Thompson v. Thompson

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM; The foregoing opinion was prepared by B. W. SIMMONS; LIVINGSTON
• Citation: Thompson v. Thompson, 196 So.2d 412, 280 Ala. 566 (Ala. 1967)
• Decision Date: 09 March 1967
• Docket Number: 4 Div. 257
• Parties: Oyal THOMPSON v. Garland THOMPSON.

Page 412

196 So.2d 412

280 Ala. 566

Oyal THOMPSON v. Garland THOMPSON.

4 Div. 257.

Supreme Court of Alabama.

March 9, 1967.

J. Hubert Farmer, Dothan, and Russell, Raymon & Russell, Tuskegee, for appellant.

W. R. Martin, Ozark, for appellee.

PER CURIAM.

This is an appeal by the respondent (wife) from a final decree of the circuit court of Dale County, in equity, dissolving the marriage existing between respondent and complainant (husband) and also from the decree awarding custody of four minor children (ranging in ages from 13 to 7 years) to complainant-father. The decree is on voluntary abandonment as charged in the amended complaint. Respondent filed an amended answer denying the charge of abandonment and challenging the fitness of the father to have the custody of the children. She made her answer a cross-bill and asked for custody of the children.

We are not convinced from the evidence, which we have carefully read at length, that complainant has proven his charge of abandonment. We are aware of numerous decisions of this court that where the evidence is taken orally before the court, as here, the court's findings of facts are to be given the weight of a jury verdict, not to be disturbed unless clearly and palpably wrong. Farmers & Ginners Cotton Oil Company v. Hogan, 267 Ala. 248, 100 So.2d 761(3); 2 A Ala.Dig. Appeal & Error, k1008(1), p. 317.

It appears from the evidence without dispute, that complainant and respondent occupied a very modest home in Dale County; that they had their ups and downs that found origin in the main in their efforts to rear and educate several children on a pension of $173.00 per month paid by the Veterans Administration to complainant, who is a disabled veteran (with diabetes). We can't tell from the record how much other income, if any, the complainant had.

The family dissension and some other factors, not necessary to delineate, influenced the respondent to augment the family income. She persuaded the husband, and he agreed, to buy a home in Dothan. In reply to a question:

'What happened to your marriage; what caused the separation?

Complainant answered:

'Well, she kept raising so much sand, doing this and doing that, and I decided it would be a good time to quit.'

Complainant further testified:

'A. She told me if I would buy a house in Dothan she would send the children to school and she did. She moved to Dothan, and I told her I would bring the baby to the house and she would not go along with that.

'Q. When was that?

'A. That was along about '55 or '56.

'Q. Was that the last time?

'A. She has been back, I don't know how many times. That is when she moved down to this house in Dothan.'

It appears on cross-examination of complainant that he bought the house in Dothan, made a down payment with agreement to pay the rest by the month. Complainant testified that he spent the night several times at the Dothan home, but never had sexual relations with his wife. Witness also testified that his wife would bring the children back and forth from the Dothan home to the home in Dale County. It further appears that respondent drifted off to Florida in search of employment and finally found employment with the Veterans Hospital in Tuskegee, rendering services as a practical murse with outside employment after the day's work at the hospital. This employment yields her $600.00 per month, according to respondent's testimony. The husband testified that he was not working and used his pension money for the maintenance and support of himself and the four children. The wife testified that she paid the installments on the home purchased in Dothan.

As we view the evidence, much of which we have not delineated, we think complainant has failed to prove that his wife voluntarily abandoned him. The separation was either by the mutual consent of the parties or with the consent of the husband. In either event there is no statutory abandonment. Starling v. Starling, 255 Ala. 641, 53 So.2d 547(3). As we observed, the married life of the couple was fraught with much discord and unhappiness, and as a result thereof, by mutual agreement or with consent of the husband, the separation occurred, and the home was purchased in Dothan, with frequent visits thereto by the husband and with visits on the wife's part to the home in Dale County.

As we pointed out in Gee v. Gee, 249 Ala. 642, 643, 32 So.2d 657(2):

'* * * The rule is that when the complaining party consents to the separation without is having been caused by the other's misconduct, the plaintiff cannot procure a divorce for abandonment, but where the agreement to separate was induced by the misconduct of the defendant the plaintiff, notwithstanding a later separation by consent, could still maintain the action and sustain the cause. Ex parte Cox, 230 Ala. 158, 160 So. 230; Higgins v. Higgins, 222 Ala. 44, 130 So. 677; Anonymous, 206 Ala. 295, 89 So. 462.'

We further observed in Gee v. Gee, supra, as follows:

'It is held that though the provoking cause for the separation need not be such as would entitle the injured party to a divorce (Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A.1971D, 773) yet the...