Taylor v. Taylor

37 So. 2d 645, 251 Ala. 374, 1948 Ala. LEXIS 770
Supreme Court of Alabama·Decided May 27, 1948·No. 6 Div. 608.·Published·Cited by 43 cases

Opinions

*378 LIVINGSTON, Justice.

The complainant in the court below, appellee here, filed her bill of complaint in the Circuit Court of Jefferson County, in Equity, against appellant, seeking a divorce from bed and board, alimony and attorneys’ fees pendente Ike, permanent alimony, attorneys’ fees, and general relief. She alleged that the parties were lawfully married on May 30, 1942, and lived together as man and wife until October 24, 1946, at which time appellant abandoned her by forcing her to leave their home against her will. She further alleged that appellant had contributed only $200 to her support between October 21, 1946, and December 9, 1946, the time of filing suit, and which amount was inadequate and insufficient to support and maintain her according to the station in life of appellee and appellant, and that respondent had -failed or refused to -contribute more to her support and maintenance.

After demurrer was filed, appellee amended her bill of complaint. The charging part of the bill was not -substantially changed, but the bill as amended prayed for a divorce from bed and board, or, in the alternative, a legal separation and allowance out of the income and property of respondent. Demurrer was filed to the bill as amended, and overruled.

A reference was ordered upon appellee’s prayer for alimony and counsel fees pendente lite, and to test the bona fides of the bill. Upon a hearing the" register determined that the bill was filed in good faith, and fixed $200 as a reasonable fee, and $125 per month a-s a proper sum for alimony pendente lite. No exceptions were reserved to this report, and it was duly confirmed.

Appellant answered the bill and denied that he forced appellee to leave the home. He alleged that she left voluntarily because of domestic disagreements and incompatibility of the parties, and for which appellee’s conduct was partially responsible. He alleged that during the period of approximately -seven weeks between the separation and the filing of her bill, he had contributed $200 in cash -to her support, and had paid $125 of her personal bills. He alleged that he had a seventeen year old daughter by a former marriage, who was totally dependent upon him for support and education; that his sole source of income was $348.61, as a retired brigadier general of the United States Army; that his retirement was compulsory, and on account of his health; that he is forty-eight years of age, and in bad health; and that appellee is forty-two years of age, and in good health, and has no dependents or debts. That prior to the marriage of the parties, appellee, who had never been married, operated a dancing school in the city of Birmingham for some *379 seventeen to twenty years, and was capable of earning a good livelihood. That he was heavily in debt and, aside from equities in insurance policies, an automobile, and personal effects, owned no property.

Issue was joined on the amended bill and answer. At the conclusion of the testimony, taken ore tenus, the trial court rendered a decree granting appellee separate maintenance in the sum of $137.50 per month, and an additional counsel fee of $200. From that decree, this appeal is prosecuted.

The appellant’s statement of the evidence is, we think, sufficient and accurate enough for a determination of the question here presented, and inasmuch as it is not seriously questioned nor contradicted, in its material aspects by appellee, we quote it here (Supreme Court Rule 10, Code 1940, Tit. 7 Appendix) :

“Complainant’s evidence was that the parties were married in Birmingham, Alabama, on May 30, 1942, at which time respondent was a Lieutenant Colonel of Infantry in the regular Army. The couple lived tqgether at Fort Benning until about August 1, 1942, when respondent left for overseas. Complainant and the thirteen year old daughter of respondent by a previous marriage then removed to the former home of complainant in Birmingham, Alabama, and complainant rented an apartment. Relations between the two parties were good when respondent left, and he wrote complainant regularly and frequently after going overseas. He made an allotment of his pay in the total amount of $350.00 per month of which $50.00 went into a joint account the couple had in San Francisco, and the balance was used for the support of complainant and the young-girl. The rent was $70.00 per month.

“Complainant next saw respondent on September 1, 1945, when she met him in Washington after a telephone call upon his return to this Country. They lived together until respondent' went into the hospital at Ft. McClellan, Alabama, that same month. During that period, during respondent’s six weeks to two months stay in the hospital, and in the interval between his release from this hospital and his departure for another military hospital in Oklahoma in February 1946, the relations of the parties were amicable and unclouded by domestic dispute or discord. Respondent’s letters throughout his three months confinement in the latter hospital were affectionate.

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Taylor v. Taylor, 37 So. 2d 645, 251 Ala. 374, 1948 Ala. LEXIS 770 (Ala. 1948).

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