Russell v. Russell

• Decision Date: 24 March 1960
• Docket Number: 3 Div. 875
• Court: Alabama Supreme Court
• Parties: S. Tyre RUSSELL v. Ruth RUSSELL et al.

Page 733

120 So.2d 733

270 Ala. 662

S. Tyre RUSSELL v. Ruth RUSSELL et al.

3 Div. 875.

Supreme Court of Alabama.

March 24, 1960.

Rehearing Denied June 2, 1960.

L. H. Walden, Montgomery, and John C. Walters, Troy, for appellant.

Scott, Whitesell & Scott, Montgomery, for appellee.

Godbold, Hobbs & Copeland, Montgomery, for intervenor.

MERRILL, Justice.

Appellee, Ruth Russell, filed a bill against appellant for divorce and alimony on the ground of adultery with divers persons unknown, and with Margaret Schofield in particular. The bill also asked that appellant be restrained from interfering with or molesting complainant, or from disposing of any property that he owned at the time of the filing of the bill. The restraining order was granted and, after an answer was filed, Peoples Bank and Trust Company filed a petition for intervention, which was granted.

After a hearing, Judge Walter Jones granted the divorce on the ground of adultery; granted certain alimony in gross, consisting of the house where complainant lived and the furnishings therein; ordered that appellant pay $50.00 per month as alimony and allowed an attorney's fee of $800.00.

In the decree on the petition for intervention, Peoples Bank was granted an equitable mortgage lien on some five hundred acres of appellant's unencumbered land to secure a debt of $25,000, which he owed the bank.

The Divorce Phase

The Russells were married in 1926. They had one son, who is now over twenty-one years of age.

Mrs. Russell testified that about eleven years ago, a son was born to Margaret Schofield in Crestview, Florida. His name was Rickey. Mr. Russell told his wife that Rickey was his child and asked her to take the boy into their home and raise him. This was the first time Mrs. Russell knew of Margaret Schofield. Mrs. Russell took the child to raise, with the understanding that Russell 'was to change and quit running around.' Rickey was three days old when she took him.

A year later, Margaret Schofield had another child, a daughter. Russell brought this child to his home. After two weeks, Mrs. Russell separated from her husband and they stayed separated for nine months. Russell took the child back to Margaret Schofield's parents and again asked his wife to forgive him. She did and they began to live together again.

Mrs. Russell later heard that Margaret Schofield had a third child, but Russell said this child was not his.

Margaret Schofield married, moved to North Carolina and died, and the two younger children lived with her parents until July, 1958, when her mother, the children's grandmother, died. Russell then told his wife that he had two orphan children on his hands and that she was going to have to take care of Margaret Schofield's two youngest children. She told him that she would not take the children and he left their home and moved to another house which he owned on Edgemont, and since that time, Russell has lived in that house with Margaret Schofield's three children.

After the separation, Russell came back to complainant's home on East Patton and told Mrs. Russell that he could not understand why she could love Rickey as she did and not love the other two children 'because they were all the same flesh and blood.' This was the first knowledge Mrs. Russell had that Russell was the father of the third child. Mrs. Russell never lived with her husband after she learned that he was the father of the third child.

On subsequent occasions, he came by the house on Patton and had sexual intercourse with her. She said she submitted to him on the agreement that he would let Rickey come over and see her. He did permit Rickey to come to see her after each of these occasions. She testified that she found an obituary notice of Margaret Schofield's death among Russell's papers and it showed among her survivors a son, James Russell.

Russell testified that he had never had intercourse with Margaret Schofield and was not the father of her children, but that he just loved children and was helping take care of them, and he denied ever discussing the paternity of the children with his wife.

Appellant insists that the court erred, first, in holding that the evidence supported a divorce on the ground of adultery, and second, the even if he had been guilty of adultery, the wife had condoned it.

Appellant argues that the evidence of adultery is based upon the alleged confession of appellant, which was not admissible under Tit. 34, § 26, Code 1940, which states in part: 'No decree can be rendered on the confession of the parties, or either of them.' Under an early statute, such confessions were wholly inadmissible, King v. King, 28 Ala. 315, but in Dawson v. Dawson, 240 Ala. 258, 198 So. 622, 623, it was said in reference to the present statute: 'Extra judicial confessions in a litigated case are now admissible, but must be corroborated by other proof. Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188.' The evidence of Russell's purported admission was admissible.

