KINCAID v. KINCAID

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Docket Number

No. 37227.

Judges

Smith, J.

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KINCAID v. KINCAID.

Brunini, Brunini Everett, for appellant.

The prospect of rearing her child in the home of a drink-soused husband and father was too much for the appellant, complainant below. Once a capable, successful dentist, her husband had declined into a listless, liquor-soaked boor. Progressively the fragrance of tenderness, love, affection and cooperation, so necessary to happiness in a home, was swept away by the sour fumes of the bottle. Gradually his pride crumbled. His physical strength deteriorated. Her efforts and pleadings were futile against the enveloping tide of degradation. He made promises. Most of all he made excuses, lamely submitted in justification of his inexcusable conduct. To the consequences of his behavior he became indifferent, whether in their apartment, in public places, or the home of his wife's people. As always the tragedy of the situation affected most the welfare of the child. The appellant struggled with the inevitable decision and made it. There was the tense embarrassment of a separation. Then finally the suit for divorce, custody and support. Against the overwhelming, uncontradicted, undenied testimony of all witnesses including the defendant, the chancellor denied the divorce. From his decision the complainant appeals. The decree of the chancellor is against the overwhelming weight of the uncontradicted, undenied testimony to such an extent that his holding is scarcely believable.

The principles here are obvious and elemental. Extended discussion is utterly unnecessary. The cases tell their own story. Tarver v. Lindsey, 161 Miss. 379, "Where, as in this case, the testimony of intelligent witnesses is undisputed, is reasonable in itself and is in reasonable harmony with the physical facts and the facts of common observation among experienced persons, and the witnesses are unimpeached, then the trier of the facts must act on the testimony and cannot reject it, else trials might eventuate in arbitrary results, rather than in the product of judicial determination. It is better that courts may be sometimes wrong, may sometimes fail to find justice, than at any time they shall act arbitrarily, or be bound by anything other than the record of the case as it is made out in court."

Crichton v. Halliburton, 154 Miss. 265, "When there is testimony in the record, not improbable on its face, the chancellor should accept such evidence unless it is contradicted by other evidence."

Stevens v. Stanley, 154 Miss. 627, "Our rule is that the jury, as well as the judge, is bound by uncontradicted, reasonable testimony, although, of course, oral testimony not otherwise contradicted, may be opposed by physical facts or by the facts of common knowledge. The testimony of the appellant and his witnesses in this case is not contradicted by countervailing direct testimony, nor by physical facts, nor by facts of universal, common knowledge."

H.K. Murray, for appellee.

We wish to call the attention of this court to 27 C.J.S. 607, Sec. 58 "Antenuptial Knowledge of Cause. Antenuptial knowledge by the complainant of the cause for divorce ordinarily is a bar to the action. Knowledge by complainant of the cause for divorce at the time the marriage was contracted is a bar to the suit." The following citation is made "Habitual intoxication of a husband affords no ground for divorce where at the time of the marriage the wife knew that he was a slave to intoxicants," — citing authorities.

And again, the same authority, 27 C.J.S. 862, subd. (e) of Sec. 194 Review "Discretion of Lower Court. Unless clearly shown to have been abused, exercise of lower court's discretion in divorce cases will not be reviewed. Although the discretion of the trial court in refusing or granting a divorce is subject to revision by the appellate court, the general rule is that its judgment in this respect will not be reversed unless it is clearly shown that its power has been improperly exercised; and the same rule applies to the court's action on application to modify or vacate a decree, to set aside an order vacating a decree or to grant a new trial, and to incidental matters within the discretion of the court." And, further, under subsection (f) Sec. 194, p. 863, "Sufficiency of evidence generally. A decree granting or refusing a divorce on evidence which is conflicting, as a rule, will not be disturbed. This is especially true where the decree refuses a divorce." Citing authorities which include an Alabama case, Moor v. Moor, 99 So. 316; and a Florida case McDade v. McDade, 146 So. 228; in both of these cases the lower courts denied the complaining wives divorces upon the grounds that their husbands were guilty of habitual drunkenness; and the appellate courts refused to disturb the findings and the decrees of the lower courts.

This honorable court has followed the weight of authority and its decisions are cited in support of the foregoing text: See Sarphie v. Sarphie, 177 So. 358; McNees v. McNees, 24 So.2d 751; and Bell v. Bell, 23 So.2d 800. In all of these cases the Supreme Court refused to disturb the finding and decree of the lower court.

