McDowell v. McDowell

THAGARD, Presiding Judge.

From a final decree of the Circuit Court ■of Jefferson County, Alabama, in Equity, •awarding appellee (complainant in the court below) a divorce a vinculo matrimonii ■on the ground of statutory .cruelty, together with the custody of the only child of the parties, child support, alimony, and an attorney’s fee, this appeal was taken by appellant (respondent in the court below).

This is the second appeal in this case. 'On the former appeal the Supreme Court ■reversed because of the failure of the lower court to sustain respondent’s demurrer to the bill of complaint. The court said that the bill did not properly and sufficiently charge statutory cruelty. McDowell v. McDowell, 284 Ala. 158, 223 So.2d 277.

After reversal, appellee amended •her complaint, appellant again demurred, and the trial court again overruled. Appellant’s Assignment of Error No. 1 'is directed to that ruling of the trial court. We are of the opinion that the amended complaint sufficiently charged statutory cruelty and was good against demurrer.

Assignments of Error Nos. 2 and 3 say that the trial court erred in granting the divorce, and appellant vigorously argues that the evidence was insufficient to support the charge of statutory cruelty.

There are no unusual .facts or novel propositions of law involved, and we do not think it necessary to dissect the evidence. Suffice it to say that after having carefully studied the briefs and read the transcript of the evidence, and having indulged every • reasonable presumption in favor of the findings of the trial court, we are of the opinion that the findings of the trial court were plainly and palpably wrong and that the divorce should not have been granted. The decree is reversed and the cause remanded for such further proceedings as the parties and the court may see fit to have.

Reversed and remanded.