                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-CT-00149-SCT

PROPST FAITH PITTMAN a/k/a PROPST FAITH
DEVENY PITTMAN

v.

TY LATHAN PITTMAN a/k/a TY THOMAS
LATHAN PITTMAN

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         12/18/2012
TRIAL JUDGE:                              HON. PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED:                PANOLA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   BEN LOGAN
ATTORNEYS FOR APPELLEE:                   T. SWAYZE ALFORD
                                          KAYLA FOWLER WARE
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              REVERSED AND REMANDED - 06/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       KING, JUSTICE, FOR THE COURT:

¶1.    Propst Pittman filed a complaint for divorce against Ty Pittman on the grounds of

habitual cruel and inhuman treatment. After the presentation of Propst’s evidence, Ty moved

for a dismissal under Mississippi Rule of Civil Procedure 41. The chancery court found

insufficient evidence to grant the divorce, and thus granted the motion to dismiss. Because

the chancery court applied an erroneous legal standard, we reverse the judgments of the
Panola County Chancery Court and the Court of Appeals and remand the case for further

proceedings.

                        FACTS AND PROCEDURAL HISTORY

¶2.           Ty and Propst Pittman were married April 11, 1992, in Quitman
       County, Mississippi. Two children were born of the marriage, Tyler Faith
       Pittman, born May 10, 1994, and Mary Lathan Pittman, born December 19,
       2000. Ty and Propst separated on June 5, 2010. Upon separation, Propst
       remained with the children in the marital home . . . and Ty moved into a
       structure that the parties referred to as the “Barn” . . . .
              On August 19, 2010, Propst filed a complaint for divorce on the ground
       of habitual cruel and inhuman treatment. Ty filed an answer and counter-
       complaint for divorce on October 20, 2010. On October 29, 2010, the
       chancellor entered a temporary order addressing the custody and support of the
       children and separate maintenance. A guardian ad litem was appointed on July
       6, 2011. Prior to trial, Ty filed a motion to dismiss his counter[-complaint] for
       divorce.
              A trial was held on November 27, 2012.

Pittman v. Pittman, No. 2013-CA-00149-COA, 2015 WL 1296037, at *1 (Miss. Ct. App.

March 24, 2015).

¶3.    At trial, Propst testified that she was unable to communicate with Ty, and that if she

communicated with him about the children, “he would blow up usually.” She testified that

he did not want to discuss the children or other issues with her, and that one time he stated

“just pretend like I’m dead or not here because I just need to be alone and not be talked to.”

Propst also testified to Ty physically harming her. She testified regarding one instance in

which she and Tyler went to the barn to pick up Mary Lathan, and Propst saw some papers

on the desk that interested her. She picked them up, and Ty jumped over the couch, grabbed

her neck and choked her, and pushed her out the door. She testified that she could hardly

breathe, and that Tyler “came after” Ty. She testified that he frequently, and for years, would


                                              2
push her out of his way, and one time, he grabbed her head and pulled her hair to get her out

of the way. She further testified that Ty once jerked a bag off her arm, breaking the handle

on the bag and causing Propst’s wrist to swell. She testified that she went to the doctor

regarding this incident.1 Propst testified that Ty once told her “F&*! you” in public. She

further testified that he frequently called Propst “retard” and referred to Tyler by the name

of a farmhand whom Ty believed to be “stupid.” Propst also referenced an attack by Ty on

Tyler and the police report filed on that incident. Additionally, Propst testified that Ty had

questioned her about men working on their house and their neighbor, insinuating that she was

having affairs. Further, Propst testified at length regarding the couple’s financial affairs,2

and testified that Ty controlled the businesses and the finances, and that he had forced her

into bankruptcy.

¶4.    Tyler also testified. While Tyler testified that she loved her father and that he

supported her and spent time with her, she also testified to numerous troubling incidents. She

described her father’s temper as “uncontrollable.” She testified to an incident shortly before

her fifteenth birthday in which Ty broke down a door to get to her, took her phone, and

smashed it with a hammer. A photograph of the broken door was introduced into evidence,

as was a letter written by Ty shortly after the incident, in which he admitted to anger

problems, but essentially blamed his issues with anger on Tyler’s behavior. He also noted


       1
        No doctor’s records regarding this incident were introduced in the divorce case-in-
chief, but they were placed in the court file with the guardian ad litem’s (GAL) supplemental
report regarding custody, after the divorce was denied.
       2
       The Pittmans were involved in several farming ventures and businesses, and their
finances are complicated.

