Stairs v. Stairs, 8 Div. 275

• Decision Date: 31 October 1968
• Docket Number: 8 Div. 275
• Parties: Everette M. STAIRS v. Glenda A. STAIRS.
• Court: Alabama Supreme Court

Page 591

215 So.2d 591

283 Ala. 263

Everette M. STAIRS v. Glenda A. STAIRS.

8 Div. 275.

Supreme Court of Alabama.

Oct. 31, 1968.

Humphrey, Lutz & Smith, Huntsville, for appellant.

J. D. Carroll, Jr., Huntsville, for appellee.

LAWSON, Justice.

This is an appeal from a decree granting a divorce to the wife on the ground of cruelty, awarding her the primary custody and control of the two minor daughters of the parties, and awarding to the wife support for the minor children and attorney's fees.

The parties were married on February 1, 1952, and separated on October 7, 1966. The bill was filed by the wife on December 8, 1966, at which time the two daughters were thirteen and nine years of age.

The appellant, the husband, argues his assignments of error to the effect that the evidence is insufficient to support a decree of divorce in favor of appellee on the ground of cruelty.

It would serve no useful purpose to relate the evidence in detail as it bears upon this question and we will content ourselves with a brief reference to the evidence which, in our opinion, supports the decree of the trial court. § 66, Title 13, Code 1940; Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244.

There were contradictions in the testimony, but the case was heard ore tenus by the trial court. Where a cause is so tried, the findings of the trial court from the evidence will not be disturbed on appeal unless plainly wrong, inasmuch as the trial court's findings from the evidence are likened unto the verdict of a jury. White v. White, 278 Ala. 682, 180 So.2d 277; George v. George, 255 Ala. 190, 50 So.2d 744.

As ground for divorce the bill alleged:

'Your complainant avers and charges that the Defendant did, on or about the 7th day of October, 1966, threaten to kill her, jerked and grabbed her by the shoulders and shook her to such a point that she was in fear of her life; that he has on numerous occasions threatened to kill her and threatened to kill or harm the children; that he has put her in apprehension of harm and she is reasonably convinced from his manner and conduct toward her that he will commit actual violence upon her person attended with danger to her health and life.'

The testimony does not support a finding that the defendant threatened to kill the plaintiff or jerked and grabbed her by the shoulders and shook her on the 7th day of October, 1966, as alleged.

However, the wife testified that on either the first or second Friday night in September, she came home from a birthday party which had been given for two of her women friends and found the appellant in a state of anger and, following an argument between the parties, the appellant held appellee's shoulders and shook her rather hard and shoved her against the door of the kitchen and said, 'I ought to kill you.' The older daughter of the parties was unable to remember the exact date on which the incident occurred, but she testified that after hearing her mother scream, 'Leave me alone,' she got out of bed and went into the kitchen and when she arrived there her father, the appellant, had her mother 'pinned into the corner of the kitchen.'

The appellant argues that such testimony constitutes such a variance between the pleading and proof as not to be sufficient upon which to authorize a decree of divorce on the ground of actual cruelty.

We do not agree. See Kerr v. Blair, 47 Tex.Civ.App. 406, 105 S.W. 548; Texas & N.O.R. Co., v. Weems et al., (Tex.Civ.App.) 184 S.W. 1103; Mazzarella v. Whelan, 276 Pa. 313, 120 A. 141; Pelphrey v. Diver (Ct. of Civ.App. of Tex.), 348 S.W.2d 453; Blair v. Riddle, 3 Ala.App. 292, 57 So. 382.

There was also testimony given by the wife, supported by the older daughter, to the effect that on an occasion after the divorce proceeding was filed, during a conversation between the parties in the vicinity of a bowling alley, an argument arose between the appellant and appellee as to who was entitled to the possession of some golf clubs and that on that occasion the appellant took hold of the appellee's arm and hit her across the face and knocked her against an automobile. In regard to this incident the wife further testified: 'He hit me one more time and the rest of the time he was just shoving me. And he had his arm around my head at one point--my head was under his arm, and he picked me off the ground and shook me quite a bit and threw me against the car.'

We do not wish to be understood as indicating that the decree of divorce could be based alone on the incident which occurred after the suit for divorce was filed, but the testimony relative to that incident could be considered by the trial court in connection with the other testimony of the appellee to the effect that the appellant had committed actual violence upon her person.

Even if the evidence was not sufficient to warrant a divorce on the ground of actual cruelty, the trial court was fully justified, in our opinion, in awarding the divorce to the wife on the ground of cruelty.

It is not necessary to authorize the granting of a divorce to the wife on the ground of cruelty that she allege and prove that the husband has committed actual violence on her person attended with danger to life or health. Proof of a course of conduct on the part of the husband sufficient to create a reasonable apprehension that he will commit such violence on her person, attended with danger to her life or health, is sufficient to meet the requirements of the statute. § 22, Title 34, Code 1940; George v. George, supra, and cases cited; White v. White, supra; Ross v. Ross, 279 Ala. 50, 181 So.2d 491; Atkins v. Atkins, 268 Ala. 428, 108 So.2d 166.

The wife testified that on several occasions prior to their separation on October 7, 1966, her husband, the appellant, while angry, threatened to kill her and to kill the children if she attempted to leave him and take the children with her. The evidence further shows that on October 18th following the separation on October 7, 1966, the defendant came to the home occupied by the wife and her two daughters. This visit followed a telephone conversation during which the husband was emotionally upset. When the plaintiff saw the defendant approaching her place of abode, she went into her bedroom and called the police. She was talking to the police on the telephone when she heard the sound of glass being broken. Appellant forced his way into the appellee's home, entered her bedroom, jerked the telephone out of her hand and threw it at her. Appellee testified that if she had not 'dodged,' the phone would have hit her but it hit against the wall. The appellee's testimony in regard to this incident was substantiated by the testimony of the older daughter.

We are clear to the conclusion that under the evidence the trial court was fully justified in awarding the divorce on the ground of actual violence and on the ground that the evidence showed a course of conduct on the part of the defendant sufficient to create reasonable apprehension by the wife, the plaintiff, that the defendant would commit violence on her person attended with danger to her life or health. George v. George, supra; Ross v. Ross, supra; Atkins v. Atkins, supra; White v. White, supra.

The appellant next contends that the trial court erred in awarding primary custody of the minor children to appellee, mother of the children, in that the evidence shows her to be an unfit person to have their custody.

Appellant's insistence that the mother is unfit to have the custody is based on the testimony given by the mother herself that approximately nine years prior to the separation, while married to, but separated from, appellant, she lived in adultery with another man for approximately two months. The record tends to show that during this period of time she had in effect been abandoned by the husband and while that fact certainly does not justify the wife's conduct, it is a matter which the trial court could take into consideration in evaluating the wife's fitness to have custody of the minor children.

There is no contention made that such conduct had not been condoned by the husband. The parties began to live together as man and wife within a short period of time after the adulterous relationship was terminated and, as far as this record discloses, during the ensuing years the wife has conducted herself in a proper manner and has been a good mother to her children.

We have said that such conduct on the part of the wife can be considered as an adjudication of her relative unfitness to have custody. See Hanby v. Hanby, 229 Ala. 527, 158 So. 727; Johnson v. Johnson, 215 Ala. 487, 111 So. 207. However, we have said also that even though the mother has been guilty of adultery, such conduct does not in and of itself serve as an absolute bar to an award of custody to her, the paramount and controlling consideration being the best interest of the minor child or children. Mason v. Mason, 276 Ala....