Opinion
6 Div. 255.
December 14, 1944.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
R. D. Coffman, of Birmingham, and G. P. Benton, of Fairfield, for appellant.
The cross-bill does not sufficiently allege facts showing a voluntary abandonment on the part of complainant entitling respondent to a divorce. Jones v. Jones, 13 Ala. 145; Gray v. Gray, 15 Ala. 779; Crow v. Crow, 23 Ala. 583; Hanberry v. Hanberry, 29 Ala. 719; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95; Farrell v. Farrell, 196 Ala. 167, 71 So. 661; Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Pentecost v. Pentecost, 204 Ala. 152, 85 So. 374; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Thomas v. Thomas, 219 Ala. 196, 121 So. 710; Perry v. Perry, 230 Ala. 502, 162 So. 101; Miller v. Miller, 234 Ala. 453, 175 So. 284.
Bumgardner, Saunders Hawkins, of Bessemer, for appellee.
Husband's act in leaving home and determination not to continue relation due to misconduct of wife justifying husband's act is not assent by husband to separation. Higgins v. Higgins, 222 Ala. 44, 130 So. 677; Ex parte Cox, 230 Ala. 158, 160 So. 230. When acts of wife justify husband in leaving the home, he is not required to seek a reconciliation. Higgins v. Higgins, supra; McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602.
The majority, consisting of GARDNER, C. J., THOMAS, FOSTER, LIVINGSTON, STAKELY, and SIMPSON, JJ., are of opinion that the facts alleged, which will appear in the reporter's statement of the case, show as a matter of law that the wife voluntarily abandoned the husband, and that the case is due to be affirmed. It is so ordered by the court.
Affirmed.
All concur, except BROWN, J., who dissents.
This appeal is from an interlocutory decretal order of the circuit court overruling the demurrer of complainant, the wife, to the cross-bill filed by the husband, appellant, seeking a divorce from the wife on the ground of voluntary abandonment. The pleader does not allege this ground in the terms of the statute, but alleges specific facts which might suggest voluntary abandonment as a matter of fact, but the pleader does not draw the conclusion that the facts alleged constituted voluntary abandonment by the wife from the bed and board for two years next preceding the filing of the cross-bill. Code 1940, Tit. 34, § 20; Perry v. Perry, 230 Ala. 502, 162 So. 101.
The most that can be said of the allegations of the cross-bill is that, if the facts alleged were presented as a matter of evidence, they might support an inference that the conduct alleged constituted voluntary abandonment. This is not sufficient on demurrer, as the rules of good pleading require that, "matters essential to the complainant's right to relief must appear, not by inference, but by direct and unambiguous averment." Duckworth v. Duckworth's, Adm'r, 35 Ala. 70. "In chancery pleadings it is not sufficient merely to aver evidence from which a required fact may be inferred." 8 Ala.Dig., Equity, 143, p. 474; Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971. Taking the allegations of the cross-bill as true, as must be done on demurrer, they affirmatively allege that the husband gathered up his belongings and left the home with the intent to acquire another place of abode, and affords an inference that the separation was by consent of the husband, and does not negative the intention of returning and becoming reconciled as he had done many times before. To constitute voluntary abandonment, "There must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return." Brown v. Brown, 178 Ala. 121, 59 So. 48. On the other hand, these allegations leave it to inference that the wife would allow the husband to return if solicited to do so as she had done before. In the case of Higgins v. Higgins, 222 Ala. 44, 130 So. 677, the opinion was dealing with the sufficiency of testimony given ore tenus to sustain the conclusions of the trial court. The jurisdiction of courts of equity in this state to grant divorces is statutory and limited, and the statute requires that, "The cause for which the divorce is sought must be alleged in the bill." Code 1940, Tit. 34, § 23; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Perry v. Perry, 230 Ala. 502, 162 So. 101; Martin v. Martin, 173 Ala. 106, 55 So. 632.
The better practice is to allege the ground in the language of the statute.
I am, therefore, of the opinion that the court erred in overruling the demurrers to the cross-bill, and that the decree should be reversed.