Hewitt v. Hewitt
| Decision Date | 16 April 1970 |
| Docket Number | 3 Div. 394 |
| Citation | 234 So.2d 283,285 Ala. 516 |
| Parties | Ross I. HEWITT, Jr. v. Gladys Patterson HEWITT. |
| Court | Alabama Supreme Court |
Harry H. Perdue Jr., J. Paul Lowery, Montgomery, for appellant.
Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, for appellee.
In the present case the husband filed his bill for divorce, asserting cruelty as the ground. The wife filed an answer, and a cross-complaint for divorce. Cruelty was also the ground on which she based her cross-complaint.
After an extended hearing, the Chancellor entered a decree granting the cross-complainant wife a divorce. He awarded to the wife alimony in gross in the amount of $12,500, and monthly alimony of $200.00 per month for 121 months, said monthly alimony to cease upon the remarriage or death of the cross-complainant. The Chancellor also awarded a fee of $5,000 to the solicitor for the cross-complainant.
Neither the husband or wife were novice sailors on the sea of matrimony. The present marriage was his fourth, and her third. Neither seems to have learned too much in the art of choosing a mate from former experience however, as their present marriage, which has lasted some six years, appears to have been a wreck for some years prior to the filing of the respective bills for divorce.
We see no need to set out the voluminous evidence presented by the respective parties in support of their respective bills. We have carefully read and considered all of the evidence and are convinced that the evidence offered by the wife was sufficient to support the Chancellor's conclusions and decree granting her a divorce.
Counsel for the appellant-husband contends that the divorce granted the wife should have been denied because of the operation of the doctrine of recrimination. This doctrine is to the effect that if both parties prove a statutory, though possibly differing ground justifying a decree of divorce, such reciprocal ground will defeat the award of a divorce to each party. Stabile v. Stabile, 203 Ala. 635, 84 So. 801; Downs v. Downs, 260 Ala. 88, 69 So.2d 250; Maddox v. Maddox, 281 Ala. 209, 201 So.2d 47.
Counsel bases his argument in aspect on the testimony of the parties as to occurrences during the last quarrel which led to the wife's departure from the marital abode.
Mr. Hewitt had gone to the home of a married couple, mutual friends of both parties. The hostess issued an invitation for both Mr. and Mrs. Hewitt to have dinner that night. Mr. Hewitt replied that he and Mrs. Hewitt had been on bad terms that day. Mr. Hewitt testified this was really not true, as he and Mrs. Hewitt had enjoyed a peaceful day, and he did not know why he made this statement. He then left for his home. The hostess meantime called Mrs. Hewitt to renew the invitation for dinner, and told Mrs. Hewitt of Mr. Hewitt's statement. Mrs. Hewitt went into the bathroom to put makeup on before going to the friend's home for dinner. During this time, Mr. Hewitt came into the house. According to Mrs. Hewitt he used 'a very ugly tone' and with much profanity told her he knew what was the matter with her, that she was full of pills, and began to shove her around. She went to another room to get her purse. Mr. Hewitt followed her, twisted her jacket on her and repeatedly slapped her. She picked up a chrome pipe, part of a collapsible clothes hanger because: 'I wanted to have something, because my husband goes insane.' Her husband took the pipe from her and 'lashed' at her. She ran out of the house with Mr. Hewitt following her. She got in an automobile, but Mr. Hewitt got her out and hit her on the chin with his fist. She then ran 'down the road' with Mr. Hewitt following and telling her he was going to 'finish' her.
Mrs. Hewitt testified that she never struck Mr. Hewitt with the pipe, but 'I would have.'
According to Mr. Hewitt, when he entered the house he saw that his wife was furious, and he asked her what was wrong. This seemed to enrage her more. When she went into the room where her purse was, he stood in the door and told her she was not going to get out until she calmed down. She then picked up the chrome pipe and he slapped her as he took the pipe away. When she ran out of the house she said she was going to cause a lot of trouble. He followed her and tried to grab her arm. She swung her purse and hit him, and he slapped her.
The doctrine of recrimination requires a denial of relief only if the complainant has been guilty of conduct which would entitle the opposite spouse to a divorce, that is, the misconduct should be of the degree recognized by law as a sufficient cause for granting a divorce to the other party. Nelson, Divorce and Annulment, Sec. Ed., Vol. 1, Sec. 10.03; Rankin v. Rankin (Mo.App.), 17 S.W.2d 381.
Further, where the one spouse has provoked the misconduct of the other, it would require a much stronger case to authorize a divorce in favor of the provoking party than if his or her conduct had been blameless. David v. David, 27 Ala. 222.
Under the testimony of Mr. Hewitt, the Chancellor as trier of fact could, we think, have reasonably concluded that Mrs. Hewitt's conduct was provoked by, and justified by Mr. Hewitt's actions, and no sound basis existed for application of the doctrine of recrimination.
It appears without contradiction that divorce proceedings previous to the present action had been instituted by Mrs. Hewitt, and dismissed. During this previous proceedings, Judge Thetford, before whom the matter was pending, had recommended to both parties that they consult a psychiatrist. This they both did.
In the present proceedings the complainant had called the respondent-wife as a hostile witness.
During cross-examination by her counsel, she was asked if she had not discontinued her visits to the psychiatrist because Mr. Hewitt had discontinued his visits. She answered: 'That is right.' Counsel for complainant then objected to the question as being a leading one. The court...
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