Toni Miles Culumber v. Robert L. Culumber

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-00372-COA

TONI MILES CULUMBER APPELLANT

v.

ROBERT L. CULUMBER APPELLEE

DATE OF JUDGMENT: 07/29/2016
TRIAL JUDGE: HON. SANFORD R. STECKLER
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: JOHN R. REEVES
ATTORNEY FOR APPELLEE: ALBEN NORRIS HOPKINS JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 12/04/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

LEE, C.J., FOR THE COURT:

¶1. In this appeal, we must determine whether the Harrison County Chancery Court,

Second Judicial District, erred when it granted Robert Culumber a divorce from Toni

Culumber on the grounds of habitual cruel and inhuman treatment and habitual drunkenness

and declined to award Toni rehabilitative alimony. Finding the chancellor’s decision was

supported with substantial credible evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Robert Culumber and Toni Miles Culumber were married on May 22, 2013, in Las

Vegas, Nevada. Robert was nineteen years older than Toni and had one child from a

previous relationship, but the parties had no children together. Sometime in July 2014, the
parties separated after only thirteen months of marriage. On August 29, 2014, Robert filed

for divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness

or, in the alternative, irreconcilable differences. Toni filed her answer and counterclaimed

for a divorce on grounds of habitual cruel and inhuman treatment, habitual drunkenness,

habitual and excessive drug use, adultery, or in the alternative, irreconcilable differences.

Following a trial, spanning dates from July 2015 to July 2016, the chancellor granted Robert

a divorce from Toni on the grounds of habitual cruel and inhuman treatment and habitual

drunkenness.

¶3. At trial, Robert testified that from the very beginning of the marriage, Toni had trust

issues that led to “psychotic, manic, violent outbursts” throughout the marriage. He also

testified that Toni was physically combative and struck him throughout the marriage, and that

she would lunge at him and swing at him “constantly.” According to Robert, when he would

attempt to leave the home during these outbursts, Toni would threaten him. Robert testified

that he feared for his safety and left the marital home fifty to sixty times during the marriage

due to this fear. In addition to being afraid to stay in the home while Toni was there, Robert

also stated that he would leave in an effort to avoid confrontation and avoid having the police

called to the home. He also stated that he left so that he could get a restful night’s sleep

because he was working two jobs and that Toni did not respect his time, his job, or his

clients. On these occasions when he left the home, Robert stayed with friends, neighbors,

and his mother.

¶4. Robert testified that he lived in the marital home for twenty-one years prior to his

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marriage to Toni and had never received neighbor complaints or police visits. But, after just

two months of marriage, the police were called to the residence due to neighbor reports of

arguing between the parties. During the short marriage, the police were called at least four

times to the marital home. Robert testified that during Toni’s violent outbursts, she caused

property damage to the home, with incidents where she cracked the granite kitchen-counter

tops around the kitchen sink, destroyed custom cabinets that were installed prior to the

marriage, smashed vases, knocked pictures out of frames and off the wall, knocked holes in

the sheetrock of the wall, and kicked in doors. He also testified that one evening he came

home from fishing and found all of their wedding gifts and picture frames “smashed out in

the street” and that a neighbor helped him clean it up. Robert stated that the very next night,

he came home and all of his suits had been thrown out in the front yard, and furniture from

the house had been moved outside to the driveway. On a separate occasion, a neighbor had

alerted him that sheets and blankets had been thrown on the house, covering windows and

doors. In one particular incident, Robert came home, and as soon as he walked in the door,

Toni threw hot, melted cheese in his face and on his body. She then slammed her head into

the wall and called police alleging Robert had struck her. The police came and arrested

Robert, though he was ultimately released, and no charges were pressed.

¶5. Robert also testified that Toni drank excessively throughout the marriage. He stated

that she drank every night and was drunk five out of seven nights per week. He also said that

she was prescribed pain pills which she took excessively and drank excessively in

combination with the pills. Robert testified that many of the couple’s fights and Toni’s

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violent outbursts were precipitated by her drinking. Robert admitted at trial to occasional,

recreational marijuana use.

