                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2018-CA-01632-SCT

KARRAH T. WANGLER

v.

RICHARD C. WANGLER

DATE OF JUDGMENT:                          11/13/2018
TRIAL JUDGE:                               HON. SUSAN RHEA SHELDON
TRIAL COURT ATTORNEYS:                     DAVID M. SESSUMS
                                           CHASE FORD MORGAN
COURT FROM WHICH APPEALED:                 LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    DAVID M. SESSUMS
ATTORNEY FOR APPELLEE:                     CHASE FORD MORGAN
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               AFFIRMED - 03/12/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      GRIFFIS, JUSTICE, FOR THE COURT:

¶1.   Karrah Wangler appeals the chancellor’s dismissal of her complaint for divorce on the

ground of habitual cruel and inhuman treatment. Because Karrah failed to show sufficient

evidence of habitual cruel and inhuman treatment, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.   Karrah and Richard Wangler were married September 30, 2016. They have one child,

Elizabeth,1 born July 5, 2017. Karrah and Richard separated on December 26, 2017.

¶3.   On January 3, 2018, Karrah filed a complaint for divorce on the ground of habitual


      1
          For privacy purposes, we use a fictitious name for the minor child.
cruel and inhuman treatment or, alternatively, irreconcilable differences. Richard later filed

an answer and a counterclaim for divorce on the ground of habitual cruel and inhuman

treatment or, alternatively, irreconcilable differences. The chancellor temporarily ordered

joint legal custody of Elizabeth to the parties, with Karrah having temporary physical

custody, subject to Richard’s visitation. The chancellor set the matter for trial.

¶4.    On October 16, 2018, one day before trial, Richard moved to withdraw his

counterclaim for divorce. That same day, Karrah moved to amend her complaint for divorce

to allege spousal domestic abuse. The chancellor granted Richard’s motion and allowed him

to withdraw his counterclaim for divorce. The chancellor denied Karrah’s motion to amend

her complaint.

¶5.    At the conclusion of her case-in-chief, Karrah moved ore tenus to amend her

complaint to conform to the evidence under Mississippi Rule of Civil Procedure 15(b). The

motion was granted, and Karrah’s complaint for divorce was amended to conform to the

evidence presented during her case-in-chief. Richard then moved to dismiss Karrah’s

complaint for divorce due to her failure to prove habitual cruel and inhuman treatment. The

chancellor found that Karrah “ha[d] failed to present adequate proof of habitual cruel and

inhuman treatment” and therefore granted Richard’s motion and dismissed Karrah’s

complaint for divorce. Karrah timely appealed. On appeal, Karrah argues that the chancellor

erred by (1) denying her motion to amend the complaint and (2) dismissing her complaint for

divorce.

                                       DISCUSSION



                                              2
       I.     Whether the chancellor erred by denying Karrah’s motion to amend the
              complaint.

¶6.    “[M]otions for leave to amend are left to the sound discretion of the trial court. This

Court reviews such determinations under an abuse of discretion standard and unless

convinced that the trial judge abused his discretion, we are without authority to reverse.”

Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (internal quotation marks omitted)

(quoting McCarty v. Kellum, 667 So. 2d 1277, 1283 (Miss. 1995)).

¶7.    [Mississippi] Rule [of Civil Procedure] 15(a) declares that leave to amend
       “shall be freely given when justice so requires”; this mandate is to be heeded
       . . . if the underlying facts or circumstances relied upon by a plaintiff may be
       a proper subject of relief, he ought to be afforded an opportunity to test his
       claim on the merits. In the absence of any apparent or declared reason—such
       as undue delay, bad faith or dilatory motive on the part of the movant, repeated
       failure to cure deficiencies by amendments previously allowed, undue
       prejudice to the opposing party by virtue of allowance of the amendment,
       futility of the amendment, etc.—the leave sought should, as the rules require,
       be “freely given.”

Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and

Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002)).

¶8.    Karrah argues that the chancellor should have granted her motion to amend the

complaint because under Rule 15(a), “leave shall be freely given when justice so requires.”

Miss. R. Civ. P. 15(a). This Court disagrees and finds that the amendment was futile.

Alternatively, any error by the chancellor was harmless.

¶9.    Mississippi Code Section 93-5-1 (Rev. 2018) provides twelve causes for divorce.

Among those causes is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1.

Effective July 1, 2017, the Legislature amended Section 93-5-1 to include “spousal domestic



                                              3
abuse” as a form of habitual cruel and inhuman treatment. S.B. 2680, Reg. Sess., 2017 Miss.

Laws ch. 427, § 6 (codified as amended at Miss. Code Ann. § 93-5-1 (Rev. 2018)).

¶10.   Karrah filed her complaint for divorce on January 3, 2018, and alleged that Richard

was “guilty of habitual cruel and inhuman treatment.” More than nine months later, on

October 16, 2018, Karrah moved to amend her complaint to allege spousal domestic abuse,

specifically,

       that Richard . . . ha[d] engaged in a pattern of behavior against [her] of threats
       of intimidation, emotional or verbal abuse, forced isolation, and false
       accusations of marital infidelity, coupled with episodes of abandoning [her] at
       all times of the day or the night on the sides of public highways and in public
       places which pattern of behavior rises above the level of unkindness or
       rudeness or incompatibility or want of affection.

