Curry v. Curry, 4 Div. 30
| Citation | 249 So.2d 869,47 Ala.App. 48 |
| Decision Date | 23 June 1971 |
| Docket Number | 4 Div. 30 |
| Parties | Elaine K. CURRY v. Donald G. CURRY. |
| Court | Alabama Court of Civil Appeals |
Phillips & Funderburk, Phenix City, for appellant.
Charles L. Woods, Ozark, for appellee.
Appellant, Elaine K. Curry, filed suit for divorce against her husband in the Circuit Court of Dale County on the ground of cruelty. Appellee, Donald G. Curry, filed an answer and cross-bill. Thereupon, appellant demurred to the complaint and each aspect thereof. The demurrer was overruled; an answer was then filed.
On the day set for the hearing and at the commencement thereof, the appellant announced to the court that she was resting. No evidence was offered by appellant in support of her complaint.
The appellee then offered evidence in support of his cross-bill of complaint. Appellant's attorneys cross-examined these witnesses, but offered no evidence in rebuttal.
At the conclusion of the hearing, the court took the matter under advisement and subsequently rendered a decree in which it granted the relief prayed for in appellee's cross-complaint.
Motion for new trial was overruled.
Appeal to this court is from the decree on the merits.
Appellant assigns fifteen grounds of error, but argues only three of these assignments--twelve, fourteen and fifteen. The remaining twelve assignments of error not having been argued, are deemed waived. Supreme Court Rule 9.
Two issues are presented by the assignments of error argued in appellant's brief: (1) the ruling on the demurrer was errorneous, and (2) the decree was contrary to the great preponderance of evidence in the case and the law thereunto appertaining.
The first issue concerns the action of the trial court in overruling the demurrer filed by appellant to the cross-complaint.
The specific error referred to in brief is ground four of the demurrer, which asserts that the allegation of abandonment is improperly alleged, and therefore the demurrer should have been sustained.
The paragraph of the cross-complaint in question reads as follows:
'FOURTH
'Your Complainant respectfully avers that the said Respondent, has, subsequent to the marriage, become addicted to habitual drunkenness.
'He further avers that the said Respondent has voluntarily separated herself from the family home in Ozark, Alabama; that said abandonment was through no fault of your Complainant; that he was unable to ascertain her whereabouts for several days after she left, taking the family automobile with her; He avers that he has for the past year had the responsibility of the care, custody and control of the minor children of this marriage, the responsibility of providing their meals, their clothing and for their other needs; * * *'
The necessary ingredients to make out an acceptable allegation of voluntary abandonment are a final departure without consent of the other party, without sufficient reason therefor, and without intention to return, plus the date the departure took place and a statement that such departure occurred more than one year prior to the filing of the complaint. Fouts v. Fouts, 281 Ala. 220, 201 So.2d 56; Tinsley v. Tinsley, 271 Ala. 471, 124 So.2d 807; and Title 34, Section 20, Code of Alabama 1940, as Recompiled 1958.
Several of the ingredients mentioned above were missing from the so-called allegation of voluntary abandonment, and we think purposely so.
After reading the cross-complaint we are convinced, as we think the trial judge was, that the divorce was sought on only one ground, and that was habitual drunkenness.
And, after reading the record in this case, and particularly the evidence adduced at the hearing on the merits, we are convinced that the cross-complainant intended to pursue only one ground for divorce, and that was the one of habitual drunkenness. This is so because the main thrust of the testimony was directed toward the drinking habits of appellant.
Hence, we find that if the trial court did err in overruling the demurrer because of the failure of the complainant to properly aver the ground of voluntary abandonment, it is error without injury. Supreme Court Rule 45. This is so because the cross-complaint contained a good allegation of an authorized ground of divorce; there was ample evidence to support the allegation; and the decree was based on the allegations of the cross-complaint and evidence introduced in support thereof.
We are also of the opinion that the additional averments in paragraph 4 of the cross-complaint were intended to show that the wife was an unfit mother to have custody of the children, and that the husband was fit for the custody of them.
We are not convinced...
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