Arnold v. Arnold

• Decision Date: 15 June 1944
• Docket Number: 6 Div. 226.
• Citation: 18 So.2d 730,246 Ala. 86
• Parties: ARNOLD v ARNOLD (TWO CASES). 6 Div. 131.
• Court: Alabama Supreme Court

18 So.2d 730

246 Ala. 86

ARNOLD v ARNOLD (TWO CASES). 6 Div. 131.

6 Div. 226.

Supreme Court of Alabama

June 15, 1944

Rehearing Denied July 25, 1944.

Appeal from Circuit Court, Jefferson County; Geo. Lewis Bailes Judge.

The first of these appeals was argued and submitted on November 23rd, 1943, and in the course of the argument it was agreed between the parties, the court consenting, that a decision in said case could be withheld until a pending bill for divorce filed by appellee against his wife could proceed to final decree, appealed and here consolidated with the case submitted. This course of procedure was followed, and the appeal in the divorce case was filed and submitted on April 17, 1944, the two cases then being consolidated. This accounts, in part, for the delay in disposing of the first case.

The bill in 6 Div. 131, was filed by the husband against the wife March 6th, 1941, and was, as the evidence goes to show prompted by a proceeding on her part instituted in the Juvenile and Domestic Relations Court of Jefferson County to obtain support for herself and child, Benjamin Robert Arnold then four years of age.

The bill after alleging the marriage of the parties in 1935, and their continued living together as husband and wife until the 17th day of January, 1941, alleges that the defendant, on said date, "voluntarily and without just cause left the home of plaintiff and defendant, which they had established at 1313-16 Place Southwest, West End, Birmingham, Alabama, and which home is still furnished by the plaintiff and rent paid on it until April 1st, next, under a monthly rental contract, and went to her mother's in East Lake, Birmingham, Alabama, and carried with her at that time the only child born of said marriage, which is a boy now four years of age, and whose name is Benjamin Robert Arnold, and who is with his mother at this time over the protest and wish, and against the rights of the plaintiff, and also against the best interest of the child as hereinafter set forth. That since defendant so voluntarily left the home of the plaintiff, she has refused to return to plaintiff's home and live with him as his wife, although the plaintiff has repeatedly asked her to do so, and to bring the child home where it belongs and where it ought to be for its own best welfare and interest, as well as to afford the plaintiff his right as a father with respect to its care and training."

"That plaintiff's said wife has not been a true wife to him, in the true relationship of husband and wife, for a long time now, to-wit: Two years, during which time she has not permitted conjugal embraces with the Plaintiff and she had no just cause to so act and hold herself aloof from him as her husband; and that such indifference and misconduct, and wrongful conduct and attitude of his wife toward plaintiff has made life miserable for him, has undermined his nervous system and has made him both mentally and physically sick, ***

"Plaintiff avers that the defendant is not a suitable and fit person to have the care, custody and control permanently of their said child, because she is irreligious, exceedingly nervous and disrespectful of the rights of said child and believes in and practices whipping it unmercifully and without provocation, or, if with provocation, does excessive whipping of it, and she is taught that and aided and assisted in that wrongful conduct by her own mother with whom she is now living with said child; and it is not to the best interest and welfare of said child that she should have its permanent custody, control and care, because, further, its mother's said wrongful and injurious attitude and conduct toward it will make a cowed, nervous, disrespectful being, if it is permitted to remain under such environment; that your Petitioner is well qualified, both by training, experience, social and business prestige to have the care, custody and control of said child and to raise it to be a man, rather than a weakling in character, mentally, and physically."

After prayer for process, the bill prays, "Upon final hearing of this cause this honorable Court will decree, order or adjudge that the plaintiff is not required to support the said defendant to any degree so long as she remains voluntarily away from the bed and board of the plaintiff."