According to Karrah, “[o]ut of an abundance of caution and so as to avoid any ‘surprises’ or

misunderstandings, [she] . . . filed her motion to amend to explicitly and almost verbatim

track the language of amended section 93-5-1 . . . .” Karrah explained that she moved to

amend her complaint in order “to spell out the new . . . standard for habitual cruel and

inhuman treatment . . . .”

¶11.   But as previously noted, the legislative amendment to Section 93-5-1 was effective

July 1, 2017, approximately six months before Karrah and Richard separated and Karrah

filed her complaint for divorce. Thus, Karrah had ample time to include in her complaint any

allegation of spousal domestic abuse. Notwithstanding her failure to do so, the 2017

amendment to Section 93-5-1 was still applicable to Karrah’s complaint alleging habitual

cruel and inhuman treatment. In other words, because Karrah filed for divorce on the ground

of habitual cruel and inhuman treatment after July 1, 2017, the effective date of the

                                               4
amendment, the amended language of Section 93-5-1 applied to her complaint. Additionally,

the record shows that the parties participated in discovery and exchanged documentation

regarding Karrah’s allegations of spousal domestic abuse. Thus, Karrah’s last-minute motion

to amend the complaint to “track the language of amended section 93-5-1” and to “spell out”

the new standard was futile. Accordingly, the chancellor did not err by denying the motion.

¶12.   Alternatively, even if the chancellor’s denial of Karrah’s motion to amend the

complaint was erroneous, such error was harmless. The record shows, and Karrah admits,

that “Karrah had already spelled out her evidence in her responses to discovery.” Moreover,

the record shows that Karrah testified at trial regarding her allegations of habitual cruel and

inhuman treatment, including spousal domestic abuse. At the conclusion of Karrah’s case-in-

chief, the chancellor granted her motion to amend the pleadings to conform to the evidence

under Mississippi Rule of Civil Procedure 15(b). As a result, the chancellor considered all

of the testimony and evidence offered by Karrah in support of her claim for divorce on the

ground of habitual cruel and inhuman treatment, including spousal domestic abuse.

Therefore, as acknowledged by Karrah, any error by the chancellor in denying the motion to

amend the complaint was harmless.

       II.    Whether the chancellor erred by dismissing Karrah’s complaint for
              divorce.

¶13.   At the conclusion of Karrah’s case-in-chief, Richard moved to dismiss her complaint.

In granting Richard’s motion and dismissing Karrah’s complaint for divorce, the chancellor

found as follows:

       [H]aving reviewed the pleadings, I’ve looked through all 13 exhibits that were

                                              5
       admitted into evidence by stipulation, looking at the notes that I took during
       testimony, the [c]ourt finds that [Karrah] has failed to present adequate proof
       of habitual cruel and inhuman treatment[,] and after reviewing the standard set
       by the case law in the State of Mississippi, the [c]ourt is of the opinion that
       [Karrah] is not entitled to a divorce on the grounds of [habitual] cruel and
       inhuman treatment. So the [c]ourt would grant the motion to dismiss by
       [Richard].

¶14.   Mississippi Rule of Civil Procedure 41(b) states, in pertinent part,

       After 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. The court may then render judgment against the plaintiff or may
       decline to render any judgment until the close of all the evidence.

¶15.   “The standard of review applicable on motion to dismiss under Rule 41(b) is different

[from] that applicable to a motion for a directed verdict.” Stewart v. Merchs. Nat’l Bank,

700 So. 2d 255, 258 (Miss. 1997) (citing Century 21 Deep S. Props., Ltd. v. Corson, 612 So.

2d 359 (Miss. 1992)).

       In considering a motion to dismiss, the judge should consider “the evidence
       fairly, as distinguished from in the light most favorable to the plaintiff,” and
       the judge should dismiss the case if it would find for the defendant. “The
       court must deny a motion to dismiss only if the judge would be obliged to find
       for the plaintiff if the plaintiff’s evidence were all the evidence offered in the
       case.” “This Court applies the substantial evidence/manifest error standards to
       an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).”

Id. at 259 (emphasis omitted) (citations omitted).          “[This Court] will overturn the

chancellor’s decision on a Rule 41(b) motion to dismiss only if the findings are not supported

by substantial evidence, or the chancellor abused his discretion, was manifestly wrong, or

applied an erroneous legal standard.” Pittman v. Pittman, 195 So. 3d 727, 732 (Miss. 2016)

(citing Stewart, 700 So. 2d at 259). “Legal questions, however, are reviewed de novo.” Id.

                                               6
(internal quotation marks omitted) (quoting Sanford v. Sanford, 124 So. 3d 647, 652-53

(Miss. 2013)).