                                              3
that he had left the house and informed Tyler that he would not be returning home for her

fifteenth birthday. With the letter, he enclosed cash for a phone. Tyler testified regarding

another incident in which Ty “punched her into a brick wall” in October or November of

2009 because he was angry about not being able to come home. Tyler and Propst reported

this incident to the police. Also placed into evidence were the photograph of the injury to

Tyler’s face taken by the Batesville Police Department, Tyler’s statement regarding the

incident, and the domestic protection order entered forbidding Ty to go within 150 feet of

Tyler. Tyler further testified that to punish her, Ty would put her nose to the floor for forty-

five minutes and order her to remain still. He would get her to the floor by pushing her and

holding her down. She testified that this started when she was eight or nine years old. She

also testified that Ty would hit her with a belt with metal on it until she had welts on

numerous occasions. She testified to another incident in which Ty threw her into a wall and

broke a vein in her hip. She testified that on another occasion, her father chased her out of

her house while her mother was out of town and she had to call her grandmother to come

pick her up.

¶5.    Tyler then testified about the altercation at the barn between Ty and Propst in which

Propst picked up some papers that interested her. Tyler stated that Ty jumped over a couch

and grabbed Propst by the neck on her pressure points. She testified that she jumped on Ty’s

back trying to make him release Propst. Tyler also testified that in April “around her

graduation,” she heard noises coming from the laundry room. She heard her mother saying

“stop, stop” and pushed open the laundry room door. She stated that Ty was guarding the



                                               4
door and Propst was pinned up in the laundry room.3 Tyler also testified that, in general, she

witnessed Ty pushing Propst and yelling at her.

¶6.    Propst also called Ty as an adverse witness. Ty testified that things had been

“stormy,” but that he had never pushed Propst or pulled her hair. As to the barn incident, Ty

claimed that Propst took some papers off the desk and threw them on the floor, so he “put

[his] hand on the back of her neck and her shoulder and just walked her to the door, and my

daughter was sitting in the kitchen. . . . And I eased her out the door[.]” Ty also testified to

the bag incident, stating that he grabbed the bag out of Propst’s hands so he could look at the

tax returns, because Propst would not give them to him. He denied that Propst was injured,

but admitted that he was aware she received medical care regarding the incident. Ty did

admit to accusing Propst of having affairs.

¶7.    Ty also denied physically abusing Tyler. He admitted only to spanking her. Yet he

also admitted that he had slapped her twice “with the tip of [his] fingers.” He also admitted

that he “pushed” open a locked bathroom door, took Tyler’s phone, and smashed it with a

hammer. He denied having any temper or anger problems, but admitted that he wrote the

letter to Tyler stating that he had anger problems. He also denied that the incident reported

to the Batesville Police Department occurred, and stated that the red mark on Tyler’s face

was acne and a potent acne cocktail that “ate it off.”




       3
        The supplemental record, which was not before the chancellor in the divorce
proceeding, but was placed in the court file during the later custody proceeding, contains a
police report in which Propst alleged that Ty raped her in the laundry room of their house
on April 15, 2012. She stated that she repeatedly stated “stop Ty stop Ty.”

                                               5
¶8.    The chancellor also had before him the GAL’s report regarding the welfare of the

minor children. The GAL reviewed numerous documents and interviewed Propst, Azalia

Moore (Propst’s godmother), Tyler, Mary Lathan, and Ty.                 In his conclusions and

recommendations, the GAL stated that “It appears that what was a disturbing pattern of

physical discipline inflicted by Mr. Pittman on the oldest child, Tyler, has over the last year

ceased.” Notably, Ty had not lived with Tyler in the year that the disturbing pattern of

physical discipline ceased. The GAL continued that “It is equally clear that Mr. Pittman,

either from stress or his own family history, reacted with anger in administering physical

discipline. I sense that Mr. Pittman, a man who has always been in control of his work and

his family, has experienced an unraveling of his structured environment.” The GAL then

noted that, while he usually conducted an Albright4 analysis when the issue of custody has

been raised, “in this case it is simply beyond dispute that the best interests of the children will

be served by them remaining in the paramount care, custody and control of their mother.”

