Michael T. Gerty v. Joesie R. Gerty

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2017-CP-00828-SCT

MICHAEL T. GERTY AND STATE OF
MISSISSIPPI EX REL. JIM HOOD, ATTORNEY
GENERAL

v.

JOESIE R. GERTY

DATE OF JUDGMENT: 06/08/2017
TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL
TRIAL COURT ATTORNEYS: JUSTIN L. MATHENY
ANNA WARD SUKMANN
M. CHANNING POWELL
THOMAS WRIGHT TEEL
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: MICHAEL T. GERTY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JUSTIN L. MATHENY
ATTORNEY FOR APPELLEE: M. CHANNING POWELL
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 12/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1. In September 2013, the Gertys filed a joint complaint for an irreconcilable-differences

divorce. The joint complaint languished in the Harrison County Chancery Court for almost

two years, during which the parties cooperated with each other and faithfully abided by the

Property Settlement Agreement (“PSA”), which had been filed contemporaneously with the

joint complaint. The PSA provided that Michael would have physical custody of the couple’s
minor child. Joesie had full knowledge that Michael 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 Michael. Joesie made the decision not to move to the Great Lakes area with their

son and Michael. By her own admission, her decision was due to Michael’s lack of intimacy

and her desire to live as a single woman.1 It was Joesie’s idea that their son and Michael

move in with a military family in the Great Lakes area that Joesie knew from the Mississippi

coast.

¶2. During this same time, without his knowing her connection, Joesie had Michael assist

her in moving her belongings into the house of her paramour’s mother, Robin Caldwell

Fitzgerald.2 For nearly two years, Michael and their son lived apart from Joesie. She chose

to spend Thanksgiving of 2013 and 2014 and Christmas of 2012 and 2013 with Kyle and his

family, unknown to Michael. The sexual nature of her affair with Kyle ended in January 2014

or May 2014, depending upon what testimony from Joesie is to be accepted. She further

admitted that she continued to engage socially with Kyle until December 2014, unknown to

Michael.

¶3. In January of 2015, Michael informed Joesie that reconciliation was impossible and

that he wanted her to sign and finalize the divorce papers. Joesie, upon the advice of her

1
Testimony revealed that at the time of trial Joesie was thirty-seven, Michael was
forty-two, and Kyle Rebstock, with whom Joesie admitted having an affair, was twenty-
eight.
2
Kyle was a student at the University of Southern Mississippi in Hattiesburg,
Mississippi.

2
attorney,3 surreptitiously told Michael that she also was ready to complete the irreconcilable-

differences divorce. Based on the advice of her counsel, Joesie waited until her summer

visitation had begun pursuant to the PSA and until her son was physically in Mississippi

before withdrawing her consent to an irreconcilable-differences divorce. Joesie and Michael

then filed separate complaints for divorce on the ground of adultery, inter alia, and

alternatively sought an irreconcilable-differences divorce.

¶4. After a temporary hearing on July 13, 2015, the chancellor granted physical custody

to Joesie. The trial began in December 20154 and concluded May 2016. Six months later, in

November 2016, 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 Joesie

had failed to establish adultery. She found that Michael had proved adultery because Joesie

had admitted it, but that Michael had condoned Joesie’s adulterous conduct. Then the

chancellor sua sponte declared the statutory scheme under Mississippi Code Section 93-5-2

(Rev. 2013) unconstitutional and granted an irreconcilable-differences divorce. Joesie was

granted custody of their child.

¶5. Today’s case, as described by the State, is unique but not unprecedented—Michael,

Joesie, and the State agree that the chancellor erred in declaring Section 93-5-2

3
M. Channing Powell.
4
The chancellor did not reference any testimony adduced during the two days
devoted to trial in December 2015 in the procedural-history section of either the final or the
amended final judgment of divorce.

3
unconstitutional.5 After the chancellor’s November 15, 2016, final judgment was entered,

Michael and Joesie, along with the State of Mississippi, asked the chancellor to reconsider

her judgment,6 because no party had asked for, pleaded, argued, or offered proof on the

unconstitutionality of the statute. The chancellor gave the parties and the State an opportunity

to brief the constitutionality of Section 93-5-2. In the arguments for reconsideration, all

parties conceded that the chancellor had erred in granting an irreconcilable-differences

divorce. No other hearings were conducted. Yet the chancellor significantly amended her

earlier final judgment,7 increasing Joesie’s award to include a percent of Michael’s military-

retirement benefit and reducing the noncustodial parent’s summer visitation from three

months, as provided in the PSA, to one month, contrary to the PSA and the chancellor’s

original final judgment.

