                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 97-CA-00764-SCT
DAVID PAUL LABELLA
v.
CLETA JEAN LABELLA

DATE OF JUDGMENT:                              04/03/97
TRIAL JUDGE:                                   HON. PERCY LEE LYNCHARD, JR.
COURT FROM WHICH APPEALED:                     LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        THOMAS L. KESLER
ATTORNEY FOR APPELLEE:                         CYNTHIA ETHERIDGE DANIELS
NATURE OF THE CASE:                            CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                   AFFIRMED 9/24/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/15/98




     BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.


     WALLER, JUSTICE, FOR THE COURT:


                                            SUMMARY

¶1. Cleta Jean Labella filed a complaint for divorce against David Paul Labella alleging as grounds for
divorce habitual cruel and inhuman treatment pursuant to Miss. Code Ann. § 93-5-1 (1994). The
Honorable Percy L. Lynchard, Jr., sitting as Special Chancellor,(1)granted the Appellee's divorce on
the grounds of habitual cruel and inhuman treatment. Appellant timely appealed to this Court and
assigns the following as error:

     I. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE A
     DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

     II. WHETHER THE LOWER COURT ERRED IN ITS PROPERTY DIVISION AND
     DEBT ASSIGNMENTS?

     III. WHETHER THE LOWER COURT ERRED IN AWARDING ATTORNEY FEES?

                                 STATEMENT OF THE FACTS

¶2. David Paul Labella ("David") and Cleta Jean Labella ("Jean") were married on June 11, 1983.
Three children were born to the marriage. At the time of trial, the children were ages 12, 11, and 6.
David and Jean ceased to cohabit as husband and wife in November, 1996, though they continued to
reside in the same house. At trial, Jean presented the testimony of three witnesses, including her own,
and David testified as the only defense witness.

¶3. Jean testified to at least ten (10) separate episodes of physical abuse starting as early as 1984,
including being kicked out of bed when she was pregnant; being thrown to the floor resulting in a jaw
injury; bruises when her arm was slammed in a refrigerator; bruises from being slapped in the
buttocks; being pushed into a barstool; and being hit 3-4 times while she was attempting to pick up
her children from visitation with David while they were separated. Jean testified to other lesser
incidents including cursing, name calling, verbal abuse and threats, and on one occasion having her
car door kicked in by David. David acknowledges that some of these encounters occurred, but denied
any of the injuries. He countered that he suffered injuries from being struck in the legs with a broom
and slapped across the face with a newspaper.

     I. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE A
     DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶4. The scope of review by this Court in domestic relations appeals is limited by the substantial
evidence/manifest error rule. Magee v. Magee, 661 So.2d 1117, 1122 (Miss. 1995). "`This Court
will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly
erroneous or an erroneous legal standard was applied.'" Id. (quoting Bell v. Parker, 563 So.2d 594,
596-97 (Miss. 1990)). Additionally, this Court views the facts in a light most favorable to the
appellee, Ms. Labella. See Rawson v. Buta, 609 So.2d 426, 429 (Miss. 1992). This Court will take
her testimony and evidence at its best. Jones v. Jones, 532 So.2d 574, 578 (Miss. 1988).

¶5. The issue before this Court is whether there was sufficient evidence for the chancellor to grant
Jean a divorce on the grounds of cruel and inhuman treatment. In order to justify divorce on grounds
of habitual cruel and inhuman treatment, the treatment must be so continuous and of such nature that
the offended spouse can no longer live with the other spouse on account of that treatment and,
therefore, separates herself from that spouse. Gallaspy v. Gallaspy, 459 So.2d 283, 285 (Miss. 1984)
. It is apparent that Jean cannot live with David any longer, primarily because of the repeated
instances of physical abuse. The chancellor found that the parties lived in a continued state of marital
conflict and that numerous physical confrontations occurred between David and Jean. The conduct of
David appeared from the record to be "so unnatural and infamous as to make the marriage revolting
to the non-offending spouse and render it impossible for that spouse to discharge the duties of
marriage, thus destroying the basis for its continuance." See Hassett v. Hassett, 690 So.2d 1140,
1146 (Miss. 1997).

