Logan v. Davidson

• Decision Date: 06 June 1968
• Docket Number: 6 Div. 523
• Citation: 282 Ala. 327,211 So.2d 461
• Parties: Mildred M. LOGAN v. Clara DAVIDSON.
• Court: Alabama Supreme Court

Page 461

211 So.2d 461

282 Ala. 327

Mildred M. LOGAN v. Clara DAVIDSON.

6 Div. 523.

Supreme Court of Alabama.

June 6, 1968.

George Brown, Birmingham, for appellant.

Corretti, Newsom & Rogers, Birmingham, for appellee.

MERRILL, Justice.

Appeal from a decree denying appellant's motion to dissolve a temporary injunction. The one assignment of error charges that the court erred in taking such action.

The appellee, wife of Wilford C. Davidson, filed her bill seeking to enjoin her husband's paramour from 'receiving support, money, gifts, presents and other things of value from the said Wilford Chester Davidson, either directly or indirectly, and from visiting him, associating with him, meeting him clandestinely, writing to him, or otherwise associating with the said Wilford Chester Davidson, the husband of the complainant, and from going with him on trips in or out of the State and that she be further enjoined, either in person or by and through others, from writing to, communicating with or otherwise contacting the said Wilford Chester Davidson by word, note, letter, or telephone, or doing or causing to be done, directly or indirectly, any act preventing or tending to prevent said Wilford Chester Davidson from giving to the complainant the companionship, conjugal relationship and support and affection to which she, as his wife, is entitled,' and the writ was issued in those words.

The allegations of the bill showed that appellee and her husband were married in 1949, that they had a seventeen year old daughter, that during the two years next preceding the filing of the bill her husband had become enamored of appellant and he was seeing and associating with appellant. Paragraph 5 of the bill alleges:

'That your complainant is at this time and has at all times since the commencement of said affair making every possible effort to preserve the said marriage; that your complainant has not abandoned the marriage and is at this time and has at all times since the commencement of said affair made every effort to preserve the said marriage and maintain same for herself, her husband and the said minor child. Your complainant has encouraged and made every effort to persuade the said Wilford Chester Davidson to cease and desist from his relationship with the said respondent and to re-establish, maintain and keep the marriage between the complainant and him.'

After the trial court ordered the issuance of the temporary injunction, appellant filed her sworn answer in which she stated that appellee had abandoned her husband on June 3, 1966, and had not lived with him since and that he had filed a bill for divorce. She filed a motion to dissolve the temporary injunction and supported it with an affidavit of appellee's husband, stating 'that the appellee had removed herself from his home and abandoned him and that he never intended to live with her again under any circumstances. He also stated in his affidavit that any love and affection he formerly had for his wife had ceased to exist and that it would be a vain and useless thing for the trial court to attempt the restoration of the marriage by injunction.'

Appellee filed affidavits by Jimmy Greenwood, herself, her daughter, Deborah, and Christine Thompson.

The Greenwood affidavit states that Mr. Greenwood operated a cafe and that appellee's estranged husband and the appellant were seen there together on many occasions and that he had personal knowledge that he gave gifts and things of value to the appellant. He also swore that the appellant requested and was granted leave of absence from her job to have an out-of-town rendezvous with appellee's estranged husband.

The affidavit of the appellee says that her estranged husband left their home on June 12, 1966, and that she has repeatedly urged him to return and reestablish the marriage relationship. She also said that her husband had expressed his affection for their daughter on a number of occasions and had assured their daughter that he wanted to return and would return; that their marriage had been a very happy one until such time as the appellant came into the picture; that her husband had commenced consorting with the appellant approximately two years before. She also says that on June 23, 1966, she knew that her husband had gone to Florida and suspected that he had gone with the appellant; that she found the appellant and her husband registered as man and wife in Jacksonville, Florida; that the appellant then stated that she realized she had made a mistake in trying to break up the marriage and promised that if the appellee would not cause her any more trouble that she would never again interfere with the marriage and would never see appellee's husband again. She also swore that in spite of her husband's wrong doing, she still had a great amount of love and affection for the husband and that there was no reason why the marriage would not continue to work provided the appellant would leave her husband alone.

The affidavit of the daughter, Deborah Ann Davidson, states that her father left home in June of 1966 and that her mother and she had on many occasions requested him to return and live with...