¶6. The State appealed the chancellor’s sua sponte adjudication of Section 93-5-2 as

unconstitutional. Michael also appealed, arguing that the trial court erred by (1) declaring

5
An amicus brief was filed by the Mississippi Coalition Against Domestic Violence
in support of the chancellor’s finding. The amicus called for affirming the chancellor,
because the statute deprived domestic-abuse victims of constitutional rights. However, no
domestic violence was pleaded or proved in this matter.
6
Michael filed his Motion for Reconsideration of Court’s Judgment Under M.R.C.P.
59 and 60 on November 22, 2016. Joesie filed her Motion to Reconsider Final Judgment of
Divorce on November 23, 2016. The State filed its Motion to Alter or Amend, or for other
relief from the “Final Judgment of Divorce and Notice of Unconstitutionality of Section 93-
5-2 of Mississippi Code of 1972, as Amended,” on December 6, 2016.
7
In the amended judgment, the chancellor acknowledged “procedural irregularities,”
but she opined that such errors had been harmless.

4
Section 93-5-2 unconstitutional, (2) failing to award Michael a divorce on the ground of

adultery, (3) reducing Michael’s summer visitation, (4) awarding Joesie a portion of

Michael’s retirement benefits, and (5) awarding custody to Joesie. We affirm the chancellor’s

finding regarding custody and child support, but we reverse the remaining judgment and

remand the case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶7. On September 18, 2013, Joesie8 and Michael Gerty filed a Joint Complaint for

Divorce (Irreconcilable Differences), which Joesie admited was precipitated by her self-

described summer 2013 “fling” with Kyle and her desire to be a single woman. After

numerous revisions, concessions and negotiations, Joesie and Michael executed and filed as

an exhibit to their complaint for divorce a Separation and Child Custody and Property

Settlement Agreement, which provided that their minor son9 would live with Michael during

the school year and with Joesie during the summer. The following clause was included in the

PSA:

It is agreed and understood that this Agreement is not contingent upon a
divorce [sic] being granted. However, if the parties are granted a divorce on
any grounds, the parties agree that this Agreement shall be made a part of the
Judgment and that such Judgment shall not conflict with the terms of the
Agreement [sic] except to the extent disapproved by the Court [sic] the [sic]

8
Joesie and Michael married on May 7, 2005. Prior to her marriage to Michael, Joesie
was married to Jerry Smith, who was granted a divorce on the ground of adultery and custody
of their two minor children in March 2005. In that prior proceeding, Joesie was represented
by her present counsel, Channing Powell.
9
The minor child was born on December 1, 2006.

5
 parties agree that each mutually submits to the personal jurisdiction of the
Chancery Court of Harrison County, State of Mississippi, so that said Court
has the power to decide any and all matters and questions concerning the
dissolution of the parties’ marriage . . . and the division of the parties’ property
and debts.

¶8. Neither party sought to finalize the divorce or to change the PSA for nearly two years.

At the same time, with Joesie’s participation and agreement, the minor child moved to

Wisconsin and later to Illinois pursuant to the PSA. Joesie visited sparingly, with Michael

paying all her travel expenses. The minor child also traveled with his mother at Michael’s

expense to reside with Joesie during the summers.

¶9. Joesie admitted to deceiving Michael in May 2015 by telling him that she would agree

to finalize the divorce papers. Two weeks later, Joesie picked up their then eight-and-one-

half-year-old son and brought him back to Mississippi, ostensibly for the agreed-upon

summer-visitation period. On June 10, 2015, Joesie withdrew her consent to the pending

irreconcilable-differences complaint. She alleged that the best interest of the minor child

required that she have physical custody. One week later, Joesie filed a separate complaint for

divorce, pleading adultery, habitual cruel and inhuman treatment, and desertion as grounds.

Alternatively, Joesie sought a divorce based on irreconcilable differences. To support her

claim for custody, Joesie falsely pleaded in the complaint that their son had resided with her

in Pass Christian since January 2014.10 Joesie also filed a motion for temporary relief,

10
During the trial, Joesie confessed that her statements regarding where their son had
lived at the time she filed her complaint were not true. Joesie testified that when she decided
to fight for custody, she was informed by her attorney that she should wait until her son was

6
requesting temporary custody, an increase in child support, exclusive use of the marital home

(which she already had under the PSA), exclusive rights to all of Michael’s accounts

(including his military retirement), and an increase in alimony until the final hearing on her

complaint for divorce.

