Engebretsen v. Engebretsen , 151 Fla. 372 ( 1942 )

From a final decree entered by the Circuit Court of Martin County, Florida, granting plaintiff below a divorce on the ground of adultery and awarding to him the custody of their two children, ages eight and eleven, respectively, with the privilege of visitation to the mother, defendant below, an appeal has been perfected here. The plaintiff husband charged his wife with adultery and extreme cruelty, which by an appropriate answer the defendant wife denied. The wife defendant in a counter claim charged her husband with extreme cruelty, which was denied in an answer thereto. The chancellor, on final hearing after hearing all the testimony, concluded that the plaintiff below failed to establish his charge of extreme cruelty against the wife, and that the wife likewise failed to carry the burden of proof by establishing extreme cruelty on the part of the husband, and dismissed her counter claim. It is here contended that the evidence adduced by her in support of the charge of extreme cruelty on the part of the husband overwhelmingly sustains the said allegations thereof. It is necessary to examine the testimony to determine this controverted issue.

The testimony discloses that the plaintiff below, Toley Engebretsen, by birth is a Norwegian. His first wife died and left one child. On August 17, 1927, he married the appellant in Jacksonville, Florida. She, at the date of their marriage, was approximately 20 years of age, while her husband was about 28. He at the time was an employee of the Arundel Corporation and stationed at Salerno, a small community located three miles south of Stuart, in Martin County, Florida. The parties went to live some three miles in the country and west of Salerno. The appellant discharged the duties of a wife, inclusive of feeding, milking and caring for the cows, as well as chickens and ducks, and generously contributed her labor to the upkeep of the country home. The appellee's son by a former marriage was taken into the home and cared for by the appellant, as the appellee's employment took him from home during the day time.

It is not clear from the record that the appellant in addition to her household duties, discharged the family weekly washing, but it is clear that in the early days of her married life but little, if any, help in the household duties was required or demanded by the wife or supplied by the husband. About one year after marriage a son was born. Her confinement resulted in the loss of only two or three days from household duties. This was her only illness at that time subsequent to her marriage. The plaintiff below resigned his position with the Arundel Corporation and immediately opened a small marine hardware business at Salerno. He ran also a repair business and did not return to his home for the noon meal. He was thrifty and industrious; carried out fishing parties, and owned and operated suitable fishing boats, which provided splendid revenues. It is shown that when this suit was filed he owned six or seven fishing boats and his daily income, frequently, was from $100.00 to $150.00 per day. They accumulated money and property rapidly.

The wife, appellant here, after her home duties were dispatched, would go from her home to Salerno and there work in the store, booking fishing parties, waited on trade and attend to other assignments incidental to the business, and would leave Salerno in the afternoon and return to her home, pen and milk the cows, feed the chickens and ducks and do other chores, and then prepare the evening meal for the family. The husband would continue his labors until dark, close the busines and go home some three miles in the country. The husband studied aviation and learned to control a plane, and had an agency or some planes for sale about his business at Salerno. An apartment was constructed above the garage and the family moved from the country in about 1929 or 1930 to the apartment at Salerno. A long flight of steps lead from the ground to the home or apartment built over the garage. The wife continued all her household duties and in addition worked in the store and cared for a considerable portion of the trade about the business. The husband frequently would be away on fishing parties and customers at the business would call, ring a bell, and the appellant would cease her household duties and go to the store and accommodate them.

When the parties were struggling to get ahead in a financial way, they were happy and contented. Wealth, accumulations and prosperity, according to the wife, brought trouble, disagreements, personal clashes, violence, and ultimately the filing of this suit. She stated that her husband just couldn't accumulate money without it affecting his head. He often would become angry with some one about the place and would go upstairs and strike, beat and abuse her. When she was carrying her second child and two or three days prior to its birth, her husband threw her down the steep steps leading from the garage apartment and inflicted a blow or wound over the lower part of her breast bone. The attending physician testified about the tenderness at this point in her breast upon the birth of her child, and testified that some five or six years thereafter there was a tenderness in her breast near the same place, but he could not state whether it was chronic or not. The wife testified that she has suffered pain continuously since he threw her down the long flight of steps leading from the ground to their apartment. This is not contradicted.