¶6. Robert called Michael Newman to testify as a corroborating witness. Newman stated

that he and Robert met in seventh grade and had known each other for forty-seven years. He

and Robert had also been neighbors for the past twenty-one years. Newman testified that just

three or four days after Robert and Toni married in Las Vegas, Robert was back in Biloxi and

called Newman, saying that he and Toni were not getting along and that he did not feel safe

staying in the marital home. Robert asked if he could stay with Newman, and Newman

agreed. Newman testified that Robert stayed with him three nights the first time, five nights

the second time, and then one to two nights on and off throughout the marriage. He also

stated he was aware that Robert stayed with others, including Robert’s mother, a friend

named Ronnie Ellis, and even at a hotel room once or twice.

¶7. During his testimony about the first night Robert stayed with him, Newman described

Robert as being in “extreme distress” and stated that he was “afraid to leave [Robert] alone.”

He stated that Robert was tremendously distraught about the situation with Toni and that he

was “seriously concerned that [Robert] was going to have a heart attack or a stroke.”

Newman also expressed he “was actually concerned that [Toni] might kill [Robert].” When

Toni cross-examined Newman about an incident where Robert had to leave the marital home

due to Toni’s behavior and then later, once Toni had left, Robert changed the locks, Newman

answered that he “didn’t want [Toni] sneaking into the house while [Robert] was asleep and

killing him. . . . That’s exactly what I thought.”

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¶8. When asked if he had ever been in the Culumber home during their marriage,

Newman responded that he had and confirmed he had witnessed broken items and the home

in disarray. He also described an incident where he noticed the Culumber house had

“bedclothes, sheets draped all over the outdoor areas of the home, or any window or opening

that might be observable from [Newman’s] home.” When Newman asked Robert about it,

Robert speculated to him that Toni was afraid Newman, a private investigator, was

surveilling or spying on Toni. Newman testified that he never spied or otherwise invaded

Toni’s privacy.

¶9. Newman also testified about the incident where Toni threw hot cheese on Robert.

Newman stated he received a call from Robert, first asking where Newman was and then

asking if he would please come over. According to Newman, Robert explained to him on

the phone that when Robert walked through the door that evening after work, Toni “assaulted

him by throwing a pot of melted Velveeta cheese onto his body, his head and his chest.”

Robert told Newman that Toni “then ran her head into the wall in the house and was in the

process, as [they] spoke, of dialing 911.” Robert requested that Newman come over and

“stand by”—which he did. When Newman arrived at the Culumber house, he observed

Robert with cheese on his face, shirt, shorts, and leg. He also testified that it “appeared to

have burned his face and his hand in one spot that [he] could see.” On both direct and cross

examination, Newman reiterated his concerns for Robert’s safety and stated that Robert

feared for his own safety because of Toni’s behavior. He said he was personally aware of

four occasions when the police came to the home due to calls about domestic disturbance.

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He also stated that there had been meetings amongst the neighbors to discuss the domestic

disturbances and the volatility of the situation.

¶10. Toni litigated pro se. Her counsel had withdrawn just prior to trial, and despite the

numerous urgings of the chancellor that she hire an attorney, Toni continued pro se. During

cross-examination, Toni admitted to violence in previous relationships. Specifically, she

admitted to hitting one boyfriend, which resulted in her being arrested for domestic assault.

She was again arrested for domestic assault in a different relationship where she admittedly

bit her boyfriend repeatedly, broke the door frame, and damaged his apartment. In both these

instances, Toni was arrested and the boyfriends were not. Toni also admitted that she had

previously been arrested on cocaine charges, though the grand jury returned a no true bill.

Toni admitted to having attended anger management. She testified that she had a history of

anger issues and admitted that she, at the time of trial, still struggled with managing her

anger. She also admitted that she experienced these anger episodes during the course of her

marriage, often while drinking. She admitted to a family history of alcoholism.

¶11. Toni held active prescriptions for Adderall, for ADHD; Bupropion, for depression;

and Hydrocodone, for neck pain. She admitted to drinking alcohol while taking the

medications and testified that she was not advised against mixing the medication with

alcohol. She admitted, however, that she would not be surprised if the warning labels

advised against drinking alcohol with the medication because it could cause behavioral

changes including aggression and hostility. Toni also admitted that on three of the four times

that police were called to the home, she had been drinking. Toni’s drug test, conducted

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during trial, showed the presence of opiates, amphetamines, and alcohol.

