Price v. Price

• Decision Date: 28 March 1938
• Docket Number: 33029
• Citation: 181 Miss. 539,179 So. 855
• Court: Mississippi Supreme Court
• Parties: PRICE v. PRICE

179 So. 855

181 Miss. 539

PRICE v. PRICE

No. 33029

Supreme Court of Mississippi

March 28, 1938

Division A

Suggestion Of Error Overruled May 9, 1938.

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

Bill for divorce by Will A. Price against Mrs. Odene Latham Price wherein defendant filed a cross-bill for divorce. From a decree for plaintiff on his bill and dismissing her cross-bill, defendant appeals. Decree for plaintiff reversed, and original bill dismissed, and decree dismissing cross-bill affirmed.

Reversed and original bill dismissed; and decree of chancellor on cross-bill affirmed.

Neill & Townsend and Johnson & Allen, all of Indianola, for appellant.

It has long been the established rule in this state that suit money and attorneys' fees will be allowed to the wife in a divorce suit on appeal to the Supreme Court.

Hall v. Hall, 77 Miss. 741, 27 So. 636; 2 Nelson on Divorce and Separation, sec. 863; Franklin v. Franklin, 109 Miss. 163, 68 So. 74; Brown v. Brown, 123 Miss. 125, 85 So. 180; Russell v. Russell, 128 So. 270.

Nor is the right of the wife to an allowance for suit money and solicitors' fees in the Supreme Court affected by the fact that she is the appellant.

Duxstad v. Duxstad, 16 Wyo. 396, 94 P. 463, 15 Ann. Cas. 228; Roby v. Roby, 3 Ann. Cas. 51.

We respectfully submit that the facts of this case, as disclosed by the record, are insufficient to warrant a decree m favor of the appellee for a divorce. The courts generally hold that the misconduct of the spouse complained of must be such as will impair the health of the complainant or create an apprehension of bodily harm; the misconduct of the party must be such as to affect the life, or health, or general safety of the complainant.

Russell v. Russell, 157 Miss. 425, 128 So. 270; Humber v. Humber, 109 Miss. 216, 68 So. 161; Kenley v. Kenley, 2 How. 751.

There were numerous instances testified to by appellant of cruel and inhuman treatment by appellee, and this in addition to her charges of sexual abuse and like matters of cruelty. These charges were not denied by the appellee and stand in the record uncontradicted. With the charges of bestial conduct eliminated, which are the only charges of cruelty that were denied by him, sufficient testimony remains in the record, undisputed and uncontradicted, to prove habitually cruel and inhuman treatment by appellee of appellant within the meaning of the statute.

The appellant should have been granted a divorce on her cross-bill and allowed permanent alimony corresponding to the estate of her husband.

Armstrong v. Armstrong, 32 Miss. 279; Amis on Divorce and Separation in Mississippi, sec. 174.

The trial court allowed to appellant a solicitors' fee of only $ 200 on the theory that the appellee was able to pay no more because he owned no property, and that his sole income was a salary of $ 125 per month. But we say that the appellee owned an undivided one-third interest in the estate of which his father died seized and possessed, which is very valuable, as shown by the evidence, and from which, together with his salary, the appellee derives an income in excess of $ 5000 per annum.

Russell v. Russell, 128 So. 270.

F. E. Everett and J. M. Forman, both of Indianola, for appellee.

It is difficult to formulate an accurate definition of cruel and inhuman treatment, as used in our statute on divorce which will cover all cases, and while the courts must adjudicate each case upon its own facts, the acts of alleged cruelty are to be judged by the effect produced and not by the motive prompting the act.

McNeill v. McNeill, 125 Miss. 277, 87 So. 645.

