Hilfer v. Hilfer
| Decision Date | 23 October 1974 |
| Citation | 53 Ala.App. 549,302 So.2d 237 |
| Parties | Anton F. HILFER v. Grace H. HILFER. Civ. 415. |
| Court | Alabama Court of Civil Appeals |
A. Ted Bozeman, Montgomery, for appellant.
Poole & Poole, H. Edward McFerrin, Greenville, for appellee.
This is an appeal from a decree granting a divorce from bed and board.
Appellant--plaintiff below--filed suit for divorce on the ground of incompatibility. Defendant-appellee filed an answer admitting all the jurisdictional allegations of the complaint, including that of the existence of a condition of incompatibility between the parties. The answer further alleged various matters as to the financial affairs of the parties, the properties and income of each. It further stated that defendant was in ill health, requiring regular medical treatment which was available to her without cost as the wife of a retired military person. The answer concluded with a prayer that relief granted to plaintiff would be limited to a divorce from bed and board so that defendant might remain his wife and thus continue to receive medical care at a military facility. In the alternative, if an absolute divorce was granted, an order was requested to be entered requiring plaintiff to pay necessary medical expenses incurred by defendant. Further relief, including vesting of title in her of the home and payment of alimony was requested by defendant. Plaintiff filed answer to what he categorizes as defendant's answer and cross-claim, admitting some of the allegations therein; denying and demanding proof of others.
Decree, with findings of fact, was entered, denying relief to plaintiff and granting to defendant on her cross-claim a divorce from bed and board on the ground of incompatibility of temperament and an irretrievable breakdown of the marriage. The decree granted alimony of $50.00 per month during the lifetime of defendant; granted an automobile and the home to defendant, requiring plaintiff to execute a bill of sale to the automobile and a deed to his interest in the home. It further ordered plaintiff to pay an attorney fee of $250.00 to defendant's counsel together with costs of court.
On appeal plaintiff presents two charges of error. The first is that the court erred in denying him a decree of divorce.
Plaintiff's argument on the first assigned error is that as the court found from the evidence there existed a condition of such incompatibility of temperament that the parties could no longer live together, it had no authority to deny plaintiff an absolute divorce as requested.
Under the pleadings or the theory upon which this case was tried, we cannot agree that plaintiff's argument is correct. It is evident that counsel for plaintiff and defendant, together with the court considered that there was a petition by plaintiff for a divorce a vinculo matrimonii and an answer with cross-petition by defendant for a divorce a mensa et thoro. Such were the issues upon which the matter was tried by the parties and upon which the court rendered its decree.
It is the law that regardless of the state of the written pleadings, the parties may, by agreement or without objection, try the case on any theory they choose. Upon review, the appellate court will consider the case only upon the theory presented in the trial court. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217.
The original claim of plaintiff was for divorce on the ground of incompatibility of temperament. The answer of defendant admitted jurisdiction of the court over the parties and the action. Her answer admitted the allegations of incompatibility but further said that for reasons peculiar to her medical situation relief for plaintiff should be limited to a divorce from bed and board. Her answer further requested alimony and settlement of property rights. There does not appear any request that a decree of divorce, either a mensa or a vinculo be granted her but rather that the relief requested by plaintiff be limited. However, plaintiff's responsive pleading was entitled 'Answer to Cross-Claim.' The record indicates that as the hearing began, defendant first presented evidence in support of a cross-claim because of her admissions to plaintiff's complaint. The trial proceeded as if plaintiff's grounds were established and it only remained for defendant to establish her cross-claim. Such procedure appears unusual to say the least, but such was the theory which was followed without objection. Decree was rendered in accordance with such theory.
Had the matter not proceeded on the theory that defendant was cross-claiming for a divorce from bed and board, the presenting of evidence sufficient to establish incompatibility of temperament would have required the granting of a decree as requested by plaintiff. However, the consideration of a cross-claim for a divorce from bed and board, though upon the same evidence, presents the matter in a different aspect.
Upon hearing and submission, the trial court was presented with two requests for relief....
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DLJ v. BRJ
...divorce if the party applying therefor desired only a divorce from bed and board. See McLendon, supra; see also Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974), and Davis v. Davis, 281 Ala. 59, 198 So.2d 787 (1966). In contrast, the current statute authorizes the trial court to gran......
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Drummond v. Drummond
...parties under the facts of their case. McLendon, supra; Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978); Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (Ala.Civ.App.1974). In the instant case the trial court exercised its discretion and decided in favor of the wife by granting her a d......
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Haynes v. Haynes
...the court was empowered to grant the absolute divorce. McLendon v. McLendon, 277 Ala. 323, 169 So.2d 767 (1964); Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974). Plaintiff places in issue the correctness of attorney fees and payment of existing debts of the parties, including the am......
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Rayford v. Rayford
...We have answered husband's contention previously in Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978) and Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974). The ground of incompatibility was established by the evidence in this case. The court did not err in granting a Husband next a......