IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-00434-COA

MICHAEL JACKSON APPELLANT

v.

ROSIE JACKSON APPELLEE

DATE OF JUDGMENT: 02/26/2013

TRIAL JUDGE: HON. TALMADGE D. LITTLEJOHN

COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN 

NICOLE H. MCLAUGHLIN

ATTORNEY FOR APPELLEE: LUANNE STARK THOMPSON

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: GRANTED DIVORCE TO APPELLEE ON

THE GROUND OF HABITUAL CRUEL

AND INHUMAN TREATMENT

DISPOSITION: AFFIRMED - 11/04/2014

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ISHEE, ROBERTS AND CARLTON, JJ.

ISHEE, J., FOR THE COURT:

¶1. On May 20, 2009, Rosie Jackson filed for a divorce from her husband, Michael

Jackson. Following a three-day trial, the Monroe County Chancery Court granted Rosie a

divorce on the ground of habitual cruel and inhuman treatment. The chancery court also

divided the marital estate and awarded lump-sum alimony to Rosie. Aggrieved, Michael

appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Michael and Rosie married on December 26, 1976. Together, they had two children,
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both of whom were emancipated by the time of these proceedings. Rosie filed for divorce

on May 20, 2009, on the ground of habitual cruel and inhuman treatment. Michael answered

her complaint, and later filed a motion in limine requesting the court to limit testimony

regarding sexual allegations. At trial, the motion was overruled. A three-day trial was held

on April 2, 2012, May 21, 2012, and August 21, 2012. 

¶3. From the date of their marriage until around 1986, Rosie made more money than

Michael. Michael obtained his bachelor’s degree in special education in 1975. He later

obtained a master’s degree in guidance education in 1977 and a master’s degree in special

education in 1979 or 1980. Michael worked several different part-time jobs in addition to

teaching with the Aberdeen Public School System and later with the Okolona Public School

System. While Michael continued his education, Rosie supported the family working fulltime as a cosmetologist at Vasser’s Beauty Shop, which is owned by her sister, Lillie Vasser.

In 2008, Rosie began to work as a caregiver to the elderly in addition to working at Vasser’s

Beauty Shop seeing two to three clients a week. Due to health problems, Michael retired in

2010. 

¶4. In 1980, Michael and Rosie built a home located in Monroe County. Nearly a decade

later, Rosie’s sister, Marian Vasser, moved into the home with the Jacksons after she suffered

a stroke that left her in need of assistance. The home was later modified to be handicapaccessible to accommodate Vasser’s disabilities. Vasser contributed to the cost of the

alterations and still resides with Rosie in the home today. The parties stipulated at trial that

the marital home was worth $78,000. There was also evidence presented that a mortgage

balance of $50,103 remained on the home, with $27,897 remaining in equity.
In the interest of confidentiality, we have chosen to change the names of some of the 1

witnesses involved in the case.

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¶5. The marriage between Rosie and Michael had deteriorated years prior to the divorce

proceedings. Rosie claimed that they had not been together sexually since 1999, and that she

had moved out of the marital bedroom in 2007. In 2008, Rosie received information

involving sexual allegations about Michael. 

¶6. At trial, Rosie testified regarding a phone conversation she had with Michael’s friend,

John Doe. She stated that, in February 2008, John called the Jacksons’ home and told her, 1

“Will you please tell your husband to leave me alone?” John testified at trial and was asked

whether he had any kind of sexual relationship with Michael, to which he said no. Rosie also

stated under oath that, in April 2008, she was approached by one of Michael’s former

students, James Doe, who informed her that Michael had sexually molested him twenty-six

years earlier. James testified, in detail, that Michael molested him once when James was ten

years old and was attending the same church as the Jacksons. Alma Jackson Flowers, the

Jacksons’ daughter, also testified that in 2008 she participated in a three-way phone

conversation with Michael and another man, unbeknownst to Michael, where Michael

solicited the man for oral sex. 

