Gerty v. Gerty

265 So.3d 121 (2018)

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Nature of the Case

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Facts

H and W filed a joint complaint for an irreconcilable-differences divorce. The complaint languished for almost two years, during which the parties cooperated with each other. W had full knowledge that H was required to move to the Great Lakes area to fulfill a three-year military commitment when she agreed that their son would move with H. During this same time, without his knowing her connection, W had H assist her in moving her belongings into the house of her paramour's mother, Robin Fitzgerald. W chose to spend Thanksgiving of 2013 and 2014 and Christmas of 2012 and 2013 with Kyle and his family, unknown to H. The sexual nature of H's affair with Kyle ended in January 2014 or May 2014. W continued to engage socially with Kyle until December 2014, unknown to H. W's affair with Kyle started before the summer of 2013 and continued into 2014. W only disclosed to H her summer 2013 'fling.' In January of 2015, H stated that reconciliation was impossible and that he wanted W to sign and finalize the divorce papers. Upon the advice of her attorney, W lied and told H that she also was ready to complete the irreconcilable-differences divorce. W waited until her summer visitation had begun when the son was physically in Mississippi before withdrawing her consent to an irreconcilable-differences divorce. H and W then filed separate complaints for divorce on the ground of adultery seeking an irreconcilable-differences divorce. The chancellor granted physical custody to W. The chancellor entered a final judgment and decreed that a divorce should be granted, but that neither party was entitled to a fault-based divorce. She found that W had failed to establish adultery and that H had proved adultery but that H had condoned the conduct. The chancellor sua sponte declared the statutory scheme under Mississippi Code Section 93-5-2 (Rev. 2013) unconstitutional and granted an irreconcilable-differences divorce. Everyone asked for reconsideration. The chancellor significantly amended her earlier final judgment by increasing W's award to include a percentage of H's military-retirement benefit and reducing the noncustodial parent's summer visitation from three months to one month. H appealed.