER (PRO SE)
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                  PETITION FOR DIVORCE DENIED
DISPOSITION:                              AFFIRMED: 03/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    This appeal considers the chancellor’s dismissal of a complaint for divorce. The

chancellor determined that the husband failed to prove that he was entitled to a divorce on

the ground of habitual and excessive drug use, under Mississippi Code Annotated section 93-

5-1 (Rev. 2013). We find no error and affirm.

                                         FACTS

¶2.    Brian and Amy Booker were married in 2004 and lived with Amy’s two children from

a previous marriage in Jackson, Mississippi. Brian was in the military and traveled

extensively throughout the state. When Brian was deployed overseas, Amy purchased a
home for the family in Seminary, Mississippi. When Brian returned, the family remained in

Seminary, and he commuted to work over the next several years. In 2008, Amy left her job

to stay home with the children.

¶3.    In 2011, Amy had gastric-bypass surgery. Within the next year, she also had

gallbladder surgery and multiple surgeries to remove kidney stones. Because the gastric

bypass caused her to have problems eating, Amy had multiple surgeries to expand her

esophagus. During this time, Brian claims that Amy became dependent on Lortab, a pain

medication prescribed to her in liquid and pill form by her surgeons, general practitioner, and

various emergency-room physicians.

¶4.    In January 2014, Brian filed a complaint for divorce and cited Amy’s habitual and

excessive use of drugs as grounds for divorce under section 93-5-1. In response, Amy filed

a counterclaim for a divorce on the ground of habitual cruel and inhuman treatment. After

trial, the chancellor ruled that Brian had not met his burden of proof to establish that Amy’s

drug use was excessive. Instead, the chancellor found that Amy’s drug use was based on

valid prescriptions given by her doctors to treat her medical problems. The chancellor

dismissed Brian’s complaint for divorce, finding he had failed to prove grounds of divorce.

Then, Amy voluntarily dismissed her counterclaim. Brian appeals the chancellor’s dismissal

of his complaint.

                                  STANDARD OF REVIEW

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


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witness credibility lies within his sole province.” Carambat v. Carambat, 72 So. 3d 505, 510

(¶24) (Miss. 2011) (citing Sproles v. Sproles, 782 So. 2d 742, 746 (¶12) (Miss. 2001)). The

chancellor’s findings will not be disturbed “when supported by substantial evidence unless

the chancellor’s judgment was manifestly wrong [or] clearly erroneous[,] or an erroneous

legal standard was applied.” Id. at 510-11 (¶24).

                                        ANALYSIS

¶6.    To prove the ground of habitual and excessive use of opium, morphine, or other like

drugs, the supreme court has held:

       A complainant must prove (1) that the guilty spouse’s use of drugs was
       habitual in that it was customarily and frequently indulged; (2) that the guilty
       spouse’s drug use was so excessive that [s]he did not have the ability to control
       h[er] appetite for drugs; and, (3) that the drugs used were morphine or opium
       or comparable . . . in effect.

Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983); see also Miss. Code Ann. § 93-5-1.

¶7.    In Ladner, the court ruled that the “habitual” use of drugs “requires more than an

occasional indulgence in drugs.” Ladner, 436 So. 2d at 1373. Rather, “the complainant

[must] show that the defendant customarily and frequently uses drugs.” Id. The use of drugs

must not only be “habitual” but also “excessive.” Id. at 1374. This element “requires an

abuse of drugs.” Id. The supreme court has ruled:

       [T]he guilty spouse must be so addicted to the use of drugs that [s]he cannot
       control h[er] appetite for drugs whenever the opportunity to obtain drugs is
       present. However, we consider it a justifiable excuse for such behavior where
       . . . the defendant is prescribed such drugs by a physician for legitimate
       reasons.


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Id.

¶8.     The Ladner court explained the “excessive” element through analysis of Rindlaub v.

Rindlaub, 125 N.W. 479 (N.D. 1910). There, a wife sought a divorce from her husband on

the ground of his drug use. Though the husband’s use was habitual, the court denied the

divorce and found that because the drugs were taken to alleviate pain caused by health

problems, “such a habit [was] reasonably and necessarily caused by conditions over which

the victim had no control . . . .” Ladner, 436 So. 2d at 1374 (citing Rindlaub, 125 N.W. at

496).

