McCormack v. McCormack, 39023

• Decision Date: 15 February 1954
• Docket Number: No. 39023,39023
• Citation: 220 Miss. 116,70 So.2d 333
• Parties: McCORMACK v. McCORMACK.
• Court: Mississippi Supreme Court

Page 333

70 So.2d 333

220 Miss. 116

McCORMACK v. McCORMACK.

No. 39023.

Supreme Court of Mississippi.

Feb. 15, 1954.

Billy Neville, Ethridge & Minniece, Meridian, for appellant.

M. V. B. Miller, Gerald Adams, Meridian, for appellee.

McGEHEE, Chief Justice.

On January 6, 1953, the appellee, Mrs. Daisy McCormack, filed a bill of complaint herein against the appellant, C. C. McCormack, asking for a divorce on the ground of habitual cruel and inhuman treatment, and for temporary and permanent alimony and for an attorney's fee for handling the divorce and alimony proceeding in the trial court. She was granted a decree of divorce on the ground stated, the sum of $300 a month as permanent alimony at the final hearing, payable on the first day of each month beginning April 1, 1953, 'and continuing until the further order of this Court,' and an attorney's fee of $850. The defendant filed an answer in which he denied the material allegations as to habitual cruel and inhuman treatment, and thereafter filed a cross bill seeking a divorce on the same ground in his own favor. At the close of the evidence on behalf of the complainant, an order was entered allowing the defendant to withdraw his cross bill for affirmative relief.

On this appeal from the final decree in favor of Mrs. McCormack, it is urged by the appellant, C. C. McCormack, that the proof offered by his wife was wholly insufficient to sustain the allegation of habitual cruel and inhuman treatment, and insufficient to show that she was without ample means to support herself and to pay her own attorney's fee. These are the only two issues presented to us for decision.

The parties were married on October 20 1950. They each had been formerly married and had children by such former marriages. At the time of the trial on March 16, 1953, her daughter, Daisy Jean Hall, was nineteen, and her son, George Hall, was seventeen years of age, and the appellee was thirty-six, whereas Mr. McCormack was fifty-two years of age. After the death of her former husband, Gene Hall, and until September 30, 1950, the appellee had worked at a salary of $50 or more per week for D. B. Joyce in Meridian who operated a wholesale optical business there and elsewhere; but according to her proof she is not now able to work. Since the contention of the appellant on this appeal is the alleged insufficiency of the proof to sustain the decree of divorce, it is necessary that we summarize the principal facts in issue.

The appellee and her children owned at the time of her marriage to the appellant a two-story apartment house which she had been renting for $150 per month while she and her children resided in the home of her father. When she married Mr. McCormack they and her children moved into this apartment building. She contends that prior to the separation, and until the filing of the present suit by her for divorce, Mr. McCormack was insanely jealous of her and her former employer; that while they were living together Mr. McCormack would come home and ask 'Have you heard anything from Mr. Joyce? Have you had any phone calls? Have you seen Mr. Joyce? Have you been with Mr. Joyce? The old man is in town'; that on one occasion he got mad because she turned the loud noise of the radio off and that he threw her down on the floor, injuring her hip and leg; that on another occasion he was making a great deal of noise in placing groceries on the shelf while she was attempting to talk to her daughter, and that when she asked him not to make so much noise he pushed her against the Frigidaire; that when she married Mr. McCormack she was in good health, and that during the time they were living together he was so rude to her and to her children that she became almost a nervous wreck, and to such an extent that she had to go to the hospital on different occasions; that in May 1952 before their final separation on November 8, 1952, he packed his suitcase and left home; that in the early part of July 1952, on the occasion when she was carrying her daughter by automobile to a military base in South Carolina where her husband was to depart for overseas duty in the army, Mr. McCormack went as far as York, Alabama, in an effort to ascertain whether or not Mr. Joyce had accompanied them on the trip, and that this action on his part was wholly unwarranted; that he told the sister of her former husband that he thought that she was still seeing her former employer, and she testified that there was no basis for this suspicion; that while she was on the trip to South Carolina he packed up again and moved away from the home; and after having returned thereto subsequent to May 24, 1952, he gave the assurance to her that he would desist making complaints about her former employer, and would not otherwise mistreat her.

The proof on behalf of the appellee further disclosed that after her return from South Carolina, and while her husband was living away from home, she went to Houston, Texas where her sister lived and that after her return in a few days he again promised not to mistreat her, and that she withdrew a bill for divorce that she had filed prior thereto but on which no service of the summons was had on him; that finally he left home again on November 8, 1952, and that she thereafter filed the present suit for divorce on January 6, 1953. In the meantime they had lived separate and apart in her apartment house for a good portion of the time.

The proof further disclosed on behalf of the appellee, and it was undisputed that he had employed one or more detectives in an effort to obtain evidence of her alleged infidelity and immoral conduct with her former employer; and he made the contention that one of these detectives had seen her and Mr. Joyce on Mt. Barton, in or near the corporate limits of Meridian, where they were seated in an automobile for approximately an hour and a half one afternoon. He further contends, and so testified, that on December 10, 1952, he and the said detective saw Mrs. McCormack and her former employer in her home when they appeared to be mixing drinks at the sink, and that he and the detective followed them in a car until they lost them in the downtown traffic.

In answer to the testimony as to the alleged incident last above mentioned, it was shown by the testimony of Mr. Joyce, and a Miss Lightsey, who was the stock manager of his stores, that they arrived from Mobile, Alabama and registered at a motel in Meridian during the afternoon of December 9th, checked into separate cabins, and were together at a store throughout the next day except while at lunch, and except when making a trip about the middle of the afternoon to the motel where Miss Lightsey went in to get certain papers or records while Mr. Joyce waited out front in his car. These two witnesses testified that they were being shadowed by someone in a certain automobile, the license tag number of which he wrote down and later ascertained to be the automobile of the appellant; that at no time during the afternoon did he go to the home of the appellee. Moreover, the appellee positively denied that Mr. Joyce had ever been in her home while she was living with the appellant or after they had separated, or that she had been with him alone.

Mr. Joyce testified that he had never seen the appellee except on three occasions after she was released from his employment on ...