It is submitted that the decisions of this court reversing the lower court on the facts which are cited by the appellant in this case are cases involving property rights. Not a single case has been cited by appellant wherein this court reversed a lower court where that court decreed that a complainant was not entitled to a divorce. The courts of chancery in Mississippi have required complainants to make full, convincing and satisfactory proof orally in open court of the ground or grounds of divorce under the statute before a decree of divorce is granted. There is no leniency shown and it is indeed the public policy of the State of Mississippi that the marriage contract be upheld rather than breached for this or that cause and be cast aside lightly by the courts of the State.

Viewing the entire record in this case, can this honorable court say that the decree of the chancery court of Warren County, Mississippi, was manifestly wrong? The court below had before it the complainant, and her mother and sister and a police officer of Vicksburg; the defendant and his physician. There were no witnesses from Vicksburg where the parties had lived during the two years and four months of their married life. With the exception of complainant's testimony, all of the proof in the case came from complainant's family who resided in Tallulah, Louisiana. Extravagant claims for alimony, support of child, suit money and counsel fee were made by complainant; she sought to show the affluent circumstances of the defendant but failed to do so. The bank account was jointly owned and showed no large amount of money earned. The complainant admitted her knowledge of the drinking habits of defendant who had been drinking with her and members of her family in her home in Tallulah before the marriage and afterward. The interest of the mother-in-law and sister of complainant was plainly shown by their testimony.

1. Divorce — habitual drunkenness — proof, when sufficient.

When on the charge of habitual drunkenness the wife's testimony is amply corroborated, and to a large extent the circumstances in proof are confessed by the husband as a witness in his own behalf, it was error to deny the wife's bill and prayer for a divorce.

2. Divorce — antenuptial knowledge.

The general rule is that knowledge by the complainant of the cause for divorce at the time of the marriage is a bar to a suit for divorce on that ground; but in order to invoke the rule it must be shown that the complainant had actual knowledge of the particular fact or had such reliable information as would lead a reasonably prudent person to believe it, and it is not sufficient merely that the complainant had such information, as if it had been diligently pursued would have led to a discovery of the fact.

3. Divorce — habitual drunkenness — antenuptial knowledge, sufficiency of evidence on that issue.

When the defense to a suit for divorce on the ground of habitual drunkenness is that the complainant wife had antenuptial knowledge of the fact upon which the complaint is based, antenuptial knowledge by the wife that her husband was an occasional and moderate social drinker when there was no evidence that he had been drunk, much less that he was an habitual drunkard before marriage, is not enough to establish the defense.

4. Divorce — alimony.

When the chancellor had decreed a temporary alimony pendente lite of $125 for the support of the wife and the two year old child of the parties, but on the final hearing denied the wife's application for a divorce and denied any alimony to her for herself, the Supreme Court on reversing the decree and entering a decree of divorce will do as the chancellor should have done, that is, would decree that the amount of the temporary alimony be continued as permanent alimony, the evidence having established that the husband was amply able to continue to pay the sum so allowed to supplement the wife's meagre earnings which were inadequate for her proper support.

5. Divorce — attorney's fees.

When the chancellor has erroneously denied the wife's application for divorce and has erroneously denied her any allowance for attorney's fees in the prosecution of her suit in the trial court, the Supreme Court on reversing the decree will order an allowance for attorney's fees and will fix it at the sum which the chancellor should have allowed, in the instant case at $150.00.

6. Divorce — custody of child — when child beyond jurisdiction of the court.

In a divorce suit, the custody of the child of the parties will not be adjudicated when the child is residing outside the state and therefore beyond the jurisdiction of the court.

Headnotes as approved by Smith, J.

Smith, J.

Appellant and appellee are husband and wife, and the parents of one child, who, at the time of the trial in the chancery court, was about two years old, and residing in Tallulah, Louisiana, in custody of the appellant-mother.

Appellant filed suit for divorce, custody of the child, temporary and permanent alimony, together with suit money and attorney's fees. The trial court allowed alimony pendente lite in the sum of $125 per month, to begin February 1, 1948, and to continue until the first day of the April term of the Warren County Chancery Court following. At the trial of this case, a final decree was entered that appellant "be denied a divorce from the defendant and that complainant be denied any alimony from the defendant; that the custody of minor child of the marriage is not adjusted in this cause. It is further ordered and adjudged that the defendant, Robert C. Kincaid, pay to complainant, Elizabeth B. Kincaid, the amount of $65.00 per month for the support and maintainance of Elizabeth Coleman Kincaid, minor child of the marriage." The failure to award custody of the child was apparently due to its then being beyond the jurisdiction of the court, in Tallulah, Louisiana.

(Hn 1) The charge in the divorce bill was habitual drunkenness. Section 2735, Code 1942. The proof overwhelmingly sustained this accusation. Indeed, of the many instances detailed in the evidence, appellee denied only one, while confessing several others. The wife's testimony was amply corroborated. It would serve no useful purpose to discuss these facts further, except to say that on them appellant was entitled to a divorce.