¶16.   A divorce on the ground of habitual cruel and inhuman treatment requires the

following to be shown by a preponderance of the evidence:

       [C]onduct 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 nonoffending spouse and render it impossible for that spouse
       to discharge the duties of marriage, thus destroying the basis for its
       continuance.

Osborne v. Osborne, 202 So. 3d 639, 641 (Miss. Ct. App. 2016) (citing Richard v. Richard,

711 So. 2d 884, 889 (Miss. 1998)). Additionally,

              Spousal domestic abuse may be established through the reliable
       testimony of a single credible witness, who may be the injured party, and
       includes, but is not limited to:

               That the injured party’s spouse attempted to cause, or purposely,
       knowingly or recklessly caused bodily injury to the injured party, or that the
       injured party’s spouse attempted by physical menace to put the injured party
       in fear of imminent serious bodily harm; or

               That the injured party’s spouse engaged in a pattern of behavior against
       the injured party of threats or intimidation, emotional or verbal abuse, forced
       isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking
       as defined in Section 97-3-107, if the pattern of behavior rises above the level
       of unkindness or rudeness or incompatibility or want of affection.

Miss. Code Ann. § 93-5-1.

¶17.   “The conduct must consist of something more than unkindness or rudeness or mere

incompatibility or want of affection.” Osborne, 202 So. 3d at 641 (internal quotation marks

omitted) (quoting Horn v. Horn, 909 So. 2d 1151, 1155 (Miss. Ct. App. 2005)). “The



                                               7
offending spouse’s conduct . . . ‘must be shown to have been systematic and continuous.’”

Baggett v. Baggett, 246 So. 3d 887, 892 (Miss. Ct. App. 2017) (quoting Horn, 909 So. 2d

at 1155). “Further, the offended spouse must show a causal connection between the

offending spouse’s conduct and the impact on the offended spouse.” Id. (citing Smith v.

Smith, 90 So. 3d 1259, 1263 (Miss. Ct. App. 2011)). “Although in cases of violence a single

incident may be sufficient for a divorce, generally the plaintiff must show a pattern of

conduct.” Id. (internal quotation marks omitted) (quoting Smith, 90 So. 3d at 1263).2

¶18.   Karrah argues that she sufficiently established habitual cruel and inhuman treatment,

specifically, spousal domestic abuse, by showing that Richard had engaged in “a pattern of

behavior against [her] consisting of threats or intimidation, emotional or verbal abuse, forced

isolation, false accusations of marital infidelity, [and] episodes of abandon[ment].” For

support, Karrah asserts multiple allegations of cruel and inhuman treatment. For clarity, this

Court has divided the allegations into categories.3

              A.     Sleep Deprivation

¶19.   Karrah first asserts that Richard “deprived [her] of sleep.” She testified that “[o]n a



       2
        The opinion concurring in part and dissenting in part asserts that “[t]he majority errs
by relying on case law that was written before the 2017 amendment to Section 93-5-1.”
CIPDIP Op. ¶ 45. But regardless of when the amendment occurred, one seeking a divorce
on the ground of habitual cruel and inhuman treatment must still show a pattern of conduct
or behavior and that the pattern of conduct or behavior rises above the level of unkindness
or rudeness or incompatibility or want of affection. Miss. Code Ann. § 93-5-1; Osborne, 202
So. 3d at 641; Baggett, 246 So. 3d at 892.
       3
         The opinion concurring in part and dissenting in part suggests it was erroneous to
segment Richard’s offensive behavior into various categories. But as noted, we did so only
for clarity purposes in order to address all of Karrah’s allegations.

                                              8
regular basis, multiple times a week after work, [she] would come home and there would just

be criticism [that] would last hours.” Karrah explained that as a result of the sleep

deprivation, she “couldn’t think straight” and “had no energy.”

¶20.   Yet Karrah offered no testimony to suggest that Richard’s alleged criticism was the

ultimate cause of her sleep deprivation. Instead, Karrah acknowledged that she “was already

losing sleep with [Elizabeth]” and “then she would have to go to work again the next

morning . . . .” Indeed, Karrah worked twelve-hour shifts as a registered nurse in the

emergency room.

              B.     Forced Isolation

¶21.   Karrah further asserts that Richard was critical of and isolated her from her family.

She claims that Richard would take away her cell phone and keys in an effort to keep her

from contacting her family. She further claims that on one occasion, Richard turned off the

internet so she could not communicate with anyone.

¶22.   But the record shows that despite Richard’s alleged criticism of Karrah and Karrah’s

forced isolation, she communicated regularly with her family and friends. Karrah testified

that she and Richard lived with her parents for about four months. During this time, Karrah

talked to her family “every day.” After Karrah and Richard moved out of her parent’s house,

Karrah talked to her parents two to four times a week. Additionally, Karrah’s mother

testified that after Karrah and Richard moved out, she would go by their apartment once a

week to visit for about an hour. Moreover, Karrah testified that she had “[l]ots of friends”

and would hang out with those friends about once a month.