The record shows violence to the wife by the husband viz.: (1) in February or March, 1939, the husband beat her, knocked her down and threw her about the garage. Her eye was blacked and left a scar; (2) shortly thereafter he accused her of meeting some one on the corner and beat her again; (3) on June 8, 1939, she attended, with his approval, a beach party and on returning home the door was locked but she managed to gain admittance, when he beat and threw her down the apartment steps; (4) she went to Fort Pierce one night in December, 1939, and on her return he struck and beat her, knocked her down, applied unspeakable epithets, and one of the blows from his fist struck her in the mouth, knocking out a tooth and rendering her unconscious for a short time. He threatened to kill her; (5) the following night he assaulted her, threw a gun on her and threatened to shoot her; he threw her out of their home in the nighttime and would not let her re-enter; she slept in the truck in the garage during the night; the following morning she cooked breakfast, when he again cursed, abused and threatened her life; (6) he wanted her signature to get money on deposit in her name and when she refused, he cursed, threatened and abused her and drawing a pistol on her again threatened to kill her; (7) on December 13, 1939, he would not let her enter his home and she was forced to sleep in the truck in the garage under the apartment; (8) the next night she entered the home in the appellee's absence and went to bed and on his return he found her and drew a pistol on her and said: "Didn't I tell you not to come in this house or I would kill you?" "and he then opened the door and threw me out of the door down the long flight of steps and I fell on some boxes. He locked the door to his car and I could not get in it and had to sleep in the truck"; (9) while he had given her some money, she had left it in the home and he would not give it to her or let her stay in her home and she was locked out of her home and was without money; (10) she wanted to see her children and in going to see them he would meet her, curse and abuse her and pointed a gun at her and threatened to shoot her; (11) she went to see her children and appellee told her; "Didn't I tell you I was going to kill you if you ever put foot on this land again?" and she told him: "I came here to see the children. He threw a shot gun on me and his oldest son beat me while his father held the gun on me. I ran and as I did he fired one shot at me." (12) "The appellant and his son caught me, threw me in a car and Ted Preston drove while they held and beat me, and DeLoach got in the car and they took me to jail at Stuart;" (13) "Appellee beat me repeatedly while my stepson held me on the way from Salerno to Stuart, and he had a shot gun in the car near his hand while beating and taking me to jail; (14) he put me in jail at Stuart because I went to our home to see my children; (14) he tried to pull the rings off my fingers; he called me vile and vulgar names and spat in my face;" (16) they placed her in jail and while she was in a cell the appellee again cursed, abused, threatened to kill and called her vile and filthy names; (17) she was placed in jail without a warrant because she went to her home to see her children contrary to the views of her husband; (18) the husband weighed 180 pounds and, armed with a shot gun and aided by his son and two men, placed the appellant in a car and took and placed her in jail at Stuart; (19) appellant went to Dr. Parker for treatment and he testified that on examination he fond several blue spots on her body and limbs; (20) she complained of tenderness over the lower part of her breast bone and he bandaged her for the chest pain; (21) she was examined in September, 1940, by two doctors for a return of the chest pain; (22) she had had a continuous menstrual flow since the previous December, 1939; her body disclosed clear and positive marks of violence applied by the appellee and by him admitted; (23) the appellant was taken into custody and placed in jail on a peace warrant later issued by a Justice of the Peace. The husband was afraid the appellant would take his life and criminal process for the appellee issued. He and his son armed with a shot gun, aided by DeLoach, a material witness for the appellee, and Preston placed the dangerous 118 pound woman in jail. The appellant testified as above stated, and her testimony is strongly and minutely corroborated by the physician attending her. Some of the testimony is not denied, and violence toward the appellant on the part of the appellee is admitted, viz.:

