Basden v. Basden

• Decision Date: 17 May 1923
• Docket Number: 8 Div. 518.
• Parties: BASDEN v. BASDEN.
• Court: Alabama Supreme Court

96 So. 881

209 Ala. 632

BASDEN v. BASDEN.

8 Div. 518.

Supreme Court of Alabama

May 17, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Bill by Edith P. Basden against Will Basden. From the decree complainant appeals. Affirmed in part; reversed and rendered in part.

Travis Williams, of Russellville, for appellant.

A. H Carmichael, of Tuscumbia, for appellee.

SAYRE J.

The wife in this case filed her bill for divorce, charging that defendant had committed actual violence on her person attended with danger to life or health, or that from his conduct she had reason to apprehend such violence. Code, § 3795. Incidentally she asks for the custody of her two children, and a division, or a sale for division, of the property accumulated by the joint efforts of the parties.

In agreement with the chancellor, we are not able to find in the record sufficient reason for a decree of divorce on the grounds laid out by the statute supra.

The question as to the disposition of the children, a boy and a girl now about 8 and 10 years of age, respectively, presents a far more difficult problem, and we may as well confess that on the dry record we could feel no very great degree of confidence in a decree which would commit them irrevocably to either party. A view of the parties and their parents-we say parents, because in any event the care of these children will devolve in large measure upon the aged mother of defendant or the mother and father of complainant, this for the reason that defendant is a hopeless cripple, having lost both his legs, while complainant is under the necessity of earning her own living-so we say, the appearance and bearing of the parties and their parents and a private interview with these children, who are old enough to give a clew to the future would probably furnish safer and more satisfactory grounds of decision. These advantages the chancellor may have had, but of this the record furnishes no indication, and on this appeal no presumption can be indulged in favor of his decree. On the record we are inclined to think the complainant mother has the best of the argument.

Complainant is employed by the proprietor of a seed store in Sheffield, and upon some testimony, given by relatives of defendant, to the effect that her employer is inclined to the association of dissolute women, is founded the insinuation rather than the definite ascertion that complainant is not a proper person to be intrusted with the custody and care of her children. On this subject we cannot undertake, within reasonable limits, to dissect and discuss the evidence. Suffice it to say that, if complainant is a lewd woman, the fact does not appear in the evidence, and the court will not base its decree on innuendo unsupported by proof. It may be noted, however, that until this suit was brought defendant thought her good enough to share his home and rear his children, for, after the bill was filed, and within a few days of the taking of the evidence, he sought to have her return to his bed and board. And the wife-quite a respectable woman to all appearances-of the man with whom defendant's insinuations connect her, testified to a degree of intimacy between the families and a warm friendship between herself and complainant. For aught appearing, therefore, we consider the case as if complainant's moral character furnished no argument against her claim to her children.

It is evident that quite a number of the witnesses who gave their opinions in favor of defendant's custody of the children were under the influence of the idea that defendant in his condition needed their help rather than that they needed his. The statute, section 3808 of the Code, provides that, upon granting a divorce, "in cases of abandonment of the husband by the wife, he shall have the custody of the children after they are seven years old, if he is a suitable person to have such charge." Here there is no divorce. Undoubtedly, also, the father, as at the common law, is still the head of his family for some purposes, and upon him ordinarily, the law devolves the duty and responsibility of providing for the maintenance and education of his children, and for this reason their custody is committed to him, and heretofore it has been considered that he is entitled to their services in preference to the mother. Winslow v. State, 92 Ala. 78, 9 So. 728. But, without assuming that modern legislation has made no change in the disabilities of the wife and mother in the respect...