¶12. In its bench ruling, the court noted its responsibility to determine the credibility of the

witnesses in evaluating the claims and grounds for divorce. The court explicitly stated that

it was “clear” that Toni was not credible. The court went on to detail some of Toni’s actions

that it was “very concerned about” including that Toni secretly made recordings of court

proceedings. When the issue came up during trial, Toni flatly denied making any recordings

and stated to the court that she had only made notes during the trial. The court explained to

her that she was not entitled to make any recordings and that it violated the court’s rules. In

its bench opinion, the court later explained that it could have excused Toni for making the

recordings because she was not an attorney and may not have been aware of the rules, but

what was “inexcusable” is that she later perjured herself. Toni stated she didn’t know

anything about the recordings or the making of any recordings, yet she submitted

“transcripts” that she had prepared which the court found were “actual verbiage from the

trial.” The court stated that what Toni alleged was the product of note taking was “absolutely

impossible . . . even from a seasoned court reporter who can take shorthand by hand.”

¶13. Additionally, the court noted that Toni had issues and found fault with almost all

parties involved with the trial including her withdrawn counsel, opposing counsel, the

temporary court reporter, the court’s staff attorney, and even the sitting judge. The court also

stated that the vast majority of what Toni provided to the court was “a total fiction and

absolutely contrary and the opposite of what all of the evidence was produced from the

witness stand and the documents in evidence.”

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¶14. The court also stated that early on in the case, through her attorney, Toni was “most

interested in money from Mr. Culumber and was pushing to get as much money as possible

from Mr. Culumber.” The court noted that the offers Robert made to Toni during in-

chamber, on-the-record settlement negotiations exceeded the bounds of what the court could

award pursuant to statutory and case law guidelines. The court suggested to Toni’s then

counsel that Toni should take the offer, but Toni refused and later accused the court of

prejudging the case for making such a recommendation. Noting that Robert was a certified

public accountant and therefore at an advantage in terms of the ability to hide and structure

money—an accusation Toni had made—the court indicated to Toni that it could order

forensic accounting of Robert’s finances, but she rejected the offer. She also put on no

evidence that he had hidden, tampered with, or otherwise manipulated his financial assets and

interests.

¶15. The court also noted that Toni denied receiving exhibits from Robert’s counsel when

she indeed had received them, stated to the court that she had properly subpoenaed people

when she had not subpoenaed them, and stated that she paid their attendance fee—later

admitting she had not paid the fees. The court stated that it “could go on with numerous

other[] [things],” concluding “it’s clear that [Toni] is not credible.”

¶16. On the other hand, the court found that Robert was credible and also that he produced

a credible, corroborating witness. As such, the trial court granted Robert a divorce from Toni

on the grounds of cruel and inhuman treatment and habitual drunkenness, and the court

declined to award Toni rehabilitative alimony.

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¶17. Toni now appeals, arguing that the chancery court erred when it (1) granted Robert

a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness

and (2) denied her request for rehabilitative alimony.

STANDARD OF REVIEW

¶18. “It is well settled that appellate courts are bound by a limited standard of review in

domestic-relations matters.” White v. White, 208 So. 3d 587, 592 (¶10) (Miss. Ct. App.

2016). “This Court will not disturb the chancellor’s opinion when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong, clearly

erroneous, or an erroneous legal standard was applied.” Farris v. Farris, 202 So. 3d 223,

230 (¶26) (Miss. Ct. App. 2016). “In the case of a divorce decree, facts will be viewed in a

light most favorable to the appellee.” White, 208 So. 3d at 592 (¶10) (internal quotation

marks omitted). “For questions of law, our standard of review is de novo.” Id.

DISCUSSION

I. Grounds for Divorce

¶19. The chancery court granted Robert a divorce on the grounds of habitual cruel and

inhuman treatment and habitual drunkenness. Toni appeals, arguing there was not substantial

credible evidence to support a divorce on either of these grounds.

A. Habitual Cruel and Inhuman Treatment

¶20. Habitual cruel and inhuman treatment is behavior that “(1) endangers life, limb, or

health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe

for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage

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revolting to the non-offending spouse and render it impossible for that spouse to discharge

the duties of marriage, thus destroying the basis for its continuance.” Baggett v. Baggett, 246

So. 3d 887, 892 (¶13) (Miss. Ct. App. 2017) (quoting Horn v. Horn, 909 So. 2d 1151, 1155

(¶7) (Miss. Ct. App. 2005)). The party seeking the divorce on this ground must prove

habitual cruel and inhuman treatment by a preponderance of the evidence. Id.

