McDonald v. McDonald

• Decision Date: 13 October 1966
• Docket Number: 3 Div. 204
• Citation: 193 So.2d 519,280 Ala. 299
• Parties: Marion M. McDONALD v. George C. McDONALD.
• Court: Alabama Supreme Court

Page 519

193 So.2d 519

280 Ala. 299

Marion M. McDONALD v. George C. McDONALD.

3 Div. 204.

Supreme Court of Alabama.

Oct. 13, 1966.

Rehearing Denied Jan. 12, 1967.

Horace Perry, Montgomery, for appellant.

Frank J. Mizell, Jr., Montgomery, for appellee.

LIVINGSTON, Chief Justice.

This appeal is from a decree of the Circuit Court of Montgomery County, Alabama, in Equity, Domestic Relations Division, granting to appellee, George C. McDonald, a divorce from Marion M. McDonald, the appellant, and fixing an allowance to the wife for her support and attorney's fee for her solicitor.

The bill of complaint filed by George C. McDonald charged Marion M. McDonald with cruelty and abandonment. Appellant filed her answer and cross bill denying the charge of cruelty and abandonment, and asking that the complainant be denied a divorce and that he pay to her $250 a month for her support and a reasonable fee for her solicitor.

The testimony of the appellee was taken by deposition before a commissioner pursuant to an agreement and stipulation of the parties. The appellant testified orally before the trial court. In addition to the above, the complainant introduced supplemental, corroboratory and rebuttal evidence by two witnesses who testified orally before the trial court, and also the depositions of 4 other witnesses.

There are three assignments of error on this appeal. The appellee also assigns cross-errors. Appellant expressly waived the first assignment of error. Appellant urges in her second assignment of error that the trial court erred in granting a divorce, in that appellee was guilty of misconduct which entitled her to a divorce from apellee, and argues that where both parties are guilty of conduct which furnish grounds for divorce, neither is entitled to relief. She cites the case of Bryan v. Bryan, 271 Ala. 625, 126 So.2d 484, which sets out the rule in Alabama on recrimination. It is as follows:

'* * * The rule is that if the conduct of both parties has been such as to furnish grounds for divorce, neither is entitled to relief, or, as otherwise expressed, if both parties have a right to a divorce, neither of the parties has. * * *'

The cause was bitterly contested and is replete with accusations of each spouse against the other. On the issues involved, the evidence presented largely a question of fact. Had the trial court believed the evidence of both parties, the rule of Bryan v. Bryan, supra, could have been applied. But it is apparent that more credence was given to the evidence introduced by appellee by the trier of facts. Findings of a trial court in a divorce case on evidence taken partly by a commissioner and partly ore tenus before the court are to be accorded, by the Supreme Court on appeal, an authority equal to that of the verdict of a jury, notwithstanding the legislature has attempted to provide that findings of fact by the court shall be reviewed by the Supreme Court without any presumption in their favor. Le May v. Le May, 205 Ala. 694, 89 So. 49; Meares v. Meares, 256 Ala. 596, 56 So.2d 661; Reynolds v. Reynolds, 265 La. 263, 90 So.2d 774.

As stated in Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561:

'* * * The personal contact of the trial court with the litigants and the witnesses gives the trial court an opportunity for personal observation which we do not have, and which accounts for the presumption we accord to its decrees. And this is so even if the evidence is partly presented by deposition as it was in the present case. Thompson v. Cillier, 170 Ala. 469, 54 So. 493.'

Appellant's third assignment of error questions the sufficiency of appellee's evidence as to his domicile in this state. Appellant pleaded to the merits of the case and the record is bare of any denial or question of the lower court's jurisdiction. The appellant admittedly was a nonresident of Alabama when the suit was filed. In order to confer jurisdiction on the trial court, it must appear from the evidence that the complainant at the time he filed suit was a legal resident of Alabama. The suit was instituted on December 4, 1964.

There was sufficient evidence from which the lower court could, and did, conclude that the complainant was domiciled in Alabama: (1) The specific allegations of the complainant (appellee) that he was a bona fide resident of Montogomery, living at 7 Clayton Avenue, and had been for more than one year next preceding the filing of the bill; (2) the testimony of the appellee before the commissioner to the effect that he had been living in Montgomery since October 9, 1963; (3) the testimony, by deposition, of Miss Regina McDonald that appellee lived at her home until November, 1963, when he left for Alabama; (4) Exhibits 2 and 3 which show his residence and mail address to be at Walter Bragg Smith Apartments, Montgomery, Alabama (7 Clayton Avenue).

We think the evidence is sufficient on which to base a finding that appellee had been a resident of Montgomery, Alabama, for more than a year before suit was filed.

Appellee cross assigns two alleged errors. The...