Kincaid v. Kincaid

• Court: United States State Supreme Court of Mississippi
• Citation: 207 Miss. 692,15 A.L.R.2d 667,43 So.2d 108
• Docket Number: No. 37227,37227
• Parties: , 15 A.L.R.2d 667 KINCAID v. KINCAID.
• Decision Date: 28 November 1949

Page 108

43 So.2d 108

207 Miss. 692, 15 A.L.R.2d 667

KINCAID v. KINCAID.

No. 37227.

Supreme Court of Mississippi, in Banc.

Nov. 28, 1949.

Brunini, Brunini & Everett, Vicksburg, for appellant.

H. K. Murray, Vicksburg, for appellee.

SMITH, Justice.

Appellant and appellee are husband and wife, and the parents of one child, who, at the time of the trial in the chancery court, was about two years old, and residing in Tallulah, Louisiana, in custody of the appellant-mother.

Appellant filed suit for divorce, custody of the child, temporary and permanent alimony, together with suit money and attorney's fees. The trial court allowed alimony pendente lite in the sum of $125 per month, to begin February 1, 1948, and to continue until the first day of the April term of the Warren County Chancery Court following. At the trial of this case, a final decree was entered that appellant 'be denied a divorce from the defendant and that complainant be denied any alimony from the defendant; that the custody of minor child of the marriage is not adjusted in this cause. It is further ordered and adjudged that the defendant, Robert C. Kincaid, pay to complainant, Elizabeth B. Kincaid, the amount of $65.00 per month for the support and maintenance of Elizabeth Coleman Kincaid, minor child of the marriage.' The failure to award custody of child was apparently due to its then being beyond the jurisdiction of the court, in Tallulah, Louisiana.

The charge in the divorce bill was habitual drunkenness. Section 2735, Code 1942. The proof overwhelmingly sustained this accusation. Indeed, of the many instances detailed in the evidence, appellee denied only one, while confessing several others. The wife's testimony was amply corroborated. It would serve no useful purpose to discuss these facts further, except to say that on them appellant was entitled to a divorce.

However, the appellee defended on the ground that she had antenuptial knowledge of his drinking habits, and was, therefore, estopped to claim a divorce because thereof. The general rule relative to this contention is announced to be that knowledge by complainant of the cause for divorce at the time the marriage was consummated is a bar to the suit on that ground. Volume 27 C.J.S., Divorce, Sec. 58, page 608.

Amis on Divorce, Section 158, states the pertinent law as follows: 'If one spouse has knowledge at the time of the marriage, that the other is impotent, or an habitual drunkard, or an habitual drug addict, or has been sentenced to serve a term in the penitentiary, or is insane, or is afflicted with an incurable venereal disease; or if at the time of the marriage the husband knows or has reason to suspect that his wife is pregnant, he or she takes the risks incident to such a marriage and may not be heard to complain thereafter on account of any such known fact; 9 R.C.L. 317, section 93; 19 C.J. 82, par. 191. [27 C.J.S., Divorce, Sec. 58]. But mere suspicion based on rumor, or other unreliable information, is not sufficient. In such a case it must be shown that the complainant knew the fact, or had such reliable information as would lead a reasonably prudent person to believe the particular fact. Nor is it sufficient to show merely that the complainant had such information, as if it had been diligently pursued would have led to a discovery of the fact. In order to bar relief in such a case it must appear that the complainant actually knew or had reasonable knowledge of the particular fact. Neither is it sufficient to show that the complainant knew that the defendant occasionally used intoxicating liquors or narcotic drugs. It must, in such a case, be shown that complainant knew or had good reason to believe that the defendant was an habitual drunkard or habitually used narcotic drugs to excess.' See also Rankin v. Rankin, Mo.App. Kansas City, 17 S.W.2d 381; Froehlich v. Froehlich, 146 Wash. 175,...