¶21. “The offending spouse’s conduct must exceed ‘unkindness or rudeness or mere

incompatibility or want of affection’ and ‘must be shown to have been systematic and

continuous.’” Id. (quoting Horn, 909 So. 2d at 1155 (¶7)). “Such conduct must be habitual,

that is, done so often, or continued so long, that its recurrence may be reasonably expected

whenever occasion or opportunity presents itself.” White, 208 So. 3d at 593 (¶12). “[T]he

offended spouse must show a causal connection between the offending spouse’s conduct and

the impact on the offended spouse.” Baggett, 246 So. 3d at 892 (¶13). “Such an inquiry is

subjective, and the focus is on the effect the conduct has on the particular spouse, not its

effect on an ordinary, reasonable person.” Id. (internal quotation mark omitted).

¶22. “The party alleging cruel and inhuman treatment typically must corroborate the

testimony.” White, 208 So. 3d at 593 (¶13). “[C]orroborating evidence need not be

sufficient in itself to establish habitual cruelty, but rather need only provide enough

supporting facts for a court to conclude the plaintiff’s testimony is true.” Id.

¶23. In the present case, there was testimony that Toni was not just unkind or rude or that

she and Robert merely engaged in heated arguments, but that Toni was verbally and

physically combative towards Robert constantly. She often exhibited what was described as

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“violent outbursts” that were not, per the chancellor’s findings, precipitated or warranted by

Robert’s behavior. During such outbursts, she caused physical destruction to the couple’s

home and also physically assaulted Robert on more than one occasion. Robert testified that

this conduct, which was constant, caused him to be in fear for his life and safety and also

caused him to leave the marital home fifty to sixty times in just over one year of marriage.

Toni herself admitted she had anger issues and also admitted to a history of exhibiting

violence in relationships. Robert’s testimony was corroborated by Newman, with whom

Robert had stayed on several occasions during Toni’s combative outbursts. Newman

corroborated that Robert was physically and emotionally distraught over Toni’s behavior and

was fearful for his safety. Newman stated that he was concerned that Robert may have a

heart attack or stroke, and he even feared that Toni was going to kill Robert. Newman also

corroborated the volatility of the relationship, noting the police had come several times to the

Culumber home and that the neighbors had discussed the volatile situation. Newman also

knew that Robert had stayed with others, besides himself, when Robert had to leave the

marital home because of Toni’s behavior. Corroborating one particular incident, Newman

witnessed hot, melted cheese on Robert’s face and body, which Toni had thrown on Robert

as soon as he walked in the door from work. Newman testified that Robert appeared to have

burns from this incident.

¶24. “Upon review, this Court is reminded that the chancellor is vested with the sole

authority and responsibility to assess witness credibility as no jury is present.” White, 208

So. 3d at 594 (¶16) (internal quotation mark omitted). “The chancellor alone hears the

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testimony and sees the demeanor of the witnesses.” Id. (internal quotation mark omitted).

“This Court cannot, and will not, reweigh the evidence or reconsider the credibility of the

witnesses.” Id. (internal quotation mark omitted). As such, the chancellor here found that

Robert had proved habitual cruel and inhuman treatment, and we find that there was

substantial credible evidence to support his decision. Toni’s behavior was systematic and

continuous to such a degree that it created a reasonable apprehension of danger, forcing

Robert to leave the home on numerous occasions—evidencing the subjective effect that is

to be considered. Toni’s behavior was constant such that “its recurrence may be reasonably

expected whenever occasion or opportunity presents itself.” And Newman “provide[d]

enough supporting facts for a court to conclude [Robert’s] testimony [wa]s true.” See

Baggett, 246 So. 3d at 892 (¶13). Accordingly, we do not find that the chancellor abused his

discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.

We find that the chancellor’s grant of the divorce on ground of habitual cruel and inhuman

treatment was based on substantial credible evidence.

B. Habitual Drunkenness

¶25. Toni also argues that there was no evidence to support a divorce on the ground of

habitual drunkenness. Specifically, she states there was no medical testimony or medical

evidence to show she had any issues with alcohol.

¶26. “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff

proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively

affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Id. at 893

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(¶15) (quoting Lee v. Lee, 154 So. 3d 904, 906 (¶7) (Miss. Ct. App. 2014)).