¶9.    At the close of Propst’s case-in-chief, Ty moved for a dismissal of the divorce

pursuant to Rule 41. From the bench, the chancellor granted Ty’s Rule 41 motion to dismiss.

The court first dismissed Propst’s claim that Ty had forced her into bankruptcy, because she

and Ty were represented by the (same) counsel, and there was no evidence of coercion. He

also cited a lack of communication during the marriage, and the court acknowledged “that

the parties have had a disagreement, particularly with the discipline of the children.” The

court noted Propst citing Ty’s uncontrollable temper, and stated that “[s]he does that in



       4
        Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

                                                6
general terms and with little specificity. They did, in fact, argue during the marriage, and I

think that is corroborated by the daughter.” The court then noted that Propst particularly

pointed to physical assaults. The court noted

       again that these are in general terms and not with much specificity with the
       exception of one, an incident which occurred shortly after the separation at the
       barn over an instance where the plaintiff attempted to leave with some
       important papers that the defendant did not want her to have, and then an
       incident where she was pushed into a rocker and into a brick wall on one
       occasion. However, importantly, it should be noted that at no time were the
       police called, and the only time that she was forced or, in fact, sought medical
       attention in any way was an incident which he jerked a bag from her hand, and
       there’s no evidence of any injury to her following that doctor’s appointment.

The court also noted the derogatory comments made toward Propst. The court then found

that “the proof presented does not meet the elements of habitual cruel and inhuman

treatment.”

¶10.   After the court dismissed the complaint for divorce, Propst requested that the court

decide the custody issue, and the court agreed to do so. The GAL issued a supplemental

report. The GAL concluded that “the father has exhibited an underlying pattern of behavior

that is extremely disruptive of a stable home environment and that is contrary to the best

interests of the minor children.”         The GAL also adopted the conclusions and

recommendations set forth in his prior report. Propst requested that the GAL attach

numerous documents to his report, which he agreed to do. Documents included in the report

that were not introduced at trial included Propst’s statement to the Batesville Police

Department concerning the domestic case between Tyler and Ty, the police report from that

case in which the reporting officer stated that “[t]here was a large mark over the right eye of



                                              7
the juvenile and was still swollen,” the police report regarding Ty’s alleged rape of Propst,

the medical record from the incident in which Ty grabbed a bag from Propst noting that some

swelling of the wrist was present, and a letter from Tyler to Ty about the broken phone in

which she apologized, lamented his demolishing her phone, noted that she felt she was acting

out because Ty was involving her in the arguing between Propst and himself, and begged him

to come home for her birthday. The court ultimately awarded joint legal custody of the

children to Propst and Ty and sole physical custody of the children to Propst, with Ty

receiving standard visitation.

¶11.   Propst appealed the chancellor’s decision to grant Ty’s motion to dismiss the divorce,

and the Court of Appeals affirmed. The Court of Appeals found that “Propst failed to

demonstrate a continuous course of conduct that was so unkind, unfeeling, or brutal as to

endanger her, or put her in reasonable apprehension of danger to life, limb, or health.” Id.

Thus, the Court of Appeals concluded that the chancellor did not abuse his discretion in

dismissing Propst’s complaint for divorce. Id. Propst petitioned this Court for a writ of

certiorari, which we granted.

                                         ANALYSIS

¶12.   Mississippi Rule of Civil Procedure 41 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 . . . may move for a dismissal on the ground that upon the facts and the law the

plaintiff has shown no right to relief.” M.R.C.P. 41. In considering a Rule 41 motion to

dismiss, the judge must consider the evidence fairly, rather than in the light most favorable



                                               8
to the plaintiff. Stewart v. Merchants Nat’l Bank, 700 So. 2d 255, 259 (Miss. 1997). The

court should deny a Rule 41 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.” Id.

(internal quotations omitted). We 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. Id.; Steiner v. Steiner, 788 So. 2d 771, 774 (Miss. 2001); Jones v. Jones, 101 So.

3d 731, 732 (Miss. Ct. App. 2012). “Legal questions, however, are reviewed de novo.

Sanford v. Sanford, 124 So. 3d 647, 652-53 (Miss. 2013). Consequently, “[w]hile the

chancellor’s determinations of the events that preceded the divorce are findings of fact, his

finding that [a defendant’s] conduct rose to the level of habitual and inhuman treatment as

defined as a ground for divorce . . . is a determination of law, and is reversible where the

chancellor has employed an erroneous legal standard.” Potts v. Potts, 700 So. 2d 321, 322

(Miss. 1997).

