McEvoy v. McEvoy

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, J.
• Citation: McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602 (Ala. 1925)
• Decision Date: 17 December 1925
• Docket Number: 383,1 Div. 374
• Parties: McEVOY v. McEVOY.

106 So. 602

214 Ala. 112

McEVOY v. McEVOY.

1 Div. 374, 383

Supreme Court of Alabama

December 17, 1925

Appeal from Circuit Court, Mobile County; J.W. Goldsby, Judge.

Bill for divorce by John H. McEvoy against Eva R. McEvoy. From the decree both parties appeal. Reversed, rendered, and remanded on main appeal; affirmed on cross-appeal.

Inge &amp Bates, of Mobile, for appellant.

Gaillard Mahorner & Arnold, of Mobile, for appellee.

GARDNER J.

Suit for divorce by the husband against the wife upon the ground of abandonment. From a decree dismissing the bill the complainant has prosecuted this appeal. That the parties have been living separate and apart for more than two years next preceding the filing of this bill is not controverted; but the respondent insists the abandonment was by the husband. To constitute such a voluntary abandonment authorizing a decree of divorce, it is well settled there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return. Brown v. Brown, 178 Ala. 121, 59 So. 48; Mayo v. Mayo, 199 Ala. 551, 74 So. 971.

The case presents purely a question of fact. The testimony was by deposition, not orally before the court, and is to be considered here without any presumption in favor of the ruling of the court below. We prefer to engage in no detailed discussion of the evidence, as it would but serve to place in bold relief this domestic unhappiness, and no useful purpose would be subserved thereby. Such has been the policy of this court since the passage of the Act of 1915, p. 594. The evidence has been read and studied with much care, and we content ourselves with a statement of our conclusion drawn therefrom.

The wife first left the husband, and we are persuaded there was no just cause or sufficient excuse therefor, and was without his consent. He provided well for his family, and there is no serious effort to show any unkind treatment on his part through the 16 years of their married life either toward any member of his own family or the nieces and nephews of the wife who also constituted a part of the household. We conclude, also, that the abandonment of the wife had all the earmarks of finality, with no intention to return. She engaged counsel, stating she wanted to see about a separation and a division of the property; a considerable sum having been accumulated during the marriage. The substance of this interview was contained in a letter from her counsel to the husband, wherein he was informed that the wife had stated she thought it for the best interest of all that the two should "live separately, and that a separation of *** property interests be had." Upon exhibiting the letter to the wife, the husband testified that she stated, "It meant what it said." He offered to her counsel an equal division of all property. Appraisers were appointed, and a satisfactory equal division was had, deed executed, and contract duly entered into, and in this contract, aside from waiving all claim of dower, the wife further agreed to "make no claim for alimony against the said John H McEvoy."

Certainly under all these circumstances the husband had every reason to believe and understand the separation was final, with no intention on the part of the wife to return, and no word or conduct of the wife is shown to have indicated otherwise to him during the intervening time.

In Stone v. Stone, 206 Ala. 568, 90 So. 794, cited by counsel for appellee, it appears the husband was at fault in causing the...