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Few subjects in the jurisprudence of the Mississippi Supreme Court are so settled as the maxim that a statute's constitutionality is not considered unless it has been specifically pled. Issues are framed, formed and bounded by the pleadings of the litigants. A court is limited to the issues raised in the pleadings and proof contained in the record. A trial court may not raise a constitutional issue sua sponte.
In September 2013, Joesie and Michael Gertys fled a joint complaint for an irreconcilable-differences divorce. Michael and their son moved to Great Lakes area while Joesie moved in to the house of her paramour’s mother. Joesie continued to engage with her paramour until December 2014, unbeknownst to Michael. In January 2015, Joesie withdrew her consent to the irreconcilable-differences divorce. Joesie and Michael subsequently filed separate complaints for divorce on the ground of adultery. 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. Michael, Josie, and the State 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 declaring Section 93-5-2 unconstitutional, and by failing to award Michael a divorce on the ground of adultery.
The court held that the chancellor erred in declaring Miss. Code Ann. § 93-5-2 (2013) unconstitutional sua sponte because the litigants did not raise it in their pleadings or proof, so the ruling exceeded her authority. The court further held that Michael was entitled to a divorce on grounds of adultery because Joesie’s condonation defense failed, as ample evidence showed she did not disclose the extent and time frame of her extramarital affair, reviving her prior adulterous offenses. Joesie's continued secretive, evasive, and deceptive relationship with her paramour, after she informed Michael of her brief fling leading him to attempt to reconcile, evidenced an intent not to perform the conditions of the condonation in good faith.