IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00633-COA W.S. STUCKEY JR., SPECIAL CONSERVATOR OF THE PERSON OF LILA B. WAID APPELLANT

v. HERMAN A. WAID APPELLEE DATE OF JUDGMENT: 03/28/2014 TRIAL JUDGE: HON. JANE R. W EATHERSBY COURT FROM W HICH APPEALED: HUMPHREYS COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: W

. S. STUCKEY JR. ATTORNEY FOR APPELLEE: KINNEY M. SW AIN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: DENIED APPELLANT’S COMPLAINT FOR DIVORCE DISPOSITION: AFFIRMED: 06/28/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. FAIR, J., FOR THE COURT: ¶1. Lila W aid appeals the H um phrey s County Chancery Court’s denial o f her com plaint f or divorce. Specif

ically , she argues that the c ourt should have granted her a divorce on the ground of adultery

. Finding that the chancellor acted within her d iscretion in deny i ng Lila’s

com plaint, we af

f irm

. FACTS ¶2. Lila m arried Herm an W aid in Decem ber 2 002. This was Herm a n’s second m arriage and Lila’s third. B oth had children with their f irst spouses. At the tim e of trial, Lila andHerm a n lived together in the m a rital hom e but occupied separate bedroom s.

¶3. On Ap r i l 2 , 2 0 0 9 , t h e H u m phrey County Chancery Court determ ined Lila to be incom petent. The court appointed Patricia Abraham , L ila’s daughter f rom her f irst m arriage, and Herm an a s co-conservators of Lila’s p erson. A l o cal certif ied public accountant was appointed as conservator of Lila’s estate. ¶4. In 2 012, Patricia suspected that Herm an was having an af f air. So, as a

co-conservator, she f iled a com

p laint f or divorce against Herm a n on the g round o f adultery . Herm an f

iled

a m otion to dism i ss. The chancellor appointed W

. S. Stuckey Jr. as a special conservator, since b oth Patricia (as heir of her m other) and Herm an had a conf l ict of in t e r e s t

. Stuckey was ordered to evaluate Patricia’s claim s and f i le f or divorce if

necessary . ¶5. Af ter investigation, S tuckey f iled an am e nded com

plaint f or divorce on the grounds of adultery , habitual cruel and inhum an treatm ent, a nd, in the altern a t i v e , i rreconcilable dif f erences. The com

plaint also requested the court t o rem ove Herm an as co-conservator of Lila’s person and to require Herm an to pay f or dam ages to the m arital hom e. ¶6. The chancellor b if

urcated the trial and tried g rounds f i rst. L ila did not appear in court, due t o her “end stage” Alzheim e r’s disease. Herm an, eighty -f our at the tim e of trial, has had Parkinson’s disease since t hey m arried. He testif ied that his a n d Lila’s relationship declined in 2008, when Lila started having seizures. I n 2 0 09, they stopped sharing a bedroom

. H e r ma n also testif

ied t hat he becam e im

potent in 2009, but that he and L ila contin u e d a “sexual relationship” until around 2011. Because of her f ailing h ealth, Lila had c aregivers

2twenty

- f

our hours a day , seven day s a week. ¶7. In 2012, Herm an rekindled a relationshi p w i t h J

. K

. , 1 e i g h t y - t w o and widowed. Herm a n had known her f o r o ver f orty y ears. He stat e d t h a t t h e y never had a rom antic relationship. J.K. knew Herm an was m arried. Herm an of ten invited J.K. and another couple (the Harringt o n s ) over to play cards. Af ter Mr. Harrington died, Herm an and J.K. started seeing m ore of e ach other. H erm an would go o ver to J.K.’s house f o ur or f ive tim es a week. He was either t aken by his caregiver, or picked up by J.K. W hen J.K. v isited Herm an, they of ten spent tim e in his bedroom

. ¶8. Herm an testif

i ed t hat he a nd J.K. slept in the sam e bed o n o ccasion, but they never had sexual intercourse. J .K. sim ilarly testif ied that they n ever had intercourse, although she wished their relationship was m ore than f riendship. ¶9. Lila’s caregivers testif i ed about Herm a n ’s relationship with b oth L ila and J.K. Once Herm a n bef

riended J.K., he and Lila grew f urther apart. The caregivers also provided
ey ewitness testim ony as to what happened during Herm an and J.K.’s tim e t o g e ther. None testif i ed to witnessing sexual intercourse between Herm an and J.K. ¶10. Patricia testif

ied that she once saw J.K. in Herm an’s room , sitting on the side of his bed. Herm an w as ly ing d own. According to Patricia, J.K. had her hand o n H erm an’s leg. They were both f

u lly clothed. ¶11. D r. Mack G orton, Herm an’s doctor, did not a ppear in c o urt, but the parties stipulated

