Taylor v. Taylor

Decision Date27 May 1948
Docket Number6 Div. 608.
Citation251 Ala. 374,37 So.2d 645
PartiesTAYLOR v. TAYLOR.
CourtAlabama Supreme Court

Rehearing Denied Nov. 26, 1948.

Gibson & Gibson, of Birmingham, for appellant.

Chas. W. Greer and Frank Bainbridge, both of Birmingham, for appellee.

The following questions propounded by complainant to respondent on cross-examination, objections to which were overruled, are made the bases of assignments of error 64 and 78:

'Q. General, when did you decide that you wanted to get rid of your wife and didn't want to live with her?'

'Q. Don't your know, General, as a matter of fact, you have made no claim to the Prudential under this policy because you didn't want to do so until after the court fixed the compensation you pay your wife in this case?'

LIVINGSTON Justice.

The complainant in the court below, appellee here, filed her bill of complaint in the Circuit Court of Jefferson County, in Equity, against appellant, seeking a divorce from bed and board, alimony and attorneys' fees pendente lite permanent alimony, attorneys' fees, and general relief. She alleged that the parties were lawfully married on May 30 1942, and lived together as man and wife until October 24, 1946, at which time appellant abandoned her by forcing her to leave their home against her will. She further alleged that appellant had contributed only $200 to her support between October 21, 1946, and December 9, 1946, the time of filing suit, and which amount was inadequate and insufficient to support and maintain her according to the station in life of appellee and appellant, and that respondent had failed or refused to contribute more to her support and maintenance.

After demurrer was filed, appellee amended her bill of complaint. The charging part of the bill was not substantially changed, but the bill as amended prayed for a divorce from bed and board, or, in the alternative, a legal separation and allowance out of the income and property of respondent. Demurrer was filed to the bill as amended, and overruled.

A reference was ordered upon appellee's prayer for alimony and counsel fees pendente lite, and to test the bona fides of the bill. Upon a hearing the register determined that the bill was filed in good faith, and fixed $200 as a reasonable fee, and $125 per month as a proper sum for alimony pendente lite. No exceptions were reserved to this report, and it was duly confirmed.

Appellant answered the bill and denied that he forced appellee to leave the home. He alleged that she left voluntarily because of domestic disagreements and incompatibility of the parties, and for which appellee's conduct was partially responsible. He alleged that during the period of approximately seven weeks between the separation and the filing of her bill, he had contributed $200 in cash to her support, and had paid $125 of her personal bills. He alleged that he had a seventeen year old daughter by a former marriage, who was totally dependent upon him for support and education; that his sole source of income was $348.61, as a retired brigadier general of the United States Army; that his retirement was compulsory, and on account of his health; that he is forty-eight years of age, and in bad health; and that appellee is forty-two years of age, and in good health, and has no dependents or debts. That prior to the marriage of the parties, appellee, who had never been married, operated a dancing school in the city of Birmingham for some seventeen to twenty years, and was capable of earning a good livelihood. That he was heavily in debt and, aside from equities in insurance policies, an automobile, and personal effects, owned no property.

Issue was joined on the amended bill and answer. At the conclusion of the testimony, taken ore tenus, the trial court rendered a decree granting appellee separate maintenance in the sum of $137.50 per month, and an additional counsel fee of $200. From that decree, this appeal is prosecuted.

The appellant's statement of the evidence is, we think, sufficient and accurate enough for a determination of the question here presented, and inasmuch as it is not seriously questioned nor contradicted, in its material aspects by appellee, we quote it here (Supreme Court Rule 10, Code 1940, Tit. 7 Appendix):

'Complainant's evidence was that the parties were married in Birmingham, Alabama, on May 30, 1942, at which time respondent was a Lieutenant Colonel of Infantry in the regular Army. The couple lived together at Fort Benning until about August 1, 1942, when respondent left for overseas. Complainant and the thirteen year old daughter of respondent by a previous marriage then removed to the former home of complainant in Birmingham, Alabama, and complainant rented an apartment. Relations between the two parties were good when respondent left, and he wrote complainant regularly and frequently after going overseas. He made an allotment of his pay in the total amount of $350.00 per month of which $50.00 went into a joint account the couple had in San Francisco, and the balance was used for the support of complainant and the young girl. The rent was $70.00 per month.

