Opinion
6 Div. 847.
January 12, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Aird Aird and Fort, Burton Jones, all of Birmingham, for appellant.
The testimony in this case, taken orally before the trial court, will be considered on appeal, without presumption in favor of the ruling of the trial court. McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602. The wife is entitled to divorce when the husband has committed actual violence on her person, attended with danger to life or health, or when his conduct is such that there is reasonable apprehension of such violence. Code 1923, § 7409; Turner v. Turner, 44 Ala. 437; Goodrich v. Goodrich, 44 Ala. 670; Wood v. Wood, 80 Ala. 254; Farmer v. Farmer, 86 Ala. 322, 5 So. 434; Smedley v. Smedley, 30 Ala. 714. As to conduct amounting to cruelty, see 19 C. J. 55; 17 Cent. Dig. §§ 73-83 (jj); McAllister v. McAllister, 28 Wn. 613, 69 P. 119; Walsh v. Walsh, 61 Mich. 554, 28 N.W. 718; Maget v. Maget, 85 Mo. App. 6; Ridley v. Ridley (Iowa) 100 N.W. 1122; Carr v. Carr, 171 Ala. 600, 55 So. 96; Smedley v. Smedley, supra; Bishop, Mar. Div. §§ 454, 501; De Cloedt v. De Cloedt, 24 Idaho, 277, 133 P. 664; Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90. The wife is entitled to alimony pendente lite as a matter of right. Code 1923, § 7417; Ex parte Eubank, 206 Ala. 8, 89 So. 656; Ex parte Cairns, 209 Ala. 358, 96 So. 246; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Bell v. Bell, 214 Ala. 573, 108 So. 378, 45 A.L.R. 935; Rast v. Rast, 113 Ala. 319, 21 So. 34; Ex parte King, 27 Ala. 387; Ex parte Jones, 172 Ala. 186, 55 So. 491; Jeter v. Jeter, 36 Ala. 391; Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379; Webb v. Webb, 140 Ala. 262, 37 So. 96, 103 Am. St. Rep. 30; Brindley v. Brindley, 121 Ala. 429, 25 So. 751; Richardson v. Richardson, 4 Port. 467, 30 Am. Dec. 538.
London, Yancey Brower and Frank Bainbridge, all of Birmingham, for appellee.
When the answer denies and places in issue the averments of a bill for divorce, the burden of proving such averments rests on complainant. Moor v. Moor, 211 Ala. 56, 99 So. 316; White v. White, 207 Ala. 533, 93 So. 457; Howell v. Howell, 211 Ala. 415, 100 So. 635. Complainant, failing to prove cruelty as averred, was not entitled to divorce. Jones v. Jones, 189 Ala. 286, 66 So. 4; Morrison v. Morrison, 165 Ala. 191, 51 So. 743; May v. May (Ala. Sup.) 39 So. 679; Anonymous, 206 Ala. 295, 89 So. 462. Allowance of attorney's fee to wife depends on the good faith of the proceedings and the probability of success. Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Brindley v. Brindley, 121 Ala. 429, 25 So. 751.
The main issue presented by this appeal is one of fact, to be determined by the weight of the evidence. The testimony of complainant, if uncontradicted, or if believed, would justify a decree of divorce against respondent on the ground of cruelty, as prayed.
Her testimony is, however, without any substantial support, and is specifically contradicted by the answer and testimony of respondent, which finds some very material corroboration in the testimony of several other witnesses. The burden of proof in these cases is, as usual, upon the complaining party; and here complainant's burden is to reasonably satisfy the court of the truth of her charge of conduct on the part of respondent amounting to culpable cruelty. Jones v. Jones, 189 Ala. 286, 66 So. 4; White v. White, 207 Ala. 533, 93 So. 457.
Without here dissecting and weighing the evidence in detail, we are content to simply say that it has been thus considered, and that we are not reasonably satisfied, in view of the countervailing evidence, that respondent has been guilty of the misconduct charged.
With respect to complainant's right to alimony and counsel fees pendente lite, we have dealt with that question in the related case of Ex parte Apperson (Ala. Sup.) 115 So. 226. The final decree in this cause was merely that complainant was not entitled to the relief prayed; that is, to divorce and permanent alimony. There was no determination of the question of alimony and counsel fees pendente lite — a fact which complainant's motion for a decree on the register's report, filed 24 days after rendition of the final decree, implicitly recognized. In fact, the register's report had been ordered to lie over until November 13th for filing objections thereto, and for further consideration. This appeal, therefore, does not bring before us for review any action of the trial court with respect to such allowances. Had the final decree, the parties consenting, undertaken to determine those matters, doubtless the rulings thereon would have been reviewable, as held in Jeter v. Jeter, 36 Ala. 391, 406.
Post p. 176.
Counsel for appellant — complainant below — invoked no rulings on those matters until some weeks after the final decree was rendered, and she will be left to her pending proceeding by mandamus to review the action of the trial court in refusing to make the allowances in question.
It results that the final decree appealed from must be, and is, affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.