Porter v. Porter, 8 Div. 672

• Decision Date: 13 March 1953
• Docket Number: 8 Div. 672
• Citation: 258 Ala. 488,63 So.2d 804
• Parties: PORTER v. PORTER.
• Court: Alabama Supreme Court

Page 804

63 So.2d 804

258 Ala. 488

PORTER v. PORTER.

8 Div. 672.

Supreme Court of Alabama.

March 13, 1953.

Scruggs & Scruggs, Guntersville, for appellant.

Smith & Tompkins and Clifford K. Deloney, all of Tuscumbia, for appellee.

BROWN, Justice.

This is an appeal from a final decree entered on the motion of the defendant dismissing the complainant's bill seeking a divorce a vinculo matrimonii from her husband on the alternative ground embodied in § 22, Title 34, Code of 1940, 'or when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the bill; and she has bona fide resided in this state during said period.' As to this phase of the relief sought the bill alleges:

'That the Complainant and Respondent were married in Marshall County, Alabama, on towit: the 30th day of December, 1947, and thereafter lived as husband and wife in Marshall County, Alabama, until towit: the 29th day of June, 1950, at which time they were separated and they have not lived or cohabited as man and wife since said date and said separation occurred in said county on said date; that said Complainant has lived separate and apart from the bed and board of the Respondent, her said husband, for a period in excess of two years and without support from him for two years next preceding the filing of this bill of complaint and she has bona fide resided in said State and in said county during said period of time.'

The bill also seeks a decree giving complainant the custody of her infant son, born as a result of the marriage with the defendant. In respect to this phase of the relief sought the bill alleges: 'there was one child born as a result of this marriage, namely, Ben Burdette Porter, Jr., a son, who was born on towit; February 12th, 1950, and Complainant avers that she is a fit and proper and suitable person to have and enjoy the full custody and control of said minor child; that she has property sufficient to and an income sufficient to provide for herself and said child and has been providing for its support since it was born; that the environment of her home is good and proper for the rearing of such minor child and that it is to the best interest of said child that its full and complete custody and control be given by this Court to its mother, the Complainant, and she has no objection to this court providing that the father may see and visit with said child at reasonable times.'

The appellant filed her bill on the 15th day of July, 1952, sixteen days after the expiration of the two years necessary to establish the statutory ground for divorce. Code of 1940, Tit. 34, § 22. The defendant filed an answer to the bill in which he embodied a motion to dismiss the bill, which we quote:

'Comes now the Respondent, Ben Burdette Porter, who appears specially for no other reason hereby makes this motion to dismiss and hereby asks and moves this honorable Court to dismiss this bill of complaint since at the time of the filing and institution of above said cause there was pending in this honorable court a suit filed by the said Ben Burdette Porter against the Respondent Myra Leak Porter wherein the same subject matters, the same parties and the same cause of action is involved, and all matters may be settled and finally disposed of in the case of Ben Burdette Porter v. Myra Leak Porter.' [Italics supplied.]

The defendant by his answer admitted the allegations of paragraphs one and two of the bill and in paragraph 3 of his answer respondent alleges: 'The Respondent admits that the Complainant and Respondent were married in Marshall County on the 30th day of December, 1947 and thereafter lived as husband and wife in Marshall County until on or about the 28th day of June, 1950. Respondent admits they have not lived together as man and wife since on or about towit: the 28th day of June, 1950. Respondent herein specifically denies all other allegations contained in paragraph three (3).'

Answering paragraph 4 of the bill the respondent limits his admission to the fact, age and date of the birth of the infant, concluding with a blanket denial of all other allegations of the bill. The sufficiency of the allegations of the bill was not challenged by demurrer either general or special.

On a regular call of the equity docket on August 18, 1952, the case was submitted on the motion of the defendant embodied in the answer and a counter motion by the complainant to consolidate this case, No. 8018, with the case previously filed by the husband against the wife on February 19, 1952, and numbered on the equity docket as 7950. Thereupon the court entered the following decree:

'It appears to the Court that an Original Bill for divorce was filed by this Respondent against This Complainant on the 19th day of February, 1952, seeking a divorce and custody of the minor child, said cause appearing on the docket of this Court as case #7950. An examination of said file shows the identical parties and subject matter and satisfies the Court that Respondent's motion is well taken.

'It is, therefore, Ordered, Adjudged and Decreed by the Court that Respondent's motion to dismiss the Original Bill filed herein on the 15th day of July, 1952, be and the same is granted and said Bill is dismissed without prejudice to filing a proper Cross-Bill.

'Complainant is taxed with all costs herein accrued.

'This 18th day of August, 1952.' Hence this appeal.

The errors assigned are four in number, stated in short as follows: 1. The court erred in granting the motion to dismiss the bill; 2. the court erred in dismissing the original bill; 3. the court erred in taxing complainant with the costs; 4. the court erred in failing to grant appellant's motion to consolidate this cause with cause No. 7950.

The bill in form and substance conforms to Equity Rule 11, Code of 1940, p. 1050, Tit. 7, and contains a clear and orderly statement of the facts on which the suit is founded without prolixity or repetition, the averments being divided into sections of convenient length for answering and are numbered consecutively from one to four.

The complainant in filing the...