Meares v. Meares

• Decision Date: 24 January 1952
• Docket Number: 4 Div. 666
• Citation: 256 Ala. 596,56 So.2d 661
• Parties: MEARES v. MEARES.
• Court: Alabama Supreme Court

Page 661

56 So.2d 661

256 Ala. 596

MEARES v. MEARES.

4 Div. 666.

Supreme Court of Alabama.

Jan. 24, 1952.

H. K. & J. F. Martin, Dothan, for appellant.

J. N. Mullins, Jr., Dothan, for appellee.

GOODWYN, Justice.

This is an appeal from a decree granting a divorce a vinculo matrimonii to the wife on the ground that the husband 'became addicted after marriage to habitual drunkenness', and also awarding to the wife custody of the parties' two minor children, a boy of eight and a girl of five.

The parties were married in 1942. At that time, the husband (appellant) was a resident of the State of Florida and the wife (appellee) resided in Houston County, Alabama. The wife then moved to Florida with her husband where they lived together continuously as man and wife, except for short periods of time, until November 20, 1949. On that date she separated from her husband and returned to Houston County, Alabama, to reside, bringing with her the parties' two minor children.

On November 24, 1950, the wife filed her bill for divorce and custody in the Circuit Court of Houston County, Alabama, in Equity. As ground for divorce the bill charges 'that the respondent, Vance B. Meares, became addicted, after his marriage to your complainant, to habitual drunkenness, and she charges him with habitual drunkenness.' The decree, rendered on July 16, 1951, granted the divorce 'for and on account of the aforesaid Vance B. Meares having become addicted, after marriage, to habitual drunkenness.'

The evidence was taken orally before the court and by deposition. No good purpose will be served by detailing it here. Suffice it to say that no evidence was offered tending in any way to show that the habit of drunkenness continued until at or near the time of filing the bill for divorce. The testimony on this point ended as of the time of the separation in November, 1949, a year before the bill was filed.

We are dealing here, in so far as the divorce is concerned, with a proceeding wholly dependent upon statutory authority. The jurisdiction of a court of equity to grant a divorce a vinculo matrimoni does not exist independent of the statute, and it is essential that jurisdictional facts affirmatively appear from the record. Martin v. Martin, 173 Ala. 106, 111, 55 So. 632; Crimm v. Crimm, 211 Ala. 13, 15, 99 So. 301; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Anthony v. Anthony, 221 Ala. 221, 224, 128 So. 440; Partlow v. Partlow 246 Ala. 259, 20 So.2d 517; Spencer v. Spencer, 254 Ala. 22, 27, 47 So.2d 252.

The ground for divorce charged is based on subdivision 6 of § 20, Title 34, Code of 1940, which, in pertinent part, is as follows: 'For becoming addicted after marriage to habitual drunkenness'.

Since the decision in the case of McMahon v. McMahon, 170 Ala. 338, 54 So. 165, this court has been strict in holding not only that the habit of drunkenness must have been acquired after marriage, but must have continued until at or near the time of filing the bill for divorce; also, that an allegation that the respondent 'has become addicted to habitual drunkenness' is the equivalent of averring that 'he still is or was addicted to the habit when the bill was filed.' Armstrong v. Armstrong, 217 Ala. 581, 582, 117 So. 195; Brown v. Brown, 219 Ala. 104, 121 So. 386; Russell v. Russell, 247 Ala. 284, 24 So.2d 124; McCary v. McCary, 253 Ala. 468, 470, 45 So.2d 292.

The effect is to make such allegation a jurisdictional requirement, which must be supported by proof. Without such proof a court of equity has no authority to grant the divorce. Admittedly, there is no proof in this case that appellant was 'addicted to the habit when the bill was filed', and for this reason reversible error was committed in granting the divorce.

This court's interpretation of the statute (now subdiv. 6, § 20, Title 34, code 1940), has, in legal effect, become part and parcel of it as effectually as though therein set out in haec verba. The McMahon case, supra, was decided in 1910. Since then the statute, § 3793, Code 1907, has been amended several times (but not affecting that part here under consideration), and has been recodified twice. Code 1923; Code 1940. In discussing the effect of the codification of a statute which has been judicially construed, this court, in the case of Ex parte Thompson, 249 Ala. 12, 14, 29 So.2d 287, 288, had this to say: 'And as so interpreted these statutes were carried into the subsequent codes of 1923 and 1940 without change and this interpretation by legislative adoption has become a part thereof and they now speak in the language of the interpretation. * * *'

This doctrine is stated in the case of Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 684, 166 So. 604, 607, as follows: 'When this court has construed the statute in question, as it is contained in the Code of 1907, and thereafter recodified without change, such construction may not be disregarded or changed except by expression of legislative intent. * * *' For additional cases to the same effect, see 18 Ala. Digest, Statutes, k225 3/4.

Appellee insists that this case should be an exception to the rule; that her husband, the respondent, was a non-resident, and therefore, she could not file the bill for divorce in Alabama until after she had been a bona fide resident of this state for one year next before the filing of the bill; that she filed her bill in Alabama as soon as she could do so legally; that it is not equitable for the law to prohibit her from filing the bill for a year and at the same time, in effect, to require that she keep in contact with her husband during the year in order to get evidence of his continuance of the habit of drunkenness. We cannot agree with this contention. To so hold would do violence to the plain mandate of the statute. Appellee was under no legal compulsion to return to Alabama and file her bill for divorce, although it might well have been for the best interest and welfare of herself and her two children that she did return to Alabama. But this voluntary choice which she made certainly should not serve to place her in a more favored position with respect to proof than is required of residents of the State of Alabama.

A further insistence of appellee is, to quote from counsel's brief, 'that the appellee and her witnesses after making out a case against the respondent (appellant) of habitual drunkenness existing at the date of the separation in November, 1949, created a presumption that such drunkenness continued up to the date of the filing of the bill in this case and it thereby became incumbent upon the appellant to rebut this presumption, which he has not done.'

We cannot agree that, as a general proposition, the...