¶7. Both Rosie and Flowers stated that they confronted Michael about the sexual

allegations, but he denied them. At trial, Michael denied all sexual allegations regarding

homosexuality and child molestation. After confronting Michael, Rosie testified that the

atmosphere in the home became very bad. She stated that Michael started coming home late,

bringing men into the home, and cutting off the phone and electricity. Further, she claimed
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that he intimidated her, bullied her, and talked cruelly to her. 

¶8. Rosie testified that she was traumatized by the information she learned about Michael.

She stated that she began to experience problems with her blood sugar and blood pressure,

could not sleep at night, and was prescribed Xanax to help with her anxiety. As a result,

Rosie moved out of the home on February 23, 2009. Michael remained in the home until a

temporary order was entered in September 2009 granting Rosie possession of the house.

¶9. Following trial, the chancellor concluded that Rosie had proven habitual cruel and

inhuman treatment by providing evidence of Michael’s homosexual behavior, and the effect

that this conduct had on Rosie’s health. The chancellor granted the divorce, divided the

marital estate, and awarded Rosie lump-sum alimony.

¶10. On appeal, Michael argues that the chancery court erroneously granted Rosie a

divorce where: (1) the evidence was insufficient to support a divorce on the ground of

habitual cruel and inhuman treatment, (2) the evidence relied upon by the chancellor was

inadmissible, and (3) the equitable distribution and the alimony award were based on

incorrect calculations.

¶11. Additional facts, as necessary, will be related during our analysis and discussion of

the issues.

STANDARD OF REVIEW

¶12. “This Court employs a limited standard of review when considering domesticrelations cases.” Jackson v. Jackson, 114 So. 3d 768, 773 (¶10) (Miss. Ct. App. 2013)

(citations omitted). “Consequently, an appellate court will not disturb the chancery court’s

findings unless such findings are manifestly wrong [or] clearly erroneous, or the court
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applied the wrong legal standard.” Id. However, questions of law are reviewed de novo.

Gordon v. Gordon, 126 So. 3d 922, 925 (¶9) (Miss. Ct. App. 2013) (citations omitted).

DISCUSSION

I. Habitual Cruel and Inhuman Treatment

¶13. “The chancellor’s determination of whether a spouse’s conduct rose to the level of

cruel and inhuman treatment is a determination of law.” Jones v. Jones, 43 So. 3d 465, 469

(¶7) (Miss. Ct. App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1

(Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and

inhuman treatment. In order to establish a divorce on such ground, the offended spouse must

show conduct 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

non-offending spouse and render it impossible for that spouse to discharge the

duties of marriage, thus destroying the basis for its continuance.

Jones, 43 So. 3d at 469 (¶9) (citations omitted). 

¶14. In reviewing whether the conduct reaches that of cruel and inhuman treatment, the

chancellor must consider: “1) the conduct of the offending spouse and 2) the impact of that

conduct upon the plaintiff.” Fisher v. Fisher, 771 So. 2d 364, 367 (¶10) (Miss. 2000)

(internal quotations and citations omitted). The evaluation of the impact of the conduct on

the plaintiff is subjective. Smith v. Smith, 90 So. 3d 1259, 1263 (¶11) (Miss. Ct. App. 2011)

(citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). “The focus is on the effect the

conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id.

¶15. “The ground of habitual cruel and inhuman treatment may be established by a
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preponderance of the evidence, rather than clear and convincing evidence, and the charge

means something more than unkindness or rudeness or mere incompatibility or want of

affection.” Fisher, 771 So. 2d at 367 (¶9). The chancellor granted Rosie a divorce based on

a finding that Michael’s homosexual relations were such that they made the marriage

revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual

cruelty – whether Michael’s conduct was so unnatural and infamous as to make the marriage

revolting to Rosie. 

¶16. There has only been one case where the Mississippi Supreme Court has found that a

homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher

v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court

found that “[u]nnatural practices of [pederasty] are an infamous indignity to the wife . . .

which would make the marriage relation so revolting to her that it would become impossible

for her to discharge the duties of wife.” Id. Since Crutcher, this Court has found that

evidence of homosexual affairs, when combined with other misconduct, can justify a divorce

based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So. 2d 681, 689

(¶¶27-28) (Miss. 2001).

