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IN THE COURT OF APPEALS 08/20/96 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00501 COA CHRISTOPHER EDWARD PICKETT APPELLANT v. DEBORAH LYNN GORDON PICKETT APPELLEE

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

TRIAL JUDGE: HON. PERCY LYNCHARD, JR. COURT FROM WHICH APPEALED: DeSOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT H. BROOME ATTORNEY FOR APPELLEE: DEBORAH L. PICKETT DITTO, PRO SE NATURE OF THE CASE: DOMESTIC RELATIONS: DIVORCE TRIAL COURT DISPOSITION: DIVORCE GRANTED TO WIFE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT, ACCOMPANIED BY PROPERTY SETTLEMENT

BEFORE FRAISER, C.J., BARBER, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: Deborah Pickett was granted a divorce from Christopher Pickett on the ground of habitual cruel and

inhuman treatment. Mr. Pickett appeals, alleging various errors arising from the fact the divorce was initially contested, then for a time the procedures for an uncontested divorce were followed, but finally a contested divorce was granted. We find that the chancellor improperly accepted the neverexecuted stipulation of the parties as having a controlling effect. We affirm the decree of divorce, but reverse and remand the remainder of the judgment.

FACTS Mrs. Pickett filed for divorce alleging in the alternative cruel and inhuman treatment and irreconcilable differences as her grounds. Her husband responded with a counterclaim for divorce alleging cruel and inhuman treatment, uncondoned adultery, and irreconcilable differences. On January 18, 1994, the court heard testimony on Mrs. Pickett's claims of cruelty. She was unable to conclude presenting her proof that day, and the case was continued. At the next trial date of March 3, the court was informed that the parties had reached an agreement on an irreconcilable differences divorce, the terms of visitation, and most of the issues concerning property settlement and support. These agreed terms were dictated by the attorneys into the record in open court. The court indicated that the agreement needed to be reduced to writing, but that this oral dictation would suffice to structure the issues for purposes of continuing the presentation of evidence at that time. What remained for determination was the division of "marital household furnishings and other personal items and . . . the responsibility for any other additional outstanding indebtedness that the parties may have that we do not know about." After this recitation in open court, both spouses on the record told the court that the oral presentation accurately reflected the agreement. Elaboration on the question of indebtedness indicated that there was nothing concrete that was in dispute, but just a lack of knowledge, or perhaps trust, regarding whether unknown debts had been incurred on joint credit cards. The court then allowed Mrs. Pickett to present her case concerning her claims to various personal property, from books to furniture to clothing and many other such items. There was then some testimony concerning credit cards. Mr. Pickett was then questioned. The opening line of questioning concerned one of the incidents of alleged cruelty that had been addressed six weeks earlier as grounds for divorce by Mrs. Pickett. After objection that this dealt with issues other than personal property and credit cards, Mr. Pickett's attorney assured the court that the only purpose was to shed some light on Mrs. Pickett's claim to damage to certain personal property. At the close of that testimony, the parties rested on the apparent assumption that the court had enough evidence before it to render an order on the remaining issues. The court instructed the parties to circulate a written agreement on the terms of their settlement that had been reached earlier. However, over the next month Mr. Pickett refused to sign the agreement sent to him. The court repeatedly insisted that the parties resolve their differences and forward a signed agreement to the court. An agreement was never signed or submitted. After reciting these facts into the record on April 4, 1995, the court granted a divorce based on the husband's cruelty to his wife: This cause came on for hearing originally by a complaint for divorce filed by the Plaintiff

seeking certain relief, including . . . a divorce on the grounds of habitual cruel and inhuman treatment or in the alternative irreconcilable differences. Inasmuch as no agreement between the parties has been tendered to the court, nor can be rendered, based upon any agreement whatsoever the court finds that a divorce on the irreconcilable differences cannot be entered. However, the court . . . from the testimony presented . . . finds sufficient and adequate evidence to award a divorce to the Plaintiff on the grounds of habitual cruel and inhuman treatment.

....

As to the remaining relief sought by the parties . . . [t]he agreement of the parties dictated into the record [concerning child custody, support and some property settlement] . . . will at this time . . . be ratified and made a part of this court's order.

There was apparently a hearing on the day previous to this order, at which time the court was informed of Mr. Pickett's refusal to sign the written agreement. There is no transcript of what then occurred, or what any attorney may have said on the day of the court's entry of the April 4 order. No motion for new trial was filed. DISCUSSION On appeal, Mr. Pickett asserts that the trial court committed four basic errors. First, he argues that the court could not proceed under the guidelines for an irreconcilable differences divorce until the statutorily prescribed written agreement had been signed by the parties. Second, Mr. Pickett contends that, when the irreconcilable differences divorce failed, the trial court had an obligation to consider and hear testimony on the alternative grounds for divorce presented by both parties. Third, the court allegedly erred by incorporating the previously agreed property settlement into the divorce granted to Deborah. Fourth, Mr. Pickett argues that a divorce on the ground of cruel and inhuman treatment was unsupported by the evidence. We will consider these in order. I. Hearing issues for uncontested divorce before there was a written agreement Our statutes require the parties who wish a divorce based on irreconcilable differences to execute a written agreement indicating their points of agreement for custody and maintenance of children, for property distribution, and other details required for dissolving the marriage. Miss. Code Ann.

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