"Q. Do you know how she got the black eye? A. I think I do, yes. Q. You do? Did you hear this witness testify he heard that you had some trouble down there? A. Yes, sir. Q. You didn't have any trouble? Yes, sir. Q. You and Mrs. Engebretsen did? A. Yes, sir. Q. What trouble did you have A. I think that is the time that she ran after the boy and I tried to put her back up the stairs. Q. February, 1939? A. I am not sure that is the time. We did have trouble on one other occasion when you get to it. Q. When you wanted to put her back upstairs, you took hold of her by force, didn't you, to put her back upstairs? A. I thought it was my duty to keep her from running out and making a fool of herself before the public. Q. Did you think it was your duty to take hold of your wife and chastise her, throw her out and put her upstairs and downstairs any time that you see fit? A. No, sir. Q. If your wife went away from home or she wasn't as congenial as she could have been, do you think it could have been accounted for by the fact that you had used physical force on her at those different times? A. Well, when I had to use physical force, it was usually some trouble that started from herself. Q. And you didn't hesitate to use physical force on her at anytime when you thought it was necessary? A. I wouldn't say that. I wouldn't say that; I hesitated hundreds of times. Q. But other times you didn't hesitate? A. A man can only stand so much; probably you know it? A. About how much would your wife weigh, do you know? A. Well, it all depends on a man's temper, of course."

"Q. What happened the next day: the next day was the 13th, that was Wednesday. A. Well, had my business to attend to and I had to get down in the morning and get things started. She got the children off to school and after they got gone, I run up there between work and tried to get her to: 'Let's us get ready to go to town.' She wouldn't say anything and wouldn't go. Well, that evening the boats brought on a lot of Kingfish, and when they do, I usually contract it among friends and send the fish to fishing parties. I wrapped each one of the fish separately and put them in my car. And I went up and told her before I left that it was no use her staying in my house any longer, I wasn't going to put up with it and that when I come back I expected her to be gone. I wasn't going to let her sleep there that night. I come to town and contracted the fish, went back home, found the children in bed and she was gone. But on the dresser I found a note; and after reading the note, I figured that she had just left as I expected her to do. Q. Now, she was not there the night of the thirteenth? A. No, sir. Q. Now, she brought Toley, Jr., back with her the night of the twelfth when she came home? A. Yes, sir. Q. Where was the little girl? A. She was with some of her friends at Salerno — spent the night. Q. And did she take the little boy with her to Fort Pierce where she told you she had gone that night? A. No, he told me he went to the picture show and waited outside the show for over an hour before they come along to pick him up after the show. Q. Then, what happened on Thursday? A. . . . And so I had gone down to work to see different people who wanted to see me. And on one occasion, she came down in the shop and wanted to help. And as soon as the customers left the shop, I pushed her in front of me to the door downstairs and told her to get out, that I didn't want her to bother with any of my business or want her to stay at my home any longer. So she left; that was about two o'clock in the afternoon. . . . Q. Tell what happened there. A. I told her before, I didn't want her to sleep under my roof any more. And I went in and woke her up and when I woke her up, I told her that she couldn't stay there any longer. And she said, 'Well, I have just as much right in this house as you have because I had the sheriff down here and he told me to stay here.' I said, 'Well,, I am sorry, but I am not going to have you in this house any longer, the way you have been doing.' So I attempted to put her out peaceably. She put up a struggle, didn't want to get out, and I got hold of her behind her shoulders in her clothes and walked down the stairway, opened the door and held her with one hand, opened the door with the other — and set her outside the door and shut the door and locked the door. Q. Now, was that the last time she came back? A. That is the last time she came back when I was there, but she came back on Friday when I wasn't there. Q. And have you been separated ever since? A. Yes, sir." . . . "Q. Engebretsen, the man, DeLoach, who testified in this case here, is he one of the same men who helped take your wife to jail A. Yes, sir. Q. What made you take your wife to the jail and throw her in, Engebretsen? A. Well, I figured it was safer for her and me both, the way things were going, it had to be an end to it somewhere. And I figured if I got it to a head somehow, both of us would be safer. She was running around trying to make all kinds of trouble and I was trying to hold her down if it was any possible way. . . . Q. How many of you men was there took her and put her in the jail and carried her to jail? A. I put her in the car, myself. Q. Who else was in there? A. There was nobody in there when I put her in there. Q. You had this boy, Edward, in there? Wasn't he? A. I asked him to get in when we left. Q. Did he grab and help hold? A. No, sir, he was sitting on one side, I was sitting in the middle and she was on the other side. (Indicating) Q. Did you have a rifle there? A. Yes, sir. Q. What did you have the rifle there for? A. For protection. Q. You had to have — you four men had to have this rifle for protection against this woman? A. I was only by myself when I first met the woman. Q. Didn't she come to the house and weren't these men all right there? A. No, sir, they wasn't there. Q. Where was the boy? A. He was in the house. Q. Didn't he grab her? A. No, sir. Q. He didn't grab her? A. No, sir. Q. Who grabbed her? A. I did. Q. Did you shoot off the gun? You shot at her? A. We got in a struggle with the gun and it went off. Q. How did the gun happen to go off? A. Well, I guess somebody must have got hold of the trigger. Q. It couldn't shoot unless it was an automatic gun? A. Yes, sir. Q. What kind of a gun was it? A. A Winchester Rifle. Q. What kind of a Winchester? A. I don't know. Q. A lever action? You throw it out from underneath? A. Throw it out from underneath. Q. Then you would have to cock it, wouldn't you? A. Yes, sir. Q. Who cocked it? I did. Q. So you met your wife with a cocked rifle when she came there? A. Yes, sir. . . ."

