Gerty v. Gerty

In September 2013, the Gertys filed a joint complaint for an irreconcilable-differences divorce. The joint complaint sat with the Chancery Court for almost two years, during which the parties cooperated with each other and faithfully abided by the Property Settlement Agreement (“PSA”), which was filed contemporaneously with the joint complaint. The PSA provided that Michael would have physical custody of the couple’s minor child. Michael was required to move to the Great Lakes area to fulfill a three-year military commitment when Joesie agreed that their son would move with Michael. Joesie made the decision not to move to the Great Lakes area, instead, moving into her paramour's mother's house. For approximately two years, Michael and their son lived apart from Joesie. 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 attorney, 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. 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. After final judgment was entered, Michael, Joesie and the State asked for reconsideration because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute. The chancellor significantly amended her earlier final judgment, 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. The State appealed the chancellor's adjudication of 93-5-2 as unconstitutional. Michael appealed the trial court's adjudication of 93-5-2 as 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. The Mississippi Supreme Court affirmed the chancellor’s finding regarding custody and child support, but reversed the remaining judgment and remanded the case for further proceedings. View "Gerty v. Gerty" on Justia Law