Opinion
Civ. 481.
May 7, 1975.
Appeal from the Circuit Court of Coffee County, Enterprise Div., Riley, P. Green, Jr., J.
W. Mark Anderson, III, Montgomery, for appellant.
Where the answer contradicts all the averments of the bill, the burden is on the complainant to prove the allegations of the bill so as to overcome the contradictions of the answer. White v. White, 207 Ala. 533, 93 So. 457. Admissions of a plaintiff are competent evidence to defeat a divorce. 19 C.J. 127, § 332; 27A C.J.S. Divorce § 125, page 427; Lyall v. Lyall, 250 Ala. 635, 35 So.2d 550; Killingsworth v. Killingsworth, 283 Ala. 345, 217 So.2d 57. A continuance of cohabitation ordinarily will condone cruelty and bar a divorce therefor, although the wife is the complaining party, unless it is apparent from the circumstance that the life or health of the innocent party will be endangered by a discontinuance of the marriage relation. 27A C.J.S. Divorce § 61a, page 206; Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339; Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202. The better practice is to grant temporary support pendente lite only after application therefor, notice and hearing. 27B C.J.S. Divorce § 242, page 11. Every written motion other than one which may be heard ex parte shall be served upon each of the parties. Rule 5(a), Alabama Rules of Civil Procedure.
Joel M. Nomberg, Daleville, for appellee.
Evidence that husband upon one occasion slapped wife with his hand and threatened wife with bodily harm sustained finding that husband was guilty of cruelty warranting divorce under circumstances. McMahon v. McMahon, 272 Ala. 653, 133 So.2d 374. In suit for divorce on ground of cruelty testimony that wife was afraid of her husband and afraid to live with him was admissible. Atkins v. Atkins, 268 Ala. 428, 108 So.2d 166. In an action for divorce on the ground of cruelty, fact finding by the chancellor, supported by evidence, will not be disturbed. Pruitt v. Pruitt, 205 Ala. 484, 88 So. 451. In a proper case and in the exercise of sound discretion, the court may award the use of the home and household goods to the wife as temporary alimony. 27A C.J.S. Divorce § 250, page 889. Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591.
This is an appeal from a decree of divorce.
By appropriate assignments of error, appellant, through able counsel, contends that the trial court erred to reversal in granting the divorce in that there was no evidence presented by appellee-wife as to the ground of divorce, to wit, physical cruelty. Additionally, appellant-husband contends error in the trial court's action of granting temporary possession of the parties' home to appellee pending a final hearing.
Facts pertinent to this appeal reveal that the parties were apparently married in 1960 and separated in July 1974. One child was born of the union.
The appellee-wife testified that for the past year, while appellant-husband was residing in Georgia, their marriage has been a violent one, in which there was "fighting." Further, appellee testified she was afraid of her husband; that he had made threats and she could not live with him. Additionally, it is clear that some few months prior to the parties' separation, the husband assaulted the wife to the extent of bruising her. The police were called on this occasion and the husband was arrested and jailed. We further note that in response to the distinguished trial judge's question the husband admitted "spanking" his wife. The occasions of these "spankings" and dates of occasions are not clear, but we know they occurred more than once.
At this point, we should comment that appellant in brief alludes to the fact that condonation is present in the instant appeal. However, we find no competent evidence of condonation.
As to appellant's other argued assignment of error, we find no merit. Assuming appellant had no prior notice or opportunity to be heard prior to the trial court's action in awarding temporary possession of the home to appellee-wife pending a final hearing, we perceive no error in this instance as the question was not presented below or passed on by the trial court at any time. Questions not passed on below cannot be considered on appeal. Penn Mutual Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346.
However, in any event in this instance, where custody of the parties' minor child was temporarily awarded to the appellee, we consider it a matter of discretion of the trial court his decision to award temporary possession of the house to appellee.
All assignments of error having been considered, the decree is due to be affirmed.
Affirmed.
WRIGHT, P. J., and BRADLEY, J., concur.