If the court has jurisdiction of the parties and the subject matter of the litigation, and the evidence shows the existence of the ground for divorce and it is one recognized by the statute and no other lawful reason exists why a divorce should not be granted, it then becomes the duty of the court to grant the decree. See Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630. Divorce should be granted on positive uncontroverted testimony, legally sufficient to sustain the allegations of the bill warranting divorce where not impeached or directly contradicted. See Plowman v. Plowman, 101 Fla. 641,135 So. 125; Nolen v. Nolen, 121 Fla. 130, 163 So. 401. The evidence clearly established the allegations of extreme cruelty. The order dismissing her counter claim was erroneous.

Appellant here contends that the testimony adduced by the plaintiff below was legally insufficient to establish adultery as alleged in the bill of complaint and denied by her answer. This burden, as a matter of law, rested on the plaintiff below. See Shippey v. Shippey, 97 Fla. 881, 122 So. 272. Adultery is seldom or rarely established by direct testimony. The natural secrecy of the act makes or ordinarily renders it impossible to establish it except by circumstantial evidence. The facts and circumstances as disclosed by the evidence supporting the charge of adultery in a divorce proceeding must be such as to lead the guarded discretions of a reasonable and just man to the conclusion that adultery was committed. When considering facts and circumstances adduced in support of the charge of adultery, great care is necessary, so as not to be misled by facts and circumstances capable of two interpretations by giving them an evil rather than an innocent one; or by refusing to give them their plain and natural significance on the theory that a different standard applies to such cases from other ordinary transactions. The facts and circumstances adduced must be considered separate and as a whole and a conscientious conclusion reached similar to other litigated cases.

