Mangham v. Mangham
| Decision Date | 24 May 1956 |
| Docket Number | 5 Div. 635 |
| Parties | Wylle P. MANGHAM v. Mae Clements MANGHAM. |
| Court | Alabama Supreme Court |
The agreement exhibited with the bill is as follows:
'This agreement made and entered into this 28th day of December, 1953, by and between Mae C. Mangham, of the First Part, and Wylie P. Mangham, of the Second Part, Witnesseth:
'Whereas, the First and Second Party were lawfully united in marriage on December 22, 1912, and are now husband and wife, and
'Whereas, unfortunate differences have arisen between the above two parties, as the result of which the First and Second parties have separated, and are now living separate and apart, and
'Whereas, the First and Second Parties are desirous of entering into an agreement under which they may continue to live separate and apart from each other:
'Now, therefore, it is mutally agreed as follows:
'1. It shall be lawful for each of said parties, at all times hereafter to live and to continue to live separate and apart from each other, and to reside from time to time at such place or places, and with such person or persons as either such parties may see fit and conduct, carry on, and engage in any employment, business or trade which either may deem fit, free any control, restraints or interference directly or indirectly by the other.
'2. That neither party shall molest the other, nor compel nor to attempt to compel the other to co-habit with him or her by any legal or other action or proceeding for the restitution of conjugal rights or otherwise.
'3. That neither of said parties shall contract, at any time or times in the name of the other party or in any way subject him or her to liability for any debt or debts, for which either party might in any way become liable.
'4. That this agreement shall be terminated by either party filing for and obtaining a divorce from the other, or by the death of either party. It is mutually agreed herein that should either party to this agreement see fit to file for an absolute severance of the bonds of matrimony that the other party shall not contest same but will consent in writing that same be granted, without notice or service perfected on the other party.
'5. That both of said parties shall accept the provisions herein made in lieu of any and all claims for support and maintenance and benefit to either of said parties, or provisions in behalf of either party during the term of this agreement.
'In Witness Whereof, both of said parties have hereunto set their hands in duplicate this the 28th day of December, 1953.
'/a/ Mrs Mae C. Mangham, L.S. First Party.
'/a/ W. P. Mangham, L.S. Second Party'
Wm. C. Hare and Harry D. Raymon, Tuskegee, for appellant.
L. J. Tyner, Opelika and Edw. H. Reynolds, Notasulga, for appellee.
Appellee filed this bill seeking, among other relief, a decree of divorce on the ground of abandonment. Appellant demurred and, his demurrer being overruled, has appealed to this court.
The bill avers in part as follows: 'That Complainant and Respondent were lawfully married to each other on December 22, 1912, in Macon County, Alabama; that they lived together continuously as husband and wife for forty-one years, in Macon County, Alabama, and until on, to-wit Nov. 28, 1953, at which time Respondent voluntarily abandoned your Complainant, and the bed and board of your complainant and has never returned to live with her.'
It is true, as observed in Perry v. Perry, 230 Ala. 502, 162 So. 101, that to constitute voluntary abandonment within the meaning of the statute, "there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return", yet all of these facts need not be set out in the bill. Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183; Nelson v. Nelson, 244 Ala. 421, 14 So.2d 155; Kidd v. Kidd, 246 Ala. 313, 20 So.2d 515; Siener v. Siener, 250 Ala. 376, 34 So.2d 576.
The averments of the bill which we quoted above, standing alone, under the authority of the cited cases, are unquestionably good as against the grounds of demurrer argued in brief filed here on behalf of appellant.
But those averments do not stand alone. Attached to the bill as an exhibit and made a part thereof by reference is a separation agreement into which the parties entered on December 28, 1953, one month after the separation, which the reporter will set out in the report of the case.
Because the agreement is made a part of the bill, the appellant asserts that the action of the trial court in overruling his demurrer is contrary to the holding of this court in Starling v. Starling, 255 Ala. 641, 53 So.2d 547, 548, where we reversed the decree of the trial court overruling a demurrer to a bill for divorce charging abandonment where a separation agreement entered into by the husband and wife about a month after the separation was made an exhibit and a part of the bill. In the Starling case, supra, we said in part as follows:
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