¶9.     Prescription-drug use was the issue in Ladner. “The testimony showed that Mr.

Ladner was not truthful with his medical doctors concerning his frequency of use and

dependency on these drugs. He exceeded the prescribed dosages.” Id. at 1369. Ladner’s

pharmacist also testified about the prescriptions that he filled. Id. at 1373.

¶10.    In Lawson v. Lawson, 821 So. 2d 142, 145 (¶14) (Miss. Ct. App. 2002), this Court

affirmed a divorce on the ground of habitual and excessive use of drugs. The Court ruled

that the chancellor’s decision was based on evidence that the wife obtained drugs through

“over-prescription by medical personnel” and by “simultaneously seeking treatment from

multiple physicians, without sharing the fact that she was seeing and obtaining prescriptions

from all of them.” Id. at (¶13). Professor Deborah Bell in her treatise, cites Lawson for the

proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the

defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s


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initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on

Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must

include in the definition the “misuse” of prescription drugs.

¶11.   Here, within this definition, Brian must prove that Amy’s use of Lortab and similar

pain medications was “excessive.” The chancellor found that it was not. And the chancellor

ruled that “[Brian’s] proof showed without question that in every instance of her use of

Lortab, the medication had been prescribed by a doctor for her very legitimate health

problems.”

¶12.   Amy denied having an addiction to prescription drugs. She argued that her body, due

to the gastric-bypass surgery, reacted differently to the pain medication. However, Brian and

Amy’s mother, Miki Turner, testified that Amy had a prescription-drug addiction. Yet

Amy’s father, Alvin Turner, and daughter, Whitney Steel, both testified that while the Lortab

did cause Amy to have episodes of intoxication, they could not definitively say that she had

an addiction to these drugs.

¶13.   Brian, Miki, and Whitney all testified about various times during 2012 and 2013 when

Amy would become impaired and have “episode[s]” of unconscious actions. Miki testified

that during these years, Amy visited the emergency room fifty to seventy-five times for

various medical problems and pain.

¶14.   Brian also testified that the family had no credit-card debt, but in 2012 Amy charged

$20,000 on the credit card. Brian testified that he did not know where the money was going.


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Amy testified that she moved cash to their joint bank account to buy groceries and pay bills.

¶15.   All of the family members, except Amy, testified that in 2012 Amy’s medications

were locked in a closet and given to her only at the appropriate times. However, this

arrangement did not last long. Amy found the key during the days that Brian was away for

work and had access to her medications. Then, in July 2012, after either a drug overdose or

a “seizure event,” Amy voluntarily checked into Pine Grove Behavioral Health and Addiction

Services for treatment. Amy left after only one night.

¶16.   In November 2012, Amy received a citation for driving under the influence. During

the stop, Amy suffered a seizure and was taken to a hospital in Jackson. Amy did not

remember this incident, and she did not remember many of the other episodes that her family

members testified about.

¶17.   At trial, Amy claimed that she had not used Lortab for many months. She testified

that her physicians had given her a plan for pain management that did not cause her to have

episodes of impairment. None of Amy’s doctors or pharmacists testified at trial. Although

Brian offered some of Amy’s pharmacy and medical records into evidence, neither the

records nor the testimony established that Amy had been diagnosed with an addiction to

prescription pain medications or indicated that Amy’s drug use was excessive.

¶18.   Unlike Ladner and Lawson, the evidence here does not indicate that Amy was over-

prescribed Lortab or any other pain medication. Also, while Amy sought treatment from

multiple physicians, there was no evidence that she lied to her physicians about her drug use


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to obtain additional drugs. The record simply does not compel a finding that Amy’s use of

prescription drugs was excessive in light of her serious health issues or that she misused the

prescription drugs.

¶19.   Therefore, we find that the chancellor’s decision was supported by substantial

evidence and was neither manifestly wrong nor clearly erroneous, and that the chancellor did

not apply an erroneous legal standard. We find no merit to Brian’s appeal and affirm the

chancellor’s dismissal of Brian’s complaint for divorce.

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

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND
WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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