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IN THE COURT OF APPEALS 12/03/96 OF THE STATE OF MISSISSIPPI
NO. 94-CA-00266 COA CHARLIE LAFAYETTE EPPERSON, JR. APPELLANT v. MARY SUZANNE CHATHAM EPPERSON APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. DENNIS M. BAKER COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: WINN DAVIS BROWN, JR. H. R. GARNER ATTORNEYS FOR APPELLEE: GRADY F. TOLLISON, JR. BARBARA M. TUTOR NATURE OF THE CASE: DOMESTIC RELATIONS AND CHILD CUSTODY TRIAL COURT DISPOSITION: DIVORCE GRANTED IN FAVOR OF SUZANNE EPPERSON; CUSTODY OF MINOR CHILD AND CHILD SUPPORT TO SUZANNE EPPERSON; ATTORNEYS' FEES TO SUZANNE EPPERSON. MANDATE ISSUED: 6/19/97

BEFORE BRIDGES, P.J., BARBER, AND MCMILLIN, JJ.

MCMILLIN, J., FOR THE COURT

This domestic relations case comes before the Court from the Chancery Court of Desoto County on the appeal of Charlie Lafayette Epperson, Jr. Mr. Epperson, dissatisfied with the relief granted by the chancellor in a contested divorce, urges this Court to consider a number of matters. In his brief, Mr. Epperson has alleged five issues; however, our review indicates that, in certain instances, separate issues have been combined into one. Because this makes consideration of the issue cumbersome and potentially confusing, we have, for purposes of our discussion, elected to recast the issues raised by Mr. Epperson as follows: (a) Whether the chancellor was so evidently biased and prejudiced against Mr. Epperson that the judgment must be set aside.

(b) Whether the chancellor erred in granting a divorce to Mary Suzanne Chatham Epperson on the ground of habitual cruel and inhuman treatment.

(c) Whether the chancellor should have, instead, granted a divorce to Mr. Epperson on the ground of habitual cruel and inhuman treatment.

(d) Whether the award of lump-sum alimony to Mrs. Epperson was so excessive as to constitute an abuse of discretion.

(e) Whether the chancellor committed an abuse of discretion in awarding $600.00 per month child support.

(f) Whether the chancellor was manifestly in error in awarding sole custody of the parties' minor child to Mrs. Epperson.

(g) Whether the chancellor erred in awarding attorney's fees to Mrs. Epperson in any amount; or alternatively, whether the amount awarded was excessive.

We conclude that there is no basis in the established law of this State to disturb the decision of the chancellor in this case, and we, therefore, affirm.

I. Facts

This proceeding resulted in the dissolution of a marriage of some seventeen months duration. During the course of the marriage, one child, Emily Chatham Epperson, was born to the parties. Mr. Epperson is a successful business executive who was earning a gross salary of approximately $96, 000.00 annually at the time of the divorce. Prior to the marriage, Mrs. Epperson had worked as a lighting consultant. She abandoned her career at the birth and infancy of the child until the parties separated, but the proof showed she had since returned to her career earning a gross income of approximately $23,280.00 per year. At the time of the divorce proceeding, Mr. Epperson was fiftytwo years of age, and Mrs. Epperson was thirty-five years of age. Mrs. Epperson had a teenage daughter from a previous marriage who lived with the parties during their brief marriage. Mr. Epperson, though previously married, had no other children. The record paints two versions of this short and apparently stormy marriage. According to Mr. Epperson's version, Mrs. Epperson entered the marriage with a preconceived plan to become pregnant and use the child as leverage to obtain unreasonable financial benefits from Mr. Epperson, including coercing him into abrogating an antenuptial agreement entered into by the parties prior to their marriage. He claims that she repeatedly and constantly threatened him with financial catastrophe and loss of all but minimal contact with his child if he did not accede to her demands. In addition, he claims she wilfully refused him the normal sexual relations associated with marriage as a weapon in pursuing her financial agenda. It was his position at trial that her constant efforts in this regard caused him such emotional distress that he required professional counseling. Mrs. Epperson's proof, on the other hand, portrayed Mr. Epperson as a manipulative individual obsessed with the control of family finances to the extent that, once she stopped working, she was totally dependent upon his whims for even the basic necessities. She claims that he once abandoned her, pregnant and alone, on a street in San Francisco after a dispute over a money matter. She alleged that Mr. Epperson began leaving the home for extended periods of time without telling her where he was going. She said that he began to make demands that she vacate the marital domicile and moved her older daughter's furniture out of her bedroom, physically shoving Mrs. Epperson when she confronted him about it. Mrs. Epperson also testified that he repeatedly, and without foundation, accused her of marital infidelity, including claiming she was involved in a homosexual relationship with an associate. According to her, Mr. Epperson constantly threatened her with divorce litigation, claiming that he, as a Mississippi resident, would be able to obtain results disastrous to her, and that, in any event, he had the financial resources to pursue such litigation far enough to ensure her financial ruin. Shortly before Mr. Epperson filed for divorce, she testified that, against her will, he took their small daughter from the marital domicile and kept her for three days during which time she did not know the child's whereabouts. Mrs. Epperson, at trial, asked for exclusive custody of the child of the marriage. Through the testimony of several experts, Mr. Epperson appeared at first to be advocating an award of joint legal custody with an essentially evenly-divided physical custody arrangement. In the latter stages of the trial, however, Mr. Epperson seemed to abandon to some degree this position and, instead, sought