In the case of McMillan v. McMillan, 120 Fla. 209,162 So. 524, the rule, supra, was enunciated by this Court when we said:

"To prove adultery the law does not require that specific acts be attested by eye witnesses. The rule approved by the weight of authority is that if the circumstances proven are such as to lead the guarded discretion of a reasonable and just man to the guilt of the participants that is sufficient. Heath v. Heath, 103 Fla. 1071,138 So. 796; Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110. In Atha v. Atha, 94 N.J. E. 692, 121 A. 301, it was held that if desire and opportunity were proven adultery would be presumed. The following cases support the general rule: Stackhouse v. Stackhouse, (N.J.E.) 36 A. 884; Allen v. Allen,101 N.Y. 658, N.E. 341; Houlton v. McGirk, 122 La. 359,47 So. 681, 16 Ann. Cas. 1117; Dicus v. Dicus, 131 Md. 87,101 A. 697; Willie v. Willie, 88 N.J.E. 581, 103 A. 74; Kerr v. Kerr, 118 N.Y.S. 801."

The evidence largely relied upon to support the charge was given by W.H. Strickland and his son-in-law and daughter; Lee DeLoach and Sadie DeLoach. About dark December 11, 1939, they testified that the appellant got in a Ford car with Audley Hires near the DeLoach fish house at Salerno. The two men testified that the appellant and Hires drove south through the town, passing near appellee's place of business. The two men in a car immediately followed them, and traveling on a different road, passed them when the two roads converged and they recognized the appellant and Hires as their car passed them; that they crossed a bridge, turned left, and entered a dead end street, traveled a short distance and stopped. The two witnesses saw the car stop and the appellant and Hires got out of the car, walked a few feet therefrom and stayed about twenty minutes and returned to the car. The two witnesses did not see the parties in the act of intercourse. The distance between the two witnesses and the parties at the time is estimated at between 60 and 70 yards, and at the time it was dark. W.H. Strickland testified that the moon was shining and was above the tree tops. Lee DeLoach testified that it was dark but he could see them. The parties were seen frequently together. Sadie DeLoach testified that Hires and appellant when leaving the fish house drove north or west when followed by her father and husband and that they did not go south.

The appellant, with her eleven year old son, and Hires admitted leaving the fish house in a Ford car, but testified they went directly north therefrom to Stuart, a distance of three miles, and the son went to a show; that Carl Wilkerson, at Stuart, got in the car and rode with the parties to Fort Pierce and the appellant called at the home of her sister. The three returned to Stuart and the boy came from the show and got in the car. The witness Carl Wilkerson observed no improper decorum between the parties. Appellant and Hires denied the testimony of Strickland and DeLoach. The eleven year old son testified.

Appearing in the record are several kodak pictures of appellant and W.A. Hires offered by the plaintiff below. The bill of complaint charged the appellant with extreme cruelty and adultery with W.A. Hires. It is difficult to appreciate the relevancy and materiality of these several pictures when offered in support of the allegations of adultery or extreme cruelty. The brief of counsel for appellee fails to discuss the same. The pictures were made at Pahokee when appellant was visiting her brother. W.A. Hires married appellant's sister and was employed at Pahokee at the time. She took them home; they were observed by her husband, or could have been observed, as the same were kept in the bedroom of the parties to this suit. Appellee accentuated their importance for the first time as evidence only after the institution of his suit. The pictures do not establish the charge of extreme cruelty nor the charge of adultery. It is possible that individuals possessing abnormally high standards of morality would condemn as unwise and indiscreet the posing for pictures by a young married woman with her brother-in-law, but the standards of conduct change with each generation. Short skirts, the exposure of lower limbs beautifully adorned with silk hose, and during the summer months made more attractive by the total elimination thereof, shoes so designed as to display daintily polished toe nails, the modern "make up" acquired at a beauty salon, the elegant cigarette case, double dating, early and late dates, necking, and modern methods of love making were each but a little short of les majeste to the writer's generation.