Counsel for appellant asks this court to reverse this case on the facts alone. The version of what transpired between the parties before the bill was filed is given by the complainant on the one side and by the defendant on the other. No other witness testified as to any of the trouble between them. In fact, their marital troubles were of such a private nature that the facts could not be known by others. The evidence given by the parties themselves are sharply contradictory. The evidence on each side would amply warrant a decree for divorce. Therefore, the chancellor had to determine the facts. The chancellor who sat patiently through the trial, observed each witness as he or she testified, was in a position to judge better than any other living human who was telling the truth, whose evidence should have the greater weight. The chancellor did this and decreed that the complainant was right and his version more believable than that stated by appellee, and granted the divorce. Under these circumstances, this court has held in cases too numerous to mention or cite, that where the chancellor based his decree upon contradictory facts, his decision will not be disturbed if there were facts in the record upon which his decree could be based.

Sarphie v. Sarphie, 177 So. 358.

The interested parties here by their evidence showed their construction of the will which they were entitled to do, showing that they knew the intention of Mr. Price, and that they considered the entire property to have been willed to Mrs. Julia F. Price, and their construction of the will, being in good faith by the parties interested, should be upheld.

40 Cyc. page 1427, par. 2c.

Argued orally by S.D. Neill, for appellant, and by F. E. Everett, and J. M. Forman, for appellee.

OPINION

McGowen, J.

On February 23, 1936, Will A. Price, appellee, filed a bill for divorce from his wife, Mrs. Odene Latham Price, appellant, relying upon section 1414, seventh cause, Code 1930, habitually cruel and inhuman treatment. Immediately the chancellor ex parte granted an injunction restraining the wife from returning to her home or interfering with the husband's custody of the child, and allowing her temporary alimony for her support. Appellant thereupon filed an answer denying the material allegations in the bill, and also sought a divorce from appellee, her husband, on the same ground as alleged by appellee. Upon hearing the evidence, the court below granted the husband a decree of divorce and the custody of their child; and awarded the appellant, the wife, alimony and attorney's fees, but dismissed her cross-bill. She appeals from this decree.

It is insisted by the appellant that the court below erred in granting the appellee, her husband, a divorce; in awarding the custody of the child to the father; in refusing to grant her a divorce; and in allowing her insufficient alimony, and in connection with the latter allowing certain evidence purporting to show that her husband did not own valuable real estate.

We shall not undertake to detail the evidence from the voluminous record, which reveals that each of the parties seeks to throw the blame for wrongs, real or imaginary, on the other.

The parties were married on May 10, 1931. About ten months later there was born to them a child, a boy. The evidence reveals, undisputedly, that she was badly lacerated from childbirth, and that it was necessary for the physician to give her the required surgical treatment therefor; that soon thereafter she developed twin goiters and had them removed by an operation; that thereafter she was again sick and had to spend some time in the hospital; and that about a year afterwards she had to undergo an operation for the removal of one of her ovaries and otherwise have medical and surgical care.

It is further undisputed that after the birth of the child she became highly nervous, so much so that she and her husband had a serious quarrel on one occasion when she undertook to drive a car alone for a few miles. Along through their married life until the date of the filing of the bill, the husband described their daily life as filled with "big fusses."

The main ground upon which appellee, the husband, predicates his right to divorce is upon the ground of habitually cruel and inhuman treatment in that appellant, his wife, spoke of him as a "son of a bitch" and called the other members of his family vile, unrepeatable epithets, and provoked him beyond endurance with the use of such language throughout their married life; and from what we can gather from the record these quarrels were of a more frequent and intense nature after she had been operated on for goiter, which was in either 1932 or 1933.

As to the effect of her language upon the appellee, the only statement made by him was that it so disturbed and distracted him in mind that he could not effectively attend to his business--that of managing a farm which belonged to him, his mother, and sister, and for which management he received a salary. He further testified that on three occasions she threatened to get a knife and cut his throat if he went to sleep. There is no evidence, however, that she ever attempted to carry out the threat.

The immediate cause of the separation, as stated by the appellee was that the husband and wife had gone together to a party at the home of a friend; after returning to their home from the party, appellant flew into a rage and accused her husband of attempting to be intimate with one of the young women attending the party. His testimony tended to show that she was jealous of his attention to any woman, though it is not stated that she charged him with actual...