                                             9
              C.      False Accusations of Infidelity

¶23.   Karrah next asserts that Richard “made false accusations of infidelity.” “[F]alse

accusations of infidelity, made habitually over a long period of time without reasonable cause

. . . constitute cruel and inhuman treatment.” Richard, 711 So. 2d at 889 (citing Hibner v.

Hibner, 217 Miss. 611, 64 So. 2d 756, 757 (Miss. 1953)). Karrah testified that Richard

falsely accused her of infidelity “a few times . . . mostly towards the end [of their

relationship] . . . .” Such accusations made only “a handful of times” over a short period of

time do not amount to habitual cruel and inhuman treatment. Id.

              D.      Abandonment

¶24.   Karrah also asserts that Richard abandoned her on multiple occasions. But the record

contradicts this assertion.

¶25.   Karrah first claims that Richard “dropped her off at work, stranded her[,] and did not

come back for her ([her] mother had to pick her up).” Yet Karrah’s testimony shows that

when she got off work, she called Richard, who was at Cross Fit. As a result, Karrah called

her mother to pick her up. There was no indication that Richard refused to pick her up or

intentionally “stranded her” at work.

¶26.   Karrah further claims that Richard “locked her out of the apartment and left her

stranded outside.” But the testimony shows that Karrah told Richard that her mother was

picking her up to go to a basketball game and then she went outside to wait on her mother

to arrive. While Karrah was standing outside waiting on her mother, Richard left the

apartment to go somewhere, locked the apartment as he left, and took the car. Thus, Karrah’s



                                             10
testimony that Richard left her “stranded” with “no key to the house, no car to drive away in”

is misleading.

¶27.   Karrah next claims that Richard “stranded her at McDonald’s while pregnant.” But

the record shows that during an argument with Richard, while in the McDonald’s drive-

through, Karrah voluntarily got out of the car and went inside because she was “upset” and

“couldn’t take it anymore.” Once inside, Karrah ordered a biscuit, sat down, and ate the

biscuit. Karrah acknowledged that while in McDonald’s, Richard tried to call her, but she

did not answer and did not call him back. Instead, Karrah just waited, hoping Richard would

“get over it so [they] didn’t have to keep arguing . . . .” When she left McDonald’s, Karrah

did not call Richard but, instead, walked to the University of Southern Mississippi’s college

campus, walked on the track, and talked to one of her friends. Karrah eventually answered

Richard’s phone call, about forty-five minutes later. Richard then picked Karrah up.

¶28.   Additionally, Karrah claims that Richard “locked her out in the rain at Cross Fit.” But

on cross-examination, Karrah acknowledged that when she and Richard arrived at Cross Fit,

Richard went inside to sign up for something and she waited outside. She explained that she

was pregnant and the loud noises made the baby move around a lot, which caused her pain.

As a result, Karrah did not go inside Cross Fit but, instead, walked across the street to a

restaurant and ordered some lunch. Karrah did not tell Richard what she was doing or where

she was going. Karrah testified that when Richard called her between twenty and thirty

minutes later, she told him where she was and that her mother was on the way to pick her up.

¶29.   Karrah last claims that Richard abandoned her by “put[ting] her out of the car on the



                                             11
spillway in the dark.” Yet the record shows that Karrah voluntarily got out of the car.

During an argument on the way to her parents’ house, Karrah asked Richard to let her out of

the car. The record shows that despite being a minute or less from her parents’ house, Karrah

demanded that Richard stop and let her out of the car.

               E.     Physical Allegations

¶30.   Karrah last asserts that Richard was “physical with her during the marriage.”4

Specifically, Karrah asserts that Richard pinched her and slapped her arm and leg. But

Karrah acknowledged that she failed to include the pinching and slapping incidents in her

discovery responses. Nevertheless, Karrah testified that these incidents occurred one time,

on the same day, in August 2017, during what Karrah describes as a seventeen-hour

argument.

¶31.   Karrah further asserts that Richard would physically pick her up and “force her into

the bedroom” to sleep. Karrah testified that Richard liked for them to go to bed at the same

time because he had a hard time sleeping without her. Karrah explained that “if [she] was

sitting on the couch and [Richard] wanted [her] to go get in the bed to go to sleep, he would

try to . . . pick [her] up and take [her] in there.” Karrah initially testified that this occurred

“a few times.” But when her attorney asked how often this behavior occurred on a monthly

basis, Karrah responded that it occurred every “four to six weeks maybe.” (Emphasis added.)

¶32.   Karrah also testified that Richard would “move [her] out of his way.” She explained

       4
        Karrah does not allege physical abuse or that Richard “attempted to cause, or
purposely, knowingly[,] or recklessly caused bodily injury to [her], or that [he] attempted
by physical menace to put [her] in fear of imminent serious bodily harm.” Miss. Code Ann.
§ 93-5-1.

                                               12
that

       if [they] were in the hall way and . . . if [they] were going to run into each
       other . . ., [Richard] would kind of scoot to one side; [she] would scoot to one
       side, and he would push [her] to the other side and want to go where [she] had
       gone instead of going around [her].

Karrah denied that this was Richard’s way of being playful. According to Karrah, this

behavior started in February 2017, but progressively got worse. Karrah stated that by the end

of their relationship, it occurred “probably weekly.” (Emphasis added.)