In the case of Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537, the sufficiency of the evidence to sustain the charge of adultery against the wife was presented. The husband and two disinterested witnesses testified that the wife was lying on her bed, clothed in her underwear and draped with a bathrobe. Her paramour was lying on the bed beside her with his shoes and coat off. These facts and circumstances established the guilt of the wife. The wife's explanation of the predicament was that her paramour was there to obtain from her a letter of recommendation to assist him in obtaining employment was by the court rejected.

In the case of McMillan v. McMillan, supra, (120 Fla. 209,162 So. 524) the sufficiency of the testimony to sustain the charge of adultery was presented and it was held that the charge was sustained. The facts are viz.:

". . . It was proven that Oldham visited the Connecticut summer house of the McMillans in the summer of 1931 after Dr. McMillan returned to Florida, and that Mrs. McMillan returned in an automobile to Birmingham, via Youngstown, Ohio, with him. It was also proven that Oldham visited Mrs. McMillan at Elkmont, Tennessee, under suspicious circumstances in the summer of 1932. It was proven that Mrs. McMillan met Oldham at the railway station in Pensacola and drove with him fifty miles to Valparaiso where they spent two or three days at the same hotel in rooms conveniently located to each other and under questionable circumstances. The Tutwilder Hotel incidents of November, 1932, and January, 1933, were proven beyond question. It was proven that Oldham spent every weekend with Mrs. McMillan from June 2 to July 10, 1933, at Cottage No. 8, Fairyland, Lookout Mountain, that they played golf together, that he was introduced there and was known as Mrs. McMillan's husband, and that they spent the nights in the same cottage and in the same bedroom. It was proven that they spent the night of June 30 at the Reich Hotel in Gadsden, Alabama, registered under assumed names, and had rooms on the same floor in close proximity. It was proven that they met by appointment at Demopolis, Alabama, registered at the Demopolis Inn under assumed names, and stayed there from noon Saturday until early Monday in the same room with only one bed, and had all their meals served in the room. During all these intervals they were passing letters frequently and their conduct was in other respects such as to excite suspicion."

See Crews v. Crews, 130 Fla. 499, 178 So. 139.

It is our conclusion, after a careful review of all the testimony offered in support of the adultery charge, that the plaintiff below (appellee here) failed to sustain the material allegations of the bill of complaint. The burden by law was cast upon him, but he failed or omitted to carry that burden. The episode at the dead end street, as testified to by DeLoach and Strickland, if considered at its face value, fails and falls short of the law's requirements. It at the most presented an opportunity and created a suspicion that adultery was committed. This is insufficient. The testimony of these two witnesses was materially discredited by the testimony of Sadie DeLoach, Wilkerson, appellee, Hires, and the eleven year old son, and corroborating circumstances. The facts and circumstances adduced in support of the charge of adultery, when considered separate and as a whole, fall short of the approved standards enumerated by this Court in Heath v. Heath,supra, and McMillan v. McMillan, supra.

It is suggested that the chancellor below personally received the evidence, heard the witnesses testify, and observed their demeanor when on the stand, and that the conclusions by him reached should not here be disturbed, in the absence of a showing of abuse of discretion and that this rule is here controlling. The answer to this contention is that the rule contended for is not applicable. The question is the sufficiency of the testimony to support the allegations of adultery appearing in the bill of complaint and not the conflicts and disputes appearing in the testimony alleged to be settled by the terms of the decree.