¶10. Michael answered her complaint, asserting that both he and Joesie had been abiding

by the 2013 PSA for nearly two years and that the PSA should be given full force and effect.

Michael also pleaded that Joesie “mislead[] the court in a fraudulent manner” regarding the

residence of their son. Michael averred that he and his son had lived in the Great Lakes area

for six months since December 2014 and that, before that, they had lived in Wisconsin from

September 2013 through December 2014. Michael pleaded that he had been the primary

parent to their son and that he should be awarded custody and support.

¶11. Michael included in his answer a separate countercomplaint, alleging that the parties

had agreed to a divorce and had agreed that Michael would have custody of their son.

Michael asked the court to ratify the PSA, at least on a temporary basis, and to return the

child to the temporary custody of Michael.

¶12. Joesie responded to Michael’s countercomplaint for divorce by admitting adultery but

by affirmatively pleading condonation by Michael. Joesie asked the chancellor to dismiss

Michael’s countercomplaint.

physically living with her in Mississippi before she sought custody.

7
¶13. On July 13, 2015, after a temporary-custody hearing, the chancellor awarded

temporary custody of the child to Joesie and awarded child support. The chancellor also

ordered spousal support and exclusive use and possession of the marital home as provided

by the PSA.

¶14. A five-day trial began in December 2015 and was completed in May 2016.11 Six

witnesses testified and twenty-eight exhibits consisting of hundreds of pages of documents

were entered into evidence.

¶15. Joesie admitted that the factor precipitating the filing of the joint complaint and the

PSA was Michael’s August 2013 discovery of and Joesie’s admission to her 2013 summer

“fling” with Kyle. Joesie told Michael that her “fling” had ended. At the time Michael found

out about her “fling,” he had already received orders to be stationed in the Great Lakes area.

Michael testified that Joesie decided that “she would be much happier if she stayed [on the

Mississippi coast] and [if Michael and their son] moved up to the Great Lakes area without

her.” Michael further testified that he drafted the joint complaint, and both agreed on all

terms of the PSA.

¶16. The day before Michael and their son moved, Michael helped Joesie move from base

housing to the home of her paramour’s mother. In fact, Michael was not aware of

Fitzgerald’s relationship to Kyle until he began preparing for trial. Joesie admitted that she

11
In addition to hearing testimony at the temporary-custody hearing on July 13, 2015,
the chancellor heard live testimony on December 7 and 9, 2015, and May 2 through May 4,
2016.

8
never revealed to Michael that Fitzgerald was Kyle’s mother. Joesie accompanied Michael

and their son to the Great Lakes area to help them get settled. She was present for their son’s

first day of school. Joesie recommended that they move in with Amy Malatag12 and her then-

husband, Joe Dunka, so that Amy could help take care of their son.

¶17. Testimony and evidence presented by Joesie and her witnesses at both the temporary

hearing and the trial reveal that her affair with Kyle started before the summer of 2013 and

continued into 2014. She admits that she only disclosed to Michael her summer 2013 “fling.”

During the temporary hearing, Marion Haffner, Joesie’s best friend, testified that Kyle was

a friend of her boyfriend’s. Haffner testified that she and her boyfriend double dated with

Joesie and Kyle. Joesie admitted that after Michael and their son moved in September 2013,

Joesie, Kyle, Haffner, and Haffner’s boyfriend spent the night at Haffner’s boyfriend’s condo

in Gulf Shores, Alabama.13 Joesie also testified that she underwent a tubal ligation during

their separation after Michael moved to the Great Lakes area, because she was not

“intentionally planning on hav[ing] another kid.”14

12
Amy was a close friend of Joesie’s, a fellow Seabee wife, and belonged to the same
Filipino community when she previously had lived on the Mississippi coast. Amy and Joesie
communicated through Facebook in their Filipino dialect, and Amy provided a translation
of those communications to Michael prior to trial.
13
Haffner testified that this trip occurred after the summer of 2013, while the Gertys’
son was living with Michael.
14
Michael testified that he previously underwent a vasectomy.

9
¶18. The trial began in December 2015.15 Joesie called her best friend Haffner as a witness.

Haffner testified that she was aware that Joesie had dated other men besides Kyle. She also

testified that Joesie had been in a relationship with Kyle beginning in 2011 and continuing

through the time of her testimony. Haffner testified that she was aware that Joesie and Kyle

still socialized together. Haffner admitted that she was aware that Joesie exposed her own

daughter Joy (from her first marriage) to her adulterous relationship with Kyle. Haffner was

shown numerous pictures, some taken by her, depicting Joesie, Kyle, Joy, her, and others

together. The pictures of Joesie and Kyle showed them embracing or otherwise exhibiting

affection, one to the other. Haffner identified a picture of Joesie with a dog and testified that

Kyle had given her the dog as a gift. Haffner testified that to her knowledge Michael did not

know that Joesie continued to see Kyle after she confessed to a summer romance. Haffner

testified that she discouraged Joesie from having the affair with Kyle and encouraged her to

be honest with Michael.

¶19. Joesie testified that after she informed Michael about her summer 2013“fling,” she

continued to communicate through social media and text messaging and to see Kyle because

“[w]e stayed friends. They—his family loves me, so they invite me if there is a get-together

at their house.” She spent numerous holidays, including Thanksgiving in 2013 and 2014 and

Christmas in 2012 and 2013, with Kyle and his family away from Michael and their son.

15
Again, testimony adduced during the first two days of trial, December 7 and 9,
2015, including the testimony provided by Joesie’s best friend Haffner, was not referenced
in either of the chancellor’s final judgments.

10
Joesie was shown numerous screenshots from Facebook demonstrating that she had

continued to comment on pictures and other posts on Kyle’s page. Joesie testified that she

was still seeing Kyle, having a sexual relationship with him, texting him when she was

visiting Michael and their son, and commenting on Kyle’s Facebook posts while she was

attempting to reconcile with Michael.

¶20. When the trial resumed in May 2016, Joesie testified that, in addition to her beach

vacation, she also went to Bellingrath Gardens with Kyle and others. She testified that she

went out drinking and dancing with Kyle and other friends numerous times. All of these

outings occurred when their son was living with Michael. She admitted that she never

revealed to Michael that she was still seeing Kyle during the fall of 2013 into 2014 and that

she never sought his forgiveness for or condonation of her multiple acts of adultery.

¶21. Amy Malatag, who has known Joesie since 2009, was also called to testify during the

trial telephonically. She testified that she communicated with Joesie on Facebook in their

shared Filipino dialect prior to Michael’s moving to the Great Lakes area. Joesie had

confessed to Amy that she was dating someone in the military.16 When Joesie helped Michael

move in with Joe and Amy, Amy questioned Joesie about why she was not moving with

them.

16
Joesie never claimed that she confessed to Michael that she had had an affair with
a person in the military. Kyle was not in the military but rather was a student at the
University of Southern Mississippi in Hattiesburg.

11
 And she said that she wants to live single. And then she started that night, we
were in the garage, she was telling me about her boyfriend. I think that was
Kyle. And then she called him on the phone, and then I was there. She was
talking to him, and they were saying “I love you.”

Amy testified that she did not understand why Joesie would abandon her child for another

man.

¶22. Numerous exhibits were admitted showing that Joesie remained in regular contact

with Kyle. They continued to text each other, to communicate over Facebook, to attend the

same parties, and to take overnight trips together.

¶23. Michael testified that he attempted to reconcile with Joesie after she confessed that

she had a summer “fling” in 2013, and that she told him that it had ended. He believed that

Joesie also had wanted to reconcile until they took a family vacation to California in

December 2014. However, in January 2015, Michael learned that Joesie had not been honest

with him about the expansive nature of her relationship with Kyle. She admitted at trial that

she had continued to communicate with Kyle, even during the trip to California in December

2014. Realizing that Joesie had not been truthful or contrite, Michael determined that their

marriage could not be saved. He informed Joesie that reconciliation was not possible and

that she needed to sign and finalize the pending divorce complaint.

¶24. On November 15, 2016, the chancellor entered a judgment of divorce styled “Final

Judgment of Divorce and Notice of Unconstitutionality of Section 93-5-2 of the Mississippi

Code of 1972, as amended.” The chancellor concluded that neither party had proved a

statutory basis for divorce. The chancellor found that (1) Joesie had failed to establish that

12
Michael was absent for a period of one year without her consent and that he intended to

abandon the marriage; (2) neither party had proved habitual cruel and inhuman treatment as

required by law; (3) Joesie had failed to establish that Michael committed uncondoned

adultery; and finally, (4) Michael had condoned all of Joesie’s adultery. Given these

conclusions, the chancellor declined to grant either party a fault-based divorce.

¶25. Finding that neither party had proved grounds but that declaratory relief should be

granted, the chancellor sua sponte declared that “the present Mississippi statutory fault-based

divorce scheme . . . unconstitutionally restricts and, in some cases, denies [a host of]

fundamental rights and freedoms. . . .” The chancellor specifically held that irreconcilable

differences requiring mutual consent of couples to divorce was unconstitutional. No notice

was provided until after entry of the chancellor’s November 15, 2016, judgment. The

chancellor acknowledged that, although “the parties did not execute a formal consent for the

Court to adjudicate contested matters on this basis . . . , [t]he parties are constitutionally

entitled to a divorce without the mutual consent of the other.”

¶26. The chancellor also found that the PSA was binding on the parties and that it remained

in full force and effect, with the exception of the child-custody and child-support provisions

as modified by the chancellor. After conducting an Albright17 analysis, the chancellor found

that the best interests of the child supported his remaining in Joesie’s custody, with liberal

visitation granted to Michael. Michael was ordered to pay $764 per month in child support.

17
Albright v. Albright, 347 So. 2d 1003 (Miss. 1983).

13
¶27. Michael moved that the court reconsider its judgment, arguing that neither party had

pleaded that the irreconcilable-differences statute was unconstitutional and that the Attorney

General had not been timely noticed of the attack upon the constitutionality of the statute

prior to the chancellor’s ruling. In the alternative, Michael argued that (1) the entire PSA was

valid; (2) the chancellor used the wrong standard in granting custody to Joesie, since the PSA

was valid; and (3) Joesie did not prove condonation. Michael urged the chancellor to grant

full relief pursuant to the PSA and to grant the parties an irreconcilable-differences divorce

or to grant Michael a divorce on the ground of adultery.

¶28. Joesie also filed a motion to reconsider the final judgment, and her counsel argued at

the hearing that

I read what the Attorney General wrote and the cases cited there, and I agree
with the Attorney General in that issue, in that while some statutes may be
unconstitutional, nobody asked this Court to determine that that was
unconstitutional. So I would ask the Court to set aside that aspect of this
judgment. When it sets aside that aspect of this judgment, however, then what
we’re left with is the rest of the judgment cannot stand.

Joesie is now precluded from taking a different position than what she argued before the

chancellor. Joesie also argued that the chancellor erred in failing to award her benefits related

to Michael’s military retirement and erred in failing to consider that Michael was the sole

owner of the marital home. Joesie also moved the chancellor to reconsider the grant of an

irreconcilable-differences divorce because Joesie had litigated the divorce on other grounds.

¶29. After receiving post-judgment notice, the State of Mississippi moved to alter or amend

the chancellor’s judgment, acknowledging that all parties agreed with the State’s argument

14
that no constitutional challenge had been made by any party. First, the State argued that if the

chancellor could grant a divorce on other grounds, the chancellor should “avoid wading into

any constitutional issues associated with the ID divorce statute.” Second, the State argued

that the notice procedure of Rule 24 of the Mississippi Rules of Civil Procedure had not been

followed and that the chancellor had erroneously cited Rule 19 of the Mississippi Rules of

Civil Procedure, which allows additional parties to be added but does not permit the addition

of claims never pleaded by any party. Finally, the State argued that neither party had pleaded

or asserted that any portion of the statute was unconstitutional. It continued that a trial court

could not sua sponte adjudicate constitutional issues.

¶30. Three months later, on June 8, 2017, the chancellor denied Michael’s and the State’s

motions and granted Joesie’s motion in part. The chancellor found that the PSA was silent

about Michael’s military retirement. “The court finds the [PSA] is at least ambiguous with

regard to the division of Michael’s military retirement . . . but also to the division of Joesie’s

401k retirement plan.” The chancellor awarded Joesie 22 percent of Michael’s retirement

(which was half of the marital portion) and 100 percent of her own 401(k) retirement plan

valued at approximately $23,000. The chancellor did not make a specific award as to Joesie’s

retirement. Joesie also was awarded exclusive use of the marital home. In addition to every

other weekend and alternating holidays, Michael was granted only one month of visitation

each summer.

ISSUES

15
¶31. First and most importantly, the State and both parties aver that the trial court erred by

sua sponte raising the issue of the constitutionality of Section 93-5-2 and, further, by

declaring the statute unconstitutional, thus granting unrequested declaratory relief in the form

of an irreconcilable-differences divorce. We agree.