¶33.   On cross-examination, Karrah testified that “[e]verything [between her and Richard]

really got worse in August [2017].” Yet the record shows that Karrah accompanied Richard

to North Carolina on three separate occasions between August and December 2017 to visit

the church where Richard had interviewed and ultimately accepted a position as a pastor.

Moreover, the record shows that Karrah intended to move with Richard to North Carolina.

Karrah resigned from her nursing position at the hospital and accepted a job in North

Carolina. Karrah and Richard looked at houses in North Carolina, and Richard signed a

lease on a house that they picked out together.

¶34.   Thus, despite Karrah’s allegations of spousal domestic abuse, she clearly planned to

move with Richard to North Carolina. In fact, it was not until December 26, 2017, the day

they were packing up their apartment to move, that Karrah decided not to go. Karrah

testified regarding her decision to leave Richard as follows:

       [W]henever we were packing, he was, you know, constantly following me
       around, smothering me - because he did that all the time - daily almost -
       smother me. Touching me. Getting in my personal space.

       I couldn’t go in one room or the next. I couldn’t go outside. He would follow

                                             13
       me around trying to control me and watch every little move I was making, and
       he was doing that. And he was almost - he was either very firm or almost
       yelling at me about talking to my mom and my mom coming over, and he was
       trying to make me go run errands with him.

       I said, “We don’t have time. I just need a break from you right now. You
       know, you run errands; I’ll do this.”

       He wouldn’t take any of it, and he was so . . . ugly to me. And I was holding
       [Elizabeth], and that’s the moment when I remember feeling like, you know,
       if I left right now, I would have peace. And I didn’t leave right that moment;
       I waited but I knew in that moment, like, I wouldn’t have a guilty conscious
       [sic] for leaving at that time.

¶35.   Karrah did not tell Richard that she was leaving him. Instead, she took Elizabeth and

left with her mother. Richard did not see Elizabeth again until March 2018.

¶36.   Additionally, despite Karrah’s testimony, the record shows that she posted various

messages on social media expressing her love and admiration for Richard both before and

during their fifteen-month marriage. Those social media posts include,

       I love this man so much. He is gentle and kind, even when I’m a little crazy.
       He’s the calm one with the sweetest heart and never gives up. I get to be his
       wife soon. [Posted August 20, 2016, approximately one month before Karrah
       and Richard were married]

       Happy Father’s Day to the best dad I could ever have and the best husband I
       could have for my baby. I love these two more and more every day. [Posted
       June 18, 2017, after the allegations of abandonment, and six months before
       Karrah left Richard]

       So grateful for this lunch date today. Thanks, Hubs. [Posted August 7, 2017,
       just four months before Karrah left Richard]

¶37.   The opinion concurring in part and dissenting in part suggests that this case is

comparable to Johnson v. Johnson, 281 So. 3d 70 (Miss. Ct. App. 2019). We respectfully

disagree and find it distinguishable. In Johnson, the husband did not appear at trial and,

                                            14
therefore, did not testify. Id. at 72. The trial testimony showed that the husband became

angry and accused his wife of infidelity “over and over” again, he threatened to kill her and

burn down their house, he broke a lot of furniture in the house and threatened to pull a

cabinet down on his wife, and he cursed her. Id. at 72-73. Moreover, in Johnson, the

testimony showed that the husband physically abused his wife on multiple occasions. Id.

¶38.   Here, the chancellor concluded that Karrah failed to present adequate proof of habitual

cruel and inhuman treatment. This Court agrees. Karrah’s evidence of habitual cruel and

inhuman treatment, specifically, spousal domestic abuse, is nothing more than unkindness,

rudeness, incompatibility, and/or want of affection. Miss. Code Ann. § 93-5-1. There was

conflicting testimony regarding various allegations against Richard. Such testimony was

considered by the chancellor. “This Court gives deference to a chancellor’s findings in

regard to witness testimony, because the chancellor is able to observe and personally evaluate

the witnesses’ testimony and the parties’ behavior.” Hoffman v. Hoffman, 270 So. 3d 1121,

1127 (Miss. Ct. App. 2018) (internal quotation marks omitted) (quoting McNeese v.

McNeese, 119 So. 3d 264, 275 (Miss. 2013)).5

¶39.   Although Karrah alleges that Richard was critical and controlling, “[c]riticism and



       5
         The opinion concurring in part and dissenting in part suggests that the chancellor
should have conducted a subjective inquiry regarding Karrah’s feelings. But the record
shows that the chancellor considered the testimony, pleadings, and exhibits admitted at trial.
Simply because the chancellor dismissed Karrah’s complaint for divorce does not mean he
did not consider Karrah’s feelings. The opinion concurring in part and dissenting in part
further states that “the majority does not consider how Richard Wangler’s conduct made
Karrah Wangler feel.” CIPDIP Op. ¶ 47. But this Court considered the record and
transcript, which include and discuss Karrah’s testimony and feelings regarding Richard’s
alleged conduct.