¶13.   Either party to a marriage may be granted a divorce for cause if that party proves

habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1 (Rev. 2013). To establish

habitual cruel and inhuman treatment, the party must introduce evidence that proves conduct

that 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” party seeking relief and “render it

impossible for that spouse to discharge the duties of the marriage, thus destroying the basis



                                              9
for its continuance.” Richard v. Richard, 711 So. 2d 884, 888 (Miss. 1998) (internal

quotations omitted). The party seeking relief must prove “something more than unkindness

or rudeness or mere incompatibility or want of affection.” Id. (internal quotations omitted).

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

testimony.” Rawson v. Buta, 609 So. 2d 426, 431 (Miss. 1992).

¶14.    In his ruling, the chancellor failed to make any factual findings to which this Court

must defer regarding the violence perpetuated by Ty against Tyler in considering whether

Propst had satisfied her burden to defeat a Rule 41 motion to dismiss. Namely, the

chancellor did not mention, either way, in his lengthy findings the violence against Tyler in

his consideration of whether Propst had satisfied her burden, nor did he make any credibility

determinations or findings of facts regarding this issue. We acknowledge that this Court has

not made a clear pronouncement that violence against a child can be considered as habitual

cruel and inhuman treatment of a spouse, and we thus recognize that this lack of clear

pronouncement may be why the chancellor understandably failed to make any factual

findings regarding the violence against Tyler.5 Thus, we will examine the legal question of

       5
        The GAL specifically found that there had been a “disturbing pattern of physical
discipline inflicted by Mr. Pittman on the oldest child, Tyler . . . .” and that Ty “reacted with
anger in administering physical discipline.” The GAL report specifically noted the instances
of abuse recalled by Tyler and Propst at trial. The GAL report went so far as to decline to
perform an Albright analysis because it was “simply beyond dispute” based on the facts that
Propst should have custody. At the hearing, the chancellor addressed whether he would
decide custody. He stated that “the overwhelming majority of the evidence at this point in
time indicates that the two minor children, both girls, should remain with the – in the
temporary custody of the natural mother. I base that largely not only what has been
presented before me, but also the report of the duly appointed guardian ad litem. . . . At this
point in time, I don’t have any reason for not accepting his recommendation.” The
chancellor’s statements about the GAL report, which found Ty’s treatment of Tyler

                                               10
whether violence against a child may be considered in the determination of whether one

spouse has engaged in the habitual cruel and inhuman treatment of the other spouse. This

Court has certainly considered the traumatic and detrimental effect a tumultuous marriage

has on children when considering whether a divorce should be granted based on habitual

cruel and inhuman treatment.6 See, e.g., Richard, 711 So. 2d at 889. Moreover, the Court

of Appeals, a court which chancery courts are bound to follow, has considered evidence of

child abuse or mistreatment as conduct that supports granting a divorce based on habitual

cruel and inhuman treatment. In Jones, the Court of Appeals detailed the husband’s

inappropriate sexual behavior with the couple’s children and considered it as supporting the

chancellor’s grant of divorce for habitual cruel and inhuman treatment. Jones, 43 So. 3d at

476-77. The Court of Appeals noted that the wife “found this behavior offensive and

alarming.” Id. at 477. In Keller v. Keller, a case incorrectly cited by the chancery court in

this case,7 the Court of Appeals noted that the record indicated that the husband had


disturbing, as well as his statement about the evidence presented to him,indicate that the
chancellor believed much of what was presented regarding Ty’s treatment of Tyler. This
only bolsters the notion that the chancellor was unaware that he could consider this evidence
in determining whether to grant or deny the Rule 41 motion.
       6
       The chancellor in this case did not appear to consider the detrimental effect of the
tumultuous marriage on the children. Part of his reasoning for dismissal was that Propst was
more concerned with the effects of Ty’s derogatory comments toward her on the children,
than on herself.
       7
        The chancery court stated that “In the afore-cited Keller v. Keller, the Court did not
find sufficient grounds to award a divorce.” At that point, the chancellor then stated that the
evidence in the case at hand did not meet the elements of habitual cruel and inhuman
treatment. In Keller, both the chancery court and the Court of Appeals found sufficient
grounds to award a divorce based on habitual cruel and inhuman treatment. Keller v. Keller,
763 So. 2d 902, 904, 908-09 (Miss. Ct. App. 2000).

