Michael T. Gerty v. Joesie R. Gerty
265 So. 3d 121 (2018)
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Rule of Law:
A spouse's condonation of an admitted act of adultery is not a valid defense to a fault-based divorce if the offending spouse concealed the full extent and duration of the affair or continued the misconduct, as such actions revive the original offense. Furthermore, a trial court may not sua sponte declare a statute unconstitutional when the issue has not been raised by any party in the pleadings.
Facts:
- Joesie Gerty began an extramarital affair with Kyle Rebstock, which started prior to the summer of 2013.
- In August 2013, her husband, Michael Gerty, discovered evidence of the affair. Joesie admitted to a 'summer 2013 fling' but concealed the true, longer duration of the relationship.
- Believing the affair had ended and attempting to reconcile, Michael agreed to a plan where he and their minor son would move to the Great Lakes area for his military assignment, while Joesie remained in Mississippi.
- In September 2013, the parties filed a joint complaint for an irreconcilable-differences divorce with a Property Settlement Agreement (PSA) giving Michael physical custody.
- Unbeknownst to Michael, Joesie continued her relationship with Kyle through at least May 2014, including spending holidays with Kyle and his family.
- In January 2015, after learning that Joesie had not been truthful about the extent of her relationship with Kyle, Michael determined reconciliation was impossible and told her he wanted to finalize the divorce.
- In June 2015, after their son arrived in Mississippi for summer visitation pursuant to the PSA, Joesie withdrew her consent to the irreconcilable-differences divorce.
Procedural Posture:
- In September 2013, Joesie and Michael Gerty filed a Joint Complaint for Divorce based on irreconcilable differences in the Harrison County Chancery Court (trial court).
- In June 2015, Joesie withdrew her consent to the joint complaint and filed a separate complaint for a fault-based divorce.
- Michael filed a countercomplaint seeking a divorce on the ground of Joesie's adultery.
- Joesie answered the countercomplaint, admitting to adultery but raising the affirmative defense of condonation.
- Following a temporary hearing, the chancellor granted temporary custody to Joesie.
- After a full trial, the chancellor issued a final judgment finding that Michael had proved Joesie's adultery but had legally condoned it.
- The chancellor then, sua sponte, declared the Mississippi irreconcilable-differences divorce statute unconstitutional and granted the parties a divorce on that basis.
- Michael and the State of Mississippi both filed motions asking the chancellor to reconsider, which were denied in relevant part.
- Michael and the State of Mississippi appealed the chancellor's judgment to the Supreme Court of Mississippi.
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Issue:
Does a spouse's forgiveness of a self-confessed, limited 'fling' constitute condonation of a much longer and ongoing adulterous affair that was not fully disclosed, thereby barring a fault-based divorce on the ground of adultery?
Opinions:
Majority - Randolph, P.J.
No. A spouse's forgiveness of one admitted act of adultery does not constitute legal condonation when the cheating spouse concealed the full scope of the affair and continued the misconduct. Condonation is an affirmative defense requiring the party asserting it (Joesie) to prove that the other spouse (Michael) had full knowledge of the marital wrong and forgave it. Here, Michael only knew of and forgave a limited 'summer fling,' not a multi-year affair that continued after her admission. One cannot condone misconduct of which they are unaware. Furthermore, condonation is conditional upon the offending spouse's subsequent good behavior. Joesie's continued secretive relationship with Kyle after seeking Michael's forgiveness revived her original adulterous offenses as a ground for divorce. Therefore, the chancellor's finding of condonation was manifestly wrong, and Michael is entitled to a divorce on the ground of adultery.
Analysis:
This case reinforces the procedural rule that a court cannot sua sponte raise constitutional challenges to a statute; such issues must be explicitly pleaded by the parties. Substantively, the decision clarifies the limits of the condonation defense in divorce law, establishing that forgiveness predicated on incomplete or false information is invalid. It solidifies the 'revival' doctrine, where subsequent misconduct negates prior forgiveness, making it a critical precedent for cases involving partial confessions of infidelity and protecting the innocent spouse from being bound by forgiveness given under false pretenses.