                                             15
controlling behavior [do] ‘not fulfill the requirements of a divorce on the grounds of habitual

cruel and inhuman treatment.’” Osborne, 202 So. 3d at 641 (quoting Morris v. Morris, 804

So. 2d 1025, 1032 (Miss. 2002)). While odd and even disrespectful at times, Richard’s

behavior does not amount to cruel and inhuman treatment. Indeed, Karrah’s and Richard’s

immaturity, their lack of communication, their frivolous quarreling, their incompatibility, and

their inability to manage conflict do not amount to cruel and inhuman treatment.

¶40.   “A marriage may become unpleasant and argumentative, but not rise to the level of

being so unnatural and infamous as to warrant the grant of divorce on the ground of habitual

cruel and inhuman treatment.” Osborne, 202 So. 3d at 642 (citing Killen v. Killen, 54 So.

3d 869, 873 (Miss. Ct. App. 2010)). While Karrah and Richard may have an unhappy,

incompatible marriage, Karrah has failed to prove that Richard’s behavior rises to the level

of habitual cruel and inhuman treatment. Accordingly, the chancellor’s judgment is affirmed.

                                      CONCLUSION

¶41.   We find no error and affirm.

¶42.   AFFIRMED.

     RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND
ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

     KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶43.   I concur in part and dissent in part. I agree with the majority that the chancellor did

not err by denying Karrah Wangler’s motion to amend her complaint. But I respectfully

disagree with the majority that Richard Wangler’s behavior did not rise to the level of


                                              16
habitual cruel and inhuman treatment. The majority trivializes the husband’s bad conduct,

describing it as odd and disrespectful; but I see it as a pattern of behavior that “rises above

the level of unkindness or rudeness or incompatibility or want of affection.” Miss. Code Ann.

§ 93-5-1 (Rev. 2018) Therefore, I would hold that the chancellor erred by granting the

motion to dismiss, and I would reverse and remand the case for further proceedings.

¶44.   In its 2017 amendment to the seventh ground for divorce found in Mississippi Code

Section 93-5-1, the legislature relaxed the strict burden previously required for the granting

of a divorce based on the ground of habitual cruel and inhuman treatment by permitting the

granting of a divorce on this ground based on “spousal domestic abuse.” The legislature

employed language that would allow for any pattern of behavior that rises above unkindness

or rudeness or incompatibility or want of affection to be sufficient to establish habitual cruel

and inhuman treatment. Thus, it now is less difficult, by design, for Mississippians to

extricate themselves, with the aid of their courts, from bad marriages. The amendment states

explicitly that the type of spousal misconduct that can constitute grounds for divorce is not

limited to that which is listed and requires only that the pattern of behavior rise above a level

of unkindness or rudeness or incompatibility or want of affection. The longstanding statutory

divorce ground of habitual cruel and inhuman treatment no longer is a remedy that applies

only to outrageous and horrible physical abuse. It has been expanded exponentially to apply

in cases in which any pattern of behavior that rises above the level of unkindness or rudeness

or incompatibility or want of affection is proved by a preponderance of the evidence, even

if such behavior merely is odd and/or disrespectful. As long as the pattern of behavior



                                               17
surpasses the specified level, it fits into the expanded statutory definition of habitual cruel

and inhuman treatment and satisfies that ground for divorce.

¶45.   The majority errs by relying on case law that was written before the 2017 amendment

to Section 93-5-1. For example, Osborne v. Osborne, 202 So. 3d 639 (Miss. Ct. App. 2016),

was decided on June 28, 2016, almost a year before the amendment went into effect. Yet the

majority cites it for authority that criticism and controlling behavior do not amount to

habitual cruel and inhuman treatment. See Osborne, 202 So. 3d at 641 (“Criticism and

controlling behavior will ‘not fulfill requirements of a divorce on the grounds of habitual

cruel and inhuman treatment.’” (quoting Morris v. Morris, 804 So. 2d 1025, 1032 (Miss.

2002))). That aspect of Osborne now must yield to the 2017 enactment. The majority also

cites with approval the following Osborne language: “A marriage may become unpleasant

and argumentative, but not rise to the level of being so unnatural and infamous as to warrant

the grant of divorce on the ground of habitual cruel and inhuman treatment.” Id. at 642

(citing Killen v. Killen, 54 So. 3d 869, 873 (Miss. Ct. App. 2010)). Cases decided before the

amendment, such as Osborne, have held that certain behaviors do not fulfill the requirements

or rise to the appropriate level to warrant the granting of a divorce on the ground of habitual

cruel and inhuman treatment. But the statutory amendment mandates that patterns of

repetitive, bad spousal behavior now be recognized by our state’s judiciary as habitual cruel

and inhuman treatment.

¶46.   While the majority explains that it segmented the husband’s offensive behavior into

various categories for clarity purposes, it fails, erroneously, to consider those categories as



                                              18
a whole in its assessment of whether there is a pattern of abuse. “There are many kinds of

acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone

will not constitute cruelty, but when taken together will manifest a course of conduct as a

whole which may amount to cruelty.” Smith v. Smith, 90 So. 3d 1259, 1263 (Miss. Ct. App.

