Opinion
4 Div. 909.
May 13, 1937. Rehearing Denied June 3, 1937.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Jacob A. Walker, of Opelika, for appellant.
To establish adultery, the circumstances must be such as to lead the guarded discretion of a reasonable and just man to the conclusion that the act has been committed. Brown v. Brown, 229 Ala. 471, 158 So. 311; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718. The good character of the wife is sufficient to rebut testimony of adultery. Le May v. Le May, 205 Ala. 694, 89 So. 49; Gray v. Gray, 208 Ala. 284, 93 So. 900. The husband's continued friendly association and comradeship with the seducer of his wife, his continued employment of the seducer, and his failure to manifest indignation after the discovery of her delinquency, is, in each instance, evidence of connivance on his part. Harmon v. Harmon, 111 Kan. 786, 208 P. 647; Atha v. Atha, 94 N.J. Eq. 692, 121 A. 301; Id; 95 N.J. Eq. 275, 122 A. 926; Viertel v. Viertel, 86 Mo. App. 494; Vinton v. Vinton, 264 Mass. 71, 161 N.E. 817. Appellant was entitled to alimony to the date of the decree and pending appeal, and to permanent alimony. Code 1923, §§ 7417, 7418; Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Le May v. Le May, supra; Scott v. Scott, 215 Ala. 684, 112 So. 218; Brown v. Brown, supra. Expenses of appeal are expenses of the wife's defense of her case for which the trial court should have made allowance. Phillips v. Phillips, supra; Le May v. Le May, supra.
A. L. Patterson, of Phenix City, for appellee.
Adultery is a cause for absolute divorce. The trial court was without authority to grant a decree of divorce from bed and board. Keezer, M. D. 188; Allen v. Allen, 125 App. Div. 838, 110 N.Y.S. 303; Code, § 7423. It is not necessary to prove the direct act of adultery. Jeter v. Jeter, 36 Ala. 391; Morrison v. Morrison, 95 Ala. 309, 10 So. 648; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Pitchford v. Pitchford, 223 Ala. 612, 133 So. 718; Brown v. Brown, 229 Ala. 471, 158 So. 311. If one spouse suspects the other of having committed adultery, the former may take measures to secure proof to be used by him in an action for divorce without being guilty of connivance. Robbins v. Robbins, 140 Mass. 528, 5 N.E. 837, 54 Am.Rep. 488; Wilson v. Wilson, 154 Mass. 194, 28 N.E. 167, 12 L.R.A. 524, 26 Am.St.Rep. 237; Dilatush v. Dilatush, 86 N.J. Eq. 346, 98 A. 255; White v. White, 84 N.J. Eq. 512, 95 A. 197; Lehman v. Lehman, 78 N.J. Eq. 316, 79 A. 1060; Herriford v. Herriford, 169 Mo. App. 641, 155 S.W. 855; 19 C.J. 91. Under the facts appellant was not entitled to any further or additional alimony than that awarded. Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Porter v. Henderson, 204 Ala. 564, 86 So. 531; Mabry v. Ray, 208 Ala. 615, 95 So. 6; Bailes v. Bailes, 216 Ala. 569, 114 So. 185; Ex parte Jones, 172 Ala. 186, 55 So. 491. Award of permanent alimony was within the discretion of the trial court. Code, § 7420; Gen.Acts, 1933, 119; Waldrep v. Waldrep, 231 Ala. 390, 165 So. 235. Allowance of solicitor's fee was discretionary. The fee allowed was sufficient. Ex parte State ex rel. Boyette, 211 Ala. 129, 99 So. 853; Code, § 3805; Ex parte Eubank, 206 Ala. 8, 89 So. 656; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Bulke v. Bulke, 173 Ala. 138, 55 So. 490; Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935.
We agree with the contention of appellee's counsel that the evidence does not support the conclusion that the appellee, Windham, brought about or procured the debauchery of his wife. It at most shows a bungling effort on his part aided by his cousin, Jones, to fabricate testimony upon which he hoped to procure a divorce from her. It wholly fails to show that she committed adultery with Jones, as charged in the bill. Any other conclusion is incompatible with the fact that Jones remained in the employ of appellee in a responsible position up to the time appellee testified as a witness in this case, and he was not offered as a witness to support the charges made by the bill. Appellee elected to leave his case to rest upon the evidence which, when considered alone, at most raises a mere suspicion or conjecture. This is wholly insufficient under the authorities, especially in the face of the wife's testimony denying said charges, supported by evidence of her good character in the community where she had lived all her life. Brown v. Brown, 229 Ala. 471, 158 So. 311.
The evidence shows that the complainant is a man of considerable means, owns rent property which he assesses, in round figures, at $25,000, and from which he receives $500 to $900 per month income; that the appellant, the wife, has incurred an expense of $500 as attorney's fee for the defense of this suit; and that she is without means. She was allowed temporary alimony of $50 per month and $250 solicitor's fee for prosecuting and for defending the suit. In this respect the decree of the circuit court is affirmed.
In all other respects the decree of the circuit court is reversed and one here rendered dismissing the complainant's bill and granting the defendant relief under her cross-bill. She is allowed as temporary alimony $50 per month as fixed in the report of the register up until June 1, 1937. Her permanent alimony is fixed at $100 per month, which the complainant is required to pay into the registry of the circuit court of Russell county on the first day of each month, commencing on June 1, 1937, and on the first day of each month thereafter. Upon his failure to pay the same, the register of the circuit court will issue execution therefor, together with the costs of such execution and the fees and commission of the sheriff for collecting the same.
She is also allowed an additional solicitor's fee of $250 for the use of her solicitor for the prosecution of this appeal, for which execution will be issued by the register.
Let appellee pay the costs of the suit and of the appeal. The cause is remanded to the circuit court for the purpose of enforcing the decree.
Affirmed in part, and in part reversed, rendered, and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.