Sills v. Sills, 7 Div. 771.

• Decision Date: 11 October 1944
• Docket Number: 7 Div. 771.
• Citation: 19 So.2d 521,246 Ala. 165
• Parties: SILLS v. SILLS.
• Court: Alabama Supreme Court

19 So.2d 521

246 Ala. 165

SILLS v. SILLS.

7 Div. 771.

Supreme Court of Alabama

October 11, 1944

Rehearing Denied Nov. 16, 1944.

Appeal from Circuit Court, Calhoun County; Lamar Field, judge.

Chas Douglass, of Anniston, and Ben F. Ray, of Birmingham, for appellant.

Merrill Merrill & Vardaman, of Anniston, for appellee.

STAKELY Justice.

This is an appeal from a final decree of the equity court dismissing appellant's bill for divorce and on the cross-bill of appellee granting her a divorce from appellant from the bonds of matrimony. The decree also makes certain allowances to appellee for alimony and counsel fees. The appellant contends that (1) the court was without jurisdiction to grant the divorce, (2) that the decree of divorce was not justified by the evidence, and (3) that the allowances for alimony and counsel fees were improper.

The decree of divorce was based on voluntary abandonment. Appellant insists that the court had no power to grant the decree of divorce because appellee at best only alleged and proved a voluntary abandonment of one year next preceding the filing of the bill.

On September 4, 1943, appellant filed an original bill for divorce from appellee, charging voluntary abandonment for one year next preceding the filing of the bill. On September 20 1943, appellee filed an answer and cross-bill claiming alimony and counsel fees. On September 29, 1943, appellee amended her answer and cross-bill, praying for a divorce on the ground of voluntary abandonment of one year next preceding the filing of the bill of complaint. There is evidence tending to show voluntary abandonment of appellee by appellant on or about June 17, 1942.

This presents for our review the scope and purpose of the act of the legislature, General Acts 1943, page 425, amending § 20, Title 34, Code of 1940, which became effective July 10, 1943, and in pertinent part reads as follows:

"An Act to amend Section 20, Title 34, Code 1940.

"Be it enacted by the Legislature of Alabama:

"Section 1. That Section 20, Title 34, Code of Alabama, be and the same is hereby amended so as to read as follows: Section 20. Divorce; By What Court And On What Grounds Granted.--The Circuit Court in equity has power to divorce persons from the bonds of matrimony, upon bill filed by the aggrieved party, for the causes following: * * * 3. For voluntary abandonment from bed and board for one year next preceding the filing of the bill. * * * "

It is true that the basis for the divorce decree in the case at bar rests only on a voluntary abandonment of one year next preceding the filing of the bill. If the decree is valid, we must hold that the amending act became effective instanter on the date of its approval, July 10, 1943, and further that the act is retroactive as well as prospective in its application. Obviously if the amending act is prospective only in its operation and effect, then the bill could not be filed until the lapse of one year from its effective date.

In support of his position, appellant relies on the decision of this court in Barrington v. Barrington, 200 Ala. 315, 76 So. 81. In that case, the statute there under consideration granted the wife a divorce when she, without support from him, had lived separate and apart from the bed and board of her husband for a period of five years next preceding the filing of the bill. In that decision, this court declined to give the statute a retroactive application because the statute under consideration in that case made marital conduct, occurring prior to the act, a ground for divorce, when it was not such a ground for divorce at the time such conduct took place. State v. Brown Service Funeral Co., 236 Ala. 249, 253, 182 So. 18, 21.

In Barrington v. Barrington, supra [200 Ala. 315, 76 So. 83], this court, in dealing with the retroactive application of divorce statutes, and especially the statute there under consideration, said:

" * * * Mr. Bishop, after reviewing some of the older cases, including Cole v. Cole, supra , concludes:

" 'It being the primary object of the divorce suit to regulate the order of society, and purify the fountains of morality, while still as between the parties it is a private controversy--and the proceeding being in the highest remedial, so that the spirit and reason of the divorce statutes should be pre-eminently the guides to their interpretation--we should, in all cases where the legislative intent is not plain in the words, prefer the construction which makes the statute applicable to past offenses, the same as to future.' 1 Bish. on Mar. and Div. § 102.