1 J.K .’s n am e h as b e en ab b rev iated to en su r e co n f id en tiality

. 3that his deposition be a dm itted into evidence. Dr. Gorto n h a d been treating Herm an since

1978 f or iss u e s r anging f

rom respiratory inf

ections to hip injuries. In March 2013, during

a r outine checkup, Herm a n t old Dr. Gorton that he had e rectile d y sf unction. Herm an never asked Dr. Gorton f

or a ny m edication to treat t he problem

. No other evidence was presented to show that Herm an had been treated by another doctor f

or his im potency

. ¶12. A t t h e c l ose of trial, the chancellor f iled a t welve-page judgm ent deny i n g L i l a ’ s request f or divorce. Lila appealed.

STANDARD OF REVIEW ¶13. “ T h i s C ourt' s standard of review in dom estic[ -]relations m atters is extrem ely lim ite d

. ” Phillips v. Phillips , 45 So. 3d 684, 692 (¶23) ( Miss. Ct. App. 2 010). W e “will not disturb the chancellor' s opinion when sup p o r t e d by substantial evidence unless the chancellor abused [ her] discretion, was ma n if e stly wrong [ o r] clearly erroneous, o r [ applied] an erroneous legal[ .]” Samples v
. D avis , 904 So. 2d 1061, 1 064 (¶9) (Miss. 2004). W e review questions of law de novo. G eorge v. George , 22 So. 3d 424, 427 (¶4) (Miss. Ct. App. 2009). DISCUSSION ¶14. Our suprem e court has explained that, to com m i t a dultery , a m arried person m ust have sexual i ntercourse with a person other t h a n h i s o r h e r spouse. Owen v. Gerity , 422 So. 2d 284, 287 ( Miss. 1982). Adultery m ay be p roven b y either direct evidence or, because of its “secretive n a t u r e , ” circum stantial evidence. Dillon v. Dillon , 498 S o. 2d 328, 330 (Miss. 1986). T o prove a dultery by circum s tantial evidence, the plaintif f m u st provide clear and
4convincing evidence supporti n g a f inding of : (1) an adulterous inclination, and (2) a reasonable opportunity t o satisf y that i nclination. Atkinson v. Atkinson , 11 So. 3d 172, 177 (¶20) (Miss. Ct. App. 2 009) (citati o n o mi t t ed). Establishing adultery r equires “showing either a n inf

atuation w ith a particular person or a general adulterous propensity

. ” Reynolds

v. Reynolds , 755 S o . 2 d 4 6 7 , 469 (¶7) (Miss. Ct. App. 1999) (citing H olden v. Frasher-Ho l d

e n , 680 So. 2d 7 95, 798 ( Miss. 1996)). “ W here adultery is alleged, the chancellor is required to set f orth specif

i c f indings of f

act and conclusions o f l a w i n this regard.” Id

. ¶15. Here, the chancellor m a de the f ollowing f

indings of

f act: According to D r. Gorton’s deposition, w h ile t reating Herm an f or another f

all, upon questioning by [ D r.] Gorton in 2013, as t o whether he could a chieve an ere ction, Herm an replied that he could not

. . . . [ T ]his is part of h is m edical history

. Based upon the uncontradicted testim ony and m edical evidence, Herm an is im p otent, having becom e so around 2009. Herm an den i e s h a v i ng sexual intercourse with J.K. or any one other than Lila since his m a rri a g e t o L i l a. . .