However, the appellee defended on the ground that she had antenuptial knowledge of his drinking habits, and was, therefore, estopped to claim a divorce because thereof. (Hn 2) The general rule relative to this contention is announced to be that knowledge by complainant of the cause for divorce at the time the marriage was consummated is a bar to the suit on that ground. Volume 27 C.J.S., Divorce, Section 58, page 608.

Amis on Divorce, Section 158, states the pertinent law as follows: "If one spouse has knowledge at the time of the marriage, that the other is impotent, or an habitual drunkard, or an habitual drug addict, or has been sentenced to serve a term in the penitentiary, or is insane, or is afflicted with an incurable venereal disease; or if at the time of the marriage the husband knows or has reason to suspect that his wife is pregnant, he or she takes the risks incident to such a marriage and may not be heard to complain thereafter on account of any such known fact; 9 R.C.L. 317, Section 93; C.J. 82, par. 191. [27 C.J.S., Divorce, Section 58]. But mere suspicion based on rumor, or other unreliable information, is not sufficient. In such a case it must be shown that the complainant knew the fact, or had such reliable information as would lead a reasonably prudent person to believe the particular fact. Nor is it sufficient to show merely that the complainant had such information, as if it had been diligently pursued would have led to a discovery of the fact. In order to bar relief in such a case it must appear that the complainant actually knew or had reasonable knowledge of the particular fact. Neither is it sufficient to show that the complainant knew that the defendant occasionally used intoxicating liquors or narcotic drugs. It must, in such a case, be shown that complainant knew or had good reason to believe that the defendant was an habitual drunkard or habitually used narcotic drugs to excess." See also Rankin v. Rankin, Mo. App. Kansas City, 17 S.W.2d 381; Froehlich v. Froehlich, 146 Wn. 175, 262 P. 118; Tilton v. Tilton, 29 S.W. 290, 16 Ky. Law Rep. 538.

In the case at bar, (Hn 3) we are dealing with habitual drunkenness alone, and, hence, limit our decision to that issue, as being the only one involved. This leads to the inquiry, did appellee sufficiently establish that appellant, at the time of the marriage, had knowledge or good reason to believe he was an habitual drunkard? The answer must be, no. The evidence offered by appellee on that point was very weak, and, allowing full latitude to it, fails sufficiently to establish the required antenuptial knowledge by appellant that he was an habitual drunkard at the time of the marriage. At the most, she knew only that he was an occasional and moderate social drinker. There was no evidence that he was drunk prior to marriage, much less that he was an habitual drunkard before marriage; and that being so, his wife, of course, could not have had antenuptial knowledge of a condition not shown to have existed. We, therefore, are of the opinion that appellee's evidence failed to establish such defense, and the court below should not have permitted it to bar appellant's demand for divorce. She had clearly established her right to it by overwhelming proof that appellee, after marriage, became an habitual drunkard.

The chancellor denied attorney's fees and alimony to appellant for herself, but allowed $65 per month for the minor child. (Hn 4) We are of the opinion that he should have also continued the temporary alimony to appellant permanently, and allowed her an attorney's fee. The appellee had a lucrative dental practice, and was shown by the evidence, to a sufficient degree, to be able to supplement the wife's meagre earnings in the amount of $60 per month for herself, in addition to the $65 per month for the child. The proof also manifests that the wife's earnings are inadequate for her proper and necessary support. In our judgment, the chancellor should have entered a decree continuing the temporary alimony allowance of $125 per month for mother and child as permanent alimony, and should have allowed appellant $150 for an attorney's fee. Since he did not do so, it becomes our duty to enter the decree here which he should have entered then and there. We hereby do so, — requiring appellee, starting as of April 1948, to pay appellant the sum of $125 per month, $60 for herself and $65 for the daughter, the same to continue until and unless duly and lawfully modified by properly constituted authority under the law in such cases made and provided. (Hn 5) The appellee shall also at once pay to appellant $150 for an attorney's fee for representing her in the trial court. Whatever amounts may have been paid for support of the infant daughter, since the final decree below, are to be credited to appellee in that behalf.

In view of what we have said above, we reverse the decree of the chancery court denying divorce, attorney's fees, and permanent alimony to appellant, but affirm it as to the allowance for the support of the minor child, and make no adjudication as to its custody, she (Hn 6) being beyond the jurisdiction of this Court. Decree shall, therefore, be entered here, granting appellant a divorce, attorney's fee and permanent alimony for herself and child, accordingly.

Reversed in part, affirmed in part, and decree here.

KINCAID v. KINCAID.

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