"But this view, as shown by the context (section 101), is founded solely on the theory of a delictum by the spouse against whom the divorce is authorized--i.e., a guilty breach of marital duty. Hence, conceding the merit of the author's opinion, it would not embrace a statute like that one now under consideration, for the reason that the divorce it authorizes in favor of the wife is not predicated on any delictum or marital breach by the husband. * * "

In the Barrington case there was no delictum or breach of marital duty by the husband prior to the passage of the act. Under the statute involved in the Barrington case, the wife by her own acts could create a ground for divorce without any wrong committed by the husband. In the case at bar there was a delictum or breach of marital duty prior to the adoption of the act and therein lies the difference in the two cases. If the allegations of the cross-bill of appellee are considered as true and they were so found to be by the trial court, appellant voluntarily abandoned appellee prior to the effective date of the above amending act and in so doing was guilty of a breach of marital duty, under the then existing law. True, under the old law, the breach of marital duty did not ripen into a cause of action until the lapse of two years, but the voluntary abandonment was nevertheless a breach of marital duty.

Since the foregoing quotation from the decision in Barrington v. Barrington, supra, indicates that an act of the character under consideration in the case at bar is remedial, it is worth noting what this court said generally in that decision relative to remedial statutes:

"Remedial statutes--those which do not create, enlarge, diminish, or destroy vested rights--are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.

"But a statute which gives a new legal effect to conduct or conditions occurring or existing prior to its enactment, thereby imposing upon any person unanticipated disabilities or alterations of legal status, is retrospective in a sense which is odious to the law, and, as to such operation, is strongly disfavored by the courts, even though it does not offend the Constitution by impairing the obligation of a contract or by creating a crime or punishment ex post facto. This disfavor has everywhere found expression in a rigorous rule of construction which denies retroactive effect to such a statute unless by its express terms, or by unmistakable implication, the Legislature must have so intended." Barrington v. Barrington, 200 Ala. 315, 76 So. 81, 82.

See also 59 C.J. p. 1106, § 657.

In this connection it is interesting to note the dissenting opinion of Mr. Justice McClellan, wherein he held that the statute under consideration in the Barrington case was remedial and, therefore, a retrospective operation of the statute was not obnoxious. Mr. Justice Somerville, who wrote the majority opinion, wrote a further opinion concurring in various respects with the opinion of Mr. Justice McClellan and in doing so, said among other things:

"I further agree with Justice McClellan in the judicial principle that the power of the Legislature over marriage and divorce is as to its origin and basis 'remedial and conservative.' "

While Mr. Justice Somerville adhered to the view that the act under consideration in the Barrington case was not remedial, he did so on the idea that remedial legislation did not consist in making innocent conduct already past, a ground for divorce.

But what was the obvious intention of the legislature in adopting the amending statute set forth above, as shown by its necessary implications? Barrington v. Barrington, supra; Hawkins, Tax Collector, v. Peoples Finance & Thrift Co., 219 Ala. 558, 122 So. 650.

If the theory of appellant is correct and the statute has prospective application only, then it follows that the legislature intended to provide that no divorce could be granted for voluntary abandonment until the expiration of a year from the effective date of the amending act. And yet voluntary abandonment as a ground for divorce, except as to its duration, was by the amending act "affirmed and continued in force without interruption." Allgood, Auditor, v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 71 So. 724, 725. Can it be that the legislature intended to continue in force and effect voluntary abandonment as a ground for divorce, a ground which had existed for many years in this state, and yet prevent divorce on that ground for a year? Did it intend that the spouse wronged in this respect, perhaps by voluntary abandonment for many years, must wait out another year before filing suit? Can it be that the legislature intended to grant to one derelict in marital duty in this respect, immunity from suit for a whole year? We do not consider that affirmative answers to these questions are reasonable and just conclusions and that the legislature so intended.

"This would not be giving the statute a sensible application, but one leading to an unjust and absurd conclusion, which, if possible, is to be avoided in construing legislative intention in the...