¶17. The record here reflects it was not only alleged that Michael was involved in

homosexual affairs, but that he had also molested a child. Rosie testified to learning about

both allegations within rapid succession of one another. We find that the combination of this

conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties.

However, it is well settled that a spouse’s testimony regarding an offending spouse’s

behavior must be corroborated when habitual cruel and inhuman treatment is asserted. Pace
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v. Pace, 16 So. 3d 734, 741 (¶31) (Miss. Ct. App. 2009) (citation omitted). 

¶18. Rosie’s testimony was supported by both Flowers and James. Flowers corroborated

the allegations of a homosexual affair by testifying to the conversation she heard where

Michael solicited sexual favors from another man. In support of the child-molestation

allegations, James gave detailed testimony regarding the molestation that occurred at the

hands of Michael when James was only ten years old. In addition to relying on this

testimony, the chancery court also relied on other statements made by Rosie. However, we

will address the other testimony in Michael’s next issue. We find that Rosie’s testimony,

coupled with the corroborating testimony of both Flowers and James, was sufficient alone

to support that Michael’s conduct was cruel and inhuman.

¶19. Michael contends that, even if his conduct was found to be inhuman or cruel, Rosie

failed to establish a causal connection between his conduct, the separation, and how it

impacted her. We disagree. There is no longer a requirement that a specific act caused a

separation but “[i]t is, instead, habitual or continuous behavior over a period of time, close

in proximity to the separation, or continuing after a separation occurs, that may satisfy the

grounds for divorce.” Fisher, 771 So. 2d at 367-68 (¶10). Rosie testified that, upon learning

of these sexual allegations, she began to experience adverse physical reactions to learning

about Michael’s sexual relationships and history. She also noted, once she confronted

Michael, the atmosphere in the home changed and she gave examples of how Michael treated

her. 

¶20. Michael also asserts that, if his conduct were found to be true, Rosie condoned his

behavior by remaining in the marital home for nearly a year after learning about the
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homosexual affairs and child molestation. The chancellor noted, however, that Rosie had

already left the marital bedroom in 2007 and had not engaged in sexual relations since 1999.

Further, she was living with her disabled sister, Marian, in the marital home that had been

specifically been renovated to accommodate Marian’s disabilities. The chancellor also

commented that Rosie may have been in financial duress since she had to take a second job

to cover her expenses following the separation. In his final judgment, the chancellor

acknowledged that there was no evidence presented by either party as to why Rosie waited

to leave Michael. Nonetheless, the chancellor concluded that each of these factors played

a role in his finding that Rosie had not condoned Michael’s conduct.

¶21. The chancellor found that the evidence, Michael’s conduct, and the impact it had on

Rosie established a divorce on the ground of habitual cruel and inhuman treatment. Although

Michael denied the allegations, and several witnesses testified on his behalf, the chancellor

found Rosie’s testimony to be credible. The supreme court has held that “[i]t is the role of

the chancellor to ascertain whether witnesses and evidence are credible and the weight to

give each.” Robinson v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (citing Chamblee

v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). For these reasons, we find Michael’s

overall conduct sufficient to support a divorce based on habitual cruelty.

II. Admission of Evidence

¶22. Mississippi Rules of Evidence 801(c) provides that “‘[h]earsay’ is a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Unless the statement falls within an exception

provided by law, hearsay is not admissible. M.R.E. 802. “The admission of testimonial
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evidence is within the sound discretion of the trial court, which will be found in error only

if the ruling was an abuse of discretion.” Bailey v. State, 956 So. 2d 1016, 1025 (¶26) (Miss.

Ct. App. 2007) (citing Lynch v. State, 877 So. 2d 1254, 1281 (¶86) (Miss. 2004)). “Any error

in the admission or exclusion of evidence is not grounds for reversal unless the error

adversely affected a substantial right of a party.” Id. 