The evidence discloses that the appellant soon after marriage assumed the menial duties of daily feeding and milking the cows, caring for the chickens about the place, doing all of her cooking, washing, ironing and other household work, and in addition thereto took on the responsibility of rearing appellee's child by a, former marriage then four years of age. There was no aid or assistance rendered appellant by the appellee in these many daily duties or hired help supplied by him. The appellant, after the business was launched at Salerno, went from her home and worked daily in the business. They later moved to Salerno where she continued the aforesaid duties. The business and its growth made heavy demands on her time. She contacted fishing parties, cared for and managed the entire business during many periods of time appellee would be away with fishing parties. She testified that it was her agreement with her husband that she was owner of one-half of the business. The decree permitted her only $2500.00 as compensation for services rendered from August, 1927, until December, 1939, when appellee, late at night, took appellant to the door, shoved her out and then locked the door. She slept two or three nights in the truck then in the garage. When a wife contributes her industry and labor, or when she advances money to a business operated by her husband during coverture, she cannot be deprived of her property, because the law will not permit or allow a forfeiture thereof to the husband when marital difficulties appear on the horizon, but the fruits of her labor and industry, or the money advanced, are special equities for adjudication. See Carlton v. Carlton, 78 Fla. 252,83 So. 87; Taylor v. Taylor, 100 Fla. 1009, 130 So. 713; Heath v. Heath, 103 Fla. 1071, 138 So. 796; Windham v. Windham, 144 Fla. 563, 198 So. 202; Strauss v. Strauss, 148 Fla. 23,3 So.2d 727.

The record discloses the accumulation of considerable property by the parties since the launching of the business at Salerno in 1929 or 1930. It consists of a machine shop, tools and equipment, a marine hardware store and stock, two or three automobiles, a garage apartment, two or three houses, six or seven fishing boats, money on deposit at banks and post office, as well as other property. The several boats were used to carry out fishing parties and were productive of a large daily income. The appellant contributed her industry and labor for a period of ten or twelve years in assisting and helping in the acquisition of these several properties. The decree assigned as error permitted appellant to retain the sum of $2500.00 then on deposit in her name. The appellee sought the aid of a court of equity for the adjudication of his marital differences. One maxim of equity is that a litigant going into equity must go with clean hands, and another is that he who seeks equity must do equity. Equity will not permit or allow appellee to retain the fruits of the industry and labor of his wife over a period of ten or twelve years on the theory that it is forfeited to him because she is guilty of adultery. The appellee while seeking equity must do equity and in so doing is required to surrender the possession and control to the appellant of two-fifths value of all the real and personal property, inclusive of money owned or appearing in his name or by him placed in the name of others, as of December 16, 1939, same being the date he drove appellant from his home to sleep in the truck. The $2500.00 previously received by appellant shall be taken into account. It cannot be denied, as shown by the record, that appellant's labor and industry for many years were large contributing factors to the accumulation of this property.

The evidences offered to show a bad reputation and unfitness of the appellant to be awarded the custody of her children has been examined and it largely consists of community gossip, prejudice, and hearsay testimony and is legally insufficient to support a decree depriving her of the custody thereof if the lower court should conclude, after hearing testimony, that the welfare of the children require an award to their mother.

That part of the final decree dated November 4, 1940, granting a divorce to Toley Engebretsen from his wife Bessie Mae Engebretsen, on the charge of adultery on her part is hereby reversed. That part of the final decree holding that Bessie Mae Engebretsen failed to sustain by competent testimony her charges of extreme cruelty against Toley Engebretsen is reversed, with directions to the chancellor below that a decree of divorce be made and entered in her behalf against her husband, Toley Engebretsen on the charge of extreme cruelty. That part of the final decree denying alimony to Bessie Mae Engebretsen is hereby reversed. That part of the final decree awarding the custody of the two children to Toley Engebretsen is reversed, with directions to the chancellor below to hear testimony and enter an order awarding the custody of the children either to the father or mother, according to their best interest and welfare, and in so doing Bessie Mae Engebretsen be considered and recognized as a fit and suitable person to whom the children may be awarded. That Toley Engebretsen be ordered or required to pay monthly, or more often if necessary, such sums or amounts as may be decreed for the support, care and maintenance of their two minor children. All costs incident to this appeal shall be paid by Toley Engebretsen.

The decree appealed from is hereby affirmed in part and reversed in part.

It is so ordered.

BROWN, C. J., WHITFIELD, TERRELL and THOMAS, JJ., concur.

BUFORD, J., concurs in part and dissents in part.

ADAMS, J., disqualified.