Fleming v. Fleming

• Decision Date: 14 January 1952
• Docket Number: No. 38138,38138
• Citation: 56 So.2d 35,213 Miss. 74
• Parties: FLEMING v. FLEMING.
• Court: Mississippi Supreme Court

Page 35

56 So.2d 35

213 Miss. 74

FLEMING v. FLEMING.

No. 38138.

Supreme Court of Mississippi, Division A.

Jan. 14, 1952.

E. B. Taylor, and Farish, Keady & Campbell, all of Greenville, for appellant.

Holland O. Felts, and Wynn, Hafter, Lake & Tindall, all of Greenville, for appellee.

KYLE, Justice.

The appellant, Albert Joseph Fleming, sued the appellee, Johnnie B. Fleming, for divorce in the Chancery Court of Washington County, alleging as grounds for divorce habitual cruel and inhuman treatment and adultery, and also alleging that the defendant at the time of their marriage had a living husband to whom she had been lawfully married and from whom she had never been divorced. The appellee in her answer and cross-bill denied the allegations of the complainant's bill and asked that she be granted a divorce from the appellant on the ground of habitual cruel and inhuman treatment and that she be granted alimony and attorney's fees. The cause was heard before the chancellor on the pleadings and proof, and the court entered a decree dismissing the complainant's original and amended bills of complaint and granting to the defendant a divorce and alimony in the sum of $100 per month and an attorney's fee of $350. From that decree the appellant prosecutes this appeal.

The appellant and the appellee were married in 1942. The appellant was 56 years of age at that time, and the appellee was about 24 years of age. The appellant had been married twice before his marriage to the appellee, and had been divorced from each of his former wives. The appellee had likewise been married twice before her marriage to the appellant. The appellee's first husband was C. T. Ying, whom she had married in 1934 and from whom she was separated about one year later. The appellee obtained a divorce from her second husband a short time before her marriage to the appellant.

The appellant charged in his bill of complaint that his marriage to the appellee was invalid for the reason that the appellee's marriage to C. T. Ying had never been dissolved by death or divorce. The appellee admitted that she had been married to Ying, as alleged in the complainant's bill of complaint, but the appellee stated in her answer and the proof showed that several years prior to the date of her marriage to the complainant she had executed a waiver of process in a divorce action instituted by Ying in another state where Ying was then living, and that appellee had been advised by Ben Wilkes, a Greenville attorney, now deceased, that the divorce had been granted.

The appellant was a locomotive fireman for the Y. & M. V. Railroad Company and had retired from active service a short time before the divorce suit was filed. The appellant had accumulated a considerable amount of property prior to his marriage to the appellee and owned 23 rental houses in the City of Greenville, and a small amount of stocks and United States Savings Bonds. At the time the divorce suit was tried the appellant was drawing retirement pay from the railroad company in the sum of $110 per month, and the gross income from his rental properties amounted to approximately $250 per month.

The appellant testified that a few weeks after his marriage to the appellee, the appellee threatened to kill him; but after this incident had occurred the parties seemed to have settled down to a peaceful married life which continued for a period of several years. In 1946 their marital relationship underwent a decided change. From that time on the appellant testified there were frequent quarrels and the appellant and his wife occupied separate rooms in their home. The appellee continued to attend to her household duties, and there was no quarreling, no angry words were passed between them, but 'We just didn't sleep together any more.' The appellant stated that his wife had a high temper and often threatened to beat him, and that the last time she threatened to beat him he picked her up and set her out the door. He stated that after he came back home to live in 1950 the appellee remained away from home until late at night, and some times did not get home until 4:30 in the morning; that she slept all day and did not prepare his meals for him. On cross-examination he admitted that he had been trying to get his wife to leave the house for a year, and that he had filed suit for divorce while his wife was still living in the house; that he had accused his wife of stealing some of the personal property in the house and that he had put a padlock on the house after he had filed suit for divorce.

The appellant testified that soon after his marriage to the appellee he turned over to the appellee the collection of the rents from his rental properties, and that the appellee thereafter handled the collection of the rents and the payment of the monthly bills out of the rental collections; and the appellee continued to handle the rental collections until May, 1950, when the appellant took over the collection of the rents, about the time the divorce suit was filed. He admitted that he had given his wife the right to sign checks on his checking account in a bank at Vicksburg, and that she had exercised that privilege until sometime during the year 1947, when he stopped her from signing checks on that account for the reason that she kept the balance in the account so low that the appellant had to pay a service charge at the bank. The appellant accused the appellee of withdrawing without his knowledge or consent, and making use of $5,000 which he had deposited in a savings account in the Greenville Bank & Trust Company in 1948, and he charged that his wife had forged his signature to checks drawn on the savings account. On cross-examination he admitted that a note for $1,500 which had been paid out of the savings account bore a signature that looked like it might be his, 'but,' he said 'she imitated it so perfectly, I hardly know it myself.' The appellant was asked whether he knew anything about his wife's running around with other men, and his answer was, 'Just what I was told.'

The appellee, testifying in her own behalf, stated that when she and the appellant were first married they got along all right for two or three years, and then it got hard to live with him; that the appellant had a violent temper, would get mad with someone on the job and come home and take the spite out on her; that he would find fault with the food; and that 'on one or two accasions he beat me, and asked me to leave the house, locked me out on two or three occasions, and I begged to get back in, and he finally opened the door and let me in.' The appellee stated that the appellant used abusive language toward her at times, and threatened to throw her out of the house, and on one occasion did throw her out of the house. She stated that the last year they had lived together his mistreatment of her became more violent, and he told her that he was going to get her out of the house, 'he was going to get a divorce and throw me out.' She was then asked the question whether this mistreatment of her had any effect upon her health. At this point the appellant's attorney interposed an objection to the testimony of the witness on the ground that the proof was incompetent under the pleadings. The court overruled the objection, holding that the general charge of habitual cruel and inhuman treatment contained in the cross-bill was sufficient to justify the admission of the testimony. When the objection was interposed the appellee's attorney asked the court for permission to amend the pleadings, if the court were of the opinion that such amendment was necessary. And in answer to this request the court said: 'I think the pleadings are sufficient.' The appellee then testified that she suffered from nervousness, that the last several years of her life with the appellant had been spent in constant fear, that she tried to live with him as his wife, and that she cooked for him until June 22, 1950, when she moved away from the house after papers in the divorce suit had been served upon her; that she had not occupied the same bedroom with him since 1947, and that it was at his suggestion that they occupied separate beds. She stated that when she left the appellant's house on June 22, 1950, she carried away with her only her wearing apparel and an old bedroom suite that she had brought with her to the house when they were married.

The appellee confirmed the statements made by the appellant that soon after their marriage the appellant turned over to her the business of collecting and handling the rents from rental properties. She admitted that she received the monthly rental checks from the real estate agent who had immediate charge of the collection of the rents from the tenants, and that she cashed the checks and used the money to take care of household expenses, to defray the cost of repairs on the rental properties, and to pay water bills and taxes, and she stated that she gave her husband a part of the money collected by her each month. The appellee admitted that she owned and operated a music record shop in the City of Greenville, and that she carried a stock of goods valued at approximately $1,000. She admitted that she had signed checks on the joint bank account kept by them in the Greenville Bank & Trust Company, but stated that her husband had given her permission to sign the checks.

The...