¶6. This divorce boils down to Jean's word against David's word. Jean did provide corroboration of
physical abuse through photographs and the testimony of her father, Jacob Pongetti. There is
sufficient evidence in the record for this Court to affirm the chancellor as to this issue.

     II. WHETHER THE LOWER COURT ERRED IN ITS PROPERTY DIVISION AND
     DEBT ASSIGNMENTS?

¶7. David argues that the chancellor's order of property division and debt assignment is in error
because the chancellor failed to consider David's right to lead a normal life with a decent standard of
living. See McEachern v. McEachern, 605 So.2d 809, 813 (Miss. 1992).

¶8. David's adjusted gross income is $2,050 per monthly. From this amount, David was ordered to
pay: 1) $450 per month child support; 2) $750, which represents the second mortgage on the marital
homestead; and, 3) approximately $50 per month to Columbus Light & Water. Additionally, David
was ordered to obtain a life insurance policy on himself of at least $100,000 with the couple's three
children as the beneficiaries. David must also provide major medical insurance for the three minor
children and is responsible for expenses not covered by the insurance. David argues that the property
division and debt assignment leaves him approximately $600 to $700 a month which is insufficient for
him to live on, and cites McEachern as his only authority.

¶9. Jean has a total monthly income of $1,170, which consists of $720 per month in unemployment
benefits and the $450 per month she receives in child support from David.(2) Out of her income, Jean
was ordered to pay the first mortgage on the marital residence in the amount of $506 per month, and
the consumer accounts owed to McRae's, Gayfer's, Visa, and Sherwin-Williams, which are
approximately $210 per month.

¶10. "A standard of living beyond the father's financial ability to provide cannot be imposed upon
him." McEachern, 605 So.2d at 813 (citing Adams v. Adams, 467 So.2d 211, 215 (Miss. 1985)).
However, in this case, the chancellor found that, although Jean would have been entitled to an award
of alimony, the child support and other debt payments rendered David's assets insufficient to support
an award of alimony. Although this may impact his living style, the amount is within the guidelines
prescribed by Miss. Code Ann. § 43-19-101 (Supp. 1998), and the children are the focal concern
here.

¶11. Jean and the children were awarded the use and possession of the marital home. David's
principal point is that the chancellor should have ordered the marital home sold and the proceeds
used to satisfy the mortgages on the residence. The chancellor is required to evaluate the division of
marital assets by these guidelines and to support his decision with findings of fact and conclusions of
law for purposes of appellate review. See Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994).
A review of the record reveals that the chancellor was not manifestly erroneous in the property
divisions and debt assignments and his decision is affirmed as to this issue.

     III. WHETHER THE LOWER COURT ERRED IN AWARDING ATTORNEY FEES?

¶12. The chancellor found that Jean incurred a total of $2,205 in legal fees and expenses for 28 hours
of legal work. The chancellor found that Jean clearly established an inability to pay because she was
unemployed at the time of trial and her only income was in the form of unemployment benefits.
Further, David had $2,500 in a savings account that was left over from his unilateral sale of the
family van.

¶13. The general rule is that if a party is financially able to pay his attorney fees he should do so,
though this is a matter which is entrusted to chancellor's sound discretion. Anderson v. Anderson,
692 So.2d 65, 74 (Miss. 1997). The factors considered by the chancellor are consistent with those
previously enumerated by this Court. See Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss. 1997);
Bruce v. Bruce, 687 So.2d 1199, 1203 (Miss. 1996); Rogers v. Rogers, 662 So.2d 1111, 1116
(Miss. 1995). The chancellor did not abuse his discretion in awarding Jean $2,205 in attorney fees.

                                          CONCLUSION

¶14. The record contains substantial evidence to support the chancellor's granting Jean a divorce on
the grounds of habitual cruel and inhuman treatment. The chancellor was not manifestly erroneous in
his determinations of property distribution and debt assignment. There was no abuse of discretion in
awarding Jean attorney fees. Finding no error, the decision of the chancellor is affirmed.

¶15. AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
MILLS, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.




1. The chancery judges of the Fourteenth Chancery Court District recused themselves because the
Appellee's father, Jacob Pongetti, is a member of the Lowndes County Bar.

2. Jean was laid off shortly before the trial began and is currently seeking new employment.