¶23. Michael asserts that the chancery court erred when it admitted and relied on a myriad

of inadmissible evidence in finding grounds for divorce in favor of Rosie. Specifically,

Michael directs this Court’s attention to the following: Rosie’s testimony of out-of-court

statements made by John to Rosie in a phone conversation; Flowers’s testimony of out-ofcourt statements made by John; and James’s testimony regarding the molestation that

occurred when he was ten years old.

¶24. During trial, Rosie was questioned as to whether or not she learned more information

that involved allegations about Michael and when she learned this information.

Subsequently, the following dialogue ensued:

A. February 9, 2008, that’s when I came home from work one Saturday

evening around 7:15. When I stepped in the door of my house, the

telephone was ringing. Michael was sitting there on the edge of the

couch. With me knowing Michael as a phonoholic, he was not

answering the phone. Our phone — the first phone is in the kitchen on

the wall. I didn’t even get a chance to put my purse down. I went and

answered that phone. When I answered that phone, this person told me

—

MR. BENNIE L. JONES, JR: I object to hearsay, Your Honor.

CHANCELLOR TALMADGE D. LITTLEJOHN: Sustained

unless it was Michael or unless it was done in his presence.

Was Michael there hearing the phone conversation?
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Q. Could Michael hear the conversation, Rosie?

A. I don’t know whether he heard it. He was sitting there in the den and

I was wondering why he wasn’t answering the phone and I’m just

walking in the door.

CHANCELLOR TALMADGE D. LITTLEJOHN: Overruled.

Q. All right. Rosie, don’t tell us what the person said on the phone, but

you learned some more information on the phone about some activities

that Michael was involved in; is that correct?

A. Yes, I did.

CHANCELLOR TALMADGE D. LITTLEJOHN: I asked if he

overheard the conversation. It’s not hearsay. That’s why I

asked her and she said he was there. 

MS. LUANNE S. THOMPSON: I’m Sorry. I misunderstood,

Your Honor.

Q. So, Rosie, who was on the phone?

MR. BENNIE L. JONES, JR.: Your Honor, if I may?

THE WITNESS: You want me to tell who was on the phone?

CHANCELLOR TALMADGE D. LITTLEJOHN: Just a

minute. Yes sir.

MR. BENNIE L. JONES, JR.: She said she learned something,

and that was my objection to hearsay.

CHANCELLOR TALMADGE D. LITTLEJOHN: I understand

that part. But I’m saying if he was there and heard the

conversation, that’s not hearsay if your client was there.

MR. BENNIE L. JONES, JR.: Yes, sir.

CHANCELLOR TALMADGE D. LITTLEJOHN: She hasn’t

developed that yet.

MR. BENNIE L. JONES, JR.: But she said she didn’t know
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whether he heard her or not.

THE WITNESS: He was sitting on the edge of the couch in the

den. He knew who it was calling. That’s why he didn’t answer

the phone.

CHANCELLOR TALMADGE D. LITTLEJOHN: That’s what

she said.

THE WITNESS: And the person —

CHANCELLOR TALMADGE D. LITTLEJOHN: Just a

minute, ma’am. Just a minute, please. The objection is

overruled on that basis. Go ahead.

After a review of this testimony and the record, it is not clear whether Michael was actually

privy to the phone conversation that Rosie had with John. While it may be true that he was

in the room, Rosie was not certain that Michael heard any of the actual conversation.

Michael’s presence in the room alone does not negate the fact that, at trial, John’s statements

made to Rosie over the telephone were hearsay. We cannot say that these hearsay statements

fall within any exception provided by law. Therefore, the chancellor erred in overruling

Michael’s objection. Nonetheless, the error was harmless, and as stated previously, there was

sufficient evidence to support a divorce on the ground of habitual cruel and inhuman

treatment without Rosie’s testimony regarding John’s out-of-court statements.

