by Standerinfamilycourt

You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly.
– Leviticus 19:15

Earlier this year,  “standerinfamilycourt” shared a detailed analysis which showed that the State of Mississippi was the only state in the nation that substantially respected the 1st and14th Amendment fundamental rights of Respondents ( religious free exercise and conscience, parental and property rights, equal protection and substantive due process rights )  as well as the separation of powers between the legislative and judicial branches of state government.

Little did we know at that time that a case had been filed in 2017 with amici by domestic violence activists asking the state Supreme Court to affirm a family court ruling that Mississippi’s mutual consent-restricted statutory “no-fault” grounds for divorce (Code Section 93-5-1) was “unconstitutional”.      Though the outcome of this case (which, according to news reports, and the resulting opinion, was not a case alleging any sort of abuse).    The record shows that the wife who backed out of a mutual consent petition before it was finalized was serially adulterous, including in prior marriages.   This case, triggered by, Judge Jennifer Schloegel, an activist “family court” judge from Harrison County, and appealed by the innocent, rejected husband,  was ultimately unsuccessful in its claim of “unconstitutionality”.

Per the Clarion (October, 2017):

“The Harrison County case does not include allegations of domestic violence, but anti-domestic violence advocates and others have said Mississippi’s antiquated divorce laws make it difficult for an abused spouse to escape a marriage and help prolong dangerous family situations.”  (Translation:  this is as good a vehicle as we’re going to get for our ideological straw-man, so we’d better run with it.)

Under the Mississippi court system, such appeals go directly to the state Supreme Court.

Little did we know as well, that by the time our February, 2019 piece was posted, the Mississippi state legislature was heading for adjournment in March of their annual legislative session, while the only divorce “reform” bill that had been on the agenda was defeated in committee in early February.   Rather than seek repeal of the mutual consent provision of the statutory “no-fault” grounds, SB 2529 sought to add non-cohabitation grounds that even the abandoner could trigger after a period of time.    This Senate defeat constitutes two pieces of good news in one development.      The legislative measure would hardly have been a “reform”, and would have added a decidedly unconstitutional provision to the statute, one that had no available due process defense, beyond perhaps a token right to produce evidence that the charge of non-cohabitation was false in some regard.

Certainly, as borne out in this very case, there would be many more innocent Respondents upon whom this non-cohabitation was imposed against their will than abusive Respondents from whom a battered spouse was fleeing.    It would have been a decidedly anti-family measure, and redundant of the existing provisions for a battered spouse to bring objective evidence of abuse under fault-based grounds, or pursue a criminal remedy that didn’t seek to “dissolve” the marriage.  No abandoner of a marriage should ever be preemptively and automatically rewarded for the abandoning act.   Fault-based abandonment remedies, where they exist, should be exclusively available to the abandoned party.   We are grateful that the 2019 legislature did the right thing by the state’s families, after the high court also did.

Several studies of the causes of divorce have discredited the “abuse” and domestic violence lore, consistently showing that adultery or the desire to adulterously remarry is by far the most common driver, and placing abusive marriages far down the list.    Yet the unjust expectation of the media and Leftist activists is that this one assumed cause should control family law policy as if it were dominant.  Some ascribe “emotional abuse” to all the other traditional “legitimate” grounds, in order to justify this.

(Please click to enlarge)

This case also showcases the biased obnoxiousness of the liberal press around this “issue”, as media outlets from Thailand to Seattle, Detroit, Memphis (and back), including the Associated Press,  all parroted verbatim the original  Clarion article, which crowed its approval of the rogue, overreaching family court ruling , but went dead silent about both the Supreme Court outcome and abortive result of the ensuing legislative effort they had so confidently hyped.  Why?   It doesn’t exactly fit the “abuse” narrative when it turns out the truly “abused” person is actually the cuckolded Respondent, does it?

But just how obnoxious was the media over this case when it broke?  Here’s a 2017 sample:

“Lawmakers are expected again to debate divorce law reform and other measures to reduce domestic violence and related issues.

“Last year after much debate, lawmakers passed a measure that allows judges to grant a divorce for “spousal domestic abuse” based on testimony of the victim spouse.

“But Mississippi and South Dakota remain the only two states without a unilateral no-fault divorce ground. An investigative report by The Clarion-Ledger last year showed how Mississippi divorce laws, little changed over 100 years, trap spouses and children in abusive situations and financial limbo. One spouse who does not want a divorce or wants it only on his or her terms can hold up finalizing one for years — in some cases a decade or more.

“State Sen. Sally Doty, R-Brookhaven, the Mississippi Coalition Against Domestic Violence and others are vowing to continue to push this year for divorce law and other reforms to combat domestic violence.”

(  SIFC:  Anybody care to hazard a guess who the unnamed “others” are who vowed to fight on for divorce law “reform” in this news story?)

This case would have been even more satisfying to read if it had been the case of a God-fearing husband and father forgiving his “wife” (she had been previously divorced and this was an adulterous remarriage in itself, by biblical standards).    But true to the way of the culture, it was a case of retaliatory adultery also within the marriage, with no clear evidence of who started it or who retaliated. The Gertzes were in the process of finalizing a mutual petition under the existing (supposedly “unconstitutional”) law when she decided to withdraw her consent to the terms of the previously-agreed property settlement and child custody arrangements, leading both to charge each other with adultery.   The media clucked about how the case had “unconscionably dragged on” as if the husband had been responsible for that.

