Thames v. Thames

• Decision Date: 10 March 1958
• Docket Number: No. 40656,40656
• Citation: 100 So.2d 868,233 Miss. 24
• Parties: Mrs. Lyvell THAMES v. Doyle THAMES.
• Court: Mississippi Supreme Court

Page 868

100 So.2d 868

233 Miss. 24

Mrs. Lyvell THAMES v. Doyle THAMES.

No. 40656.

Supreme Court of Mississippi.

March 10, 1958.

John E. Mulhearn, Natchez, for appellant.

Emmette P. Allen, Brookhaven, for appellee.

McGEHEE, Chief Justice.

This suit involves the tragic consequences of a broken home where both the right to a divorce and the custody of two little girls are at issue between their natural parents. The father and mother were married on May 21, 1949, at Natchez, Mississippi, where they continued to live. On May 19, 1951, one of the little girls, Dana Jean Thames, was born, and on March 16, 1954, the other, Peggy Joan Thames, was born, both having been born of the said marriage.

Prior to June 1956, the appellant, Mrs. Lyvell Thames, sued the appellee, Doyle Thames, for a divorce on the ground of 'habitual cruel and inhuman treatment.' Section 2735, Sub-Section 7, Code of 1942. The suit was returnable to the June 1956 term of the Chancery Court of Adams County. After the defendant in that suit filed an answer and cross bill, the parties effected a reconciliation and resumed their marital relationship on August 29, 1956. But on October 17, 1956, the parties again became separated, and with the result that Mrs. Thames filed another suit, alleging 'habitual cruel and inhuman treatment', and asking for support for herself and children as alimony pendente lite and permanent alimony, and also asking for the allowance of an attorney's fee. A temporary order was entered requiring the husband to pay alimony pendente lite for the support of the two children in the amount of $25 monthly, and to pay the complainant's attorney the sum of $50 as a reasonable attorney's fee for the pendente lite hearing.

The defendant Doyle Thames in his answer denied that he had been guilty of the habitually cruel and inhuman treatment complained of, and denied that the complainant was entitled to any permanent alimony for either the support of herself or the children, and denied that she was entitled to the allowance of a reasonable attorney's fee for prosecuting the suit on its merits. He then made his answer a cross bill and sought a divorce for himself on the ground that after he and his wife resumed their marital relation on August 29, 1956, she continued to come in late at night with the smell of beer on her breath; that she danced with one Mr. Heygood at a place where beer was sold in Pike County, and where she admitted having drunk two cans of beer on that occasion, which was the evening of the celebration of their reconciliation, and the appellee likewise admitted having drunk two cans of beer on the same occasion.

Prior to their first separation, there was considerable community gossip about a nearby neighbor being seen at the home of the appellant at times when her husband was away working at the International Paper Mills at Natchez, and there was testimony that the appellant had been seen to go to the home of this neighbor while his wife was away at work. No witness gave any direct testimony of any immoral conduct on the part of Mrs. Thames. Moreover, her alleged wrongful association with this neighbor or any other man was all condoned by the reconciliation which occurred on August 29, 1956. They lived together from that date until they finally separated on October 17, 1956, as aforesaid. During that interval she became pregnant and this child was due to have been born in July 1957, following the hearing on her second bill for divorce in February 1957.

The visiting neighbor above referred to was never seen at the home of the appellant except on one occasion after the reconciliation, when he and his wife were invited to go home with the appellant and the appellee for coffee from the church. The appellee did testify that on one occasion in Pike County where several persons were gathered, drinking beer and dancing, he saw his wife and Mr. Heygood leave together, and said 'I followed them up the other side of Magnolia and they switched off on a side road and got away.' 'Q. Who switched off? A. Her brother. They were in her brother's car.' 'Q. Who was in the car? A. The whole bunch. Her brother and his wife, her and Heygood.' It is not clear from the record as to whether or not this occurred during the period of the separation of the appellee and the appellant. In other words, there was no clear and convincing proof of any immoral acts following the reconciliation, or prior thereto, to sustain the ground on which the appellee obtained his divorce on his cross bill in the second suit. In fact, no witnesses testified as to any immoral conduct on her part after her reconciliation with her husband on August 29, 1956, or at any other time, as aforesaid, and the evidence in our opinion is wholly insufficient to justify the divorce granted to him and the finding that 'the allegations of the cross bill have been fully sustained by the evidence * * *'.

Although different on its factual situation, it was said in the case of McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872, 875: 'This alleged ground for divorce is one involving moral turpitude, constitutes a bar to the recovery of alimony when the wife is the offending spouse, and the rule is, therefore, a wholesome one which requires that the proof of such a charge shall be clear and convincing.'

Since there was a reconciliation between the parties on August 29, 1956, it follows that every fact and circumstance testified to by the several witnesses as to what may have occurred while the parties lived on De Soto Street in Natchez, and which was prior to their first separation, was completely condoned when they resumed their marital relation on that date and lived together as husband and wife until October 17, 1956, the date of their second separation.

During the period last aforesaid, the appellant became pregnant with her third child by the appellee, and while he testified that he did not know whether he was the father of the child or not, he admitted that he could have been, but said that he did not believe that he was. He thus accused his wife of infidelity in conversation with her mother, but admitted to his said mother-in-law that he just did not know, and could not prove it, but that he did not believe that he was the father of the child. In other words, ...