2011) (internal quotation marks omitted) (quoting Jackson v. Jackson, 922 So. 2d 53, 57

(Miss. Ct. App. 2006)). This concept is embodied in the amended seventh ground for divorce.

Karrah Wangler testified to the following abusive conduct by her husband:

       1.     He would take her cell phone and car keys away from her;

       2.     On one occasion, he turned off the internet as a means of trapping her
              in the house with him;

       3.     He falsely accused her of being unfaithful;

       4.     After she told him that he could not drive her to an event and she was
              going to have her mother pick her up, he decided to take his wife’s
              keys, lock the door, and leave her stranded outside;

       5.     Against her will, he would pick her up and force her into the bedroom
              to sleep;

       6.     He would shove her aside in the hallway or anywhere else if he decided
              she was in his way;

       7.     On a regular basis, he would criticize her for hours; and

       8.     He discouraged her from interacting with others and, if she did so, he
              criticized her for as many as three days.

All of these accusations are components that comprise Richard Wangler’s whole behavioral

pattern. When the conduct of the husband is considered as a whole, a clear pattern of spousal

misbehavior amounting to habitual cruel and inhuman treatment under the statute emerges.



                                               19
Richard Wangler was critical, physically abusive, and controlling throughout the entirety of

the marriage. His behavior was more than unkindness or rudeness; he exhibited downright

cruel behavior toward his wife.

¶47.   This Court has held that, when considering a divorce based on habitual cruel and

inhuman treatment, “[t]here is a dual focus on the conduct of the offending spouse and the

impact of that conduct on the offended spouse.” Bodne v. King, 835 So. 2d 52, 59 (Miss.

2003) (citing Fisher v. Fisher, 771 So. 2d 364, 368 (Miss. 2000)); see also Smith, 90 So. 3d

at 1263. “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.” Smith, 90 So. 3d at 1263 (citing Faries v. Faries, 607 So. 2d 1204, 1209

(Miss. 1992)); see also Bodne, 835 So. 2d at 59 (“The effect of the conduct on the offended

spouse is determined by a subjective standard, which is to say that an attempt is made to

weigh the likely effects of the conduct on the offended spouse, as opposed to a normative

standard.” (citing Morris v. Morris, 783 So. 2d 681, 688 (Miss. 2001))); Morris, 783 So. 2d

at 688 (“This Court has further held that the impact on the plaintiff caused by the other

spouse is crucial; thus, we employ a subjective standard.” (citing Faries, 607 So. 2d at

1209)). Here, the majority does not consider how Richard Wangler’s conduct made Karrah

Wangler feel. After reviewing her testimony, it is apparent that her husband’s pattern of

relentless criticism and bad behavior led her to feel sleep deprived, isolated, and unsafe.

While she did acknowledge that she already was losing sleep due to the baby, she testified

also that she would be criticized regularly for hours, even after asking her husband to stop.



                                             20
Karrah Wangler was asked at trial whether she felt isolated and she responded with a

resounding, “Very isolated.” She testified also that when her husband was being physical

with her, he did so in a “very intimidating” way. Her decision to separate was based on her

fear for her safety due to her husband’s pattern of behavior and his unwillingness to change.

¶48.   The majority finds no indication that Richard Wangler intentionally abandoned Karrah

Wangler. I disagree. Such a determination is supposed to be based upon a subjective inquiry.

The majority focuses more on whether Richard Wangler intentionally abandoned his wife

than on the question of whether his conduct made her feel as if she had been abandoned. The

majority’s approach creates a double standard by dissecting Karrah Wangler’s voluntary acts

while overlooking her husband’s abandoning and stranding of his wife on multiple occasions.

During each incident of abandonment, Karrah Wangler left the vehicle because of her

husband’s obnoxious behavior. On each occasion, he either was frightening or upsetting her

to the point that she could not take it any more. The majority labels her reactions to his

conduct as voluntary. In truth they were the efforts of a desperate woman doing her best to

get away from an abusive husband.

¶49.   Before the amendment to Section 93-5-1, this Court repeatedly declined to find

habitual cruel and inhuman treatment on the basis of “petty indignities, frivolous quarrels,

general incompatibility or petulant tempers” and required conduct that is “more than mere

unkindness or rudeness, or incompatibility.” Talbert v. Talbert, 759 So. 2d 1105, 1108 (Miss.

1999) (quoting Potts v. Potts, 700 So. 2d 321, 323 (Miss. 1997)); see also Reed v. Reed, 839

So. 2d 565, 570 (Miss. Ct. App. 2003) (“The conduct may be in the form of emotional abuse;



                                             21
however, it must be more than mere ‘unkindness, rudeness, or incompatibility.’” (quoting

Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995))). But after the amendment became

law, the Mississippi Court of Appeals upheld a chancellor’s grant of a divorce on the ground

of habitual cruel and inhuman treatment in a situation with limited physical violence in which

the wife’s testimony demonstrated a pattern of emotional abuse that surpassed mere

unkindness or rudeness. Johnson v. Johnson, 281 So. 3d 70, 75 (Miss. Ct. App. 2019)

(“Although Nikki testified to only two specific instances of physical abuse by Daniel, her and

Brett’s testimonies demonstrated a pattern of abuse that enabled the chancellor to grant a

divorce on the grounds of habitual cruel and inhuman treatment.”). This case is comparable.

