Gee v. Gee

• Court: Alabama Supreme Court
• Writing for the Court: SIMPSON, Justice.
• Citation: Gee v. Gee, 249 Ala. 642, 32 So.2d 657 (Ala. 1947)
• Decision Date: 20 November 1947
• Docket Number: 6 Div. 621.
• Parties: GEE v. GEE.

32 So.2d 657

249 Ala. 642

GEE v. GEE.

6 Div. 621.

Supreme Court of Alabama

November 20, 1947

John A. Altman, of Carrollton, for appellant.

Curry & Curry, of Carrollton, for appellee.

SIMPSON Justice.

This is a divorce case. The appellant, Mrs. Gee, was the defendant and the decree was rendered in favor of her husband, the appellee, awarding him a divorce on the ground of voluntary abandonment.

The married life of the couple, for many years, seems to have been fraught with much discord and unhappiness. Finally, as a result thereof and by mutual agreement, the plaintiff sold all his property, including the home where the couple had resided, and the parties divided the proceeds, and separated from each other never afterwards having lived together.

The right to the divorce for voluntary abandonment required that the separation be without the fault of the complaining spouse. This was the strictly disputed issue in the case Mrs. Gee, the defendant, contending that she never desired to break up the home and that it was her husband who induced the separation. If this should have been found to be the case then plaintiff would not have been entitled to the divorce.

Another defense interposed was that by agreeing to sell the home and separate, the separation was by consent of the plaintiff, which disentitled him to a decree on the asserted ground. The rule is that when the complaining party consents to the separation without it having been caused by the other's misconduct, the plaintiff cannot procure a divorce for abandonment, but where the agreement to separate was induced by the misconduct of the defendant the plaintiff, notwithstanding a later separation by consent, could still maintain the action and sustain the cause. Ex parte Cox, 230 Ala. 158, 160 So. 230; Higgins v. Higgins, 222 Ala. 44, 130 So. 677; Anonymous, 206 Ala. 295, 89 So. 462.

It is held that though the provoking cause for the separation need not be such as would entitle the injured party to a divorce (Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A.1917D, 773) yet the reasons must be impelling--'reasons which involve the fundamental happiness or self-respect of the withdrawing spouse, and the vicious and unjustifiable conduct of the other. And the provoking misconduct should not be occasional or transient only, but continuous or persistent, and apparently irremediable. Bryan v. Bryan, 34 Ala. 516, 519-522; Anonymous, 55 Ala. 428; Brown v. Brown, 178 Ala. 121, 59 So. 48; Spafford v. Spafford, 199 Ala. 300, 74 So. 358, L.R.A.1917D, 773.' Anonymous, 206 Ala. 295, 297, 89 So. 462, 463.

'Under such circumstances the husband [if the injured party] is not required to seek a reconciliation. McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602.' Higgins v. Higgins, supra, 222 Ala. 46, 130 So. 679.

Decision, then, in the instant case turns on whether or not the conduct of the defendant, Mrs. Gee, toward her husband prior to the agreed separation and disposal of their property was so ill as to come within the purview of the stated rule and warrant her husband's divorce on the ground of abandonment.

The tendency of the evidence for the plaintiff established that his wife accused him falsely and viciously of...