Stapleton v. Stapleton

Decision Date14 March 1968
Docket Number1 Div. 303
Citation282 Ala. 62,209 So.2d 202
PartiesEvelyn Leak Neeley STAPLETON v. W. D. STAPLETON, Jr.
CourtAlabama Supreme Court

Chason, Stone & Chason, Bay Minette, for appellant.

Jas. R. Owen, Bay Minette, for appellee.

COLEMAN, Justice.

The husband obtained a decree of divorce from the bonds of matrimony on the ground of voluntary abandonment and the wife appeals.

Appellant assigns error as follows:

'1. The final decree of the court rendered April 28, 1965, is contrary to the evidence in the case for that the Appellee failed to prove abandonment as alleged in his Bill of Complaint. (Transcript page 50)

'2. The final decree of the court rendered April 28, 1965, is contrary to the Law of the Case for that the Appellee failed to prove abandonment as alleged in his Bill of Complaint. (Transcript page 50)

'3. The trial court erred in holding in its final decree of April 28, 1965, that the Appellee, W. D. Stapelton, Jr., was forever divorced from the Appellant, Evelyn Leak Neeley Stapelton in that such decree was not sustained by the evidence in the case. (Transcript page 50)'

Appellee says that appellant has argued all three assignments in bulk, that assignments 1 and 2 are not good assignments, and, therefore, assignment 3 is not due to be considered, citing Scroggins v. Alabama Gas Corporation, 275 Ala. 650, 657, 158 So.2d 90, 97, where this court said:

'We have repeatedly held that when unrelated assignments of error are argued together, they are judged by the weakest assignment. In other words, if one assignment is without merit, there is no need to consider the others. (Citations Omitted.) . . ..'

We have held insufficient to present any question for review assignments reciting as follows:

"2. For that the judgment of the court entered on February 1, 1960 is contrary to the great weight of the evidence."

"3. For that the judgment of the court in favor of the defendant entered on February 1 1960 is contrary to the law in this case." Thomas v. Brook, 274 Ala. 462, 463, 149 So.2d 809, 810.

Such an assignment is insufficient because it alleges no error committed by the trial court. In assigning errors, appellant must specify the action of the trial court of which he would have review and revision. Kinnon v. Louisville & N.R. Co., 187 Ala. 480, 482, 65 So. 397; Wetzel v. Hobbs,249 Ala. 434, 31 So.2d 639; Thomas v. Brook, supra.

In the instant case, assignments 1 and 2 do not allege that the trial court committed error in any ruling. For that reason, we agree with appellee that assignments 1 and 2 present nothing for review. It seems to us that appellants would be well advised to omit such assignments because they encumber the record and do nothing to benefit an appellant's cause.

In argument in brief, in referring to the assignments, appellant says:

'In our Assignments of Error we have set out that the Court erred in holding in its Final Decree of April 28, 1965, that the Appellee, W. D. Stapleton, Jr., was forever divorced from the Appellant, Evelyn Leak Neeley Stapleton, in that such decree was not sustained by the evidence in the case; that the Appellee failed to prove abandonment as alleged in his Bill of Complaint and that, therefore, such decree was contrary to the evidence and contrary to the laws of the State of Alabama. . . ..'

We agree that appellant is arguing all three assignments together in bulk. We do not think, however, that the assignments are unrelated within the meaning of the rule governing bulk argument of assignments of error.

'. . .. This Court has consistently held that where several assignments of error are grouped and argued '. . .. The rule that we consider no assignments of error when more than one are argued together and one is without merit applies only when they are not kindred or related. In Thompson v. State, 267 Ala. 22, 99 So.2d 198, 200, we said: 'When unrelated assignments of error are argued together and one is without merit, the others will not be considered.' In Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19, 27, we said:

together in brief and one is found to be without merit the Court will not consider the others. First National Bank of Birmingham v. Lowery, 263 Ala. 36(3), 81 So.2d 284. It is there also said that [282 Ala. 65] this principle cannot be evaded by including in brief a request that this Court consider each assignment separately and severally. But where several assignments are governed by the same legal principles and argument, it is not objectionable to argue them in bulk in the brief. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141 (9), 61 So.2d 19; White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337.' Socier v. Woodard, 264 Ala. 514, 518, 88 So.2d 783, 786.

