Opinion
3 Div. 584.
October 4, 1951.
Appeal from the Circuit Court of Escambia County, F. W. Hare, J.
McMillan, Caffey McMillan, Brewton, for appellant.
Whether the bill be one for divorce a vinculo or for divorce a mensa et thoro there is no distinction as to the character or nature of the cruelty charged to support the cause of action. Code 1940, Tit. 34, §§ 36, 37; 17 Am.Jur. 174 § 48. In a suit brought by the wife against her husband for divorce based on charges of cruelty, the burden of proof is upon her to reasonably satisfy the trial court of the truth of her charge that the husband has committed actual violence on her person attended with danger to life or health, or from his conduct there is reasonable apprehension of such violence. Code, Tit. 34, § 22; Jones v. Jones, 189 Ala. 286, 66 So. 4; Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202; May v. May, Ala.Sup., 39 So. 679; Murray v. Murray, 238 Ala. 158, 189 So. 877; Morrison v. Morrison, 165 Ala. 191, 51 So. 743; Bailey v. Bailey, 237 Ala. 525, 187 So. 453; Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185. Where the offenses sought to be revived after condonation are so remote in point of time and the conduct of the parties has been of such character that no rational conclusion can be reached other than the complainant party has finally and unconditionally surrendered any and all rights to complain of such offenses, they may not be revived as a separate and sufficient ground for divorce. 27 C.J.S., Divorce, § 62, p. 616; Hammon v. Hammon, supra. A mere threat of violence against the wife is not such conduct on the part of the husband as affords reasonable apprehension of violence on her person attended with danger to life or health. Bailey v. Bailey, supra; Campbell v. Campbell, supra; 27 C.J.S., Divorce, § 27, p. 551. The acts of cruelty relied upon should be alleged with reasonable certainty as to time and place, and should show with reasonable certainty that a statutory ground for divorce existed. 27 C.J.S., Divorce, § 108, p. 699; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Holt v. Holt, 249 Ala. 215, 30 So.2d 664.
Allen Cook and A. R. Powell, Jr., Andalusia, for appellee.
The bill of complaint in this case states a cause of action as against the demurrers of the appellant, James William Harris. Code 1940, Tit. 34, § 22; Harris v. Harris, 230 Ala. 508, 162 So. 102; Hudson v. Hudson, 204 Ala. 75, 85 So. 262; Brown v. Brown, 219 Ala. 104, 121 So. 386; Littleton v. Littleton, 224 Ala. 103, 139 So. 335; Sharp v. Sharp, 230 Ala. 539, 161 So. 709; Sams v. Sams, 242 Ala. 240, 5 So.2d 774; Chamberlain v. Chamberlain, 245 Ala. 105, 16 So.2d 8; Roberts v. Roberts, 247 Ala. 302, 24 So.2d 136. The evidence heard orally before the Court in this cause was ample to justify the granting of a divorce a mensa et thoro. Turner v. Turner, 44 Ala. 437; Moyler v. Moyler, 11 Ala. 620; King v. King, 28 Ala. 315; Harris v. Harris, supra; Williams v. Williams, 239 Ala. 162, 194 So. 507; Oliver v. Oliver, 244 Ala. 234, 12 So.2d 852; Wheeler v. Wheeler, 249 Ala. 119, 29 So.2d 881; Green v. Green, 249 Ala. 150, 30 So.2d 905. Where evidence in a suit in equity was taken before the Court Viva Voce, and trial Court's conclusion on the facts are supported by the evidence, and not contrary to the great weight of the evidence, the decree will not be reversed. Ray v. Ray, 245 Ala. 591, 18 So.2d 273; Lane v. Bruner, 236 Ala. 269, 182 So. 513; Burke v. Burke, 208 Ala. 502, 94 So. 513.
The bill of complaint in this cause, as originally filed, sought a divorce a vinculo matrimonii on the ground of cruelty, and the custody of the two minor children of the marriage. The bill was amended, and as amended, sought a divorce a mensa et thoro.