¶32. Michael additionally raises issues regarding Joesie’s condonation affirmative defense,

visitation, amendment of the PSA, and custody. We agree that the trial court erred in ruling

that Michael had condoned Joesie’s adultery, apart from the “fling” in the summer of 2013,

and in declining to grant Michael a divorce on the ground of adultery. Because a fault-based

divorce should have been granted to Michael and because fault is a factor to be considered

in alimony, we remand this matter for the chancellor to reconsider alimony, because Joesie’s

adultery precipitated this divorce. The chancellor is also instructed to revisit visitation and

the division of marital assets in light of this opinion.

STANDARD OF REVIEW

¶33. “We employ a limited standard of review in domestic relations cases.” In re

Dissolution of Marriage of Wood, 35 So. 3d 507, 512 (Miss. 2010). Generally, “[t]his Court

will not disturb the findings of a chancellor when supported by substantial evidence unless

the chancellor abused [his or her] discretion, was manifestly wrong, clearly erroneous or an

erroneous legal standard was applied.” Id. (quoting Duncan v. Duncan, 774 So. 2d 418, 419

(Miss. 2000)). However, “[w]hile a chancellor’s decisions in a divorce action are reviewed

for manifest error, a property settlement agreement is a contract, and contract interpretation

16
is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So. 3d

1111, 1118 (Miss. 2013) (citing Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008)). All

other questions of law also are reviewed de novo, and the reviewing court “will reverse if the

law has been applied or interpreted erroneously.” Martin v. Lowery, 912 So. 2d 461, 464

(Miss. 2005) (citing Miss. Transp. Comm’n v. Fires, 693 So. 2d 917, 920 (Miss. 1997)).

ANALYSIS

I. Constitutionality

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s

constitutionality will not be considered unless it has been specifically pleaded. See Martin,

912 So. 2d at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss.

2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss.

1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260

(1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437

So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of

the litigants. The Court is limited to the issues raised in the pleadings and proof contained

in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation

omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller

v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality

of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory

17
scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of

law requires that we reverse and vacate the chancellor’s judgment declaring the statute

unconstitutional and granting an irreconcilable-differences divorce.

II. Condonation

¶36. “In Mississippi one seeking a divorce on the grounds of adulterous activity must show

by clear and convincing evidence both an adulterous inclination and a reasonable opportunity

to satisfy that inclination.” Holden v. Frasher-Holden, 680 So. 2d 795, 798 (Miss. 1996)

(internal citations omitted). “Adultery may be shown by evidence or admissions[,] and either

[is] sufficient to support a decree of divorce. Id. at 799 (internal citations omitted).

Furthermore, in cases concerning an allegation of adultery, the chancellor is required to make

a finding of fact. Dillon v. Dillon, 498 So. 2d 328, 330 (Miss. 1986). “Where chancellors

make such findings of fact, this Court has consistently held that their decisions will not be

set aside on appeal unless they are manifestly wrong.” Id. (internal citations omitted). Both

parties charged the other with adultery. Their obligation of proof is well defined. However,

the chancellor failed to make any findings of fact regarding Joesie’s multiple adulterous acts,

nor did she make any findings of fact about whether Michael knew about or condoned any

adulterous acts outside the “fling.”

¶37. No factual dispute exists about whether Joesie had an extended affair with Kyle while

she still was married to Michael, but she admitted only a very limited time frame of her

overall adulterous conduct to Michael in August 2013 when he confronted her. Michael

18
testified that, once he confronted her, she produced approximately ten pictures depicting a

beach trip with Kyle and others. Joesie admitted during the trial that the affair with Kyle had

spanned portions of 2012, 2013, and 2014. Her witnesses testified that in addition to those

years, the affair occurred also during portions of 2011 and 2015.

¶38. Ample evidence in the record supports a finding that Joesie failed to disclose the

extent and time frame of her extramarital affairs with Kyle or with another person in the

military. Joesie admitted that she never informed Michael that she continued to have a sexual

relationship with Kyle through January 2014 or May 2014. She never admitted that she

engaged in an extramarital affair in 2012 while Michael was deployed to Guam. While Joesie

never admitted that the illicit affair with Kyle began before December 2012, she did testify

that it continued for nearly a year without Michael’s knowledge. No one produced evidence

that Michael’s knowledge exceeded what Joesie had told him about the 2013 summer “fling.”

There is no proof in the record that Michael condoned anything other than that summer

“fling.” Michael cannot condone extramarital conduct that he did not know about or that was

ongoing after Joesie’s admission. Joesie had both an “adulterous inclination and a reasonable

opportunity to satisfy that inclination,” both before and after her confession upon

confrontation in August 2013. See Holden, 680 So. 2d at 798.

