Breckinridge v. Breckinridge

• Decision Date: 07 May 1906
• Citation: 94 S.W. 715,78 Ark. 598
• Parties: BRECKINRIDGE v. BRECKINRIDGE
• Court: Arkansas Supreme Court

94 S.W. 715

78 Ark. 598

BRECKINRIDGE v. BRECKINRIDGE

Supreme Court of Arkansas

May 7, 1906

Appeal from Garland Chancery Court; Leland Leatherman, Chancellor.

James H. Breckinridge brought suit for divorce against his wife Mary Breckinridge, alleging cruelty as ground. He recovered a decree, and was awarded custody of their two infant children. Mrs. Breckinridge has appealed. Reversed in part.

Decree affirmed.

Greaves & Martin and Gustave Jones, for appellant.

1. After the expiration of the term, a judgment can be set aside only in the way and for the reasons specified by the statute. Kirby's Digest, § 4431, or by bill of review. 33 Ark. 434; 52 Ark. 316; 53 Ark. 110.

2. The complaint does not charge the defendant with adultery, and evidence tending to show it was irrelevant and inadmissible. But if it had been charged, and if it were true, appellee by his conduct will be held to have condoned the offense. 65 Ark. 87; 73 Ark. 280. Having condoned the offense, he can not retract it. 23 Ark. 615.

3. It was error to award the custody of the children to appellee. The proof shows that he is not a proper person to have their custody, that he has no home and has never contributed to their support. On the other hand, they have a good home with the mother at the home of her parents, and because of their tender age she should have their present custody. 64 Ark 518.

Wood & Henderson, for appellee.

1. Appellee had dismissed the Lawrence County suit, before appellant had appeared therein or filed any plea or answer as provided by statute. Kirby's Digest, § 6168. The order of the Lawrence Chancery Court, upon which is based the plea in abatement, was made after the suit was dismissed without notice to appellee, and it was therefore void. Ib § 4424. That court was authorized to set the order aside after the expiration of the term. Kirby's Digest, § 4431, subdiv. 4.

2. The doctrine of condonation does not apply where the ground relied on is acts and conduct on the part of the defendant rendering the condition of the plaintiff in life intolerable. 56 S.W. 861; 2 Bishop, Mar., Div. and Sep. § 306. Evidence as to the moral character of appellant was admissible for consideration in determining the question as to the custody of the children.

OPINION

HILL, C. J.

1. Breckinridge brought a divorce suit against his wife in Lawrence County on the ground of adultery. On the 27th of February, 1905, he paid the costs and dismissed the action. Subsequently his wife filed answer and cross-complaint, upon which an order for alimony and attorney's fees was made in her favor. At a subsequent term Breckinridge moved to set aside said order, and on hearing before the court, both sides represented, oral testimony was taken, and the court set aside the order as void. The evidence taken at that hearing is not preserved, and the court must presume that the evidence brought the cause within some of the causes mentioned in section 4431, Kirby's Digest, authorizing the court to set aside judgments and orders after the term. Breckinridge brought this suit in Garland County, where he was residing after he had dismissed in Lawrence County, and to the Garland County suit the Lawrence County proceeding was pleaded; but, as it was properly set aside by the court rendering it, of course it could not avail.

2. The counsel for appellant frankly admits that the evidence adduced, if believed, was sufficient to entitle appellee to a decree for divorce. This evidence comes here accredited by the chancellor, and in the main it is uncontradicted save by the appellant. It sustains the allegation of cruel treatment and also sustains the charge of adultery which was made in the Lawrence County court, but not in this suit. Objection is raised to this evidence as to adultery having been admitted; but as each p...