Miller v. Miller

• Decision Date: 21 January 1935
• Docket Number: 30756 1/2
• Citation: 159 So. 112,173 Miss. 44
• Court: Mississippi Supreme Court
• Parties: MILLER v. MILLER

159 So. 112

173 Miss. 44

MILLER v. MILLER

No. 30756 1/2

Supreme Court of Mississippi

January 21, 1935

Division A

Suggestion Of Error Overruled, March 4, 1935.

APPEAL from the chancery court of Warren county HON. J. L. WILLIAMS Chancellor.

Suit by Mrs. Mary H. Miller against George W. Miller, Sr. From an adverse decree, defendant appeals. Affirmed in part and in part reversed, and modified decree entered.

Decree affirmed in part and reversed in part.

Watkins & Eager, of Jackson, and Kennedy &amp Geisenberger, of Natchez, for appellant.

R. M. Kelly and Brunini & Hirsch, all of Vicksburg, for appellee.

Briefs of counsel not found.

Argued orally by W. H. Watkins, Sr., and L. T. Kennedy, for appellant, and by J. B. Brunini and R. M. Kelly, for appellee.

OPINION

Cook, J.

This is an appeal from a decree of the chancery court of Warren county, Mississippi, declaring a divorce previously obtained by the appellant, George W. Miller, Sr., in a proceeding against his wife, Mrs. Mary H. Miller, in the chancery court of Garland county, Arkansas, to be fraudulent, and granting the appellee a divorce from her said husband, and awarding her alimony in the sum of fifty thousand dollars, and an additional sum of five thousand dollars as a reasonable attorney's fee.

The appellee filed an original bill of complaint against her husband, George W. Miller, Sr., and various banking and business institutions, and certain other parties not necessary to be here named. The bill alleged that the appellee and George W. Miller, Sr., were married on the 1st day of January, 1908, and immediately established their home and residence in the city of Vicksburg, Mississippi, where the appellant was born and reared and has resided all his life; that they continued to live together as husband and wife, in comparative peace and harmony, until 1921; and that there was born of this wedlock one son, George W. Miller, Jr., who was then over the age of twenty-one years, and had continuously resided with the appellee, his mother, in the city of Vicksburg, since his birth.

The bill contained the usual averments as to the performance of the duties of a loyal and faithful wife, and contained averments as to the aid and assistance she had given her husband in accumulating, by his business efforts, a substantial fortune, which was later substantially increased by inheritance from his father's estate. It was further charged that about September, 1921, persistent rumors of infidelity on the part of her husband were conveyed to her, and that, about that time, his demeanor toward her changed, and he became entirely indifferent to her happiness and comfort, and, despite her efforts to restore their former pleasant and cordial relations, he continued to grow more irritable and distant, and became, apparently, uncomfortable in her society, and absented himself more and more from their home and her society.

It was further charged that, after the appellant's conduct with different women of questionable character became almost a public scandal, to the embarrassment and humiliation of herself, her son, and appellant's relatives and friends, and after evidence of the truth of the continued reports of infidelity on his part came to her, she accosted him with the charge of infidelity, and he admitted the truth of the charges; that, in order to shield the family from further public humiliation and embarrassment, upon the insistence of her said husband, and upon his distinct promise to cease his improper conduct, she agreed to remain in the home, without cohabitation, but that, notwithstanding his promises, he thereafter continued his association with lewd and questionable characters, and finally entirely withdrew from the home, and that "after her said husband withdrew from her home, as aforesaid, and while complainant was doing her utmost to properly rear and train their said son, and over her protest and entreaties, the defendant continued a life of licentiousness; that he grew bolder and bolder in his association with immoral characters; that he drank greatly, to excess almost daily; and that he became so enamored with one of said characters that he provided apartments for her in the said city of Vicksburg, furnishing her with an automobile, and all of the comforts and luxuries of life; that he has openly and notoriously lived and cohabited with her, and that he still continues at the present time to live and cohabit with and provide for said immoral character to complainant's humiliation, mortification and shame, as well as that of her son, his friends and his other relatives."