Richard Wangler’s conduct is similar to the husband’s conduct in Johnson. In each case,

both husbands repeatedly abused their wives verbally and made the wives feel that they could

not talk to others for fear of suffering their husbands’ wrath. Id. at 72-73. In both cases there

was increasing bad behavior by the husbands throughout the marriages. Id. While it is true

that, unlike the husband in Johnson, Richard Wangler testified at trial, his testimony did not

address any of the allegations of abuse. In Johnson, the chancery court correctly based its

decision on a subjective inquiry and did not focus on the lack of overwhelming physical

violence. Johnson, 281 So. 3d at 75 (“Although Nikki testified to only two specific

instances of physical abuse by Daniel, her and Brett’s testimonies demonstrated a pattern of

abuse that enabled the chancellor to grant a divorce on the grounds of habitual cruel and

inhuman treatment.”). Rather, the chancellor focused on the offended spouse’s testimony,

which demonstrated that the wife felt “very afraid, unsafe, and scared” and ultimately sought



                                               22
a divorce because of her fear of her husband. Id. at 73. It was on the basis of subjective

testimony that the chancellor granted the divorce on the ground of habitual cruel and

inhuman treatment. Id. at 75.

¶50.   In this case, had the chancellor focused on the wife’s subjective testimony as was done

in Johnson, he likely would have found that Richard Wangler’s pattern of conduct made

Karrah Wangler feel isolated and unsafe. The chancellor did have the advantage of observing

the wife in person and this Court is working from a cold record. But the chancellor gave no

indication that he disbelieved Karrah Wangler or that he failed to find her credible. Rather,

he simply did not recognize that the spousal malevolence she described was statutorily

sufficient to establish this ground for divorce. It is with that assessment that I respectfully

disagree.

¶51.   The majority seems to suggest that since Karrah Wangler was representing to the

world that she was in a loving marriage, as suggested by her Facebook posts, her allegations

cannot be validated. I disagree. The majority fails to consider her testimony in explanation

of those posts. It appears that the chancellor relied on the Facebook posts when making his

determination as well. The record contains thirteen social media posts from Karrah

Wangler’s Facebook account that discuss Richard and Karrah’s relationship.6 Of the thirteen,

eight were before the marriage and five were during the marriage. The eight social media

posts from before the marriage should not be considered because they occurred before the



       6
       A total of fifteen social media posts are in the record. Two of these posts are
photographs of Karrah and Richard Wangler’s daughter. These two posts are not relevant
to Richard Wangler’s conduct toward Karrah Wangler.

                                              23
marriage.

¶52.   The five posts that occurred during the marriage are as follows:

       1.     a post by Karrah Wangler that Richard Wangler had prepared her
              breakfast at the beginning of their marriage;

       2.     a picture of the couple at a University of Alabama football game;

       3.     an updated profile picture of the couple;

       4.     a Father’s Day post with a picture of Karrah Wangler’s father and a
              picture of Richard Wangler; and

       5.     a post by Karrah Wangler thanking Richard Wangler for a lunch date
              that included their daughter.

Karrah Wangler’s testimony explained the Facebook posts. She testified that her husband had

not prepared her breakfast since the social media post and that the Father’s Day post was

meant as a way to encourage her husband. As for the lunch date post, her testimony implies

that her husband did so only because their daughter would not stop crying. When considering

Karrah Wangler’s explanation of the social media posts, it becomes clear that Karrah

Wangler’s posts are not a true expression of her “love and admiration” for her husband.

Therefore, the social media posts should not have been a deciding factor in this case.

¶53.   The majority did not find that Richard Wangler’s behavior was habitual. Karrah

Wangler and Richard Wangler were married a mere fifteen months before they separated.

Throughout those fifteen months, Richard Wangler continuously and routinely was hateful

and cruel to his wife. Karrah Wangler testified that his cruel behavior had increased

throughout the last four months of the marriage. Her testimony established that her husband’s

conduct sometimes would occur hourly and sometimes weekly. It is clear from Karrah

                                             24
Wangler’s largely unrefuted testimony that Richard Wangler’s abusive conduct was habitual.

¶54.   The 2017 amendment to Section 93-5-1 leaves no room to doubt that the legislature

intended to make obtaining a divorce on the ground of habitual cruel and inhuman treatment

easier than previously was possible in Mississippi. Richard Wangler demonstrated a pattern

of bad behavior that amounted to habitual cruel and inhuman treatment under Section 93-5-1.

I find that the chancellor erred by granting Richard Wangler’s motion to dismiss, and I would

reverse and remand.

       KING, P.J., JOINS THIS OPINION.




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