Moor v. Moor

• Decision Date: 14 February 1924
• Docket Number: 4 Div. 106.
• Citation: 99 So. 316,211 Ala. 56
• Parties: MOOR v. MOOR.
• Court: Alabama Supreme Court

99 So. 316

211 Ala. 56

MOOR v. MOOR.

4 Div. 106.

Supreme Court of Alabama

February 14, 1924

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill for divorce by Ida Reid Moor against J. B. Moor. From the decree, complainant appeals. Affirmed.

O. C Doster and Lee & Tompkins, all of Dothan, for appellant.

O. S Lewis, of Dothan, for appellee.

MILLER J.

This is a bill for divorce and for the custody of the 9 year old child of the parties, filed by Ida Reid Moor against J. B Moor. Complainant seeks the divorce on the ground of habitual drunkenness of the husband-becoming addicted to it after their marriage by the use of liquor. The answer put in issue all material averments of the bill. The court by decree on final hearing held complainant's right to a divorce was not established, and dismissed the cause as filed for that purpose, but gave her the custody of the child, subject to future control by the court, and with the right of defendant to see it at reasonable times and hours when at the place where the child resides; and taxed each party with a part of the cost.

This appeal is by complainant from that decree. The appellee, defendant, moves to dismiss the appeal because it was taken too late under the statute. This decree was rendered on May 10, 1923, and the appeal was taken by giving security for the cost, which was approved on October 9, 1923. This was more than 60 days, and less than 6 months after the decree was rendered. Appeals from decrees of divorce must be taken within 60 days from the date upon which such decree was rendered. Section 2869, Code 1907.

There is no decree of divorce in this cause. The decree denies complainant the right to a divorce. Section 2869 applies only when a divorce has been granted by the decree of the court. Section 2868, Code 1907, and General Acts 1915, p. 711, as amended in General Acts 1919, p. 84, provide the time within which which an appeal may be taken from a decree denying the right to a divorce, which is within 6 months from the rendition of the decree. The appeal was taken within the time allowed by the statute, and the motion to dismiss it is overruled. Sections 2868, 2869, Code 1907; Gen. Acts 1915, p. 711, as amended Gen. Acts 1919, p. 84; Minge v. Smith, 206 Ala. 330, headnote 4, 89 So. 473; Pepper v. Horn, 197 Ala. 395, 73 So. 46.

The bill alleges, and the answer puts it in issue, that complainant was a resident citizen of Houston county, Ala., when the bill was filed, and that she "has been such all her life." The testimony was in conflict on this issue; but the trial court held a decision of it was unnecessary because under the evidence complainant did not prove her right to a divorce.

The court by the decree gave the custody of the child to the complainant, subject to future orders of the court, with right of the defendant to see him at reasonable hours at the place where he is located. This part of the decree is in favor of the complainant. There is no cross-appeal by the defendant assigning it as error. Complainant alone appeals from the decree; so that part of the decree as to the custody of the child is not before us for review, except incidentally, and we will not discuss and consider it.

Complainant bases her right to a divorce from the bonds of matrimony on the ground the defendant "has become addicted after their marriage to habitual drunkenness and the use of drugs or narcotics," under subdivision 6 of section 3793 of the Code of 1907, as amended in General Acts 1911, p. 631, and as further amended in General Acts 1919, pp. 839, 840. The answer of the defendant places this averment in issue, and the burden of proving it rests on the complainant. Section 3797, Code 1907. The averment that he became addicted to "the use of drugs or narcotics" was an additional, cumulative fact tending to intensify the charge of habitual drunkenness, which is permissible. But the real question thereby presented is whether the defendant became addicted after their marriage, to habitual drunkenness. Wright v. Wright, 200 Ala. 489, 76 So. 431; Noble's Adm'r v. Moses Bros., 81 Ala. 548, 1 So. 217, 60 Am. Rep. 175.

The complainant, her mother, father, and sister and the defendant were examined orally in the presence of the trial court. The depositions of other witnesses were taken and noted as evidence in the cause. The court held:

"Upon consideration by the court of the testimony offered by the complainant and the testimony offered by the respondent, after excluding all answers to questions propounded by the respondent to witnesses, to which objections were made by the complainant, it is the conclusion of the court that the grounds upon which the complainant bases her claim or right to a divorce are not established or proven."

This conclusion as to facts found by the trial court from oral and deposition evidence should not be disturbed by us, unless it appears from the testimony to be plainly wrong, contrary to the great weight of the evidence. Finney v. Studebaker, 196 Ala. 422, 72 So. 54; Thompson v. Collier, 170 Ala. 469, 54 So. 493; Bell v. Blackshear, 206 Ala. 673, 91 So. 576.

In State v. Savage, 89 Ala. 8, 7 So. 183, 7 L. R. A. 426, Chief Justice Stone defined drunkenness and habit, as follows:

"Drunkenness is that effect produced on the mind passions, or body, by intoxicants taken into the system, which so far changes the normal condition, as to materially disturb and impair the capacity for healthy, rational action or conduct; which causes abnormal results, or such as would not ensue, in the absence of the intoxicants-the changed effect produced by the immoderate, or excessive use of intoxicants, as contrasted with normal status and conduct.

"Habit is customary state, or disposition, acquired by frequent repetition; aptitude by doing frequently the same thing; usage; established manner. When a person has

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