. J.K. suf f ers f rom short

- t e r m me m o r y l oss . . . . [ She] denied having sexual intercourse with Herm an[ ; ] she also denied o ral sex and tou c h i n g h im in a sexual m anner . . . . [ S]he was asked repeatedly about having s exual relations with Herm a n and did not rem em ber ever d oing so. Upon being p ressed, s he a d mi t t e d t hat it is possible she had sex a nd d idn’t rem em ber, but s he didn’ t think she had . . . . [ O]ne of the sitters testif

ied[ ] t hat

. . . [ s ] h e h a [ d ] seen J .K. at the h ouse but d e s c r i b e d her visit[ s] as just com ing and going

. . . . [ She] did no t s e e [ Herm an’s] door closed . . . . [ One s i t t e r ] related an incident of Herm an and J.K. being in Herm an’s room 5when she knocked on h is d oor in an ef f o rt t o close up t he house f o r the night

. . . . [ W h en] she k

nocked on the door[ ,]

. . . Herm a n opened the door and J.K. jum ped of f the bed w ith h er blouse open. W hen Herm an answered the d oor[ ,] he was wearing short pants with his f ront part exposed. [ Another sitter] never saw any af f ection between Herm an and J.K. The chancellor a lso f

o und Patricia’s testim ony about Herm an and J.K.’s activity in his bed “highly sus p e c t , ” s i n c e Herm an’s h ospital bed was only thirty -six to t hirty -seven inches wide. The chancellor f

urther stated, “There is no direct proof of sexual intercourse between Herm a n and J .K.” Based on the circum stanti a l e v i d e n c e p resented, the court f ound Lila f a i l ed t o show Herm an had a ny “adulterous inclination” t owards J.K. She s t at e d t h a t Herm a n and J.K. “are two lonely people of advanced age w ho enjoy e a ch other’s com pany .” The court f

urther f ound that Lila had f

ailed to prove by

clear and convincing evidence that Herm a n could engage in sexual intercourse. ¶16. W e f

ind there was substantial evidence to s upport the chancellor’s f inding. Herm an and J .K. both testif

ied that their relations h i p w as not r om a ntic. They adm itted to stay ing together overnight, but there w as no evidence o f a sexual relationship

. See Atkinson , 11 So. 3d at 1 76-77 (¶19) (f

inding that cohabitation does n ot prove adultery by clear and convincing evidence). None of the conduct described in the ey ewitness testim ony m eets the d ef inition of adultery

. See Owen , 4 2 2 S o . 2 d a t 287. Further, t he chancellor was presented with uncontradicted evidence of Herm an’s im

potence, which would m ake it im possible f or him to satisf y any inclination. ¶17. A s the j udge of credibility , the chancellor is entitled to c hoose between reaso n a b l e 6interpretations o f the evidence and the inf erences that ma y b e drawn theref rom . Bowen v. Bowen , 982 So. 2d 385, 395 ( ¶42) (Miss. 2008). The evidence of record is f acially suf

f icient

t o s u p port a f

inding of adultery , as stated in the dissent. But the evidence is, like w i s e , f acially suf

f icient to support a f

inding that adultery did not take place. The trier of f act is not this court bu t t h e c hancellor, who heard the testim ony of t he witnesses, determ ined their credibility , weighed t hat a nd o t h e r e vidence, and m ade a decision within her discretion. Af ter viewing the r ecord, we are theref ore satisf i ed t hat the chancellor did not abuse that discretion, was n ot m a nif

e stly wrong, was not clearly e rroneous, and applied the proper legal standard in m aking her decision. W e thus af f irm

. ¶18. T H E J U D G M E N T O F T H E C H A N C E R Y C O U R T O F H U M P H R E Y S COUNTY I S AFFIRMED . A L L COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND GRIFFIS, P .JJ., BARNES, ISHEE, WILSON AND GREENLEE, JJ., C O N C UR. CARLTON, J ., DISSENTS WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING. CARLTON, J., DISSENTING: ¶19. Our precedent establishes that, to prove ad u l t e r y , i t i s suf f icient f o r the plaintif

f to show by clear a nd convincing evidence that an adulterous inclination or an inf atuation with

a particular person exists, as well as the o pportunity to satisf y that inclination o r i nf

atuation. See Hassett v. Hassett , 690 So. 2d 1140, 1147 (Miss. 1 997); McAdory v. McAdory , 608 So. 2d 695, 700 (Miss. 1992); Gillespie v. Gillespie , 106 So. 3d 8 69, 873 (¶19) (Miss. Ct. App. 2013); see a lso Brooks v
. Brooks , 652 So. 2d 1113, 1118-1 9 ( M i s s . 1 995) (rejecting the

7husband’s cla i m o f i mpotency where the evidence suf f iciently e s tablished the husband’s inclination or inf

a tuation with another wom an and the circum stantial evidence suf f iciently established a sexual relationship). ¶20. Based o n a review of the f acts in this case an d r e l e v a n t M i s s i s s ippi precedent, I respectf ully dissent f rom the m ajority ’s opinion.

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