Henderson v. Henderson

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 372.
• Court: Alabama Supreme Court
• Parties: HENDERSON v. HENDERSON

153 So. 646

228 Ala. 438

HENDERSON v. HENDERSON

6 Div. 372.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill for separate maintenance by Bertha Henderson against Ed. C Henderson. From a decree denying relief, complainant appeals.

Reversed rendered, and remanded.

Horace C. Wilkinson, of Birmingham, for appellant.

Kelvie Appelbaum and Lee J. Damsky, both of Birmingham, for appellee.

GARDNER Justice.

The bill is by the wife for separate maintenance. Upon submission of the cause for final decree on pleadings and proof, she was denied relief.

At the time of the marriage, on October 17, 1931, she was thirty-nine and the husband forty-eight years of age. She was then earning $40 a week. His earnings were shown at the trial to be $83 per month, out of which he cared for his mother and father in the house in which he lived. The house, however was not his own, but was in the name of his father, and the husband paid $25 monthly on the home mortgage indebtedness.

Complainant knew something of defendant's financial struggle, but it is clear, and we think undisputed, she understood the home in which they were to live with his father and mother belonged to defendant. It is equally well established that it was understood between the two the arrangement of living with his parents was temporary, and it was contemplated that in course of time they would have a home of their own and alone. The separation occurred in August, 1932, something less than ten months after the marriage.

Complainant insists that from the conduct of both the father and mother of defendant she was plainly given to understand she had no rights to exercise or privileges to enjoy in the house as a home, and was an unwelcome intruder. In some respects upon the matter of conduct of the parents to complainant, the evidence was in conflict. But we think standing out boldly and indisputably is the fact that defendant's mother entertained a cordial dislike for complainant, and that she was most unhappy in these surroundings, even to the point of having to some degree harmfully affected her nervous system. And from the mother's own testimony, it is plain complainant's return would be an unwelcome event.

But complainant knew at the time of the marriage she would be taken to this home to live, at least temporarily, though she also believed the house was his, and was doubtless ignorant of the fact the husband was the support of his parents. And it is argued that having voluntarily become a member of the household, it was her duty to remain, especially in view of the husband's decreased earnings, his support of his parents, and his inability to sustain a separate household elsewhere.

There is much in the argument to challenge attention and serious consideration. But we think it overlooks one element of the proof which we are persuaded also escaped the chancellor's notice. The husband knew of his wife's unhappy condition, and appears to have utterly ignored her entreaties to better conditions, that they might live happily together. All the proof tends to show complainant's high regard for defendant, and her willingness to help render their married life a success. Her letters show with what joy she anticipated this union, and before a complete disillusion, all her appeals to her husband to save them from a matrimonial wreck fell upon deaf ears. It was his duty to guard her happiness, if it could be reasonably done, and she offered a solution, to the effect that the two occupy one part of the house to themselves and his parents the other. The house was ample for the purpose, and little expense, if any, of making two apartments was involved-merely using one side for themselves. No reason appears why this was not entirely feasible, and it certainly offered a hope for contentment and a continued marriage relationship. Defendant ignored all suggestions. He stood unmoved, with the suggestion if she did not care to live there as it was, she could go elsewhere. She was reluctant to leave him, but he carried her to her sister's in the same city, where she now lives. A reading of the record is persuasive that the separation was a matter of indifference to him, but of pain and disappointment to the wife.

We have recognized the husband's right to select his own domicile, but that this right is limited to the extent that it must be...