¶25. With regard to Flowers’s testimony, Michael’s attorney objected when she began to

testify as to the out-of-court statements allegedly made to her by John. The chancery court

then allowed the testimony as a proffer. Following the proffer, the chancery court overruled

the motion and allowed Flowers’s testimony to become a part of the record. However, in the

final judgment, the chancellor revisited the issue and reversed the ruling made at trial,
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thereby sustaining the objection to Flowers’s statements as they pertained to the out-of-court

statements allegedly made by John, and striking that testimony from the record. The

chancellor declined to consider this particular line of testimony in the final judgment.

Therefore, this assignment of error is moot.

¶26. Michael also asserts that James’s testimony regarding an event that occurred twentysix years earlier should have been excluded because it was irrelevant, held no probative

value, and was stale evidence. Therefore, he argues that the chancery court erred in denying

his motion in limine. We find no merit to this assignment of error. 

¶27. “The standard of review regarding Rule 403 determinations is . . . abuse of

discretion.” Fitch v. Valentine, 959 So. 2d 1012, 1022 (¶23) (Miss. 2007). Although the

testimony regarded an event that occurred twenty-six years earlier, it was relevant to the

information Rosie learned in 2008 about Michael. Further, it concerned Michael’s conduct

during their marriage. In overruling Michael’s motion in limine, the chancellor concluded

that “[whether] the testimony of William Shaw is credible should be the issue rather than

whether his testimony should be excluded.” We find that the chancery court did not abuse

its discretion in denying Michael’s motion in limine. As such, this issue is without merit.

III. Equitable Division and Alimony Award

¶28. In divorce cases, our review of a chancellor’s division and distribution of property is

limited. Jenkins v. Jenkins, 67 So. 3d 5, 8 (¶8) (Miss. Ct. App. 2011) (citations omitted). “A

chancellor's division and distribution will be upheld if it is supported by substantial credible

evidence. However, this Court will not hesitate to reverse if it finds the chancellor's decision

is manifestly wrong, or that the court applied an erroneous legal standard.” Jenkins, 67 So.
13

3d at 8-9 (¶8) (citations omitted). 

¶29. The supreme court decision in Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994),

provides the framework for property division and distribution. Dickerson v. Dickerson, 34

So. 3d 637, 643 (¶23) (Miss. Ct. App. 2010). “Chancellors are directed to (1) classify the

parties’ assets as marital or separate; (2) determine the value of those assets; (3) divide the

marital estate equitably based upon the factors set forth in Ferguson; and (4) consider the

appropriateness of alimony if either party is left with a deficiency.” Id. (citations omitted).

The Ferguson factors include: 

(1) Substantial contribution to the accumulation of the property;

(2) The degree to which each spouse has expended, withdrawn, or otherwise

disposed of marital assets and any prior distribution of such assets by

agreement, decree, or otherwise;

(3) The market value and the emotional value of the assets subject to distribution;

(4) The value of assets not ordinarily, absent equitable factors to the contrary,

subject to such distribution, such as property brought to the marriage by the

parties and property acquired by inheritance or inter vivos gift by or to an

individual spouse;

(5) Tax and other economic consequences, and contractual or legal

consequences to third parties, of the proposed distribution;

(6) The extent to which property division may, with equity to both parties, be

utilized to eliminate periodic payments and other potential sources of future

friction between the parties;

(7) The needs of the parties for financial security with due regard to the

combination of assets, income, and earning capacity; and,

(8) Any other factor which in equity should be considered.

Picard v. Picard, 85 So. 3d 340, 343 (¶10) (Miss. Ct. App. 2012). Further, “[c]hancellors
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should also consider each party’s marital fault.” Bond v. Bond, 69 So. 3d 771, 773 (¶5)

(Miss. Ct. App. 2011) (citation omitted).

