Killingsworth v. Killingsworth

• Decision Date: 28 August 1969
• Docket Number: 3 Div. 405
• Citation: 226 So.2d 308,284 Ala. 524
• Parties: Jo Ann M. KILLINGSWORTH v. Marvin H. KILLINGSWORTH, Jr.
• Court: Alabama Supreme Court

Page 308

226 So.2d 308

284 Ala. 524

Jo Ann M. KILLINGSWORTH v. Marvin H. KILLINGSWORTH, Jr.

3 Div. 405.

Supreme Court of Alabama.

Aug. 28, 1969.

Rehearings Denied Sept. 11, 1969.

Crenshaw & Waller, Montgomery, for appellant.

William B. Moore, Jr., Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.

BLOODWORTH, Justice.

This appeal is from a final decree granting the husband a divorce on the ground of cruelty, ordering a sale of jointly owned property, awarding both parties certain other property and attorneys' fees, and providing for payment of the court costs and the attorneys' fees out of the sale of jointly owned property.

This is the second appeal in this cause. After a former trial and decree in favor of the husband, the wife appealed and we reversed for failure of the trial court to require a clergyman, who had discussed the parties' marital troubles with them, to answer a question as to whether the husband had stated to him that the wife had threatened his life with a gun or knife. Killingsworth v. Killingsworth, 238 Ala. 345, 217 So.2d 57.

After the reversal and remand, the wife filed a cross-bill seeking a divorce on the ground of adultery. The husband filed an answer to the cross-bill and at the trial each side offered evidence, the husband offering the transcript of the evidence on former trial. The wife sought to show that the appellant had committed adultery with one Mary Bruce Cox. The husband sought to show that the wife had committed physical cruelty against him. After the evidence was taken ore tenus, the trial judge rendered a final decree in favor of the husband, from which the wife appeals.

The wife argues that the case should be reversed, and particularly that the court erred in the following assignments of error: (1) In granting the husband a divorce; (2) in not granting the wife a divorce; (3) in failing to make a ruling on the cross-bill of the wife; (4), (5) and (6) in ordering a sale of the jointly owned property with right of survivorship; (7) and (8) in ordering the proceeds of the sale impressed with the payment of the husband's and wife's attorneys' fees; (9), (11) and (13) in ordering the payment of court costs from the proceeds of the sale; (10) in failing to tax the court costs on the former trial against the husband; (12) in failing to award the wife a reasonable attorney's fee to be paid by the husband; (17) in ordering a pistol delivered to the court; (15) and (16) in holding the wife in contempt; (14), (18), (19) and (20) in failing to order the deputy register to strike the transcript of the evidence in the former trial, in denying motion to correct the transcript, in decreeing that this transcript was properly received in evidence at the trial of this cause, and finding the same was admitted by agreement.

After a careful consideration of these assignments of error, we are of the opinion that the trial court committed no error in the trial of this cause, except as respects the allowance and payment of attorneys' fees as will appear hereinafter.

The assignment of error (1) that the court erred in granting the husband a divorce for cruelty invites us to review the facts upon which the trial court based its decree. We have long held that there is a presumption in favor of the findings and conclusion of the trial court where testimony is taken ore tenus. We have also held that a decree based on these findings and conclusions will not be disturbed on appeal unless it appears they are plainly and palpably erroneous. Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471.

Nevertheless, the wife contends the husband failed to present evidence to substantiate the allegations of cruelty alleged in his complaint. The opinion of this court in Killingsworth v. Killingsworth, supra, contains a detailed discussion of testimony presented on the former trial in this cause. The same evidence was re-introduced in this case. We see no good purpose to be served in setting out or reviewing all of the evidence adduced relative to the truth of the allegations of cruelty.

The trial court heard and saw the witnesses as they testified. It is our duty to affirm the trier of the facts if the 'decree is fairly supported by credible evidence.' Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281. We think the decree in this case is so supported.

In assignment of error (2), the wife complains that the trial court failed to grant her a divorce from the husband upon her cross-bill alleging adultery with one Mary Bruce Cox. The wife presented testimony of witnesses who had seen the husband's automobile parked in front of Mary Bruce Cox's house at various hours of the night and one witness had seen him leave the house between 6:30 and 7:30 a.m. This witness frankly admitted that her information was gained by 'snooping' as she was a friend of the wife and felt she might need this information. The wife testified that on one evening she saw her husband park at Mary Bruce Cox's house around 5:30 p.m., and that she remained there throughout the night until daybreak, during which time her husband did not leave the house.

