Webb v. Webb

• Decision Date: 14 January 1954
• Docket Number: 5 Div. 566
• Citation: 70 So.2d 639,260 Ala. 426
• Parties: WEBB v. WEBB.
• Court: Alabama Supreme Court

Page 639

70 So.2d 639

260 Ala. 426

WEBB v. WEBB.

5 Div. 566.

Supreme Court of Alabama.

Jan. 14, 1954.

Further Application for Rehearing Stricken March 11, 1954.

J. A. Walker, Jacob Walker, Jr., and Walker & Walker, Opelika, for appellant.

Patterson & Patterson and Albert L. Patterson, Phenix City, for appellee.

GOODWYN, Justice.

Appellant, the wife, filed her bill of complaint against appellee, the husband, in the Circuit Court of Lee County, in Equity, on January 7, 1953, seeking the following relief: (a) a divorce on the ground of voluntary abandonment, (b) custody of and support for the parties' eight-year old son, (c) alimony, and (d) allowance of a solicitor's fee. The husband filed an answer and cross-bill denying the material allegations of the bill and seeking, by the cross-bill, the following relief: (a) a divorce on the ground of voluntary abandonment, (b) custody of the child, and (c) divesting the wife of title to certain real estate and personal property and investing it in him. The wife filed demurrers to the cross-bill, which were overruled, and also filed an answer denying the material allegations of the cross-bill. In view of our holding, there is no need to discuss the demurrers.

Evidence was taken orally before the trial judge. On final submission, the court rendered a decree dismissing the wife's bill and granting the relief sought by the husband, except that the wife was permitted custody of the child during the months of June, July and August in each year, and was also permitted to keep a Chevrolet panel truck claimed by the husband. This appeal is from that decree.

We will refrain from engaging in a detailed discussion of the evidence, as it would serve but to place in bold relief this domestic unhappiness and no useful purpose would be subserved thereby. Such has been the policy of this court for many years. The evidence has been read and studied and carefully considered by the court in consultation. Our conclusion is that the trial court erred in dismissing the wife's bill and granting relief to the husband. It is our view that the wife is entitled to a divorce; that the husband's cross-bill should be dismissed; that the decree dismissing the wife's bill should be reversed; that a decree should be rendered here granting the wife a divorce on the ground of voluntary abandonment and giving her custody of the child for nine months in each year, beginning September 1 and ending May 31, and giving the father custody during the months of June, July and August in each year, with each parent having the right to visit the child at any reasonable time; and, further, that the cause should be remanded for determination by the trial court of allowances to the wife for her own support, for the support and maintenance of the child, and for a reasonable solicitor's fee.

As to the Divorce

Each party charges the other with voluntary abandonment. Divorce on this ground is authorized by Code 1940, Tit. 34, Sec. 20, par. 3, as amended by Act No. 463, appvd. July 10, 1943, Gen. Acts Reg.Sess.1943, p. 425, which provides as follows:

'The circuit court in equity has power to divorce persons from the bonds of matrimony, upon bill filed by the aggrieved party, for the causes following: * * * 3. For voluntary abandonment from bed and board for one year next preceding the filing of the bill. * * *'

The rule of our cases is that to constitute 'voluntary abandonment' as a ground for divorce there must be a final departure, without the other party's consent, without sufficient reason therefor, and without the intention to return. Kidd v. Kidd, 246 Ala. 313, 20 So.2d 515; Perry v. Perry, 230 Ala. 502, 162 So. 101; Mayo v. Mayo 199 Ala. 551, 552, 74 So. 971; Brown v. Brown, 178 Ala. 121, 122, 59 So. 48.