The actual facts per the high court:

“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, surreptitiousy 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 [2015] visitation had begun pursuant to the [2013 property settlement agreement] until her son was physically in Mississippi before withdrawing her consent to an irreconcilable differences divorce…”

It gets crazier from there, with the account of Judge Schloegel’s arbitrary actions, with which neither the husband nor the wife agreed:

“After a temporary hearing on July 13, 2015, the chancellor granted physical custody to Joesie. The trial began in December 2015 and concluded May 2016. Six months later, in November 2016, 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 the chancellor’s November 15, 2016, final judgment was entered,
Michael and Joesie, along with the State of Mississippi,

(  SIFC:  Well, yeah, the state AG is supposed to be given advance notice – 30 days in most states – when a constitutional challenge is being brought against an enacted statute – why would a family court judge not also be held to this same standard which common citizens and their attorneys are required to observe?)

…asked the chancellor to reconsider her judgment, because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute….The State appealed the chancellor’s sua sponte adjudication of Section 93-5-2 as unconstitutional. Michael also appealed, arguing that the trial court erred by (1) declaring Section 93-5-2 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. We affirm the chancellor’s finding regarding custody and child support, but we reverse the remaining judgment and remand the case for proceedings consistent with this opinion.”

It would have been nice to wave this ruling under the nose of the Texas Family Law Foundation’s chief lobbying Stephen Bresnan when he got away with making the opportunistic claim before the Texas Juvenile Justice and Family Issues Committee last week, that “no court in any U.S. state had ever declared [unilateral] ‘no-fault’ divorce unconstitutional” (even though most honest constitutional attorneys say that it certainly is on numerous counts – the real issue is fair access to the appeals courts and applying the correct standard of review due to political fallout for elected judges.)   It would have been nice to follow up with a witness who said, “maybe not, in 2018, the Mississippi Supreme Court ruled that state’s mutual consent-only ‘no-fault’ grounds, which has stood since 1972, to be constitutional.   They can’t both be constitutional.”

But, alas, this was only a technical ruling, and can’t really be considered a ruling on merits due to the lack of substantive arguments or evidence either way.    The ruling was only that the Mississippi statute was not proven to be unconstitutional, by the trial judge or anyone else who was party to the case.

So what was the Judge Schloegel’s basis for determining on her own that mutual consent-restricted “no-fault” grounds was unconstitutional?    Only her own subjective opinion, apparently:
“the chancellor sua sponte declared that “the present Mississippi statutory fault-based divorce scheme . . . unconstitutionally restricts and, in some cases, denies [a host of] fundamental rights and freedoms. . . . although “the parties did not execute a formal consent for the
Court to adjudicate contested matters on this basis . . . , [t]he parties are constitutionally entitled to a divorce without the mutual consent of the other.”    

Au contraire, said the Mississippi Supreme Court.

This appeal was also important due to the high court remanding the case back and requiring the trial judge to consider marital fault (attributed by the high court to the wife who failed to prove her husband committed either adultery or cruelty and inhuman treatment), also failed to prove–in light of her repeated lying and deception about her own adultery, that  her husband had condoned her illicit relationship while he attempted reconciliation, and had admitted her own adultery, she was not entitled to all of the alimony the trial judge attempted to award her.   The high court also determined that Judge Schloegel could not arbitrarily set aside the couple’s previous mutual custody agreement in order to reduce the husband’s time with their son for no just cause.

Perhaps it’s not so much that the mutual consent statute is actually “unconstitutional” but more accurately, the feminist judge (chancellor) had a problem ideologically with assigning legal fault to an adulteress, somebody merely exercising their sexual autonomy when she would have been perfectly free to do so with minimal legal and financial consequences in several other surrounding states.   If a surrounding state legalized (or, in fact, incentivized) murder or infanticide, does it really follow that this would automatically make Mississippi’s law penalizing those acts “unconstitutional” because its law…”restricts and, in some cases, denies [a host of] fundamental rights and freedoms” ?   That’s not really too far-fetched a question these days, given recent successful infanticide legislation.

As for the bid by the domestic violence activists to hitch their opportunistic wagon to this case, the high court tossed their amicus brief to the side, saying:  “The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”     Given the ideological outrageousness of Schloegel’s ruling, who knows but that connections might run a bit deeper with this MCADV organization than meets the eye?   SIFC struggles a bit with the feminist fantasy of a “constitutional right” not to have to prove allegations with evidence just because one is an alleged domestic violence victim, but after both the Brett Kavanaugh and Roy Moore episodes (“believe the woman”) this virulent, unconstitutional ideology had obviously taken hold in a lot of places.

Lastly, it’s not hard to see this case as the flip-side of the debate that has been going on in Texas about emulating Mississippi’s law, which appears to have operated fairly well in this particular case in levelling the playing field between an offending wife and a her offended husband.    It’s refreshing to see a veteran get fair treatment for once, and for the militant feminists to lose for change.

Because the sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil. Though a sinner does evil a hundred times, and his days are prolonged, yet I surely know that it will be well with those who fear God, who fear before Him. But it will not be well with the wicked; nor will he prolong his days, which are as a shadow, because he does not fear before God.
– Ecclesiastes 8:11-13

www.standerinfamilycourt.com

7 Times Around the Jericho Wall |  Let’s Repeal No-Fault Divorce!