It was further alleged that during the years following the withdrawal of her husband from her home she had numerous interviews and conferences with him concerning business matters, at which times she remonstrated with him concerning his immoral conduct, and entreated him, for the sake of his mother and public decency, if not for the sake of herself and their child, to discontinue his immoral course; that other relatives and friends who were interested in the welfare of herself and her son advised with her husband and endeavored to persuade him to discontinue his immoral course, all to no effect; and that the said conduct of her husband continued throughout many years, causing her such humiliation, mortification, mental pain and anguish as to constitute cruel and inhuman treatment, which entitled her to a divorce.

The bill further charged that the appellant had a large estate, consisting of money, stocks, bonds, securities, and other valuables, on deposit in the defendant banks, and also other real and personal property of large value, a detailed statement of which was set forth in the bill and exhibits thereto. It was further charged that her husband's wealth and property had been accumulated since their marriage, and partly as a result of the help and assistance of appellee, that he had threatened and intended to convey, incumber, and secrete his property so as to defeat her marital rights therein, and that it was necessary to impress a lien thereon to protect her rights therein, and her right to temporary and permanent alimony and attorney's fees.

The bill further charged that the appellant had endeavored to secure appellee's consent to a divorce, and that in so doing his purpose and desire was to marry a woman with whom he was then living and whom he was supporting in a state of luxury; that, upon his failure to secure her consent to a divorce, he left the city of Vicksburg on or about March 27, 1932, and went to the state of Arkansas for the purpose of there securing a divorce and defeating her of the just rights to which she was entitled under the laws of the state of Mississippi; and that on May 28, 1932, he caused to be delivered to her a copy of a complaint in equity alleged to have been filed in the chancery court of Garland county, Arkansas.

The bill of complaint specifically denied every charge of fault or wrongdoing toward her husband as alleged in the Arkansas complaint, including the charges that she had been guilty of such indignities to him as to render his condition and life intolerable, that she had treated him with rudeness, contempt, abuse, and neglect, making it impossible for her said husband to longer live with her, and charged that said allegations were not only false and untrue, but were made with the fraudulent purpose on the part of her husband to procure a divorce from her, and to deprive her of her just rights in his estate. She further denied every allegation of faithfulness on the part of her husband, and charged that he had done everything within the category of infidelity, disloyalty, and disregard of the feelings, common respect, common honor, and common decency that was due her by her husband, and that he had willfully and fraudulently made the allegations found in the Arkansas complaint in the furtherance of his fraudulent purpose.

The bill of complaint further denied that her husband was an actual bona fide resident of Garland county, Arkansas, or that he had been such a resident for more than sixty days prior to the commencement of the action in Arkansas, and charged that the appellant's resort to the Arkansas courts was for the purpose of defeating her of her equitable rights, and for the purpose of securing to her husband an unfair and unconscionable advantage, and of vexatiously harassing and oppressing the appellee. There were set forth at length the pertinent provisions of the divorce laws of the state of Arkansas, and the reasons why the proceeding in the Arkansas court would be oppressive and would deprive the appellee of her legal rights, and charged that any divorce secured by her husband in the state of Arkansas in pursuance of his fraudulent purpose, and upon his false claim of residence in that state, and the false and fraudulent charge of grounds for the divorce, would be without territorial effect in this state, and should and would be treated as void by the courts of this state.

Upon these averments, in addition to the prayer for divorce and alimony, she prayed that appellant be enjoined from further prosecution of his suit in Arkansas and from entering into the bonds of matrimony with the named defendant, with whom it was alleged he was then living in adulterous relations, and also prayed that the several other defendants, who were alleged to have in their possession property and effects of the said appellant, be enjoined from delivering or paying over said property to him, and that the appellant be enjoined from conveying or incumbering in any manner any of his real and personal property, except such as might be absolutely necessary for the carrying on of his businesses, and for his reasonable personal expenses.

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