LAWRENCE v. LAWRENCE

2006 Miss. App. LEXIS 633 (2006)

GRIFFIS, J., for the Court.

April and Andy were married on May 16, 1998. They had two children. Noah Andrew was born on July 19, 1999. Emma Katherine was born on July 30, 2000.

In the spring of 2003, April and Andy separated for approximately a week. When Andy returned to the marital home, April confronted him about rumors of an affair. At first, Andy denied the affair, but later admitted the affair and begged forgiveness. On April 17, 2003, April filed her initial complaint for divorce on the grounds of adultery or, in the alternative, irreconcilable differences. April and Andy, even though the complaint for divorce was filed, continued to reside together and were not legally separated. Affidavits from April and Andy indicate that Andy admitted his affair, which occurred in 2002. They attempted to reconcile, but April's complaint for divorce was never dismissed.

In the fall of 2003, April began to ask Andy to leave the marital residence, and the divorce proceedings were resumed. They continued to reside in the same household.

In December of 2003, April met Brian Sellers. The following May, April moved from the marital home into a rental home in Caledonia.

In June of 2004, the chancellor entered a temporary order that granted April custody of the two minor children and ordered Andy to pay child support. For several months prior to the temporary order, Andy did not deposit his paycheck into the couple's joint bank account and did not provide any financial support for the children.

On August 4, 2004, Andy filed a motion for summary judgment. He claimed that he was entitled to judgment on the claim of adultery because April condoned his affair. The result was that Andy's adultery could no longer support the grounds for divorce pled in April's complaint for divorce.

ANALYSIS

April argued that condonation was conditional on Andy's continued good behavior. In Wood v. Wood, 495 So. 2d 503, 505 (Miss. 1986), the supreme court held:

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. . . .

The mere resumption of residence does not constitute a condonation of past marital 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. . . .

In her response to the motion for partial summary judgment, April offered her affidavit where she testified about her belief that Andy resumed the marital relationship "merely as a ploy to defeat the grounds of adultery" and that he "has continued to have an affair."

We conclude that April's affidavit presented a genuine issue of material fact and Andy was not entitled to a judgment as a matter of law. In Wood, the supreme court held that:

[a]ny 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.

Wood, 495 So. 2d at 505. Based on this language, Andy's intent in the resumption of the marital relationship is indeed an issue to be determined by the chancellor. Simply engaging in the act of sex does not seal the defense of condonation. Thus, April's personal belief that Andy resumed the marital relationship "merely as a ploy to defeat the grounds of adultery" presents a genuine issue of material fact in dispute that does not entitle Andy to a judgment as a matter of law on his defense of condonation.

Accordingly, we reverse the chancellor's entry of a partial summary judgment, and we remand for further proceedings consistent therewith. . . .

QUESTIONS

1.What does the court mean when it says that "condonation places the offending spouse on a form of temporary probation"?

2.Why did the court reverse the chancellor's grant of partial summary judgment and remand the case? On remand, what must the chancellor take into account?