On original consideration, we expressed the view that neither party was entitled to a divorce because we did not think there was present here a sufficient showing of absence 'without consent'. On application for rehearing, we have again examined the evidence and have reached the conclusion, after most careful consideration and full discussion in consultation, that we were in error in denying the wife a divorce. Our first conclusion from the evidence was that the departure of the husband on September 6, 1951, and his sixteen months' absence thereafter, were 'acquiesced in' by the wife and that such 'acquiescence' constituted 'consent' on her part, which, under the rule of our cases, would deny to her a divorce on the ground that her husband had 'voluntarily' abandoned her. Kidd v. Kidd, supra; Perry v. Perry, supra; Mayo v. Mayo, supra; Brown v. Brown, supra. While there might be evidence to support an inference that the wife was not displeased by the husband's absence, we do not find any evidence that she 'consented' or 'agreed' to it. We perceive no duty on the part of the wife to make overt objections or protestations against the husband's departure nor to seek out the departed husband and to make overtures to him to return to her. In this case it was the husband, and not the wife, who withdrew from the established home. The cessation of cohabitation was complete for a period in excess of the prescribed year, without the performance of any marital duties, except that the husband continued to send to the wife the monthly payment of $120 due on the home mortgage executed by him. But, even if it be conceded that such payments on the husband's debt inured to the wife's benefit as owner of the home, this would not affect her right to a divorce on the ground of voluntary abandonment. We have held that 'the fact that the husband has furnished adequate support during separation does not bar the wife's right to divorce, if the ground therefor otherwise exists.' Benton v. Benton, 214 Ala. 321, 323, 107 So. 827, 829. We find no evidence to support the husband's claim that the wife is the defaulting party. According to the husband's own testimony, he made no request that the wife join him in his changed residences; that he saw no reason to ask her as he knew she would not move with him.

As to Custody

In determining which parent is entitled to the custody of a minor child, each case must stand on its own peculiar facts. Gardiner v. Willis, 258 Ala. 647, 64 So.2d 609, 611; Green v. Green, 249 Ala. 150, 30 So.2d 905; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561. However, the controlling consideration is the welfare of the child. Gardiner v. Willis, supra; Green v. Green, supra; Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392.

It seems to us, under the circumstances here, that the best interests of the minor son would be served by continuing his principal care and custody with his mother. To this end, an order will be here made, as hereinabove indicated, granting her custody for the nine months of September through May in each year and granting the husband custody for the three months of June, July and August in each year, with the right of each parent to visit the child at any reasonable time. In reaching this conclusion, we are impressed with the fact that during the father's absence from the home in Auburn for some sixteen months prior to the initiation of these proceedings, the mother had the complete care and custody of the child. We see no good reason why the principal custody should now be taken away from her.

From the evidence, it is indicated that both the mother and the father probably will want to take the child outside the State of Alabama during their respective custodial periods. As a condition for such removal the party removing him shall execute a bond with good and sufficient surety to be approved by the register of the circuit court of Lee County, in equity, or by that court, and deposited with said register, in the amount of $1,000, payable to the other party, conditioned upon the party executing the bond surrendering the child to the other party at Auburn, Alabama, at the beginning of the period prescribed by Alabama decree for custody of said minor child by the other party. Wheeler v. Wheeler, 249 Ala. 119, 122, 29 So.2d 881. Such requirement is subject to future modification or change as the circumstances may warrant, to be determined by the trial court.

The chancellor's decree does not indicate the reason for giving custody to the father. It may be that the controlling factor was the statute which provides that 'in cases of abandonment of the husband by the wife, he shall have the custody of the children after they are seven years of age, if he is a suitable person to have such charge.' Code 1940, Tit. 34, Sec. 35. In view of our reversal of the decree, this statute, of course, has no application.

As to the Property

When the parties married, the husband was the owner of a vacant lot in Auburn, Alabama. This lot was acquired by him by gift from his mother in 1935, about five years before the parties' marriage. They came to Auburn to live in 1946, after which they built a duplex residence on a portion of this property. To finance the construction, a $16,000 loan was obtained and a mortgage placed on the property as security therefor. In November, 1950, the husband sold his confectionary business in Auburn. In March,...