## Facts

- Judy Lynette Lister and Orville McDavid Lister married in 1982 and separated in 2000; there were no minor children.
- Orville created and ran a small business in which Judy worked as secretary, office manager, and bookkeeper.
- In 1999, Orville hired Sheila Walters as the company receptionist; Sheila was then married to Joseph Walters.
- Judy suspected that Orville and Sheila were involved in an affair based on the amount of time they spent together, unexplained simultaneous absences, and Orville’s loans or financial help to Sheila.
- Judy fired Sheila from the business; Orville responded by firing Judy and rehiring Sheila.
- After Judy’s termination, Orville gave Sheila benefits and access previously associated with Judy’s role (including Judy’s office, her cell phone, and use of company vehicles).
- Judy moved out of the marital home and filed for divorce alleging adultery.
- After Judy moved out, Sheila moved into a mobile home next door to Orville.
- Orville provided Sheila money connected to obtaining a divorce from Joseph Walters, and Orville and Sheila took long trips together.
- Joseph Walters testified that after Sheila left their home, he saw her staying at Orville’s house for five consecutive days.
- At trial, Orville and Sheila denied a sexual relationship; the proof also showed Orville did not fully disclose assets during the divorce proceedings.
- The chancery court granted Judy a divorce on the ground of uncondoned adultery, and Orville appealed, challenging the adultery finding.

## Issues

1. Whether the chancellor erred in granting Judy a divorce on the ground of uncondoned adultery based on circumstantial evidence of Orville’s relationship with Sheila Walters.

## Decision

- The Court of Appeals of Mississippi affirmed the chancery court’s judgment.
- The court held that the evidence was sufficient to support a finding of adultery by clear and convincing circumstantial proof.
- The court concluded the proof showed both an adulterous inclination and a reasonable opportunity to commit adultery, rising above mere suspicion or jealousy.
- The court deferred to the chancellor’s role as fact-finder, including credibility determinations and the weighing of conflicting testimony.

## Legal Principles

- Adultery may be proven by circumstantial evidence, but the proof must be clear and convincing.
- Clear and convincing circumstantial proof of adultery requires evidence of (1) adulterous inclination and (2) a reasonable opportunity to satisfy that inclination.
- Evidence that creates only suspicion or jealousy is not enough to establish adultery.
- On appeal from chancery court, factual findings will not be reversed if supported by substantial evidence unless the chancellor was manifestly wrong, clearly erroneous, or applied an incorrect legal standard.
- Credibility determinations and the weight assigned to testimony are primarily for the chancellor.
- “Uncondoned” adultery refers to adultery that has not been forgiven through reconciliation or resumption of the marital relationship.

## Conclusion

The Court of Appeals affirmed the divorce because the chancellor had substantial, clear and convincing circumstantial evidence that Orville and Sheila had an adulterous inclination and repeated opportunities for sexual conduct, including preferential treatment at work, financial support, close living arrangements, extended travel, and testimony that Sheila stayed at Orville’s house for several consecutive days; the chancellor’s credibility and fact findings therefore stood on appeal.


Lister v. Lister, 981 So. 2d 340 (2008)