                                              11
committed at least one instance of physical violence, by throwing a shoe at his wife, that he

refused to have sexual relations with his wife and told her to “get a boyfriend” if she wanted

sexual relations, that he forced his wife to do heavy physical work in the house and yard

without his help, and that he humiliated her in front of family and friends. Keller v. Keller,

763 So. 2d 902, 908 (Miss. Ct. App. 2000). The Court of Appeals found that “[w]hether

these facts alone would have been sufficient or not, we find the scales to shift markedly in

favor of the divorce with the evidence that Mr. Keller beat his wife’s son from her first

marriage[.]” Id. The Court of Appeals detailed the physical and verbal abuse of the child,

as well as Mr. Keller’s demands that Mrs. Keller convey custody of her son to her ex-

husband or her parents, and stated that “[t]his was ‘cruel and inhuman treatment.’” Id. at 908-

09.

¶15.   It is common sense that abuse or mistreatment of a person’s child may constitute

cruelty to that person.8 Such conduct may certainly be “so unnatural and infamous as to

make the marriage revolting to the” party seeking relief and “render it impossible for that

spouse to discharge the duties of the marriage, thus destroying the basis for its continuance,”

       8
        Additionally, trapping spouses and children in familial arrangements simply because
the child, rather than the spouse, was the victim of abuse or mistreatment makes little sense
and it certainly cannot have been the Legislature’s intent to imprison those children in
abusive situations simply because their nonviolent parent could not obtain a divorce.
Incidentally, the nonviolent spouse would have a duty to report any child abuse or neglect
committed by the other spouse. See Miss. Code Ann. § 43-21-353(1) (Rev. 2015). That
parent could also be held criminally liable in certain instances for failing to report his or her
spouse. See Sherron v. State, 959 So. 2d 30 (Miss. Ct. App. 2006) (mother who helped
minor child get an abortion after rape by mother’s husband found guilty of being an
accessory after the fact to statutory rape, and was not entitled to a mitigating defense
instruction that a failure to report was not a crime, because she did have an affirmative duty
to report the abuse of her daughter).

                                               12
provided the party seeking relief proves by a preponderance of the evidence that the abuse

or mistreatment of the child was so unnatural and infamous to the party as to make the

marriage revolting to that party, or that it contributes, along with other factors, to rendering

the marriage revolting to that party. See Richard, 711 So. 2d at 888. Indeed, “[i]t would be

difficult to imagine a course of conduct that would be more intolerable or unbearable, or that

would be more subversive of the family relationship, than harsh and abusive treatment of a

child.” Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962). We take this

opportunity to clarify that chancery courts may consider evidence of child abuse or

mistreatment as conduct supporting the grant of a divorce based on habitual cruel and

inhuman treatment.9 It is not clear that the chancery court in this case considered the alleged

instances of physical violence and other mistreatment by Ty against Tyler in determining

whether Propst had presented evidence of habitual cruel and inhuman treatment sufficient

to defeat Ty’s Rule 41 motion to dismiss; thus the court did not apply what we now clarify

is the appropriate legal standard. We therefore reverse the chancery court’s grant of Ty’s

Rule 41 motion to dismiss and remand the case for further proceedings so that the chancellor

may have the opportunity to consider the violence against Tyler in light of our clarification

of the law. On remand, the chancellor should specifically consider and make findings

regarding Ty’s treatment of Tyler in determining whether Propst has presented evidence



       9
        Other states have held likewise. See Jaikins v. Jaikins, 122 N.W.2d 673 (Mich.
1963) (noting the court’s duty toward the children, and stating that “mistreatment of
children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty
by the guilty party which justifies a divorce.”); Greco v. Greco, 356 S.W.2d 558, 566 (Mo.
Ct. App. 1962) (Mistreatment of a child constitutes an “indignity.”).

                                              13
sufficient to defeat Ty’s Rule 41 motion to dismiss regarding her entitlement to a divorce

based on cruel and inhuman treatment.

                                      CONCLUSION

¶16.   The chancery court did not apply the correct legal standard when it failed to consider

acts of child mistreatment by Ty in the assessment of whether sufficient evidence of habitual

cruel and inhuman treatment existed. We therefore reverse the judgment of the Panola

County Chancery Court granting Ty’s Rule 41 motion to dismiss, reverse the judgment of the

Court of Appeals, and remand the case to the Panola County Chancery Court for further

proceedings consistent with this opinion.

