Summary
In Atkins v. Atkins, 268 Ala. 428, 108 So.2d 166, the wife testified that several years previously her husband had slapped her, and drawn a knife on her and threatened to kill her. Recently he told her just before leaving for a trip that "when I get my gun for you, I will do worse to you than I did Doyle."
Summary of this case from Ross v. RossOpinion
6 Div. 355.
January 8, 1959.
Appeal from the Circuit Court, Blount County, Frank B. Embry, J.
Johnson Randall, Oneonta, for appellant.
The burden was upon complainant to reasonably satisfy the court that respondent had committed actual violence on the complainant's person attended with danger to her life or health, or that from his conduct there was reasonable apprehension of such violence. Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202; Ussery v. Ussery, 259 Ala. 194, 66 So.2d 182; Code 1940, Tit. 34, § 22. One alleged act of violence which occurred years before the separation cannot standing alone warrant dissolution of the bonds of matrimony. Authorities, supra. The testimony was not sufficient to sustain the decree. Barnett v. Barnett, 266 Ala. 489, 97 So.2d 809.
Jack Martin Bains, Oneonta, for appellee.
In divorce action predicated on ground of cruelty any conduct which furnishes reasonable apprehension that continuance of cohabitation would be attended with bodily harm is legal cruelty though no actual physical violence has been committed. Weems v. Weems, 255 Ala. 210, 50 So.2d 428; Carr v. Carr, 171 Ala. 600, 55 So. 96; Code 1940, Tit. 34, § 22; Harris v. Harris, 230 Ala. 508, 162 So. 102; Sams v. Sams, 242 Ala. 240, 5 So.2d 774.
Lessie Atkins filed a bill of complaint against her husband, Ottis Atkins, for a divorce, charging him, among other things, with cruelty. No question of alimony or custody of children was involved. The trial court granted the divorce on the ground of cruelty.
Appellant contends that the evidence was insufficient to support the decree.
The parties are mature adults. They have four living children, all of whom are over twenty-one except a boy, nineteen, who lives and works away from home.
Lessie Atkins testified that respondent had hit and slapped her, had drawn a knife on her and told her he was going to kill her. It developed that these acts had occurred several years before the bill for divorce was filed. But, she also testified that he had recently threatened her just before he left for a visit to Florida by saying that "when I get my gun for you, I will do worse to you than I did Doyle." Doyle was one of their sons whom, she said her husband had put out of the house at the point of a gun. She further testified that she was afraid of her husband and afraid to live with him. We have held such testimony to be admissible. Hardie v. State, 260 Ala. 75, 68 So.2d 35; Ingram v. State, 252 Ala. 497, 42 So.2d 36; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543.
A divorce will be granted to either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when, from his or her conduct, there is reasonable apprehension of such violence. Tit. 34, § 22, Code 1940, as amended. And the burden of proof is upon the complaining party to establish the statutory grounds for divorce. Barnett v. Barnett, 266 Ala. 489, 97 So.2d 809; Ussery v. Ussery, 259 Ala. 194, 66 So.2d 182; Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202.
Appellant insists that the one alleged act of violence, several years before the present separation, cannot, standing alone, warrant a dissolution of the bonds of matrimony. We agree with this statement. But, in a divorce action predicated on the ground of cruelty, condonation is conditional and a renewal of the causes of complaint revives the right of the condoning party to insist on the former offense. Weems v. Weems, 255 Ala. 210, 50 So.2d 428; Atkins v. Atkins, 254 Ala. 272, 48 So.2d 200; Black v. Black, 199 Ala. 228, 74 So. 338; Turner v. Turner, 44 Ala. 437; Reese v. Reese, 23 Ala. 785.
Lessie Atkins further testified that her husband owns a gun, that he threatened to "get rid of himself" and to "shoot his brains out" and that she is afraid of him and afraid to live with him. Actual violence on the part of the husband is not necessary to constitute legal cruelty. Any conduct on his part which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife is cruelty. Sams v. Sams, 242 Ala. 240, 5 So.2d 774; Harris v. Harris, 230 Ala. 508, 162 So. 102, 103; Smedley v. Smedley, 30 Ala. 714.
We have carefully considered all the testimony in this case and there are some irreconcilable conflicts in the evidence. We feel, however, that there is sufficient evidence to support the allegations that from his manner and conduct towards her, Lessie Atkins had a reasonable apprehension of violence, attended with danger to her life or health, and that the divorce was properly granted. The decree of the lower court is due to be affirmed.
Affirmed.
LAWSON, STAKELY and GOODWYN, JJ., concur.