Castleberry v. Castleberry

• Decision Date: 16 December 1937
• Docket Number: 4 Div. 983
• Citation: 235 Ala. 266,178 So. 37
• Parties: CASTLEBERRY v. CASTLEBERRY.
• Court: Alabama Supreme Court

178 So. 37

235 Ala. 266

CASTLEBERRY v. CASTLEBERRY.

4 Div. 983

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Suit in equity by Ethel Lee Castleberry aganist Turner D Castleberry, in which there was a petition by complainant for temporary alimony. From a decree denying the prayer of the petition, complainant appeals and applies for alternative writ of mandamus.

Appeal dismissed; mandamus awarded conditionally.

S.H Gillis, L.H. Brassell, and Brassell & Love, all of Andalusia for appellant.

Ralph A. Clark, of Andalusia, for appellee.

KNIGHT Justice.

This cause was submitted on motion for mandamus, and merits.

The bill was filed by complainant, Ethel Lee Castleberry, against her husband for alimony, permanent and temporary, in the nature of support money. No divorce is sought.

In her bill complainant avers that she and the said Turner D. Castleberry inter-married in Covington county, Ala., in the year 1931, and lived together as man and wife until February 12, 1937, on which date they separated.

It is also averred in the bill that the respondent did "before and about February 12th, 1937, beat, abuse, assault and maltreat complainant, *** and order her from his home."

In the sixth paragraph of the amended bill, it is averred: "Your Oratrix further alleges that one of the contributing causes for the separation between her and said respondent as set forth in paragraph Numbered as Second herein was that the said respondent has been and was at the time of the separation between your Oratrix and said respondent as set forth hereinabove, intimate with a young white unmarried woman. Your Oratrix alleges that at said time, it is your Oratrix's information and belief, that said respondent was intimate with the said woman in an immoral manner and that their relationship was one of immorality and illicit sexual association."

It is alleged in the bill as amended that complainant has insufficient funds and income for her support; that her husband is able to provide for her; that he owns five or six hundred acres of land situated in Covington county, and personal and mixed property and money and choses in action, and is financially able, although unwilling, to make provision for the complainant and her two infant children.

The respondent demurred to the bill, but this demurrer is not now before us, as the court below has made no decree thereon.

The complainant, after the filing of her bill, filed in the cause a petition averring that since the separation, as alleged in her bill of complaint, the respondent has not supported her, and that complainant has no property and no income, and that respondent has both property and income, and is financially able to aid, assist, and support complainant. In this petition, the complainant prayed that she be decreed, pending this suit, alimony and solicitor's fees for the prosecution of the suit, and she prayed that the cause be referred to the register to ascertain and report, among other things, what would be reasonable alimony for the respondent to contribute to the support of complainant, pending this litigation, and also as to solicitor's fees, etc.

This petition was filed on June 23, 1937, and on July 24th thereafter the respondent filed answer to this bill and amended bill.

In his answer the respondent admits that the complainant is his wife; admits that he has some means; avers his willingness to take his wife back into his home, and to provide for her; averring that the original abandonment by the wife was "voluntary." And in this answer the respondent makes this statement: "The respondent hereby offers to take his wife and children back in his home and make them a good and faithful husband and father, to provide for them to the best of his ability and discharge the duties of a husband as he has endeavored to do at all times heretofore."

By way of denial of the charges contained in the bill the answer contained the following: "3. The respondent denies the allegations in the bill of complaint 'that the respondent is a person of bad character, immoral habits, of loose and varied conception of the virtue of marital ties, of criminal tendencies and a man unfit and unsuitable to have the care and custody of the children' and the respondent further avers that he has, at all times, provided for his family to the best of his ability and in keeping with his station in life, that he has endeavored to be an affectionate and loving father and husband; that the complainant herein voluntarily left your respondent and that your respondent was, in no way, at fault in causing the abandonment, or separation."

It will be noticed that the respondent nowhere specifically denies that he beat, abused, assaulted, and maltreated his wife, nor does he specifically deny the charge that he had been "intimate with a young unmarried woman."

This answer was filed, as above stated, on July 24, 1937, and on August 5th thereafter without notice to the complainant, and without giving her a chance to be heard, and without a submission on said bill, or on the petition for temporary alimony, and counsel fees, the judge of the circuit court of Covington county proceeded to render a decree on the petition and answer, in which he denied complainant both temporary alimony and counsel fees.

In his decree, which recites no submission, we find the following statements made by the court as the sole basis for the decree: "Apparently from the motion, the complainant is not claiming any sum for temporary relief of the infant children referred to. However, the respondent has answered the bill of complaint as amended, and in his answer referred to has offered to take the respondent...