Coleman v. Coleman

• Decision Date: 07 December 1916
• Docket Number: 7 Div. 794
• Citation: 198 Ala. 225,73 So. 473
• Parties: COLEMAN v. COLEMAN.
• Court: Alabama Supreme Court

73 So. 473

198 Ala. 225

COLEMAN v. COLEMAN.

7 Div. 794

Supreme Court of Alabama

December 7, 1916

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by Charles Coleman against Carrie Lee Coleman. Decree of divorce for complainant denying solicitor's fees and temporary alimony and permanent alimony, and respondent appeals. Decree as to attorney's fees and alimony reversed, and the cause in so far remanded, and otherwise affirmed.

Garber & Garber, of Birmingham, for appellant.

W.J Boykin, of Gadsden, for appellee.

THOMAS J.

This is a suit for divorce on the ground of adultery. A cross-bill was filed by the respondent praying a divorce for actual violence committed by the husband on her person, attended with danger to life and health. On final submission the chancellor decreed absolute divorce to complainant, and awarded him the custody, control, and education of the minor child, the offspring of complainant and respondent's marriage.

Respondent's prayer for a reasonable solicitor's fee to her counsel in this cause, for a reasonable amount for her support and maintenance pending the termination of this suit, and for permanent alimony after termination of the suit, and that a lien be declared therefor upon the real estate described in the cross-bill, was denied.

A court of chancery has jurisdiction over the custody of infant children, and this power is independent of statute. 3 Pom.Eq.Jur. 1304, 1305; Bryan v. Bryan, 34 Ala. 516; Decker v. Decker, 176 Ala. 299, 58 So. 195; Hayes v. Hayes, 192 Ala. 280, 68 So. 351. It is immaterial how that jurisdiction is invoked. Hansford v Hansford, 10 Ala. 561; Woodruff v. Conley, 50 Ala. 304. In proceedings involving the care, custody and education of infants, the paramount consideration is the well-being and good of the infant. Pearce v. Pearce, 136 Ala. 188, 33 So. 883; McGough v. McGough, 136 Ala. 170, 33 So. 860. In divorce cases the statute provides for awarding the custody and education of the children of the marriage "as may seem right and proper, having regard to the moral character and prudence of the parents, the age and sex of the children," etc. Code, § 3808.

We have carefully examined the evidence in the record before us, and believe no good purpose would be subserved by its detailed discussion. It is sufficient to say that we are of the opinion that the chancellor reached the proper conclusion in granting to complainant absolute divorce on account of respondent's adultery, and in decreeing the care custody, control, and education of the minor child, the offspring of said marriage, to the complainant.

It is insisted by appellant that adultery on the part of the wife was not clearly shown by the competent evidence admitted. Objection was made to the introduction in evidence of certain letters found in respondent's possession showing her criminal relation with the writer thereof. The letters in question were properly identified, making them competent evidence. Alsabrooks v. State, 52 Ala. 24; Bickley v. Bickley, 136 Ala. 548, 34 So. 946.

In Mosser v. Mosser, 29 Ala. 316, Justice Stone said:

"A respectable author, Shelford on Marriage and Divorce, p. 405, has well said: 'Adultery, being an act of darkness and of great secrecy, can hardly be proved by any direct means,' and 'that presumptive evidence alone is sufficient proof.' The same author says, quoting from Lord Stowell: 'It is a fundamental rule of evidence upon this subject, that it is not necessary to prove the direct fact of adultery.' Id. 'The only general rule that can be laid down on the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.' Shelf. on Marriage and Divorce, p. 406. In one case it was held that 'adultery may be inferred from the general cohabitation of the parties, without proof of particular facts, although the parties have separate beds.' Loveden v. Loveden, 2 Hagg.Cons.R. 4. The court, says Lord Stowell, 'will judge of facts as other men of discernment, exercising a sound and sober judgment on circumstances that are duly proved before them.' See, also, Poynter on Marriage and Divorce, 188, 189. In our own court the subject has been under discussion. In Richardson v. Richardson, 4 Port. 467 , Justice Henry Goldthwaite announced the rule that 'the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion.' The question came again before the court in Collins v. State, 14 Ala. 608, upon an indictment for adultery; and the court held the conviction right, though founded on circumstances, without proof of the direct fact. See, also, Glaze v. State, 9 Ala. 283; Crowley v. State, 13 Ala. 172." In the Mosser Case, Justices Walker and Rice did not agree with Judge Stone that the circumstantial evidence adduced was sufficient to show that adultery was committed. In the later case of Jeter v. Jeter, 36 Ala. 391, the Mosser Case is cited, and Chief Justice Walker said:

"Whether we look to the legal authorities above cited, or to the teachings of nature and Holy Writ, we are authorized, in a case of conjugal conduct like that of the defendant, to yield a more easy credence to circumstances which impugn the chastity, and may more properly give suspicious facts an unfavorable construction. *** In reference to the character of circumstances requisite to establish the charge, Lord Stowell says: 'In every case almost the fact is inferred from circumstances that lead to it by fair inference, as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books. At the same time it is impossible to indicate them universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.' Loveden v. Loveden, 2 Hag. 1; 4 Eng.Ec. 461. *** Richardson v. Richardson, 4 Port. 475 ; State v. Crowley, 13 Ala. 172; Mosser v. Mosser, 29 Ala. 313."

When the correspondence in the instant case is considered, in connection with the acts of the respondent, her declarations her changed conduct toward the husband, and her...