paramount custody of the child for himself. II. Trial Court Decision

On this conflicting proof, the chancellor made detailed findings of fact, essentially accepting as true the bulk of Mrs. Epperson's proof and rejecting Mr. Epperson's contrary assertions. Based upon these findings, the chancellor awarded Mrs. Epperson primary custody of the child, granting Mr. Epperson what would appear to be the normal visitation rights customarily given to the noncustodial parent. He ordered Mr. Epperson to be responsible for one-half of all schooling expenses for the child, and to maintain then-existing levels of health insurance and life insurance for the child's benefit. In addition, he ordered Mr. Epperson to pay the sum of $600.00 per month in periodic child support. The chancellor also awarded Mrs. Epperson lump-sum alimony in the amount of $20,000.00; however, he mentioned in his opinion that this award was based in part on the finding that Mrs. Epperson would need this amount in order to provide a suitable residence for the child of the parties, thus bringing to some degree considerations of child support into the award. Mr. Epperson was offered an election to pay this sum in deferred installments with interest. Mrs. Epperson was awarded $30,935.19 to help defray the costs of her representation in the proceeding. III. Allegations of Bias and Prejudice on the Part of the Chancellor

Mr. Epperson claims that the chancellor who tried this case evidenced such bias or prejudice against him personally during the course of the trial that he was, in effect, denied a fair hearing. Counsel for Mr. Epperson goes so far as to suggest that the chancellor violated two separate canons regulating judicial conduct in his handling of this case. Such allegations, if shown to be true, would indeed raise serious questions regarding the fairness of this proceeding. Yet, in support of these allegations, Mr. Epperson offers only the flimsiest arguments. He claims, for example, that the chancellor's directive that, during visitation periods, Mr. Epperson should continue to take the child to the same church as that used by the mother is evidence of bias or prejudice. He alleges that the order that Mr. Epperson pay one-half of any school tuition for the child, when considered with the $600 monthly child support award, is evidence of improper bias or prejudice. He states that the "tone and content" of the chancellor's findings of fact show bias or prejudice in that they indicate that the chancellor was "offended by the manner in which [Mr. Epperson] participated in his own case" and the "manner in which [Mr. Epperson's counsel] presented his case." He further claims that the chancellor was "impatient and discourteous" to one of his expert witnesses, and that the chancellor was "personally offended by the presence and testimony of [this witness]."

This Court has conducted a close review of the record, and we find these allegations of bias and prejudice on the part of the chancellor to be singularly without merit. The chancellor commented on some of the unusual aspects of the presentation of this case, but in no instance were these remarks disparaging of any party or any attorney. There is certainly nothing in either the "tone" or the "content" of the chancellor's writing on the case that even suggests any improper bias or prejudice. If the chancellor found some aspect of a case presented to him unusual or worthy of comment, then certainly it was his prerogative to so indicate. We find that the language, both of the chancellor's writing and his oral pronouncements from the bench throughout this lengthy trial, was courteous to all participants and exemplary of how a trial should be conducted. Certainly, upon occasion, firmness in the handling of attorneys, litigants, and witnesses is necessary, and the record reveals instances where the chancellor, in no uncertain terms, indicated his intention to remain in control of the conduct of his courtroom. But, at no time is there any indication that this firmness was accompanied to any degree by any mean-spiritedness or discourtesy to anyone. We have given particular scrutiny to the matter of the chancellor's treatment of Dr. Jerry McCant, Mr. Epperson's expert witness claimed to have been mistreated by the chancellor. We find the chancellor's treatment of this witness to be painstakingly proper in every respect. The fact that the chancellor was unable to accommodate a late afternoon attempt to complete this witness's testimony in one day, preventing his immediate return to California, does absolutely nothing to indicate any disdain for this witness or any wilful mistreatment of him. In point of fact, a close review of this witness's testimony indicates that he testified almost exclusively in support of a joint custody arrangement, a proposition that even Mr. Epperson appeared to have abandoned by the end of the trial. His only reason offered for giving Mr. Epperson sole custody as a fall-back position was that, based upon his observation of the parties during the course of the trial, he felt that Mr. Epperson would be more open in allowing liberal visitation to Mrs. Epperson than she would be were the roles reversed. With this limited input, it is difficult to envision how claims that this witness was treated rudely, even if proved, would warrant disturbing the decision in this case. More to the point, we find these allegations totally baseless. This Court summarily rejects this issue and admonishes counsel for Mr. Epperson, in the future, to consider seriously the provisions of Mississippi Rule of Appellate Procedure 28(k) when making accusations of ethical violations of the canons of judicial conduct against a trial judge. IV. Granting a Divorce to Mrs. Epperson

In his brief, Mr. Epperson has combined as a single issue the claim that the trial court erred in granting the divorce to Mrs. Epperson, but should have, instead, granted Mr. Epperson a divorce on the ground of habitual cruel and inhuman treatment. This is, in fact, two separate issues, admitting of the possibility that the first issue may have merit and the second may not, the result of which would be to leave the parties still married. In defining the level of proof necessary to establish a ground for divorce on the basis of habitual cruel and inhuman treatment, our supreme court has said:

In years gone by, this Court consistently held that habitual cruel and inhuman treatment could be established only by a continuing course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition.

Wilson v. Wilson, 547 So. 2d 803, 805 (Miss. 1989).

The chancellor, in this case, on controverted proof, found as a matter of fact that Mr. Epperson's conduct, including constant acts of financial oppression, threats and actions concerning depriving Mrs. Epperson of contact with her child, an act of physical aggression during an argument, and repeated and baseless accusations of marital infidelity, including claims of homosexual activity by Mrs. Epperson, all over a period protracted enough to meet the definition of habitual conduct, rose to the level necessary under such cases as Wilson, and Smith v. Smith, 614 So. 2d 394 (Miss. 1993), to constitute "habitual cruel and inhuman treatment" within the meaning of the statute. See Miss. Code Ann.

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