"* * * Where the assignments of error are so related as that they may be treated as being predicated upon a single argument, the fact they are argued in bulk is not objectionable. But that principle does not apply where the assignments of error are not dependent upon the same legal principles. * * *"

Southern Electric Generating Co. v. Lance, 269 Ala. 25, 33, 110 So.2d 627, 633.

To like effect are statements by this court in Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp., 269 Ala. 190, 112 So.2d 331, (8, 9); Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287, (3); City of Trussville v. Porter, 279 Ala. 467, 187 So.2d 224, (2).

Assignments 1, 2, and 3 in the case at bar are predicated upon a single argument, to wit, that the court erred in granting a divorce to appellee because the evidence does not support a finding that the wife voluntarily abandoned the husband within the requirements as to what must be proved to establish the allegation that the abandonment was voluntary under the statute, § 20, Title 34, Code 1940, as amended by Act No. 463, approved July 10, 1943, General Acts 1943, page 425.

Appellee appears to regard assignment 3 as sufficiently alleging error in the decree of the trial court and we are not advised of any defect in the assignment.

Under the rules stated above, we are of opinion that appellant is entitled to a consideration of assignment 3 although it is argued in bulk with two related assignments which present nothing for review.

We will review the evidence to determine whether it supports a finding that the wife did voluntarily abandon the husband. His testimony is to effect as follows.

He was 53 years old at time of trial and was married to the wife February 2, 1958, in Bay Minette. They lived together three months and ten days until they separated May 12, 1958. They have no children and no joint property.

Both husband and wife are natives of Bay Minette and grew up together. The wife had been married once and divorced prior to the instant marriage, but it was husband's first marriage.

The wife returned to Bay Minette in the early 1950's and husband began to see her at various times and they would go out and eat. He would see her two or three times a week. That went on until they were married.

The wife proposed marriage to the husband three or four times. She obtained the marriage license and arranged for the minister. They were married at the First Methodist Church at 2 p.m. Sunday afternoon The wife was employed in the Probate Judge's office from 8:00 to 4:30. Almost every night, they went out to eat at a restaurant. The wife did not prepare any meals for husband, his father, or herself. On page 14 of the transcript, the husband testified, at close of direct examination:

and then went home. They had agreed to occupy separate rooms which they did. The husband had three heart attacks prior to the marriage. The husband told the wife he could not be a normal husband to her due to his heart condition[282 Ala. 66] and she said she would not marry him if he could. They occupied separate rooms and never spent any nights together.

'Q. All right, will you tell the Court what happened just prior to your separation?

'A. Well, I believe we had been out to dinner and we were sitting in the living room and I asked her if she thought the marriage was working and she said no she didn't think so.

'Q. Did she say anything about leavat that time?

'A. Yes, 'I will move out tomorrow', she said.

'Q. As a result of that conversation, did she move out?

'A. Not the next day; I was sick the next morning and that postponed her moving for about a week.

'Q. After about a week, and on May 12, 1958, did she move?

'A. Yes.

'Q. Has she returned at any time to the dwelling house where you live?

'A. Oh yes, many, many times.

'Q. But have you all lived together since May 12, 1958, in any way?

'A. No sir.

'. . .

'Q. Mr. Stapleton, if Evelyn, the Respondent, had carried out her promises to you and kept house and looked out after you and your father, and done the normal household duties which a wife is expected to do, would you have agreed to this separation?

'A. No.'

The bill of complaint was filed January 2, 1962.

On cross-examination, the husband testified in effect as follows.

Since his mother's death, husband had very seldom had any night meals at home, and, in fact, he ate out most of the time with the wife or other people. The husband testified:

'Q. About the third time Evelyn proposed, did you agree to get married?

'A. When she said: 'Let's try it for three months and if it don't work, we will get a divorce and we will go on being friends' and I did agree.

'Q. You told her it was all right?

'A. Yes.

'Q. Under what arrangement, other than the three months, did you get married?--What did she agree to do for you?

'A. She discussed the financial situation; she said she would be no financial drain on me.

'Q. She had a job of her own?

'A. Yes.

'Q. Working for the Probate Judge from 8:00 A.M. to 5:00 P.M.

'A. Yes.

'Q. She was going to continue to work?

'A. She wanted to.

'Q. You were a little hard up at that time?

'A. Yes.'

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