Armstrong v. Armstrong

The appeal is from a decree granting a divorce from appellant on the ground of becoming addicted after marriage to habitual drunkenness. Section 7407, Code of 1923, subd. 6.

The evidence was not taken orally before the court, but appears to have been taken before the register, and none of the witnesses seen and heard by the trial court. The review here, therefore, of the conclusion of the chancellor on the facts, is, in effect, under our statute, practically de novo. Section 10276, Code 1923; Wade v. Miller, 208 Ala. 264, 93 So. 905.

The bill also contained, as ground for divorce, a charge of cruelty, but this ground was evidently abandoned by counsel for complainant, and properly finds no reference in the decree rendered, as the proof in that aspect was entirely insufficient.

The parties to this suit were married in 1923. They are a young couple with one child, a boy, now 2 years of age. The defendant was only 20 years of age at the time of the marriage, and complainant younger than he. He drank occasionally at that time (which was known to her) and probably sometimes to excess. The proof shows he was a rather steady worker and provided reasonably well, within his means, for his family. At the time of the separation, when the complainant went to her father's, where she still remains, we think it clearly appears from the evidence that it was not considered by those there at the time that she was contemplating any final separation. The testimony of her father, who was present, sustains this conclusion. The separation was on February 9, 1926, and the bill in this cause was filed November 18, 1926, and as to whether or not defendant indulged in intoxicating liquors during this interval, the testimony of complainant does not disclose. McMahon v. McMahon,170 Ala. 338, 54 So. 165.

In Moor v. Moor, 211 Ala. 56, 99 So. 316, some of the authorities were reviewed as to what constitutes becoming addicted to habitual drunkenness, and again in Howell v. Howell, 211 Ala. 415, 100 So. 635, and O'Byrne v. O'Byrne,211 Ala. 450, 100 So. 781. The text from 19 Corpus Juris, p. 596, was quoted with approval:

"Habitual drunkenness is the fixed habit of frequently getting drunk; the term does not necessarily imply a state of continual drunkenness."

And the following from Tatum v. State, 63 Ala. 152, in defining "habit" was approvingly quoted:

"It need not be the uniform or unvarying rule, but, to be a habit, it must be the ordinary course of conduct — the general rule or custom."

From the evidence, it is readily discernible that defendant fell far short of his duties as a husband. Complainant complains that he would be out at times late at night, she thought with other women, but there was no charge of immorality in the bill, and no proof of any concrete facts in reference thereto. That he was too often neglectful of her happiness, clearly appears, but these are matters beside the question here to be determined. To sustain the finding of the trial court, it must sufficiently appear from the proof that defendant had become addicted to habitual drunkenness after the marriage. The evidence has been carefully considered by the court in consultation, and will not be here discussed in detail, as it would serve no useful purpose.

The evidence of complainant upon this question deals much in generalities, but giving due weight to her testimony, when considered in connection with all the other evidence in the case, including neighbors of this couple and those with whom defendant worked, we are persuaded the following observations of this court in Howell v. Howell, supra, are here applicable:

"He occasionally, not frequently, drank to excess; it was not habitual with him; sobriety was the rule, and occasional drinking to excess was the exception in his life. He could not be declared under the evidence as a person who became addicted after his marriage to complainant to habitual drunkenness."

It follows, therefore, as our conclusion, that complainant failed in her effort to establish this ground of her bill for divorce, and that the chancellor erred in decreeing otherwise. The decree rendered must therefore be reversed. This result, however, does not indicate any opinion that there was error as to that portion of the decree leaving the custody of the child with the mother. Considerations of this character rest upon the paramount question of the welfare and best interest of the child. Wohlert v. Wohlert, ante, p. 96, 114 So. 906; Lynn v. Lynn, ante, p. 190, 115 So. 184.

We have deemed it best to reverse the cause, leaving to the chancellor final disposition thereof, including the question of the custody of the child. From the evidence, the husband has shown some interest in and anxiety for a reconciliation. The parties are young, with life before them, and the hope is entertained there may yet be found a way for a reunited household. We may add with due propriety that, under the evidence presented in this record, the trial court correctly ruled as to the child's custody.

It appears that upon submission of this cause appellee presented and submitted a motion that this court require appellant to pay temporary alimony as decreed by the court below, as condition precedent to the prosecution of this appeal, and that, upon his failing to do so, the appeal be dismissed. The record discloses no effort in the court below to enforce payment of this temporary alimony, and no hearing had of any character as to any excuse for a failure to meet these payments, but it is merely averred appellant has failed or refused to do so. Manifestly, under these circumstances, this court, in the exercise of its appellate jurisdiction, is without authority to dismiss the appeal upon this ground, and the motion is denied. Ex parte Floyd, 40 Ala. 116.

The motion is overruled. The decree is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.