McLendon v. McLendon
| Decision Date | 10 December 1964 |
| Docket Number | 4 Div. 204 |
| Citation | 277 Ala. 323,169 So.2d 767 |
| Parties | Fred T. McLENDON v. Lillian F. McLENDON. |
| Court | Alabama Supreme Court |
Whitesell, Alton & DeMent, Montgomery, for appellant.
Cope & Cope, Union Springs, for appellee.
This appeal is from a decree entered in a divorce case. Appellee, wife, filed a bill seeking a divorce from bed and board. She also sought separate maintenance and support. The bill alleged that her husband had voluntarily abandoned her on July 11, 1962. The husband filed an answer denying the allegations of the bill and also filed a cross bill seeking a divorce a vinculo matrimonii alleging that the wife had voluntarily abandoned him on the day set forth in the bill. The appellee wife denied the allegations of the cross bill and in her answer set forth in addition to the allegations made in the original bill that the husband appellant was guilty of adultery.
The case was heard on the oral testimony of both parties and the deposition of the husband. At the conclusion of the hearing the chancellor decreed that the wife be divorced from the bed and board of the appellant on the ground of abandonment and granted $500 per month as separate maintenance and support and a solicitor's fee of $1,000. The chancellor also dismissed the husband's cross bill. The appeal is from this decree.
We have carefully reviewed the record. It consists almost exclusively of the testimony of the two parties. They were married in 1927. This marriage almost from its inception has been marred by a series of quarrels and separations.
However, after a careful review of the entire record we conclude that the appellee wife has proved grounds for a divorce for abandonment. Further, in light of the testimony adduced below it cannot be rationally concluded that the chancellor abused his discretion in dismissing the appellant's cross bill, in that there was testimony by the wife tending to contradict the appellant husband's evidence in regard to his allegations of desertion by the wife.
It is argued that the decree should not be affirmed, but modified to the extent of enlarging the relief granted in the decree to a divorce a vinculo matrimonii. This on the grounds that the appellant and appellee have had a tumultuous marriage for over thirty years and viewing the history of this marriage there is no hope that the parties can ever be reconciled.
Admittedly, certain writers in the field of domestic relations have advocated the view that a limited divorce is at best an unsatisfactory arrangement for both parties. However our statutory provisions relating to divorces, and the decisions thereunder, we feel necessitate an affirmance of this decree. Section 36, Title 34, Code of Alabama 1940, provides:
'The judge may decree a divorce from bed and board for cruelty in either of the parties, or for any cause which would justify a decree from the bonds of matrimony, if the party applying therefor desires only a divorce from bed and board.' (Emphasis ours.)
This provision has been in our codes since 1852. Prior to the Code of 1852, there was no provision for the granting of a divorce a mensa et thoro. Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866.
It should also be noted that under the provisions of Section 22(1), Title 34, supra, the existence of a decree a mensa for four years is itself made a ground for a divorce a vinculo. This section reads:
'The circuit court in equity shall have the power to divorce persons from the bonds of matrimony in favor of either party where there has been a final decree of divorce from bed and board, or of separate maintenance when such decree has been in...
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