¶30. Applying the Ferguson factors, the chancellor divided the marital assets and liabilities,

respectively, as follows:

Michael

Michael’s PERS retirement account, with stipulated balance of $118, 350.64

John Hancock life insurance policy with cash value of $500.00

Michael’s savings account, with balance of $460.00

Two (2) sofas from the den in the marital home, furniture in Alma’s and

Enos’s bedrooms in the marital home, calculated at one-half of the total for

furnishings ($1,500.00/2=$750.00), $750.00

2006 Ford F-150 pickup truck

1998 Chevy 1500 pickup truck

1997 Mercury Marquis

1992 Cadillac Seville, valued at $250.00

1990 Volvo

Two (2) horses and assorted equine equipment, including horse trailers and

tack

All of Michael’s personal property already in his possession

Total: $120,310.64

Rosie

Marital residence and the three (3) acres it sits on, with equity of $27,897.00

Additional three (3) acres of land that are adjacent to the marital home and

property, with equity of $2,000.00

Rosie’s checking ($206.00) and savings ($500.00) accounts, with total balance

of $706.00

All remaining person property, including, but not limited to, one (1) computer

($300.00), two (2) televisions ($150.00), one (1) push-mower ($25.00), one (1)

riding mower ($100.00), and all remaining household furnishings, valued at

one-half of the total for furnishings ($1,500.00/2=$750.00), for total of

$1,325.00

Total: $31,928.00

. . . .

Michael

Capital One debt, balance of $950.00

Shell Oil debt, balance of $1,400.00
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Sears debt, balance of $1,100.00

Trustmark debt, balance of $1,500.00

Total: $4,950.00

Rosie

Mortgage debt on the marital home, balance of $50,103.00

Total: $50,103.00

Michael asserts that the chancellor erroneously counted the mortgage debt against Rosie’s

distribution twice – once by calculating the home’s equity, and again by reducing the equity

by the home’s debt. Michael contends, therefore, that Rosie’s distribution was undervalued

by $50,103, and the chancellor erroneously concluded that Rosie’s estate had a negative

value of $18,175. Michael argues that, by appropriately calculating the mortgage debt only

once, then Rosie’s estate would be $31,928. We disagree.

¶31. “In reviewing a chancellor's judgment, the appellate court does not conduct a

Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the

appropriate standards and did not abuse his discretion.” Id. “Equitable distribution does not

mean equal distribution.” Jenkins, 67 So. 3d at 11 (¶13) (citations omitted). Michael was

granted the majority of the marital assets, with Rosie receiving the majority of the marital

liabilities. In assigning the assets and liabilities concerning the marital home, the chancellor

stated, “Michael will no longer be financially responsible for payment of the mortgage, and

will be under no other obligation, financial or otherwise, with regard to the marital home,

after entry of this Final Judgment.” It is clear that the chancery court’s intent was for

Michael to no longer have involvement in the marital home. Therefore, we find that the

chancellor’s findings are supported by credible evidence and are not manifestly wrong.

¶32. Following the equitable division of marital property, “if one party is left with a deficit,
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alimony based on the value of non-marital assets should be considered.” Barnett v. Barnett,

908 So. 2d 833, 843 (¶24) (Miss. Ct. App. 2005) (citations omitted). The amount of alimony,

if awarded, should be reasonable and comparable to the “wife’s accustomed standard of

living, minus her own resources, and considering the ability of the husband to pay.” Id.

(citing Gray v. Gray, 562 So. 2d 79, 83 (Miss. 1990)). “As long as the chancellor follows

this general standard, the amount of the award is largely within his discretion.” Id.

¶33. Next, Michael argues that a correct calculation of the assets to each party would not

justify any award of lump-sum alimony to Rosie. As stated previously, we find that the

chancellor did not err in his calculation of the marital property. Following the equitable

division, the chancery court found that Rosie would be left with a deficit. The chancellor

then provided detailed findings pursuant to an analysis of the factors set forth in Cheatham

v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988). Therefore, we cannot find that the

chancellor erred in awarding Rosie lump-sum alimony. The judgment of the chancery court

is affirmed.

¶34. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS

AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE

APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, CARLTON AND

MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT

SEPARATE WRITTEN OPINION. BARNES AND FAIR, JJ., CONCUR IN PART

AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.