## Facts

- Michael T. Gerty and Joesie R. Gerty filed a joint complaint for an irreconcilable-differences divorce and a contemporaneous property settlement agreement (PSA) providing Michael physical custody of their minor child.
- The divorce action remained pending for nearly two years while the parties followed the PSA.
- Michael relocated to the Great Lakes area for a military commitment; Joesie did not relocate, and the child lived with Michael.
- Evidence showed Joesie had an ongoing extramarital relationship, including admitted sexual involvement and continued social contact largely unknown to Michael.
- After Michael stated reconciliation was impossible and sought to finalize the divorce, Joesie represented that she would proceed but withdrew consent after obtaining summer visitation in Mississippi.
- Both parties then filed separate fault-based divorce complaints alleging adultery (and alternatively sought irreconcilable-differences divorce).
- The Attorney General intervened after the chancery court, on its own initiative, declared the irreconcilable-differences divorce statute unconstitutional.

## Issues

1. Whether the chancery court erred by declaring Mississippi’s irreconcilable-differences divorce statute unconstitutional sua sponte when the issue was not pleaded, litigated, or supported by proof.
2. Whether the chancery court erred in denying Michael a divorce on the ground of Joesie’s adultery by finding condonation despite evidence that Michael lacked full knowledge of the affair’s scope and continuation.
3. Whether custody, visitation, and financial awards had to be reconsidered because they were intertwined with the chancery court’s constitutional and adultery/condonation rulings.

## Decision

- Reversed the chancery court’s sua sponte constitutional ruling and treated the irreconcilable-differences statute as valid for purposes of the case.
- Reversed the chancery court’s adultery/condonation analysis to the extent it denied a fault-based divorce based on an unsupported finding of condonation.
- Remanded for further proceedings, including reconsideration of divorce grounds and related custody, visitation, and financial issues under the proper legal framework.

## Legal Principles

- Courts should not decide constitutional questions unless the issue is properly raised by the parties and necessary to resolve the dispute, with notice and an opportunity to be heard.
- An amicus position cannot substitute for trial-level pleading, proof, and adversarial development of a constitutional challenge.
- In Mississippi, condonation requires full knowledge of the marital offense and subsequent conduct implying forgiveness (commonly voluntary cohabitation); lack of knowledge of the offense’s extent defeats condonation.
- When a trial court’s divorce-ground analysis is legally erroneous, ancillary determinations (custody, visitation, and property-related awards) that depended on that framework may require reconsideration on remand.

## Conclusion

The court reversed a chancery court’s unrequested invalidation of the irreconcilable-differences divorce statute and rejected an unsupported finding that the husband condoned the wife’s adultery, remanding for reconsideration of the divorce grounds and related custody, visitation, and financial determinations.


Gerty v. Gerty, 265 So. 3d 121 (Miss. 2018)