McLemore v. McLemore

• Decision Date: 14 October 1935
• Docket Number: 31800
• Citation: 173 Miss. 765,163 So. 500
• Court: Mississippi Supreme Court
• Parties: MCLEMORE v. MCLEMORE

163 So. 500

173 Miss. 765

MCLEMORE v. MCLEMORE

No. 31800

Supreme Court of Mississippi

October 14, 1935

Division B

1 DIVORCE.

As respects whether divorce may be granted on ground of desertion, offer of reconciliation and return made by deserting spouse must be in good faith, and offeree is entitled to dependable showing of sincerity and good faith and reasonable opportunity to consider offer.

2 DIVORCE.

Husband's offer to resume marriage relation held not' to deprive wife of right to divorce on ground of desertion where wife agreed to consider offer upon condition that husband should free himself from alleged trouble in which he was involved with another woman, and husband did nothing with regard to wife's condition.

3 DIVORCE.

In bill for divorce on ground of desertion, evidence as to husband's alleged illicit affair with another woman held admissible, notwithstanding affair was not pleaded, where affair was simply evidentiary on inquiry as to blamableness of separation and reasonableness of wife's requirement that husband should free himself of his trouble as condition of her resuming marital relations.

4. PLEADING.

Ultimate essential facts upon which cause of action or affirmative defense thereto is based must be averred, but not the items of evidence by which ultimate essential facts are to be proved.

HON. BEN STEVENS, Chancellor.

APPEAL from chancery court of Forrest county HON. BEN STEVENS, Chancellor.

Bill by Ida May McLemore against W. McLemore. From a decree, complainant appeals. Reversed and remanded.

Reversed and remanded.

Sullivan & Sullivan, of Hattiesburg, for appellant.

There is no question but what all the elements necessary to make up a case of desertion for the statutory period were proven in this case by appellant.

Appellee never, on any occasion, made any offer to return to appellant; and, had he done so without first ceasing his adulterous relations with his mistress, appellant would not have been bound to have accepted the offer in order to obtain a divorce on the grounds of desertion, and the law would not presume that simply because he had sought a reconciliation with his wife he had given up his adulterous relations.

19 C. J., p. 66, par. 122, and p. 67, par. 126.

Where a husband continues to live in open adultery with another woman his willingness to resume cohabitation with his wife will not relieve him of the charge of desertion.

Edwards v. Edwards, 62 L. J. P. 33; 9 R. C. L., p. 373, par. 161; Fulton v. Fulton, 36 Miss. 517; Rylee v. Rylee, 108 So. 161.

When a separation and intent are once shown, the same intent will be presumed until the contrary appears.

19 C. J., p. 68, par. 128.

Hearst, Pittman & Pittman, of Hattiesburg, for appellee.

In our view of the case, it seems quite proper to us to submit the case on behalf of the appellee without argument on our part, with the observation that the chancellor heard the evidence, observed the witnesses, and their appearance and manner in court and was the sole judge of their truthfulness and credibility and all that, and the chancellor's conclusion and findings from, the evidence are conclusive of the facts.

OPINION

Griffith, J.

A bill was filed by the wife, appellant, against her husband for a divorce and for alimony, upon the statutory charge of desertion. The testimony is undisputed that the husband left the matrimonial domicile at a time more than three years before the institution of the suit. He did not then, nor does he now, assert any complaint of misconduct on the part of his wife; he frankly stated as a witness that he was simply not satisfied with married life. He asserts that the separation was by mutual agreement, but the evidence is not sufficient to sustain that contention in point of law; and as we read the opinion of the chancellor, his finding is, in fact, that the wife was deserted by the husband.

The chancellor denied...