"That this Honorable Court, upon final hearing, will order, adjudge and decree that Plaintiff have the custody, care and control of the said minor child of said marriage and to superintend and direct its education, while at the same time providing for the Defendant to have the enjoyment of visitation of and to said child at such reasonable times and under such reasonable circumstances as the Court may determine from the evidence she is entitled to be given with respect thereto, after first considering the best interest and welfare of the said child with respect thereto.

"That upon the final hearing of this cause, the Court will grant such other, further, different or general relief to the Plaintiff as in equity and good conscience he is shown to be entitled to, and for which he will ever pray."

After demurrer overruled, the defendant answered, admitted the relation of husband and wife existing between the parties, denied the material allegations of the bill charging her with voluntary abandonment of the complainant on January 17th, 1941, and alleging, "that on or about this date her mother was ill with influenza and that she went over to her mother's home to help nurse her during her illness, with the consent of Benjamin H. Arnold who accompanied her to the said mother's home and lived with her there with their minor child at the home of her mother, and that they stayed with their mother for two or three weeks at which time the defendant and cross-plaintiff became ill and was confined to her bed at the home of her mother, Mrs. R. C. Johnson, and that the said Benjamin H. Arnold voluntarily abandoned her and her four year old child. Defendant and cross-plaintiff further states that she is still living at the residence of her mother and that it is to the best interest of the said child and to herself that she live either with her mother or at some other place, separate and apart from Benjamin H. Arnold."

The cross-bill of the defendant further alleges that "a caesarian operation was performed at the time their only child was born, and that for the past two years she has needed an operation. She states that during the past two years her physical condition has not permitted her to regularly know her husband sexually and that she has not been indifferent or inconsiderate to her husband, but has given him all the love and affection which the circumstances would permit. During to-wit: May, 1940, Benjamin H. Arnold kept company with other women and became infected with a venereal disease and defendant and cross-plaintiff admits that since that time she has told him that she did not have the love and respect for him which she once had. She admits that she has told him that she did not think that their child should be with him. She further states that she has frequently asked the plaintiff whether or not he has been cured of his venereal disease and he has constantly refused to tell her whether or not he is a safe husband and clean for her. Defendant and cross-plaintiff denies that there has been any misconduct or indifference on her part towards her husband and that her attitude has been one of self preservation from a husband who has left his home, wife and child for other women.

"Defendant and cross-plaintiff further shows unto your Honor that the plaintiff and cross-defendant has committed acts of adultery in the year 1940, and the said acts have not been condoned by the defendant and cross-plaintiff."

She further alleges that the complainant cursed and abused her during the month of July, 1940, and "committed actual violence upon the person of defendant and cross-complainant attended with danger to life or health ***" and from his conduct there was reasonable apprehension of further acts of violence.

The cross bill prays for alimony pendente lite, solicitor's fees and for divorce a vinculo.

On the filing of her answer and cross bill the defendant made "motion for reference" alleging that she had no income for the support of herself and her child, was without means to prosecute her cause; that the complainant is an able bodied man, "having substantial holdings, both real and personal, and has a large income and is able to supply adequate support for the defendant and cross-complainant and her child."

The complainant demurred to the cross bill and countered with a motion "to test the bona fides of the cross-bill of cross-complainant" and motion for an order of court "requiring cross-plaintiff to submit to a physical examination before a physician approved by the court."

The case was then on motion of the "plaintiff and cross-defendant" set down "for hearing before the court on 16th of May, 1941, at 9:30 O'Clock A. M., upon submission of defendant's demurrer to plaintiff's original bill of complaint, cross-defendant's demurrer to the cross-bill both as a whole and to each aspect thereof separately and severally, and amended motion of cross-defendant to test the bona fides of the cross-bill of cross-plaintiff and resistance to the granting of cross-plaintiff's motion for reference as to attorney's fees, alimony pendente lite."

Subsequent to this order the answer and cross bill of the wife was amended, and the complainant, on May 29th, 1941, filed a demurrer and answer thereto. In said answer the complainant admits "that he and his said wife were legally married in Jefferson County, Alabama, on January 5, 1935, and continued to live together as husband and wife until,...