The husband denied ever having spent the night at Mary Bruce Cox's house, although he admitted taking her and her sons to ball games and having dated her since August 1965. The husband denied ever having had sexual relations with her. Mary Bruce Cox herself testified that she was divorced and had been dating complainant regularly since 1965. She denies he has ever spent the night at her home, although his car has remained in front of her house on occasions when they were on a fishing trip. She admits having gone with him to football games and to the Zoo in Birmingham. She denies ever having had sexual relations with him.

While we do not condone the conduct of a husband who dates another woman while still married, we cannot say that the decree of the trial court was plainly and palpably wrong when it had the opportunity to see and hear the witnesses testify. As we have already indicated, we are of the opinion the 'decree is fairly supported by creditable evidence'. Dunlavy v. Dunlavy, supra.

In assignment of error (3), the wife complains that the trial court failed to make a ruling on her cross-bill. We do not consider there is any merit in this assignment as the trial court's decree affirmatively shows 'Jo Ann M. Killingsworth is not entitled to a divorce under her cross-bill of complaint * * *.'

In assignments of error (4), (5) and (6), the wife charges the trial court erred in ordering a sale of the home of the parties which they owned jointly with right of survivorship. The wife relies on Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565.

In Bernhard, we held under a conveyance to the grantees, husband and wife, jointly with right of survivorship, it was intended that the entire interest should pass to the surviving grantee in fee simple. Therefore, we held the property was not subject to sale for division over one of the joint tenant's objection. Although, we pointed out, the division might be had during the joint lives of the tenants with consent of all the grantees.

Later, in Owens v. Owens, 281 Ala. 239, 201 So.2d 396, in a like instance of a joint tenancy with right of survivorship, we held that a division of the property could be ordered by the Chancellor in a divorce proceeding on the theory that the Chancellor, by having assumed jurisdiction in the divorce suit, is empowered to supply the consent of either party to a division of the property. We also held that in such a status that Bernhard has no application, viz:

'* * * for in that case (Bernhard) the action concerned the individual action of the parties with no power in the Chancellor to consent for either party to a division of the remainder.

'Equity grants full relief when it has jurisdiction on any equitable ground to grant any relief. Having assumed jurisdiction upon the invocation of the parties, the Chancellor will determine all the interrelated equities of the whole. * * *' Owens v. Owens, supra, at page 243, 201 So.2d at page 399.

The facts in this case are analogous to those in Owens v. Owens, supra. The parties owned the home jointly with the right of survivorship. Both parties, the husband by filing the bill, the wife by filing the cross-bill, have invoked the jurisdiction of the court. Thus, the Chancellor is empowered by his equity jurisdiction to supply a consent to he sale for either party. We think the trial court properly ordered a sale for division of the jointly owned home of the parties. We think the case of Bernhard v. Bernhard, supra, is inapplicable.

The wife also argues that the court erred in ordering the sale of the jointly owned property because it constituted her homestead. We find no merit in this assignment. Title 7, § 625, Code of Alabama 1940, as last amended, provides that the homestead, not exceeding $2,000 in value and in area 160 acres, shall be 'exempt from levy and sale under execution or other process for the collection of debts'. In the instant case, the land is not being sold under execution or other process for the collection of debts.

Likewise, what we have had to say above, with respect to the rationale in the case of Owens v. Owens, supra, is applicable. That is, the parties themselves could have divided the joint tenancy with survivorship by agreement and by invoking the jurisdiction of equity, the parties, in effect, empower the Chancellor by his equity jurisdiction to supply that which the parties could have themselves done.

With respect to assignments of error (7) and (8) that the trial court erred in ordering the joint property sold and the husband's and wife's attorneys' fees paid from the proceeds, we do not find any error therein, except as hereinafter appears.

The trial court's decree ordered the property to be sold. The husband's attorney was awarded an attorney's fee of $3,000, and the wife's attorney was awarded $3,000 plus an additional sum...