¶27. Robert’s testimony, which the chancellor found credible, stated that Toni drank every

night, drank excessively, mixed alcohol with contraindicated prescriptions, and was drunk

five out of seven nights per week. Toni herself admitted that she had anger issues when she

drank, that she was drinking on three of the four occasions police were called to the home,

and that she drank while taking her prescription medications. Specific examples of Toni’s

drinking included Robert’s testimony that on the last night of their honeymoon, security was

called on them because Toni was passed out on the floor. Additionally, prior to trial

proceedings, Robert and a notary went to Toni to have a property-settlement agreement

signed, but when they arrived, Toni was passed out on the floor drunk. Drug testing during

trial revealed alcohol in Toni’s system along with the presence of her prescription drugs,

which were contraindicated with alcohol use. As such, there was substantial credible

evidence to support the chancellor’s finding that Robert had proved Toni’s habitual

drunkenness. This issue is without merit.

II. Rehabilitative Alimony

¶28. Finally, Toni argues that in the event that the divorce was properly granted, then the

chancery court improperly denied Toni’s request for rehabilitative alimony. Toni alleges that

even though the marriage was short, she is entitled to rehabilitative alimony payments

because Robert paid all the bills and expenses in the marriage and that she needs assistance

to become self supporting after the marriage.

¶29. We first note that alimony is considered only if after equitable division, one party is

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left with a deficit. Carney v. Carney, 201 So. 3d 432, 440 (¶28) (Miss. 2016). “The decision

of whether to award alimony, and if so, what amount, is left to the chancellor’s discretion.”

Hearn v. Hearn, 191 So. 3d 129, 132 (¶10) (Miss. Ct. App. 2016). When determining

whether to award alimony, the chancellor is to consider the Armstrong factors:

(1) the income and expenses of the parties; (2) the health and earning
capacities of the parties; (3) the needs of each party; (4) the obligations and
assets of each party; (5) the length of the marriage; (6) the presence or absence
of minor children in the home, which may require that one or both of the
parties either pay, or personally provide, child care; (7) the age of the parties;
(8) the standard of living of the parties, both during the marriage and at the
time of the support determination; (9) the tax consequences of the spousal
support order; (10) fault or misconduct; (11) wasteful dissipation of assets by
either party; or (12) any other factor deemed by the court to be “just and
equitable” in connection with the setting of spousal support.

Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v.

Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).

¶30. In regard to the type of alimony Toni argues she is entitled to, we note that

rehabilitative alimony is “an equitable mechanism which allows a party needing assistance

to become self-supporting without becoming destitute in the interim.” Serio v. Serio, 203 So.

3d 24, 30 (¶17) (Miss. Ct. App. 2016) (quoting Lauro v. Lauro, 847 So. 2d 843, 849 (¶15)

(Miss. 2003)). It is “awarded to parties who have put their career on hold while taking care

of the marital home.” Id. “Rehabilitative alimony allows the party to get back into the

working world in order to become self-sufficient.” Id.

¶31. The chancellor stated that there was no basis for alimony. Toni alleges that the

chancellor placed too much emphasis on the length of the marriage and did not properly

consider the other factors. The record indicates otherwise. As the chancellor noted, Toni

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was not working at all when she came into the marriage. Additionally, she brought

approximately $30,000 of debt into the marriage which Robert paid off in full. It is true, as

the chancellor noted, that the marriage was very short—barely one year. The parties had no

children. Per the chancellor’s findings, Toni was “actually better off by virtue of the

marriage in terms of her education, having her student loan paid off and other things to help

her further her career, rather than lose it.” Career wise, Toni was relatively young—being

in her late thirties, while Robert was approaching retirement—being in his late fifties. In

December 2013, Toni became employed, making around $38,000, and this employment

continued at the time of trial. Robert paid all of the bills and expenses during the short-term

marriage and assumed responsibility for all marital debt. Toni received payment for her

equitable share of marital assets in the amount of $13,442.00. As we now affirm, the

chancellor found Toni at fault in the marriage on grounds of habitual cruel and inhuman

treatment and habitual drunkenness. We do not find that the chancellor abused his discretion

in denying Toni an award of rehabilitative alimony. This issue is without merit.

CONCLUSION

¶32. We affirm the decision of the chancery court to grant Robert a divorce from Toni on

the grounds of habitual cruel and inhuman treatment and habitual drunkenness. We also

affirm the chancery court’s decision to deny Toni’s request for rehabilitative alimony.

¶33. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT
PARTICIPATING.

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