¶39. Condonation, an affirmative defense, was pleaded by Joesie, thus she had the burden

of proving that Michael had condoned her infidelity. Joesie must establish, after Michael

condoned her multiple acts of adultery beyond her self-confessed “fling” in the summer of

19
2013, that she did not resume her previous, adulterous inclinations. Failure to mend her prior

conduct results in a revival of Michael’s ground for divorce, i.e., adultery. By her own

admission, Joesie continued her infidelity long after seeking Michael’s condonation of the

summer 2013 fling.

The defense of condonation is recognized in our law. Stribling v. Stribling,
215 So. 2d 869, 870 (Miss. 1968); Starr v. Starr, 206 Miss. 1, 39 So. 2d 520,
523 (1949). Condonation is the forgiveness of a marital wrong on the part of
the wronged party. Condonation may be expressed or implied. Thames v.
Thames, 233 Miss. 24, 29, 100 So. 2d 868, 870 (1958); Armstrong v.
Armstrong, 32 Miss. 279, 283 (1856) and Scott v. Scott, 219 Miss. 614, 629,
69 So. 2d 489, 494 (1954).

The mere resumption of residence does not constitute a condonation of past
martial sins and does not act as a bar to a divorce being granted. Compare
Miss. Code Ann. § 93-5-4 (1972). Condonation, even if a true condonation
exists, is conditioned on the offending spouse’s continued good behavior. If the
offending party does not mend his or her ways and resumes the prior course
of conduct, there is a revival of the grounds for divorce. Manning v.
Manning, 160 Miss. 318, 321, 133 So. 673, 674 (1931).

In practical effect, condonation places the offending spouse on a form of
temporary probation. Any subsequent conduct within a reasonable time after
resumption of cohabitation which evidences an intent not to perform the
conditions of the condonation in good faith, may be sufficient to avoid the
defense of condonation, even though the conduct so complained of in and of
itself may not be grounds for divorce. Armstrong v. Armstrong, 32 Miss. 279,
283 (1856). An entire course of conduct rule applies. A party’s conduct both
before and after the alleged condonation can be joined together to establish
the cause for divorce. Armstrong v. Armstrong, 32 Miss. 279, 283 (1856). Cf.
Bias v. Bias, 493 So. 2d 342, 343 (Miss. 1986).

Wood v. Wood, 495 So. 2d 503, 505 (Miss. 1986) (emphasis added).

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¶40. This Court has the advantage of reviewing this extensive record at one sitting, a

benefit unavailable to a trial court when evidence is presented piecemeal.18 Our detailed

review of the record (absent the distractions visited upon every trial court) reveals that Joesie

lied about the beginning, timing, and duration of the affair and attempted to obscure the

continuous adulterous relationship with Kyle after Michael had condoned a brief summer

“fling,” not a course of adulterous behavior spanning years. The chancellor found that

Joesie’s credibility was questionable about the extent of her relationship with Kyle. Joesie

failed to mend her ways by texting Kyle, communicating with Kyle over Facebook, attending

the same parties as Kyle, taking overnight trips with Kyle, spending holidays with Kyle and

his family, and having sexual relations with Kyle, all after Joesie informed Michael that she

had a summer “fling” and had ended it. Michael believed that both he and Joesie were

working toward reconciling their marriage. However, Joesie never rid herself of the

18
The Court held the following in Lowery v. Lowery:

We fully recognize that chancellors are overburdened, and that many cases are
tried “piecemeal.” Hearings can be, and often are, separated by weeks or even
months, as occurred in this proceeding. Chancellors are required to follow the
testimony of witnesses, review documents offered as exhibits, and attempt to
make contemporaneous notes. Trial judges are not afforded the advantage of
appellate courts to review the full record of a case without interruption.
Recognition of these impediments is partially responsible for the development
of our rules and caselaw requiring findings of fact and conclusions of law that
analyze certain factors.

Lowrey v. Lowrey, 25 So. 3d 274, 280 (Miss. 2009).

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adulterous inclinations, and she continued to place herself in situations which allowed her

a reasonable opportunity to satisfy her adulterous inclinations.

¶41. Joesie’s continued secretive, evasive, and deceptive relationship with Kyle, after she

informed Michael of her brief fling leading him to attempt to reconcile, “evidences an intent

not to perform the conditions of the condonation in good faith.” Id. These facts preclude

application of the affirmative defense of condonation and revive her previous adulterous

offenses, entitling Michael to a divorce on the ground of adultery.