'Complainant next saw respondent on September 1, 1945, when she met him in Washington after a telephone call upon his return to this Country. They lived together until respondent went into the hospital at Ft. McClellan, Alabama, that same month. During that period, during respondent's six weeks to two months stay in the hospital, and in the interval between his release from this hospital and his departure for another military hospital in Oklahoma in February 1946, the relations of the parties were amicable and unclouded by domestic dispute or discord. Respondent's letters throughout his three months confinement in the latter hospital were affectionate.

'When respondent returned to the home in June 1946, the parties resumed affectionate relations, went out together in the evenings and lived in harmony until around the middle of September or the first of October 1946. At this time respondent began to exhibit indifference toward complainant, depression and lack of interest in going places. He was disinclined to discuss his attitude and situation, did nothing but take solitary walks, and was 'miserable'. Complainant's efforts to arouse his interest in sports and related activities were persistent but unavailing. On October 21, 1946, during a conversation along these lines, respondent told complainant that he did not like the way things were, and that he wanted her to leave the house. He gave no specific reason. Complainant protested that she loved him and thought they could be happy together if respondent would try to straighten himself out. Later, he remarked that he wanted a divorce and that he had grounds for divorce and wanted complainant to leave. On the night of October 22, 1946, complainant summoned Mr. Bainbridge, a lawyer acquaintance, to the home, and she and Mr. Bainbridge discussed the situation. Later, at her request respondent joined the conference with some reluctance. He made no charges against complainant but said that he wanted a divorce and was going to get one. Subsequently, respondent and a Mrs. Bahrt, an old friend of complainant, discussed the situation, and on the 23d or 24th of October, with his counsel, he had another conference with Mr. Bainbridge. On the morning of October 24th, he stated that he would give her $100.00 per month for one year and he would get a divorce. Complainant stated that she would not accept this, and left the home, moving to her mother's house. She took her clothes with her, and subsequently got some furniture which belonged to her. The two discussed the matter together at respondent's instance on one occasion thereafter. At this time respondent again offered her $100.00 per month, and said that if it were not accepted he could and would obtain a divorce upon grounds which he had. She denied any marital misconduct with anyone and stated that respondent had never accused her of same. During their last conference complainant told respondent she still loved him and asked why he was so conducting himself, without reply. No offer of reconciliation was made or discussed and nothing was said as to the support of complainant, by either party. The respondent while overseas was paid about $700.00 per month. His retired pay was $412.50. Respondent had made two deposits of $100.00 each in her bank account after the separation and before suit was filed. She resided with her parents, with board and room rent cost of $50.00, per month, paid $23.00 per month premium on an annuity and had three or four dollars per month expense for cleaning, and the cost of replacing her clothes. The joint bank account and certain bonds purchased from the allotment yielded complainant no money, respondent having told her that the funds were used to pay income tax. Certain insurance policies of which she was the beneficiary were sent by her to respondent's brother in California, at the written request of respondent after he got overseas.

'Complainant was forty-two years old and in good health. For approximately twenty years before her marriage she had followed the profession of dancing teacher in Birmingham, and earned about $200.00 per month. For two years after her marriage, she worked from one to two days per week at a local school earning $50.00 to $60.00 per month. She owed nothing, had not been married before and had no children. She received approximately $1,000 from her husband while he was overseas, in addition to the regular allotment payments. The two parties actually cohabitated for about ten months during the period of their marriage. Respondent had been reluctant to take her places or to discuss their affairs with her and this led to quarrels after the...

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