Walling v. Walling

• Decision Date: 02 March 1950
• Docket Number: 8 Div. 537
• Citation: 253 Ala. 337,45 So.2d 6
• Parties: WALLING v. WALLING.
• Court: Alabama Supreme Court

Page 6

45 So.2d 6

253 Ala. 337

WALLING v. WALLING.

8 Div. 537.

Supreme Court of Alabama.

March 2, 1950.

Patrick W. Richardson, of Huntsville, for appellant.

John R. Thomas, Jr., of Huntsville, for appellee.

FOSTER, Justice.

This is a suit filed by the wife against her husband for divorce from bed and board, alimony and suit money, and for the custody of their minor child. Appellant filed a cross-bill and sought a divorce a vinculo.

The cause was heard on testimony taken ore tenus in open court, in which a decree was rendered whereby the relief prayed for by the wife was granted, including a divorce from bed and board; awarding her the custody of their minor daughter, eight years of age; providing for the payment of $100.00 per month for the maintenance and support of herself and their child, and also providing $250.00 as attorney's fee for representing complainant. No provision has been made or sought for alimony pendente lite. The decree denied relief on the cross-bill. In this Court appellant has filed an application for an allowance for an attorney's fee for representing her an appeal.

The evidence shows that the parties were married June 4, 1938, and separated in June 1946. The grounds upon which the divorce a mensa et thoro was sought were that of actual violence attended with danger to her life and health, giving details and circumstances of such claim, and because the defendant had become addicted to habitual drunkenness after the marriage, also adultery.

In the cross-bill the husband sought an absolute divorce from complainant, after denying the charge of adultery and cruelty and that he had become a habitual drunkard after the marriage, alleges as a ground for his divorce voluntary abandonment from his bed and board for more than two years next before the filing of the bill for divorce and by an amendment alleges cruelty on her part, in that, she did many times assault, beat, hit and strike him and thereby committed actual violence attended with danger to his health and life and frequently threatened such conduct: also charging adultery with persons unknown to him.

There is no doubt from the evidence in the case that appellant did commit actual violence upon the person of his wife attended under circumstances as to be dangerous to her life or health, and that it was dangerous for her to continue to live with him. The record also shows that he was a habitual drunkard, but it is not clear that he was any worse after he married than he was before, but his drunkenness in connection with his actual violence upon her person magnified the danger to her in respect to him. There was no satisfactory evidence of the charge of adultery, cruelty or voluntary abandonment against appellee.

Appellee, the complainant in this case, had been in the employ of appellant for sometime before their marriage. He had been tax collector of Madison County and she was employed in his office. He owned practically all of the stock of an implement company and she was the bookkeeper and had much to do with the management of that business. In addition to that the appellant owned a considerable amount of real estate, owning approximately 1,266 acres of land, as he testified, a large part of which he inherited, but title was put in his wife's name pending bankruptcy, and was subject to an obligation on his part to pay to his mother $225.00 a year. The land was afterwards conveyed back to him by his wife. He also owned a house and lot in Decatur, a cafe building in Huntsville and another small house and lot together with forty acres of land on Monte Sano Mountain. At the time of his answers to interrogatories, on April 26, 1949, he was, as he testified, collecting gross rents from said property of $5,540.00 annually.

There was an antenuptial agreement entered into between the parties, but the instrument itself was not produced, and the exact nature of its contents was not fully disclosed, but it contained a stipulation that he was to convey to her, in the event they were divorced, a certain dwelling house located on Whiteburg Drive in Huntsville and two pieces of farm land and cafe lots. He did convey some of said property to her and she is now in possession of the dwelling house in Huntsville, but the two pieces of farm land, one of which was known as the Dyas Place and the other known as the Raby Place, according to the evidence, were encumbered and were subsequently sold but she received no consideration for her equity. She has no other property, but she is a business woman and it is shown that she collected for the year 1948 $1783.50 plus $523.34 on a judgment for rent of certain farm land in Morgan County, and for 1949 her income up to the time of the filing of her answers to the interrogatories, on May 26, 1949, was $719.00 plus $269.40, which she likewise collected on said judgment.

The principal points argued by appellant in brief go to the question, first, of whether he became a habitual drunkard after he was married to his wife and whether he committed actual violence upon her person and the ruling of the court on certain matters of evidence that arose during the trial.

The first assignment of error is the overruling of the appellant's demurrer to the bill of complaint. The brief states in support of that assignment of error...