¶42. We find that Joesie’s attempt to prove condonation was woefully inadequate, and such

a finding was not supported by substantial evidence in the record. A fault-based divorce on

the ground of adultery should have been granted to Michael. While we are reluctant to

disturb the findings of a chancellor, these findings were manifestly wrong, leading the

chancellor to apply an erroneous legal standard. We remand with instructions for the

chancellor to enter a judgment of divorce in favor of Michael on the ground of adultery.

III. Remaining Issues

¶43. The law is settled that a chancellor must consider fault when determining alimony.

Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Because we have ruled that

Michael is entitled to a divorce on the ground of adultery, this factor must be considered in

the chancellor’s subsequent findings. On remand, once a judgment of divorce has been

entered in favor of Michael and in light of the attribution of fault to Joesie, the chancellor is

instructed to revisit alimony.

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¶44. This Court also instructs the chancellor to revisit the issues of visitation and the

division of marital assets. We offer the following guidance about those issues.

A. Visitation

¶45. Michael and Joesie had previously detailed their desires about summer vacation. The

non-custodial parent would have custody starting seven days after school ended for the year

until seven days prior to the beginning of the next school year. The chancellor’s original

order did not disturb the agreed-upon schedule. This arrangement worked quite well for more

than two years according to Michael and Joesie. In the amended order, the chancellor reduced

Michael’s summer visitation to only one month without comment. The record is unclear why

the chancellor amended the visitation schedule, because neither party requested modification

in their motions for reconsideration.

¶46. “Our Court has held that the best interest of the child is the main concern in

determining visitation.” Rogers v. Morin, 791 So. 2d 815, 820 (Miss. 2001) (citing Dunn v.

Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)). The chancellor is granted “broad discretion”

in visitation determinations, and “[t]his Court will not reverse a chancellor’s findings of fact

so long as they are supported by substantial evidence in the record.” Wilburn v. Wilburn, 991

So. 2d 1185, 1194 (Miss. 2008) (internal citations omitted). Today’s record does not provide

us with the benefits of the chancellor’s reasoning about why Michael’s visitation was

substantially reduced absent a prayer for modification and evidence to support a

modification. The reason for the chancellor’s reduction of Michael’s visitation escapes us,

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because it is not “supported by substantial evidence in the record.” On remand, the chancellor

is to reconsider the visitation previously agreed upon by the parties and decreed by the

original order.

B. Amended PSA

¶47. The chancellor granted Joesie’s Motion for Reconsideration on the issue of Michael’s

military retirement but made no mention of Joesie’s retirement. The PSA agreed to by the

parties was silent about Michael’s military retirement, which the chancellor considered to be

a significant marital asset, and Joesie’s retirement. The chancellor found that the marital

portion of the future earnings was limited by the parties’ PSA to eight years and five months

(101 months) from the date of the marriage, May 7, 2005, through and including the date of

the PSA, September 18, 2013. Joesie was awarded 50.5 months (or 22 percent) of Michael’s

total military retirement benefit.

In reference to a spouse’s equitable right to a share of the other spouse’s
military retirement pay, this Court reiterated that a chancery court has
authority, where equity so demands, to order a fair division of property
accumulated through the joint contributions and efforts of the parties. Brown
v. Brown, 574 So. 2d 688, 690 (Miss. 1990). See also Brendel v. Brendel, 566
So. 2d 1269, 1273 (Miss. 1990); Jones v. Jones, 532 So. 2d 574, 580-81
(Miss. 1988); Regan v. Regan, 507 So. 2d 54, 56 (Miss. 1987); Watts v. Watts,
466 So. 2d 889, 891 (Miss. 1985); Clark v. Clark, 293 So. 2d 447, 459 (Miss.
1974).

Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994). Once a chancellor divides marital

assets, then the court looks to all awards, including alimony, to determine that the final award

is equitable and fair. Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Since we are

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remanding with instructions for the chancellor to revisit alimony, we instruct that the

chancellor consider what effect Michael’s retirement and Joesie’s retirement have on Joesie’s

portion of the marital assets.

CONCLUSION

¶48. We find that the chancery court erred in her declaration that Section 93-5-2 is

unconstitutional. We further find that the chancery court erred in applying the affirmative

defense of condonation to Joesie’s adultery, because it was not supported by the record. The

chancellor’s opinion is reversed in part, and this matter is remanded for proceedings

consistent with this opinion.

¶49. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.

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