Hilley v. Hilley

• Decision Date: 17 October 1963
• Docket Number: 4 Div. 98
• Citation: 157 So.2d 215,275 Ala. 617
• Parties: Edgar C. HILLEY v. Jo Anne B. HILLEY.
• Court: Alabama Supreme Court

Page 215

157 So.2d 215

275 Ala. 617

Edgar C. HILLEY v. Jo Anne B. HILLEY.

4 Div. 98.

Supreme Court of Alabama.

Oct. 17, 1963.

Rehearing Denied Nov. 14, 1963.

Ben H. Lightfoot, Luverne, for appellant.

Turner & Kettler, Luverne, for appellee.

PER CURIAM.

Complainant in this cause (appellee here) on December 28, 1960, filed her bill of complaint in the Law and Equity Court of Crenshaw County, in equity against appellant, seeking a divorce and also a custodial award of her two minor children, one of whom is a boy 12 years of age and the other a girl 14 years of age, or were at the time suit was filed. From a decree granting complainant a divorce, a vinculo, from appellant and awarding her the custody of the two children, respondent appeals.

Complainant alleges that she is over the age of 18 years and is a resident of the State of Alabama, and has been such resident for the length of time required by law.

She further alleges that there were two children born to her marriage with respondent, Kathleen Malinda Hilley, born June 5, 1947, and a son, Wayne Edgar Hilley, born October 29, 1948.

Further she alleged that during the time she and respondent were living together as man and wife, respondent so conducted himself as to cause her reasonable apprehension of violence on her person attended with danger to her life or health, or she had reasonable apprehension of violence on her person attended with danger to her life or health which proceeded from the conduct of respondent. Title 34, Code of Alabama, 1940, § 22.

The original unqualified answer of respondent admits that complainant is over the age of 18 years, but denies that she is a resident of the State of Alabama, as alleged, and says further that she is a resident of the State of Maryland and has been since 1947.

Respondent also admitted the birth of the two children, as alleged, but denied disposition of their custody.

He also denied the alleged conduct pertaining to cruelty as alleged.

By an amendment to his answer, respondent denied that complainant is entitled to a divorce because, as he alleges, she committed adultery with one Frank Ewing, which act bars her from the relief that seeks to dissolve the bonds of matrimony between them.

The issues presented here for review and decision pursuant to the pleadings, assignments of error and adequate argument are: (1) Was complainant a bona fide resident of the State of Alabama when she filed her bill of complaint on December 28, 1960? (2) Was respondent guilty of conduct pertaining to cruelty as alleged? (3) Was complainant guilty of adultery with one Frank Ewing before December 28, 1960, which was the date the bill of complaint was filed?

We will undertake to treat these issues seriatim.

The legislature of Alabama, by Act No. 457, General Acts of Alabama, 1945, p. 691, appvd. July 6, 1945, Title 34, Recompiled Code of Alabama, 1958, Title 34, § 29, amended § 29, Title 34, Code of Alabama, 1940, by causing it to read as follows:

' § 29. If defendant a nonresident, a year's residence by plaintiff must be proved.--When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved; provided, however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.'

Thus we observe that no particular or specific period of residence or domicile in this State is required in this suit of complainant if the respondent is a nonresident, but to entertain suit the court must have jurisdiction of both parties to the cause of action. Under such circumstances the only jurisdictional requirement is that the complainant be domiciled in the State so as to confer upon the court jurisdiction of the res. Levy v. Levy, 256 Ala. 629, 56 So.2d 344(1). See cases cited.

We have also held that the Alabama courts have no jurisdiction of the marital status of the parties if neither was domiciled in Alabama. The parties cannot by agreement confer jurisdiction. Levine v. Levine, 262 Ala. 491, 80 So.2d 235(5).

Inasmuch as the respondent admittedly was a non-resident of Alabama when this suit was filed, in order to confer jurisdiction of this cause on the trial court, it must appear from the evidence to the reasonable satisfaction of the trial court that the complainant, at the time she filed suit, was a legal resident of or was domiciled in Alabama.

We also adhere to the rule, one that is peculiar to Alabama, that the uncommunicated motive or intention of a party is a matter of inference to be drawn from the facts and circumstances of the case, and is not the subject of direct examination. This rule applies both in civil and criminal cases. Levy v. Levy, supra; Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334(19, 20).

We have also observed that there is a distinction between the foregoing rule of exclusion and the rule which permits a witness to testify to declarations made by one in setting out on a journey, and to testify to other indicia of motive or intent. Thornton v. State, 253 Ala. 444, 45 So.2d 298(1).

We now address our observation to some of the surrounding circumstances and statements made by complainant upon which she relies to establish to the reasonable satisfaction of the court her contention that she was a resident of Alabama when she filed her suit for divorce.

The evidence which complainant adduced tends to show that she and her husband had domestic differences and difficulties that culminated in a separation agreement on July 20, 1960, whereby they agreed to live separate and apart, and both agreed not to molest or interfere with the life of the other. Mrs. Hilley acquired certain personal property, and Mr. Hilley agreed to pay a stipulated amount for the support of the children. Mrs. Hilley continued to occupy their residence property, but later she moved into an apartment.

According to complainant's testimony, her husband, the respondent, annoyed and harassed her by frequent visits to her place of abode due to an aroused suspicion that she was seeing a married man of wealth and business distinction. So, to avoid these unwelcome visits and annoyance on the part of her husband and to get away from him, she made plans to leave Maryland and establish residence in another state. There was much evidence offered that related to these alleged visits and the annoyances that accompanied them. We will not undertake to detail this evidence. Mrs. Hilley came to Alabama by plane on December 27, 1960, without her children.

The next day after her arrival, Mrs. Hilley filed her suit for divorce. She returned forthwith to Maryland, there, she testified, to make certain preparations for a permanent return to Alabama at a later date. She testified that she had to terminate her employment in a hank and, also, to look after her children who were still in school. These and other duties she claimed necessitated her stay in Maryland until May 5, 1961, when she returned to this State.

It also appears from the evidence that between the date of May 5, 1961, and the date of this trial in Crenshaw County, she and her two children, who came back to Alabama with her, terminating their school attendance before school was out, lived at places of public accommodation in Birmingham, Montgomery, Mobile, and Gulf Shores, near Mobile. There was considerable evidence about the expense of these accommodations and who paid this expense. Also, there was evidence that during that time she saw on occasions her alleged paramour, Mr. Ewing. These visits by Mr. Ewing, so far as the evidence showed, were platonic.

The daughter, Kathleen, testified that sometime before Christmas of 1960, prior to her mother's first departure for Alabama, her mother asked her and her brother if they would like to leave, in the words of the witness, 'because things were not going very well and it was uncomfortable for us and so we thought about moving to Alabama, and she flew down there.' She then told about a discussion in which a decision was reached that they would find some place in the south, and particularly Alabama. This decision or discussion took place before Christmas of 1960.

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