We come now to the question of the sufficiency of the evidence to support the divorce decree. In Stephens v. Stephens, 233 Ala. 178, 170 So. 767, it was said that adultery, being an act of darkness and of great secrecy, can hardly be proved by direct means; that presumptive evidence alone is sufficient proof; and the only general rule that can be laid down is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion of guilt. This rule is followed in Dawson v. Dawson, 240 Ala. 258, 198 So. 622; Gardner v. Gardner, 248 Ala. 508, 28 So.2d 559; Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339.

The confession of appellant that Margaret Schofield's third child was his was corroborated by evidence that she had already borne two of his children; that he had supported her and the two children by buying food, clothing and providing medical attention for them, both while they lived on his farm and elsewhere; that the third child bore his name; that he had petitioned the Juvenile Court of Lowndes County for the custody of the third child and that he subsequently took the child into his home to raise.

It is evident that the trial court did not give much credence to appellant's denial of paternity to any of the three children. Appellant argues in brief that 'the rule on ore tenus is somewhat different on a divorce case than a regular case.' With this, we cannot agree. The rule is that where the testimony was taken ore tenue before the trial court, its findings of fact are to be accorded by this court an authority equal to that of a jury. Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339; White v. White, 246 Ala. 507, 21 So.2d 436; Stephens v. Stephens, 233 Ala. 178, 170 So. 767; Le May v. Le May, 205 Ala. 694, 89 So. 49.

We conclude that there was evidence which, if believed, supported the decree.

Appellant argues that even if adultery were proved, there was a complete condonation on the part of appellee. This argument would be sound as to the two older children. But the divorce proceeding did not start until after appellant had told appellee that all three children were the same flesh and blood and the younger two were his responsibility.

But appellant contends that the admitted acts of sexual intercourse that occurred between the time of the separation and the filing of the bill for divorce amounted to condonation. In Cox v. Cox, 267 Ala. 72, 100 So.2d 35, 36, we said:

'The separation took place on January 12, 1957. This suit was filed May 23, 1957. Twice during this period appellee submitted to intercourse with appellant. There was never any intention on the part of the appellee to forgive the appellant or to resume cohabitation with him. In Brown v. Brown, 219 Ala. 104, 121 So. 386, 387, this court condonation as 'the willing continuance of cohabitation, a living together in the same place.' See also Harbin v. Harbin, 249 Ala. 616, 32 So.2d 537. Here proof of two acts of intercourse during the separation of the parties does not necessarily establish condonation, where there is no intention to forgive and to resume marital relations. See Annotations 32 A.L.R.2d 141; Campbell v. Campbell, 246 Ala. 107, 19 So.2d 354, 155 A.L.R. 130.'

In the last cited case, where the ground for divorce was voluntary abandonment, it was stated that the 'authorities appear to be in conflict.' [246 Ala. 107, 19 So.2d 355] but after a citation of authorities, it was held:

'In the instant case, as stated above, we are fully convinced by the evidence that at the time the wife submitted to the embraces of the husband she had no intention to restore the marital relation.'

It is clear that appellee here had no intention to restore the marital relation when she submitted to the embraces of her husband after their separation. We cannot say that the court erred in not finding that the adultery had been condoned.

There was no reversible error in the proceedings which culminated in the granting of the divorce.

The Intervention Phase

Peoples Bank loaned Russell $25,000 in August, 1957, due in one year with interest added to the note. As collateral, Russell assigned three insurance policies, having a cash surrender value of $4,500, and J. L. Crenshaw guaranteed payment of the note. When the note came due, Russell paid only the interest. A new note was made with the same insurance policies as collateral and a new guarantee by Crenshaw.

When the second note came due, Russell paid neither principal nor interest but requested a renewal. The bank's investment committee approved a six months' extension, provided he would give as additional collateral a mortgage on his Montgomery County farm land. He agreed to give the mortgage and was directed to deliver his abstracts to the bank's attorney. The renewal was not delayed to await examination of abstracts and the execution of the mortgage because bank examiners were at the bank and both the bank and Russell desired to get...