The original bill alleged the cruelty complained of in the following language: "That since the said marriage and recently, the defendant has made threats to commit serious physical violence on the person of complainant, of such nature as to endanger her life or health; that in addition to other abusive treatment, he has threatened to break her neck and that from his conduct towards her, she has reasonable apprehension of physical violence on her person at his hands, attended with danger to her life or health. She therefore charges him with Statutory Cruelty."
The amended bill added to the charge of cruelty the following: "That the respondent, James William Harris, on two occasions prior to the separation of said James William Harris and this complainant did assault and beat this complainant with his fists, striking her on several parts of the head, severely bruising and injuring this complainant, and on the said occasions did threaten the life of this complainant, cursed her, told her he would kill her, and would shoot her with a pistol which the respondent continuously carried at that time."
Title 34, § 36, Code 1940, provides: "Cases of divorce from bed and board. — The judge may decree a divorce from bed and board for cruelty in either of the parties, or for any cause which would justify a decree from the bonds of matrimony, if the party applying therefor desires only a divorce from bed and board."
Demurrers were interposed to the original bill, and to the bill as amended, and in each instance overruled. Thereupon respondent filed an answer and the evidence in the case was taken ore tenus before the judge of the trial court.
The court below entered a decree granting complainant a divorce a mensa et thoro, custody of the infants and ordered the register to hold a reference to determine the amount due complainant for the support of herself and minor children, and solicitor's fees. From this decree the appeal is prosecuted by respondent husband.
Assignments of error 1, 2 and 3 are based upon the overruling of appellant's demurrers to the original bill and the bill as amended.
Our cases are clear to the effect that a bill of complaint predicated upon cruelty of the husband need not go into the details with particularity, but it should at least, give the nature and character of the acts or conduct relied upon to establish the charge. McMahon v. McMahon, 170 Ala. 338, 54 So. 165; Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852; Hillhouse v. Hillhouse, 222 Ala. 146, 131 So. 441; Holt v. Holt, 249 Ala. 215, 30 So.2d 664.
But in the case of Hillhouse v. Hillhouse, supra, it was said: "The case of Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422, is not opposed to this ruling. It recognized the necessity for such an averment, but applied the doctrine of error without injury, as the bill was answered and all the facts and circumstances were gone into at the trial. The court did not hold that the case would not be reversed had the appeal been upon the ruling on demurrer before answer and proof taken, as was done in this case."
Conceding, without deciding, that the original bill, and the bill as amended, did not meet the requirements of good pleading we would be unwilling under the decision of Ratcliff v. Ratcliff, supra, to reverse the decree of the trial court overruling the demurrers.
The evidence discloses that the two acts of violence alleged in the original bill occurred respectively ten years and six years prior to the time of trial. It is not necessary for us to consider the questions of condonation and revival of past acts of cruelty, because it is our opinion that respondent's conduct which brought about the separation was such as to make complainant reasonably apprehensive of violence to her person, attended with danger to life or health. It is not necessary to prove that actual violence has been committed. Bailey v. Bailey, 237 Ala. 525, 187 So. 453. However mere empty threats are not sufficient to authorize the granting of a divorce. Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185; Bailey v. Bailey, supra.
Bearing in mind that the evidence was heard ore tenus before the trial judge and the usual presumption in favor of his finding is indulged in by this court, we find that respondent's conduct was such as to justify the decree of divorce. Without detailing the evidence it is sufficient to point out that respondent threatened the life of complainant, carried a pistol during the last two weeks of the parties cohabitation and continued his threats, and on the morning of the separation threatened complainant with bodily harm. This is not the case of a single isolated threat with no apparent intention or indication that it would be carried out as was the case in Campbell v. Campbell, supra, and Bailey v. Bailey, supra. The past acts of cruelty were evidence enough that respondent had carried out his threats in the past. Where the evidence shows that a husband has constantly threatened bodily harm to his wife and has shown that he has carried out his threats in the past and is capable of carrying them out in the present, this court will not put a trial court in error for awarding a divorce on such evidence heard ore tenus.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur.