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PROVING ADULTERY REQUIRES MORE THAN VERY SUSPICIOUS CIRCUMSTANCES

To obtain a divorce in Mississippi where there is no agreement to divorce, a party must prove “grounds” such as adultery, cruelty, drunkenness, use of drugs, desertion, etc. Proving grounds is hard. This was made clear by the recent case Fore v. Fore., Civil Action No. 2011-CA-01564–COA (Decided 2/19/13), where, after five days of testimony, the Judge denied a divorce to two parties who both wanted a divorce on the ground of adultery. The Court of Appeals noted that one seeking a divorce on the grounds of adultery must show, by clear and convincing evidence, both an adulterous inclination and a reasonable opportunity to satisfy that inclination. The burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.

In Lore, Darlene became friendly with one Lucas Tillman, with whom she entered into a consulting agreement for his HVAC business. In what the chancellor described as “an unusual employer/employee relationship,” Darlene loaned $25,000 of her own money to the business. She bought Saints tickets, spent a lot of time on the phone with Lucas, made loans to his family, visited his parents home, and was seen hugging and kissing him in the courthouse hallway. She also was found at Lucas’ home on two occasions late in the evening. The Chancellor found the proof insufficient.

On the other side of the aisle, Cotton admitted knowing Penny Fay Andrews, the former wife of one of his competitors. She had helped care for 900 of Cotton’s cows after Darlene and a nephew “got out of the cattle business,” leaving it to Cotton as the remaining interested party. Cotton had Penny’s cell phone number saved in his phone in 2007, and he made her one of twenty-two individuals to whom he left a relatively small portion of the residuary of his (very significant) estate. Cotton talked to her many times on his cell phone, perhaps even more than Darlene talked to Lucas – which is to say, a lot. Penny may have attended the Kentucky Derby with Cotton and his friends. A woman thought to be Penny caught a ride home on Cotton’s jet from the Derby and was seen holding his hand on the plane. Cotton also attended cookouts and parties when she was present, and he was twice seen in bars with someone called Penny. There was testimony of an incident in which the two were alone together, or so they thought. On that occasion, the headlights of a private investigator’s vehicle illuminated them as they arrived at Cotton’s residence. The Chancellor also deemed this proof insufficient.

The Chancellor opined that while the proof of adultery might be more likely than not, it did not rise to the higher standard of “clear and convincing.” The Court of Appeals affirmed the Chancellor’s denial of a divorce to either party, even though both sought the divorce.