¶17.   REVERSED AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.,
CONCUR. BEAM, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY RANDOLPH, P.J., AND LAMAR, J. MAXWELL, J., NOT PARTICIPATING.

       BEAM, JUSTICE, DISSENTING:

¶18.   Respectfully, I dissent from the majority’s conclusion that the chancellor erred in

granting the Rule 41 motion to dismiss the divorce complaint. This Court will not disturb the

findings of a chancellor “unless the chancellor was manifestly wrong, clearly erroneous, or

applied the wrong legal standard.” McNeil v. Hester, 753 So. 2d 1057, 1063 (Miss. 2000).

¶19.   The majority finds that the chancellor applied the wrong legal standard because he

failed to specify in his findings of fact whether he had considered Ty’s alleged abuse of Tyler

in determining whether Propst had provided sufficient evidence to support a divorce for

habitual cruel and inhuman treatment. While I agree that chancellors may consider evidence



                                              14
of abuse to a child when determining whether a divorce on this ground should be granted,

the record before us does not evidence the chancellor failed to consider such or that the

chancellor applied the wrong legal standard.

¶20.   In considering a motion to dismiss, the judge must consider the evidence fairly and

not in the light most favorable to the plaintiff. In re Adoption of D.N.T., 843 So. 2d 690, 711

(Miss. 2003). “ ‘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.’

” Id. (quoting Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992)).

¶21.   In the ten-page findings of fact, the chancellor addressed the reasons Propst argued

to support a divorce in her favor. The chancellor stated that “looking at the evidence fairly,”

Propst did not present sufficient evidence to warrant a divorce. The majority correctly notes

that the chancellor neither mentioned nor made any findings of fact in regard to whether he

accepted or rejected all the testimony related to the alleged abuse toward Tyler.10 (Maj. Op.

¶ 14). But the majority concluded that it is not clear whether he even considered the abuse.

Id. I do not agree.

¶22.   The chancellor heard testimony from Propst, Tyler, and Ty. Tyler testified about

several instances in which Ty exhibited anger and violence toward her. She testified that he

had broken her bedroom door, had taken her phone and had smashed it with a hammer. She

testified that Ty had thrown her into a wall and burst a vein in her hip and, on another

occasion, had “punched” her into a brick wall. She also testified that when she was younger,



       10
         There was no request for findings of fact.

                                               15
he would hit her with the belt buckle, making her skin welt. Ty, contrastingly, denied ever

being physically abusive toward Tyler, although he admitted that he had destroyed Tyler’s

phone. He also admitted to slapping Tyler with the tips of his fingers. The chancellor heard

the testimonial evidence from both Tyler and Ty in regard to Ty’s treatment of Tyler.

¶23.   In response to Ty’s motion to dismiss, Propst’s attorney stated: “we believe we’ve

done an adequate job of showing inhuman - - habitual inhuman treatment, cruel and inhuman

treatment, through his abuse of not only of his wife, but his children . . . [,] [o]f Tyler

Pittman.” Propst could have asked the chancellor to make findings of fact, and the chancellor

could have, but it is not appropriate for this Court to do so. Although the chancellor did not

specify in the findings of fact whether he believed the allegations of abuse, we have nothing

before us in a cold record to find opposite. There was ample testimony, and Propst argued

the abuse toward Tyler supported her grounds for divorce.

¶24.   Lastly, the chancellor has an advantage over the reviewing court because he has the

opportunity to see and hear the witnesses testify. Being in the position to study each witness’s

demeanor and make credibility determinations with respect to each witness, the chancellor

was in the better position to assess the evidence and weigh the truthfulness and reliability of

the witnesses. Obviously, the chancellor held that habitual cruel and inhuman treatment was

not proven to him, and thus the proper grounds for divorce had not been established. I would

affirm and find that the chancellor did not err in granting the motion to dismiss.

¶25.   I agree with the majority that abuse and cruelty to one’s child may cause such injury

to the spouse as to rise to the level of grounds for divorce of habitual cruel and inhuman



                                              16
treatment. But the chancellor’s failure to grant the divorce does not exhibit his lack of

knowledge of that truth.

      RANDOLPH, P.J., AND LAMAR, J., JOIN THIS OPINION.




                                           17
